Freedom of Expression
Press release R52/23
SRFOE expresses concern about the opening of a
criminal investigation against journalists in Guatemala for their coverage of
matters of public interest.
March 29,
2023
Washington
D.C. - The Office of the Special Rapporteur for Freedom of Expression (SRFOE)
of the Inter-American Commission on Human Rights (IACHR) notes with concern the opening of a criminal
investigation against journalists in Guatemala for their coverage of matters of
public interest and warns of reports of self-censorship in the Guatemalan press.
In this regard, the Rapporteur´s Office calls on the State to refrain from
using criminal proceedings against journalists and/or media outlets for acts
related to their work.
According to the information received, on February 28,
2023, the Special Prosecutor's Office against Impunity (FECI) of the Public
Prosecutor's Office (MP) asked the judge to investigate eight people, including
journalists and columnists, for their news coverage of the criminal proceedings
against journalist and president of El
Periódico, José Rubén Zamora. The Prosecutor's Office argued that such
journalistic articles would have "presumably aimed at attacking the
personal sphere of the operators of justice" related to Zamora's case, and
that this could lead to the possible commission of the crime of obstruction of
justice. The head of the Tenth Criminal Court granted the prosecutor's request
and ordered the initiation of an investigation against the journalists to
determine their possible involvement in the alleged crime of obstruction of
justice.
The State emphasized
that it "recognizes the fundamental value of freedom of expression in any
democratic system and how relevant it is for public debate," and that the
judge's decision "does not constitute an isolated persecution against
certain journalists. In the State's opinion, the judge's order to investigate
journalists does not constitute any action that seeks to intimidate
communicators, or to limit or restrict freedom of expression, but rather
demonstrates the existence of evidence that the journalists may have acted in
cooperation with Mr. Zamora to disseminate false information or information
that threatens the integrity, dignity and reputation of officials of the Public
Ministry, with the aim of coercing them, influencing their behavior and
hindering their functions. According to the State, this would constitute
subsequent responsibility under the terms of Article 13(2) of the American
Convention.
The Office of the
Special Rapporteur is concerned that the State presumes that journalistic
coverage of issues of importance to the democratic life of Guatemala could constitute
the crime of obstruction of justice.
For the Rapporteur´s
Office, the simple fact of opening a criminal investigation against the press
as a result of various publications of public interest has severe consequences
for the right of reporters to inform, and the right of society to be informed.
In this regard, the
SRFOE recalls that although the right to freedom of expression is not an
absolute right and may be subject to restrictions, these must meet strict
requirements to be legitimate. In this sense, a fundamental premise of the
inter-American legal framework in this matter is based on the fact that ideas,
information and opinions concerning the behavior of justice operators and the
functioning of the Public
Prosecutor's Office enjoy a high level of protection under the American
Convention. This is so "because it is assumed that in a democratic
society, State institutions or entities as such are exposed to public scrutiny
and criticism, and their activities are inserted in the sphere of public
debate," as the Inter-American Court has stated.
Public officials should be more tolerant and open to criticism of statements
and assessments made by individuals in the exercise of democratic control and
should refrain more rigorously from establishing limitations on these forms of
expression.
The IACHR and its
Office of the Special Rapporteur
have
emphasized
that while the protection of honor may be considered a legitimate objective for
limiting freedom of expression, criminal law is the most restrictive and severe
means of establishing subsequent liability and has serious effects on
democratic control. In this regard, the Inter-American Commission has held
that "the mere threat of being criminally charged for critical expressions
on matters of public interest may provoke self-censorship. The defense against
criminal charges represents a very high cost to the accused and may lead to the
imposition of restrictions on rights. The potential application of a criminal
sanction for criticism of a public official produces or may produce a chilling
effect". In this line, the Inter-American Court specified
that in the case of speeches protected by public interest, such as those
referring to the conduct of public officials in the exercise of their
functions, "the punitive response of the State through criminal law is not
conventionally appropriate to protect the honor of the official".
Finally, the SRFOE emphasizes that these facts are framed
in a context of deteriorating
guarantees for the exercise of freedom of expression in Guatemala, in which at least six journalists have been
forced to leave the country, according to documented
information. In this context, the Rapporteur´s Office received reports
on the increase of self-censorship among journalists, who for fear of being the
target of criminal charges avoid giving coverage to substantial issues in a
democracy, such as judicial proceedings involving public figures of public
notoriety.
In light of the above considerations, the
Special Rapporteur´s Office reiterates to the State the recommendations made in
the 2021
Annual Report of the IACHR on Guatemala, with regard to refrain
from using criminal proceedings against journalists and/or media outlets for
acts related to their work, especially those that may have a negative impact on
the deliberation of information of public interest. Additionally, it calls on
the State to guarantee that all criminal investigations against journalists are
carried out in accordance with international standards on freedom of
expression.
The Office of the Special Rapporteur for Freedom of
Expression is an office created by the Inter-American Commission on Human
Rights (IACHR) to encourage the hemispheric defense of the right to freedom of
thought and expression, considering its fundamental role in the consolidation
and development of the democratic system.
R52/23