Libertad de Expresión

5 - Chapter IV - Evaluation of the Situation of Freedom of Expression in the Hemisphere

A.         Introduction


1.                  This chapter contains an analysis and overview of the status of freedom of expression in countries in the hemisphere.  It indicates the principal problems which exist as well as the progress made in the year 2000. It also includes a discussion of countries meriting special attention by the Special Rapporteur due to the situation of freedom of expression.  This chapter presents all information received by the Office of the Special Rapporteur regarding violations of this right in different OAS Member States.  Additionally, it contains a list of the journalists murdered during the year 2000.


B.        Evaluation


2.                  Freedom of expression continues to be seriously threatened in many States in the hemisphere.  The murder of journalists; the failure to punish those responsible for these murders; threats, attacks and intimidation directed against journalists and the mass media; laws contravening the American Convention on Human Rights and other international instruments; and the use of the judiciary as an instrument for intimidating and harassing journalists are the main reasons that the exercise of the right to freedom of expression is imperiled in the hemisphere.


3.                  The murder of journalists is the most brutal form of curtailing freedom of expression. Based on the information received, seven journalists in different countries in the region were assassinated during 2000 because of their journalistic activities.  This figure is higher than that registered for 1999, when the murders of six journalists were reported.[1]  In 1998, the number of journalists murdered was eighteen.[2] In the two years and four months that the Office of the Special Rapporteur has been working, 31 cases of murders of journalists have been recorded. The seriousness of these assassinations increases alarmingly when investigations to punish the perpetrators of these crimes fail to produce positive results.  With regard to these murders, it is important to recall Principle 9 of the Declaration of Principles on Freedom of Expression, which stipulates:


The murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression. It is the duty of the state to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation.


4.                  Because freedom of expression plays a fundamental role in the functioning of democratic systems, States must work harder to fulfill their obligation to investigate, prosecute and punish the perpetrators of these murders.  The Commission has stated that the failure to seriously investigate, prosecute and punish the material and intellectual authors of these crimes against journalists constitutes a violation not only of due process guarantees and other rights, but also of the right to disseminate information and to express oneself freely and publicly, thereby triggering the international liability of the State. [3] 


5.                  This report includes a special section on the assassinations of journalists that occurred in the year 2000. The circumstances surrounding these assassinations and the related investigations are analyzed in this section. The Special Rapporteur received information about other cases of murders of journalists, which are currently being investigated to determine if these murders were consequences of the victims’ journalistic activities.


6.                  According to the information received on an ongoing basis by the Office of the Special Rapporteur, it is evident that the most common methods of curtailing freedom of expression are physical and psychological threats, harassment, intimidation and the use of domestic legislation to file suit against the press and other social communicators. One section of this chapter presents the information received throughout the year 2000.


7.                  With regard to the domestic legislation of countries in the hemisphere, the Special Rapporteur notes with concern that some States have failed to demonstrate sufficient political will to undertake significant reforms in the area of freedom of expression. To the contrary, desacato (contempt) laws continue to be used to stifle the press and, in countries where there are no such laws, other legal definitions such as defamation and libel are used to stifle the press. Actions of this nature violate Article 13 of the Convention and contravene Principles 10 and 11 of the Declaration of Principles on Freedom of Expression.  Prior censorship, moreover, continues to be applied in many States, even though such actions seriously imperil the right of every person to choose the information that he or she wishes to receive. This violation figures in various international treaties, in the American Convention and, more recently, in Principle 5 of the Declaration.  Further, many Member States continue to violate the freedom of expression of their citizens by requiring licenses and compulsory membership in associations as conditions for journalists to practice in their field. Such measures contravene the provisions of Principle 6 of the Declaration.


8.                  In the Special Rapporteur’s judgment, the strengthening of freedom of expression in the hemisphere necessitates more concerted action by States that reflects a serious commitment to observance of this right.  Significant changes have not been observed in most States and for this reason, the Special Rapporteur stresses once again that stronger steps must be taken in favor of freedom of expression and that the domestic legislation of OAS member States must be made compatible with international standards on freedom of expression.


9.                  In the area of domestic legislation, Guatemala, Peru and Argentina are developing measures directed at offering their citizens full guarantees of the right to freedom of expression. With the collaboration of the Office of the Special Rapporteur, Guatemala has prepared draft legislation regulating the right to access to information. As this report was being published, the Office of the Special Rapporteur received information that this bill had been introduced in Congress. For its part, Argentina introduced a bill to decriminalize the offense of libel and slander, which is currently under debate in the Parliament. This bill was the product of a friendly settlement in a case before the Commission.


10.              With respect to Peru, in February of 2001, the Human Rights Ombudsman introduced a bill before Congress to repeal Article 374 of the Penal Code, which defines the crime of desacato.  This bill is currently under the consideration of the Peruvian Congress. The Special Rapporteur urges the authorities to work for the approval of this bill during the next Congressional sessions. In the case of the Argentine bill, the Special Rapporteur urges the Argentine authorities to expedite the legislative procedures that might lead to the adoption of the decriminalization bill.


11.              The Special Rapporteur expresses his strong interest that these bills be adopted in the near future. The adoption of these bills would constitute a significant step forward for freedom of expression in those countries, as well as an example that should be followed by other member States.


12.              The restoration of the democratic system in Peru, with the attendant improvement in freedom of expression, represents the most significant progress in the area of freedom of expression in the year 2000. On many occasions, the Office of the Special Rapporteur has remarked on the deplorable state of freedom of expression in that country. Through judicial persecution, threats, torture, etc., the regime headed by former president Alberto Fujimori and former intelligence agent Vladimiro Montesinos carried out a campaign of persecution, intimidation and harassment against all those attempting to freely exercise their right to freedom of expression. Clearly, the return to the path of democracy has restored to Peruvian citizens the free exercise of the right to freedom of expression. This is particularly significant for the current Peruvian electoral process. The Office of the Special Rapporteur has had the opportunity to comment on the importance of freedom of expression, especially during electoral processes.


The importance of respect for freedom of expression and information becomes extremely critical in times when citizens need information to elect the individuals who will be responsible for governing them. The State must guarantee, without discrimination, the enjoyment of the rights to transmit and receive information in accordance with respect for the political rights of all citizens to participate in the electoral process, either as candidates or as voters.[4]


13.              Cuba continues to be of primary concern for the Office of the Special Rapporteur as the most critical situation for freedom of expression in the Hemisphere. The absence of a pluralistic democracy translates in practice as a systematic violation of freedom of expression. Compounding this lack of democracy is the government practice of persecuting, intimidating and harassing numerous independent journalists in Cuba.


14.              Regarding the above, The Inter-American Court of Human Rights has stated that “[f]reedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.”[5]  


15.              The Office of the Special Rapporteur considers the state of freedom of expression in Chile to be particularly grave. The practice of prior censorship and the application of desacato laws by the Chilean authorities severely curtail freedom of expression. The Special Rapporteur recognizes the good will of the current administration, as well as its predecessor, to seek mechanisms that will ensure the unrestricted enjoyment of freedom of expression. Nonetheless, the efforts made by the authorities have not yet had the desired results. Cases of prior censorship of films and books, the judicial persecution of journalists Alejandra Matus and José Ale of the newspaper La Tercera, and the recent lawsuit brought against the daily newspaper El Metropolitano are clear examples of the worrisome state of freedom of expression in that country. The Office of the Special Rapporteur is confident that the current Chilean authorities will find mechanisms conducive to the immediate improvement of this situation.


16.              The Special Rapporteur views with great satisfaction the approval by the Chamber of Deputies of the “Ley sobre Libertades de Opinión e Información y Ejercicio de Periodismo” (“Law on Freedom of Opinion and Information and the Practice of Journalism”), known as the Press Law, which among other reforms, modifies Article 6(b) of the State Security Law. Although as of the date of the publication of this report, this law continues to be pending before the Senate, various authorities have expressed the support that exists for the passage of this bill and its prompt conversion into law.  Additionally, the Special Rapporteur received information about a bill that would modify Article 19 of the Constitution, repealing the provision on censorship of films.  The Special Rapporteur expresses his satisfaction with these initiatives, which, if approved, will represent a significant advance towards bringing domestic legislation into conformity with Article 13 of the American Convention.


17.              The Special Rapporteur also notes that the mentioned modifications must be accompanied by other initiatives that would repeal other Chilean legal norms that violate Article 13 of the American Convention, such as the desacato provisions found in the Penal Code. 


18.              The Office of the Special Rapporteur continues to be seriously concerned about the situation of the press in Colombia. The murder of four journalists and the forced exile of seven journalists during the year 2000, without taking into account those who did not report their departure from the country nor the attacks they suffered, and the hundreds of death threats and other attacks on journalists taking place on a daily basis in Colombia present an alarming panorama for the free and full enjoyment of freedom of expression.  In December of 2000, the Office of the Special Rapporteur organized a Workshop on Freedom of Expression in Colombia that was attended by important independent organizations working in defense of this right. These groups agreed to coordinate with the Office of the Special Rapporteur on activities aimed at seeking a rapid solution to this situation. 


19.              The Office of the Special Rapporteur recognizes the efforts made by the Colombian authorities to implement measures that will put an end to the current crisis. In particular, it supports the creation of the Sub-unit specializing in the investigation of murders of journalists within the Human Rights Unit of the Attorney General of the Nation. According to several local organizations, as well as other Colombians consulted, this represents a positive step in the quest for solutions to the current problems. In addition to the work of the Sub-unit, the work of various civil society organizations engaged on a daily basis in the endless task of defending and protecting this right must be recognized.


20.              However, given the seriousness of the internal conflict in Colombia, the Special Rapporteur considers that current efforts are insufficient to ensure full respect for the enjoyment of the right to freedom of expression. Both the work of the Sub-unit and of the independent organizations must be supported with more human and financial resources if they are to be more effective in protecting the physical integrity of journalists in Colombia and the free exercise of their duty to impart information. Attacks on Colombian journalists and the mass media are not only attempts against their physical integrity but also violations of the right of all Colombians to information.


21.              The Special Rapporteur expresses his great concern about some statements made during the year 2000 by Hugo Chavez, President of the Bolivarian Republic of Venezuela, against the press. Public officials like President Chavez must defend, promote and guarantee the full exercise of freedom of expression. In some circumstances, the expressions of public officials, particularly those of the President, can create an  atmosphere of hostility for the free exercise of freedom of expression.  The Office of the Special Rapporteur considers that some expressions of President Chavez during the past year could constitute a mechanism of direct and indirect pressure on the communications media, journalists and other social communicators. Due to the exemplary influence which the President of a Republic has, his expressions might serve as a model for lower ranking public officials who might consider it legitimate to address the media in a similar manner.


22.              In this chapter, the Special Rapporteur also makes reference to information received during the final stages of drafting this report regarding events in Guatemala and Panama which could jeopardize the right to freedom of expression in both countries. Additionally, the Special Rapporteur mentions with concern passage of the law on Compulsory Membership in the Journalists’ Association in Nicaragua and the inquietude expressed by various sectors of Honduran civil society about the existence of serious violations against freedom of expression.


[1] IACHR, Annual Report 1999,  Report of the Office of the Special Rapporteur for Freedom of Expression, April 13, 2000, p.48.

[2] IACHR, Annual Report 1998.  Report of the Office of the Special Rapporteur for Freedom of Expression, April 16, 1999, p.50.

[3] IACHR, Report Nº 50/99, Case 11.739 (Mexico), April 13, 1999. Additionally, the Inter-American Court of Human Rights stated: “The State is obliged to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely or with impunity to the detriment of the rights recognized by the Convention.”

[4] See Annex, Press Release 21/2000 Office of the Special Rapporteur for Freedom of Expression, March 8, 2000.

[5] See Inter-American Court of Human Rights, Compulsory Membership in a Professional Association Prescribed by Law for the Practice of Journalism (Arts. 13 & 29 American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985.  Series A, No. 5, para. 70.