REPORT Nº 11/96
May 3, 1996
On April 21, 1993, Mr. Francisco Martorell and the publishing
house Editorial Planeta, published a book in Argentina titled "Impunidad
diplomática" [Diplomatic Impunity] concerning the circumstances
leading up to the departure of the former ambassador of Argentina in
Chile, Oscar Spinosa Melo. The book was scheduled to go on sale in Chile
the following day.
On April 21, 1993, however, Mr. Andrónico Luksic Craig, a
Chilean businessman, petitioned the Seventh Chamber of the Santiago
Court of Appeals seeking an injunction on the grounds that the book
violated his right to privacy and requesting that it be banned.
The Santiago Appeals Court issued an interlocutory injunction
["orden de no innovar"] that put a temporary stop to the
book's entry, distribution and circulation in Chile pending a final
ruling on the case.
Subsequently, a number of criminal actions were brought against
Mr. Martorell in the Chilean courts by persons alleging that the
contents of the book "Impunidad diplomática" were slanderous
and defamatory. Those cases
are still before Chile's domestic courts.
Litigation in the Chilean courts
On May 31, 1993, the Santiago Court of Appeals, in a two-to-one
decision, granted the petition and issued an injunction (orden de no
innovar) which prohibited the entry and sale of the book in Chile.
Through a "recurso extraordinario" [extraordinary
remedy], an appeal was filed with the Supreme Court of Chile invoking
the constitutional guarantees of freedom of the press. In a unanimous
decision handed down on June 15, 1993, the Supreme Court denied the
appeal and banned circulation of the book.
On June 28, 1993, the Court of Appeals officially notified Mr.
Martorell of its final decision granting the injunction.
PROCEEDINGS IN THE COMMISSION
On December 23, 1993, the Commission received a petition filed by
Human Rights Watch/Americas and the Center for Justice and International
Law (CEJIL) in connection with this case.
The petition alleged that the ban on the entry, distribution, and
circulation of the book "Impunidad diplomática" in Chile was
in violation of Article 13(2) of the American Convention on Human Rights
which protects freedom of thought and expression and specifically
provides that: "The exercise of the right.... shall not be subject
to prior censorship but shall be subject to subsequent imposition of
On February 16, 1994, the Commission forwarded the relevant parts
of the petition to the Government, requesting information on the facts
or other pertinent information within 90 days.
On March 30, 1994, the Commission received additional information
from the petitioners which was transmitted to the Government on April
June, 8, 1994, the Commission received a note from the Government
requesting a 60-day extension for its response to the complaint.
The requested extension was granted.
September 7, 1994, the Government requested another extension, this time
for 30 days. Again, its request was granted.
Commission received the Government's response on October 13, 1994, and
forwarded it to the petitioners on October 28, 1994.
November 16, 1994, the Commission received a communication from CEJIL
and from Human Rights Watch/Americas wherein they explained the terms of
their participation in the case.
December 5, 1994, the Commission received the petitioners' observations
to the Government's rejoinder, the relevant parts of which were
transmitted to the Government on December 19, 1994.
February 1, 1995, a hearing was held on this case, with the petitioners
and representatives of the Chilean State present.
February 6, 1995, the Commission sent letters to the parties putting
itself at their disposal for a friendly settlement of the matter.
The petitioners replied that they would accept the Commission's
proposal provided Chile first lifted the ban on Mr. Martorell's book
"Impunidad diplomática", thus allowing the book to enter
Chile and circulate freely therein.
March 6, 1995, the Government sent the Commission a note containing its
reply to the petitioners' proposal, which was that a friendly settlement
would be out of the question as long as Mr. Martorell refused to answer
to the Chilean courts. This note was forwarded to the petitioners on March 9, 1995.
July 5, 1995, the Government of Chile presented its comments on the
petitioners' observations. It
ratified, in all their parts, the petitions that the Government filed in
its original rejoinder to the complaint.
The petitioners were sent a copy of the Government's comments on
July 18, 1995.
September 8, 1995, a hearing was held on this case, with the petitioners
and representatives of the Chilean State present.
September 14, 1995, pursuant to Article 50 of the American Convention,
the Commission approved Report 20/95 on the instant case and forwarded
it to the Chilean Government on October 6, 1995.
The Government, for its part, responded to the report on February
March 19, 1996, the Commission forwarded Report 11/96 to the Government
of Chile. In its letter of
transmittal the Commission informed the Government that it had given
final approval to the report and ordered its publication.
April 2, 1996, the Commission wrote to the Chilean Government to advise
that the Commission had decided to postpone publication of Report 11/96,
in view of information that the petitioners had sent to the Commission
on March 27 and 29, 1996, reporting new facts.
April 22, 1996, the Permanent Representative of Chile to the
Organization sent a letter to the Commission to convey his Government's
views on the Commission's decision to postpone publication of Report
May 2, 1996, a hearing requested by the petitioners was held in which
they and the representatives of the Chilean Government participated.
Commission is competent to entertain the instant case, inasmuch as it
alleges acts that constitute violations of the rights enshrined in
Article 13 of the Convention.
petition is not pending before any other international procedure for
settlement and does not substantially duplicate a petition already
examined by the Commission.
friendly settlement procedure established under Article 48.1(f) of the
Convention and Article 45 of the Commission's Regulations was proposed
by the Commission but no agreement could be reached.
the record shows, the petitioners have exhausted the
remedies established under Chilean law.
The Government, however, contends that the petition was presented
after the six-month time limit established by Article 46.1(b) of the
Convention and Article 38 of the Commission's Regulations.
POSITION OF THE PARTIES ON THE ADMISSIBILITY OF THE CASE
Government asserts that the final decision on the instant case was the
Chilean Supreme Court ruling of June 15, 1993. According to the
Government, the petitioners confused the date of the Appeals Court's
notification of the Supreme Court's ruling with the actual date of the
Court's final decision. Before
issuing a notification, which is just one part of the execution of a
judgment, the Court must first establish that no appeals are pending.
Government maintains that the complaint was presented to the Commission
based on the date of the Appeal Court's notification, and was thus
outside of the six-month time limit established in Article 46.1.b of the
Convention and Articles 35.b and 38.1 of the Commission's Regulations.
Based on this argument, the Government requested that the
Commission declare the petition inadmissible.
petitioners allege that the Commission should consider June 28, 1993 as
the date from which the six-month period established in Article 46.1(b)
of the Convention should be calculated.
The date of June 28, 1993 corresponds to the date of the personal
notification by the Court of Appeals, informing the petitioner that the
Supreme Court had confirmed the decision prohibiting the entry and
distribution of the book "Impunidad diplomática" in Chile.
petitioners further argued that because the complete ban on the entry,
distribution, and circulation of the book in Chile constituted a
continuous violation, the six-month time limit did not apply in the
THE COMMISSION'S ANALYSIS ON ADMISSIBILITY
six-month time limit established by Article 46.1 (b) of the Convention
has a twofold purpose: to ensure legal certainty and to provide the
person concerned with sufficient time to consider his position.
to what the Chilean Government argues in the instant case, the six-month
time limit should not begin as of the date on which the Supreme Court
handed down the final ruling; rather, it should begin as of "the
date on which the party alleging violation of his rights was notified of
the final judgment", as the American Convention stipulates.
Commission, therefore, considers that the complaint filed by the
petitioners in the instant case was presented within the time period
stipulated in Article 46.1(b) of the American Convention and Article 38
of the Commission's Regulations and so finds that said petition is
Commission further considers that the interpretation of the provision
cited in the preceding paragraph should not be overly formalistic and
thus compromise the interests of justice.
On this point, the Inter-American Court has held that:
It is generally accepted that the procedural system is a means of
attaining justice and that the latter cannot be sacrificed for the sake
of mere formalities. Keeping within certain timely and reasonable
limits, some omission or delays in complying with procedure may be
excused, provided that a suitable balance between justice and legal
certainty is preserved.
POSITION OF THE PARTIES ON THE MERITS
petitioners assert that the Convention, when it guarantees liberty of
thought and expression, seeks to preserve individual autonomy by
recognizing and protecting the rights to express, create and receive
information. The protection
of this right ensures democratic government by guaranteeing a free
exchange of ideas in public affairs.
13 guarantees the freedom to "seek, receive, and impart information
and ideas of all kinds" through the medium of one's choice.
The Convention's purpose is to afford every opportunity for one
to engage in public debate not merely by guaranteeing freedom of thought
but also by recognizing the collective right to be informed and the
right of reply. The
Convention guarantees freedom of expression in such manner as to also
protect the right to a diversity of sources of information. The right of
reply is guaranteed in order to ensure that anyone injured by inaccurate
or libelous information has access to the communication outlet.
a consequence of this liberal interpretation of the concept of freedom
of thought and expression, any restrictions on those rights are subject
to strict limitations. The
Convention contains general norms that provide for possible restrictions
to the rights it guarantees. However,
in the case of freedom of thought and expression those provisions must
be interpreted in accordance with the specific restrictions stipulated
in Article 13 of the Convention.
petitioners further asserted that prior censorship of Mr. Martorell's
book violated an explicit prohibition present in Article 13(2) of the
Convention, which draws a clear and intentional distinction between
prior censorship and subsequent imposition of liability.
The petitioners argued that the former was expressly prohibited
while the latter was permissible only when necessary to ensure respect
for the rights and reputation of others.
freedom of expression is a basic right, the Convention strictly
prohibits any prior censorship as a means to protect the right to honor,
and provides that the subsequent imposition of liability constitutes the
only adequate and acceptable means of avoiding abuses in the exercise of
freedom of expression.
Government of Chile argued that the conflict between freedom of
expression and the right to honor and dignity was a difficult issue.
The United Nations Covenant on Civil and Political Rights, to
which Chile is also party, provides that freedom of expression (though
not of opinion) may be subject to limitations, which are to be
prescribed by law when necessary to ensure respect for the rights and
reputation of others.
V of the American Declaration of the Rights and Duties of Man recognizes
Every person has the right to the protection of the law against
abusive attacks upon his honor, his reputation, and his private and
Article 11, the Convention also recognizes the right to have one's honor
and personal dignity protected, paragraph 3 of which states that:
Everyone has the right to the protection of the law against such
interference or attacks.
Government further argued that it was subject to different and
conflicting obligations under the United Nations Covenant on Civil and
Political Rights on the one hand and the American Convention on the
other. The Government's
contention was that the obligations established by the Covenant were
fundamentally different from those established by the American
Convention, but that the Chilean State was duty-bound to respect both
instruments. By stipulating
that this right is subject only to the subsequent imposition of
liability, the Convention is not as liberal as the Covenant, which
permits restrictions provided by law to protect the rights and
reputation of others. The
Covenant makes a distinction between freedom of expression and the right
to freedom of opinion. The first may be subject to a number of
restrictions while the second is an absolute right.
Government argued that the action taken against the publication and
circulation of the book titled "Impunidad diplomática" did
not infringe upon the author's freedom of opinion, as its contents did
not express the author's opinions or thoughts but only slanderous and
offensive material about the private lives of a number of individuals.
Government also cited Article 25, which establishes the right to a
simple and prompt recourse for the protection of the rights guaranteed
by the Convention. According
to the Government, this provision requires that the recourse be adequate
to guarantee the rights protected under the Convention even before a
violation actually takes place, whenever a right is in imminent danger
of being violated. Such was
the petition for protection exercised in the instant case.
to the Government, Chilean law strikes the proper balance between the
right to honor and privacy and freedom of expression.
Although prior censorship is unacceptable and contrary to
democratic government, this is not to say that it cannot be used in
certain exceptional cases for which the law provides.
Chile the executive and judicial branches of government are completely
separate. In the instant case, it was not the Government that brought
suit against the book and the decision in question was an independent
ruling of the courts based on Chilean law.
In the Government's opinion, an independent decision by the
Judiciary granting a remedy allowed under the Constitution can hardly be
said to constitute a violation of a human right.
despite numerous complaints filed with the Chilean courts, the
subsequent imposition of liability has thus far been impossible because
of the defendant's refusal to answer to the Chilean courts.
In the opinion of the Chilean Government the petitioner cannot
demand his right to freedom of expression as long as he remains
unwilling to accept the rulings of the Chilean courts in the cases
brought against him for the facts alleged in the book in question.
The provisions of Article 13
Government of Chile does not dispute the facts alleged in the complaint.
It does, however, question the following:
first, whether the decisions of the Chilean courts to ban the
entry, circulation, and distribution of the book "Impunidad diplomática"
in Chile are in violation of the right protected by Article 13 of the
second, whether the violation of this right can be justified, as
the Government contends, by virtue of the violation of another right
such as the right to have one's honor and dignity protected, recognized
in Article 11 of the Convention;
finally, whether Mr. Martorell, by his conduct, would be
prevented from petitioning the Commission to guarantee the enjoyment of
the right he claims.
of these arguments by the Chilean Government will be examined.
The right to publish, circulate and distribute a book without
Article 13 of the Convention states that:
Everyone has the right to freedom of thought and expression. This
right includes freedom to seek, receive, and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing,
in print, in the form of art, or through any other medium of one's
The exercise of the right provided for in the foregoing paragraph
shall not be subject to prior censorship but shall be subject to
subsequent imposition of liability, which shall be expressly established
by law to the extent necessary to ensure:
respect for the rights or reputation of others; or
the protection of national security, public order, or public
health or morals.
The right of expression may not be restricted by indirect methods
or means, such as the abuse of government or private controls over
newsprint, radio broadcasting frequencies, or equipment used in the
dissemination of information, or by any other means tending to impede
the communication and circulation of ideas and opinions.
Notwithstanding the provisions of paragraph 2 above, public
entertainments may be subject by law to prior censorship for the sole
purpose of regulating access to them for the moral protection of
childhood and adolescence.
Any propaganda for war and any advocacy of national, racial, or
religious hatred that constitute incitements to lawless violence or to
any other similar action against any person or group of persons on any
grounds including those of race, color or religion, language, or
national origin shall be considered as offenses punishable by law.
13 establishes a dual right: the right to express thoughts and ideas,
and the right to receive them. Therefore,
arbitrary interference that infringes this right affects not just the
individual right to express information and ideas but also the right of
the community as a whole to receive information and ideas of all kinds.
The Inter-American Court has held the following in this regard:
...when an individual's freedom of expression is unlawfully
restricted, it is not only the right of that individual that is being
violated, but also the right of all others to "receive"
information and ideas. The right protected by Article 13 consequently has a special
scope and character, which are evidenced by the dual aspect of freedom
of expression. It requires,
on the one hand, that no one be arbitrarily limited or impeded in
expressing his own thoughts. In
that sense, it is a right that belongs to each individual.
Its second aspect, on the other hand, implies a collective right
to receive any information whatsoever and to have access to the thoughts
expressed by others.
the same advisory opinion, the Court stated that the two dimensions of
freedom of expression must be guaranteed simultaneously.
Convention allows restrictions to be imposed on the right to freedom of
expression in order to protect the community from certain offensive
manifestations and prevent the abusive exercise of that right.
Article 13 authorizes certain restrictions to the exercise of
this right and sets out the permissible limits and the requirements
necessary to put these restrictions into practice.
The principle set forth in that article is clear in that prior
censorship is incompatible with the full enjoyment of the rights
protected therein. The
exception is the one contained in paragraph 4, which allows censorship
of "public entertainments" for the moral protection of
children. The only
restriction authorized by Article 13 is the subsequent imposition of
liability. Moreover, any
subsequent imposition of liability must have been previously established
by law and may only be to the extent 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
prohibition of prior censorship, with the exception present in paragraph
4 of Article 13, is absolute and is unique to the American Convention,
as neither the European Convention nor the Covenant on Civil and
Political Rights contains similar provisions. The fact that no other
exception to this provision is provided is indicative of the importance
that the authors of the Convention attached to the need to express and
receive any kind of information, thoughts, opinions and ideas.
Court underscored the fact that freedom of expression is a basic right
when it held that:
Freedom 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 truly
Article 13, any restriction of the rights and guarantees contained
therein must take the form of a subsequent imposition of liability.
Abusive exercise of freedom of expression may not be subject to
any other kind of limitation. As
that article indicates, anyone who has exercised this freedom shall be
answerable for the consequences for which he is responsible.
on this reasoning, the Commission considers that the decision to ban the
entry, circulation, and distribution of the book "Impunidad diplomática"
in Chile violates the right to impart "information and ideas of all
kinds", a right that Chile is bound to respect as a State Party to
the American Convention. In
other words, the decision is an unlawful restriction of the right to
freedom of expression, in the form of an act of prior censorship
disallowed by Article 13 of the Convention.
The rights to privacy, honor and dignity
Commission will now analyze the second issue raised by the Government of
Chile in the instant case: the
obligation to protect the right to honor and dignity and its possible
conflict with the right to freedom of expression.
Government of Chile has pointed out that the rights to honor and dignity
often conflict with freedom of expression, that the State must endeavor
to balance these rights with the guarantees inherent in freedom of
expression, and that a right may be sacrificed for the sake of what is
considered to be a higher right.
American Convention recognizes that restrictions may exist when the
different rights protected therein are in conflict.
Furthermore, the text of Article 13 recognizes that the right to
freedom of expression is subject to restrictions in order to
ensure "respect for the rights and reputations of
the opinion of the Government of Chile and of the Chilean courts that
ruled on this matter, when the provisions of Article 11 that protect
one's right to have one's honor and dignity respected and those of
Article 13 that recognize freedom of expression are in conflict, the
former should prevail.
petitioners, on the other hand, argued that they did not offer any
evidence in connection with the alleged violation of honor and dignity
because that issue was being litigated in the Chilean courts, not
in the Commission proceedings; consequently, it was not up to the
Commission to make any pronouncement on that issue.
American Convention recognizes and protects the right to privacy, honor
and dignity in Article 11. This
article acknowledges the importance of individual honor and dignity by
stipulating the obligation to respect those rights, that these rights
should be free from arbitrary or abusive interference or abusive
attacks, and that everyone has the right to the protection of the law
against such interference or attacks.
Articles 1 and 2 of the Convention establish an obligation to ensure the
rights protected by the Convention, and
require that the States Parties adopt "such legislative or
other measures as may be necessary to give effect to those rights
(recognized in the Convention) or freedoms."
Accordingly, all the States Parties to the Convention have an
obligation to ensure that these rights are adequately and effectively
protected by their domestic legal systems.
the Convention the State of Chile has a positive obligation to protect
persons within its jurisdiction from violations of the right to privacy
and, whenever that right is breached, to provide remedies that are
prompt, effective and adequate to redress any injury caused by a
violation of that right.
the instant case it is alleged that the content of the book "Impunidad
diplomática" impugned the honor of some persons and that, under
the pretext of describing the circumstances which led to the Argentine
ambassador's departure from Chile, a number of unrelated attacks were
made on private individuals. According
to the Government, these attacks were described as so severe that only a
complete ban of the book could be deemed an adequate and effective
solution to protect the victims' right to privacy and their honor.
Commission considers that it is not for the Commission to examine the
content of the book in question or the conduct of Mr. Martorell, because
it does not have competence in the matter and because the right to honor
is duly protected under Chilean law.
Moreover, as the proceedings in the instant case show, those
persons who believe that their honor and dignity have been impugned
have, in the Chilean courts, adequate remedies to settle that question.
that reason, the Commission cannot accept the Chilean Government's
argument that the right to honor would be higher than the right to
freedom of expression.
Article 29, paragraph a) provides the following:
No provision of this Convention shall be interpreted as:
permitting any State Party, group, or person to suppress the
enjoyment or exercise of the rights and freedoms recognized in this
Convention or to restrict them to a greater extent than is provided for
For its part, Article 32(2) stipulates that:
The rights of each person are limited by the rights of others, by
the security of all, and by the just demands of the general welfare, in
a democratic society.
is the Commission's view that the rights upheld in these articles do
not, contrary to what the Government argued, create conflicting
principles necessitating a choice of one over the other.
the organs of the State cannot interpret the provisions of Article 11 in
a manner that violates Article 13, which prohibits prior censorship.
In its rejoinder to the petitioners' complaint, the Government of
Chile argued that:
The instant case is not one in which publication of an opinion,
thought or idea has been thwarted; instead, it is an attempt to protect
the honor of persons, as authorized -or better said, as required- under
the Convention, the Covenant and the Chilean Constitution, all of which
are in complete unison on this subject.
Commission cannot accept the Government's argument, because the means
that the Chilean State used to protect honor in the instant case were
unlawful. To accept Chile's
position in the case of Mr. Martorell would be tantamount to giving the
organs of the State the authority to limit, through prior censorship,
the right to freedom of expression upheld in Article 13 of the American
legislating the protection of honor and dignity referred to in Article
11 of the American Convention -and when applying the relevant provisions
of domestic law on this subject- States Parties have an obligation to
respect the right of freedom of expression.
Prior censorship, regardless of its form, is contrary to the
system that Article 13 of the Convention guarantees.
the Commission's judgment, any potential conflict in the application of
articles 11 and 13 of the Convention can be resolved by resorting to the
language of Article 13 itself, which brings up the third point of
Subsequent responsibilities of one who violates the right to
the case file shows, in his arguments before the Chilean courts, Mr.
Martorell's attorney stated that:
... if a proper legal judgement in which all legal guarantees are
present ultimately finds that some abuse or crime has been committed in
the exercise of this constitutional guarantee, he will have to answer
for it when the time comes. Under
our legal system, the proper means is to bring a complaint in court.
the final paragraph of chapter VII of its rejoinder, the Chilean
Government states the following:
If the Commission believes that the Chilean State, by a ruling of
its courts, has violated the Convention, it should at least demand that
the petitioner present himself to accept the responsibilities that the
Convention itself requires of him and that he so conspicuously announced
in his petition.
at the hearing held on May 2, 1996, it was established that Mr.
Martorell has been convicted both in a criminal court and a civil court
and has agreed to return to Chile to be notified of the court ruling.
That being the case, the question raised by the Chilean
Government is moot and therefore need not be entertained by the
PROCESSING OF REPORT 20/95
the course of its 90th session, held in September 1995, the Commission
adopted Report 20/95 in connection with this case.
The Report found that in the instant case, the State had violated
Article 13 of the American Convention on Human Rights.
October 6, 1995, the Commission forwarded the Report to the Government
of Chile with the request that within three months of that date,
"it kindly inform the Commission of the measures taken to correct
the situation denounced."
Note No. 003/96, dated January 6, 1996, the Government of Chile
requested a 30-day extension for its response to the report.
its reply of February 1, 1996, concerning the measures adopted in
relation to Report 20/95 on Case Nº 11,230, the Government of Chile
states, inter alia, that:
It will take all measures available to it to comply with that
Report; that it will officially transmit the resolution to the President
of the Supreme Court so that the Chilean Judiciary may adopt its
decisions in this regard in keeping with the jurisprudence of the
Inter-American Commission on Human Rights established by the American
Convention on Human Rights, to which Chile is a State Party; that
Article 25 of the Convention establishes the right to effective
recourse to the courts when fundamental rights are violated, and the
obligation of the State to ensure enforcement of the decisions of those
courts; that a study having been made of the country's laws and of the
correspondence between them and the American Convention, the conclusion
reached was that Article 29.12 of the Chilean Constitution and Article
13 of the American Convention are in complete agreement.
Concerning public entertainments that may be subject to prior
censorship for the moral protection of children, the Chilean Constitution
provides the following in the final paragraph of Article 19.12:
"The law shall establish a censorship system for showing and
advertising motion pictures."
CONCLUSIONS AND RECOMMENDATIONS
a ruling of the Supreme Court of Justice of June 15, 1993, barring the
entry, distribution and circulation in Chile of the book "Impunidad
by Mr. Francisco Martorell, the Chilean State has violated Article 13 of
the American Convention on Human Rights;
note received from the Government of Chile in reply to Report 20/95
contains no new information to refute the facts charged or to show that
adequate measures have been taken to correct the situation denounced,
processing this case, all legal and regulatory procedures stipulated in
the American Convention on Human Rights and in the Regulations of the
Commission have been observed, fulfilled and exhausted,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
recommend to the State of Chile that it lift the ban placed on the book
"Impunidad diplomática" in violation of Article 13 of the
recommend that the State of Chile take the necessary measures so that
Mr. Francisco Martorell can bring the book mentioned in the preceding
paragraph into Chile, and circulate and market it there.
publish this report, pursuant to Article 48 of the Regulations of the
Commission and Article 51.3 of the Convention in view of the fact that
the Government of Chile has failed to adopt the requisite measures to
remedy the situation denounced within the period granted.
COMMISSIONER ALVARO TIRADO MEJÍA
I should like to explain the reasons for my dissenting vote in
regard to the decision adopted at its May 3, 1996 meeting by the
Inter-American Commission of Human Rights with respect to Case 11.230
It is my belief that, at the time that decision was reached, the
Commission was not in a position to do so, for the following reasons:
On September 14, 1995, during the 90th Regular Session, the
Commission approved the Report, pursuant to Article 50 of the American
Convention, as well as the transmittal thereof to the Government of
On March 1, 1996, at its 91st Regular Session, held in
Washington, the Commission approved the text of the final report and its
publication in the 1995 Annual Report. The Secretariat complied with this decision, and Report
11.230 was printed on pages 79-95 (in the Spanish text) of the Annual
On March 19, 1996, the Commission--by means of a note from the
Secretariat--informed Chile's Minister of Foreign Relations, José
Manuel Insulsa, that "The Commission has given final approval to
that Report and has ordered its publication."
A copy of the decision to that effect was also sent.
On March 28, 1996, the IACHR Secretariat notified the
petitioner's representatives--José Miguel Vivanco, Juan Méndez and
Viviana Krsticevic, of Human Rights Watch/Americas and CEJIL--that the
Commission had "approved final report No. 11/96 on the
aforementioned case, concerning Francisco Martorell," and enclosed
a copy of the report.
On March 29, 1996, the persons holding the petitioner's
power of attorney sent a communication to the IACHR Secretariat,
acknowledging receipt of the report and requesting that the
publication thereof be suspended because they found that it
contained "grave errors in the presentation of the facts,"
which had to do with a document sent to the Commission on March 27 as
On April 1, 1996, the Commission held a meeting by telephone,
during which it was decided to postpone publication of the report.
In the course of our discussion, I expressed my reservations
concerning the Commission's competence to change something which had
already been decided and announced; and also concerning the advisability
of such action.
At its May 3, 1996 meeting, the Commission approved a report on
the case that contained a new text, different from the one that had been
approved on March 1 of that year.
As I said to the Commission at the time--and now repeat in this
explanatory document, my dissenting vote was due to my belief that the
Commission was not competent to amend a decision which had been
discussed and unanimously approved, the publication of which had already
been ordered and notice sent to the parties.
That action has no basis in the American Convention: it is
contrary to the juridical security essential to the system, on which the
parties rely as a guarantee. It
could also establish a bad precedent.
Since I consider the new decision to be invalid, I shall not
enter into conjectures regarding the changes to which it was subject, or
the facts and considerations which were left unsaid, or whether or not
the facts that were introduced as new had been substantiated.
At the same time, as I said during our deliberations and when I
cast the dissenting vote, this does not mean that I withdraw from the
position which I espoused along with the other members of the Commission
when we approved the Report on March 1, 1996: i.e., that the State of
Chile had, through a decision of its Judiciary, violated article 13 of
the American Convention when it prohibited the entry, distribution and
circulation of a book.
COMMUNICATION OF THE GOVERNMENT OF CHILE
On March 24, 1997, the Chairman of the Commission, received a
letter from the Vice-Minister of Foreign Affairs of Chile, Mr. Mariano
Fernández Amunategui, that reads as follow:
I refer to the Reports dated March 1, 1996 (OEA/SER/L/V/II.91
Doc. 24) and May 3, 1996 (OEA/SER/L/V/II.91 Doc. 24 Rev. 1), both
numbered 11/96, which were adopted by the Inter-American Commission on
Human Rights, at its 91st Regular Session and 92nd Special Session,
respectively, in respect of case 11.230, whose petitioner is Mr.
Francisco Martorell, both of which were reported to the Government of
Chile as the Commission's final and definitive decision in this case.
In the first of the above-noted reports the Commission
unanimously, with the exception of Commissioner Claudio Grossman, who
under the regulations was required to refrain from participating and
voting, reached the conclusion that the Chilean State, by the decision
of the Supreme Court of Justice to prohibit the entry, distribution, and
circulation of the book "Impunidad Diplomática," by Mr.
Francisco Martorell, had violated Article 13 of the American Convention.
Nonetheless, in that first report, the same Commission affirmed
that the petitioner, Mr. Martorell, had eluded the responsibilities that
derived from the publication of his book, indicating that it was not in
a position to adopt measures aimed at protecting him from the violation
of the right, as it could not "endorse the conduct of Mr. Martorell."
The Commission later added:
... The whole structure and even the ideology underlying the
Convention, whose oversight has been entrusted to the Commission, lies
in the assumption that all the rights it establishes may be exercised
without causing detriment to the others.
In the situation under analysis, as has already been expressed,
the counterpart of Mr. Martorell's rights to publish, circulate, and
distribute his book in Chile without prior censorship is that he be held
liable, before the Chilean courts, for the abuses he committed against
the other persons' rights to their reputation.
If one who is claiming to exercise a right can evade the
responsibility indicated in Article 13 of the Convention, the whole
balance struck in the Convention would be altered....
Until Report 11/96 was issued on March 1, 1996, the procedural
rules provided for in the Convention, particularly Articles 50 and 51,
had been abided by rigorously; consequently, the Government of Chile
still considers it to be the only valid report, and the only one by
which it is legally bound.
Nonetheless, the Commission, in a special session on May 3, 1996,
adopted a new report, not unanimously, but with a dissenting vote by
Commissioner Alvaro Tirado Mejía, whose contents differed from the
report adopted on March 1. In
that report all references are to the subsequent liability of Mr.
Martorell, which, it should also be noted, is a requirement of Article
13 of the American Convention.
In summary, though no provision of the Convention justifies the
preparation of a new report, the IACHR adopted a text that is
substantially different from that which it reported to the Government of
Chile as the definitive report. It
is clear in light of the applicable rules of the American Convention on
Human Rights that the Commission lacks jurisdiction to proceed in this
The decision noted above introduced an element of uncertainty and
a worrisome factor of juridical insecurity into the individual
communications before the IACHR.
In his dissenting vote, Commissioner Tirado expressed his
disagreement with the action of the Commission, as it "... did not
have jurisdiction to modify a procedural decision debated and approved
unanimously...," and in addition because in so proceeding "...
it finds no basis in the American Convention, it is contrary to the
juridical security that the system requires and that the parties need as
a guarantee, and it could set a bad precedent...."
His views aptly summarize the apprehensions of the Government of
In view of the need to clarify and define the validity of the
procedure applied by the IACHR in the case in consideration, the
Government of Chile decided to seek the legal opinion of the
Inter-American Court of Human Rights, requesting an advisory opinion as
to whether the Commission has the power to modify substantially the
Article 50 and 51 reports, and issue a third report, once it has adopted
the two reports contemplated in Articles 50 and 51 of the Convention,
and where with respect to the Article 51 report it has notified the
respective state that it was a final report.
While the request for an advisory opinion touches on a legal
point of the utmost practical importance, it has not kept some
commentators from tending to misrepresent the scope and purpose of the
initiative adopted by my Government.
And so it has been noted that the advisory opinion in question
had the purpose of countering the resolution in the "Martorell
case," or that it was aimed at challenging a recommendation of the
Commission indirectly, by seeking an advisory opinion aimed at calling
into question procedural or jurisdictional functions of the Commission.
Comments such as these have failed to perceive the real will that
motivates the Government to turn to the Inter-American Court, i.e. to
bring to light a possible difference between the Government of Chile and
the Commission as to which of the two reports referred to prevails.
Nonetheless, a more careful analysis of the matter has led my
Government to the conviction that such a difference probably does not
exist. In effect, as to the merits, the Government of Chile has had
no difference with the Commission, for as we have said repeatedly, in
Chile there is broad freedom of expression and opinion, which is set
forth in our Constitution in the same terms as in the American
Convention on Human Rights.
These views on the extent of the freedom of expression and
opinion have also been endorsed by the General Assembly of the OAS,
which in AG/RES. 1331 (XXV-O/95), voted for by Chile along with the
other member states of the Organization, provides in its operative
To reiterate that freedom of speech prevails in any democratic
society; it should not be subject to prior censorship but should entail
subsequent liability for any abuse thereof, in accordance with such
internal laws as the member states have legitimately established to
guarantee respect for the rights or reputations of others or to protect
national security, law and order, or public health or morals.
In terms of the procedural aspects involved in the case, as noted
above, for the Government of Chile only the report of March 1, 1996, can
have effect; consequently, it shall continue to ensure that its conduct
conforms to the terms of that report.
As I noted in my letter of February 1, 1996, to the Commission in
respect of this case, the Government of Chile, along with reiterating
the importance it places on the inter-American human rights system, will
adopt all measures within its reach to comply with the above-mentioned
In light of the foregoing, it is neither advisable or necessary
for the Government of Chile to persist in a debate with the Commission
regarding this matter, which has given rise to mistaken or ill-advised
positions, especially when it is a decided purpose of my Government to
continue to have the most fruitful relations of cooperation with the
Commission, so as to make it possible, through a dialogue both bilateral
and multilateral to strengthen the inter-American human rights system,
to overcome situations such as have arisen in this case, and to prevent
them from recurring in the future.
Based on the foregoing considerations, the Government of Chile
communicates to the Commission presided over by Your Excellency its
decision to withdraw the request for an advisory opinion filed with the
Inter-American Court of Human Rights, and consequently kindly requests
that this Note be published together with the report issued on case
(*) Commissioner Claudio Grossman, national of Chile, did not participate in the discussion and voting on this case, in accordance to Article 19 of the Regulations of the Commission.
 In its decision in the Sunday Times case, the European Court
of Human Rights stated that it was "faced not with a choice
between conflicting principles, one of which is freedom of
expression, but with a principle of freedom of expression that is
subject to a number of exceptions which must be narrowly
Court of Human Rights, Sunday Times Case, Judgment of 26 April 1979,
Series A, Nº 30 para. 65.
It should be noted that the Commission's view in this matter is that
it should be interpreted in light of the statement made by the
Commission in its report on the situation of Human Rights in
the other hand, it is not the Commission's role to substitute for
the State in investigating and punishing violations committed by
it falls to the Commission to protect persons whose rights have been
injured by agents or organs of the State.
The ultimate reason for international bodies to protect human
rights, as in the case of the IACHR, lies in the need to have means
of recourse when human rights have been violated by state agents or
organs. [See the Report
on the Situation of Human Rights in Argentina (OEA/Ser.L/VII.49),
doc. 19, April ll, 1980, page 26.]
Much the same opinion was pronounced by
the Commission at the public hearing on preliminary exceptions held
on June 16, 1987 in the Fairen Garbi and Solis Corrales
hearing at the Inter-American Court of Human Rights.
Ad hoc Judge Rigoberto Espinal Irias asked the Commission,
with reference to that case, if there could be "any possible
relationship or tie between the violation of human rights and the
so-called Clean Hands Theory, well known in international law."
The Commission's response to the ad hoc judge's question was
answer is obviously no. The Commission protects human beings, irrespective of their
ideology or their behavior. Certain rights are inherent to every
person, the right to life being the most important of all.
Regardless of ideology, behavior or nature, if a person does
not have "clean hands" it is of course the state's duty to
conduct a regular proceeding against that person.
But under no circumstances does that mean that a country can
execute the person, and certainly not by such a perverse method as
forced disappearance. That
is entirely unacceptable. There
are no first and second-class citizens in diplomatic protection,
Your Honor. The
Commission has never asked about a person's ideology or
And it never will. [Response
of Dr. Edmundo Vargas Carreño, Executive Secretary of the
Inter-American Commission on human Rights, in Series D: Pleadings,
Oral Arguments and Documents, page 182.]