THE RIGHT TO FREEDOM OF THOUGHT AND EXPRESSION
1. The right to freedom of thought and expression is essential for the development of democracy and for the full exercise of human rights. The organs of the inter-American system have consistently highlighted the importance of this right. In one of its pronouncements in this respect, the Inter-American Commission on Human Rights (the "Commission," the "IACHR" or the "Inter-American Commission") held:
Freedom of expression is universal and contains within it the idea of the juridical right which pertains to persons, individual or collectively considered, to express, transmit and diffuse their thoughts; in a parallel and correlative way, freedom of information is also universal and embodies the collective rights of everyone to receive information without any interference or distortion.( 1 )
2. For its part, the Inter-American Court of Human Rights (the "Court") has stated:
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 condition 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.( 2 )
3. In 1997, the IACHR created a Special Rapporteurship on Freedom of Expression, in order to strengthen the activities carried out under the jurisdiction conferred upon it, among others, by Articles 13 and 41 of the American Convention (the "Convention" or the "American Convention"). During its 98th session, the Commission defined the mandate of the Rapporteurship on Freedom of Expression and decided to designate a "Special Rapporteur of the IACHR on Freedom of Expression." The Commission has established and defined the mandate of the rapporteurship in the belief that this mechanism will contribute to the promotion and protection of freedom of expression, which is considered key for the development of democracy in the Hemisphere.( 3 )
4. The situation of the right to freedom of thought and expression in the Americas has also been analyzed by the Commission in the individual case system provided for before the organs of the inter-American human rights system, and in its on-site visits and general and special reports. In addition, the Commission has held special hearings at its headquarters on freedom of expression, with the participation of sectors interested and specialized in the subject.
B. THE LEGAL FRAMEWORK
1. International provisions
5. The American Declaration on the Rights and Duties of Man (the "Declaration"), whose 50th anniversary is celebrated in 1998, provides at Article IV: "Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever." The right to freedom of thought and expression is guaranteed by the American Convention, at Article 13, in the following terms:
1. Everyone has the right to freedom of thought and expression. This right includes the 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 choice.
2. 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:
3. 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.
4. Notwithstanding the provisions of paragraph 2 above, public entertainment 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.
5. 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, religion, language, or national origin shall be considered as offenses punishable by law.
2. Domestic provisions
6. The Constitution of Colombia guarantees the right to freedom of expression at Article 20, which provides:
All persons are guaranteed the freedom to express and disseminate their thought and opinions, to report and receive accurate and impartial information, and to found mass communications media.
Such media are free and have a social responsibility. The right to rectification on equitable terms is guaranteed. There shall be no censorship.
7. Despite the international and domestic law provisions in force in Colombia protecting the rights analyzed here, the IACHR continues to receive information and complaints regarding attacks and grave acts of violence committed in Colombia against journalists, human rights defenders, and members of social organizations. Such acts are committed, at least in part, in reprisal for the exercise of the right to freedom of thought and expression.
C. ACTS OF HARASSMENT OF AND VIOLENCE AGAINST JOURNALISTS
8. In 1997 the Colombian press included 32 newspapers with a total circulation of 1,853,000 copies. In the same period, the country had 857 radio stations and 52 television stations. The strength and independence of the media in Colombia has turned them into prominent political actors. In effect, the Commission has received information according to which Colombians trust the media more than the justice system, politicians, the police, private businesses, or the Church.( 4 )
9. Unfortunately, this importance has brought with it a sustained increase in harassment of journalists by the various actors in the violence that is taking its toll on Colombia. The attacks against journalists are aimed at keeping them from carrying out their mission of informing. Consequently, the Commission considers that these acts constitute violations of the right of journalists to exercise their right to freedom of expression, and of society's right to have free access to such information.( 5 )
10. The Commission has continued to receive complaints about grave incidents of harassment and violence committed against journalists in Colombia. Upon concluding its most recent on-site visit to Colombia, the IACHR expressed its concern for this grave situation.( 6 ) Colombia is among the leading countries in Latin America in terms of the complaints regarding attacks on the members of the press. In fact, the Commission has been informed that in the past 10 years 122 journalists were assassinated in Colombia.( 7 ) During the same period, 37 journalists were kidnapped in Colombia, and 162 were victims of attacks on their physical integrity.( 8 ) The Office of the United Nations High Commissioner for Human Rights in Colombia reports that the Office received complaints regarding murders of at least four journalists in reprisal for their work during 1997. That office also reported that many other journalists have also been kidnapped or threatened. Some of them have been forced to leave the country as a result.( 9 )
11. The vast majority of these cases remain unsolved, and the persons responsible continue to enjoy impunity. During its on-site visit, the Commission met on December 6, 1997, in Bogotá with a group of journalists, including Hollman Morriss ("Noticiero AM/PM"), Ignacio Gómez ("El Espectador"), and Hernando Corral ("Noticiero de las 7"). Among other things, they indicated that only one of the 134 cases of violations of the right to life of journalists committed since 1978 had been partially resolved. These media representatives considered that the impunity in these crimes is an incentive for those who commit them, and at the same time becomes a deterrent to journalists who wish to maintain an independent and critical posture.
12. Of special concern are the murders of several journalists in 1997. On March 18, Freddy Elles Ahumada, a photographer who worked for three newspapers, was murdered in Cartagena. According to information received by the IACHR, the way in which he was killed suggests that it was not a common crime, as initially thought, but rather a reprisal for his journalism work. The corpse of Mr. Elles Ahumada, who also worked as a taxi driver at night, was found in his vehicle, with stab wounds, handcuffed, and on his knees. He had taken photographs of armed bands and of incidents of police brutality. The Colombian State has informed the Commission that two suspects have been detained in relation to this case. The State suggests that the death resulted from a common crime, in which those responsible sought to steal the victim's photographic equipment. The Commission will continue to follow the progress of the case, since the pertinent investigations have not yet concluded.
13. The Commission was also informed that Gerardo Bedoya, editorial writer for the newspaper El País of Cali, was murdered by someone who shot him five times. The accounts suggest that the murderer was contracted by drug traffickers, since the crime took place three days after the publication of a column by Mr. Bedoya in which he spoke out in favor of extraditing Colombian drug traffickers to the United States.
14. The escalation of violence against journalists continued in late 1997, with three murders in less than one month. On October 31, the mutilated corpse of Alejandro Jaramillo, a director of the Diario del Sur, was found in the city of Pasto. On November 8, the director of Radio Majagual, Francisco Castro Menco, was killed by gunfire in his home. The third victim in this series of murders was Jairo Elías Marques, director of the satirical news weekly "El Marqués," published in Armenia, the capital of Quindío. On November 20, Mr. Marques was shot dead by two men on a motorcycle. The investigation into the death of Mr. Marques has been reassigned to the Human Rights Unit of the Office of the Prosecutor General of the Nation.
15. The Commission has received information with respect to other types of attacks on journalists and press outlets committed in 1997 by various actors in the violence and the armed conflict, which continued the trend initiated in the 1980s. For example, the IACHR learned that cameraman Richard Vélez, of the news program "Noticiero 12:30" was forced to leave Colombia on October 8, 1997, with the help of the International Committee of the Red Cross ("ICRC"). Mr. Vélez had received numerous death threats, the most recent one three days before he left. On that occasion, a man armed with a revolver threatened him in the street. According to the information received by the Commission, Mr. Vélez had filmed scenes of abuses committed by members of the Colombian Army during a strike by coca growers in Caquetá. On this same occasion, according to the information brought before the Commission, military personnel beat him, resulting in injuries which required his hospitalization. The Colombian authorities are investigating the possible connection between the threats and the complaint he lodged against the military in relation to this incident.
16. Among the acts committed by the guerrilla organizations, mention should made be of two bombs that went off at the cable television station in Bucaramanga, on April 12, 1997. The National Liberation Army (Ejército de Liberación Nacional - "ELN"), carried out the attack, which injured two technical staff. On July 3, 1997, the ELN forced the radio station "Voz del Yopal," in the Casanare oil-producing region, to broadcast its communiqués. The situation of the journalists who work with that radio station, like those of the entire region, is particularly delicate, as they were also threatened by paramilitary groups not to provide any collaboration with the guerrillas. The police also attributed to the ELN the attack, with two bombs, on the offices of Radio Cadena Nacional and Radio Monumental, both in the city of Cúcuta. That attack caused the death of a radio technician and injuries to an announcer.
17. On June 23, 1997, the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia "FARC") announced that they considered journalists to be "military objectives" since they were, in its view, apologists for the Colombian military. The FARC also threatened the press in the Department of Huila, in southern Colombia, warning them not to report on candidates to elected posts, as part of the its campaign to sabotage the elections.
18. Another grave form of attack on freedom of thought and expression in Colombia is the kidnapping of journalists. For example, in early December 1997, during the IACHR's on-site visit to Colombia, the guerrilla group "Movimiento Jaime Bateman Cayón" kidnapped two press persons, the press secretary of the Office of the President, William Parra, and Luis Eduardo Maldonado, a journalist with the national radio network Radio Cadena Nacional ("RCN"). Both were deprived of their liberty with a view to using them as messengers of a "peace proposal to the Colombians" by that guerrilla organization.
19. In addition, information has been received regarding a series of incidents in which paramilitary groups have harassed journalists. According to information received by the Commission, in August 1997, journalist Alfredo Molano was threatened by paramilitary groups, who suggested that he was a subversive who had infiltrated the Colombian Government, due to his work with the Office of the High Commissioner for Peace of Colombia.( 10 )
20. Rounding out the reference to the principal actors in the violence in Colombia, it has been noted that the group known as the "Extraditables"( 11 ) issued a press release on September 30, 1997, which included death threats to journalists and members of Congress who were in favor of extradition. The press release specifically mentioned Enrique Santos Calderón, a director of the newspaper El Tiempo, whose September 21 column had called into question the position of the Colombian Executive and Congress on extradition.
21. The specific facts set forth in the foregoing paragraphs are in no way intended to provide a complete overview of the attacks against journalists and press outlets in Colombia; nor do they set forth all of the complaints and information received by the IACHR on this matter. They are, rather, a series of examples chosen with a view to illustrating the grave situation facing the press in Colombia. Finally, it should be noted that the Commission is analyzing, through its individual petition jurisdiction, several complaints regarding violence against and harassment of journalists in Colombia.
22. For example, the Commission is currently processing a petition relating to the murder of Guillermo Cano Isaza on December 17, 1986. Mr. Cano was a journalist and director of the Colombian newspaper El Espectador.( 12 ) Members of the Medellín drug cartel apparently killed him in reprisal for his denouncement of drug trafficking and for the newspapers stance in favor of the extradition of drug traffickers to the United States. The petitioners allege that the State did not comply with its duty to investigate and sanction the persons responsible for the murder. They argue that the criminal proceeding was ineffective, because the judges acted negligently and accepted bribes.
23. The Commission is also processing a petition relating to the death of Carlos Lajud Catalán, a journalist and columnist in Barranquilla. Mr. Catalán was killed on April 19, 1993, presumably in reprisal for the criticism which the journalist leveled against corruption in government.( 13 ) The petitioners allege that the criminal proceeding initiated in relation to the murder resulted in a denial of justice. They allege that the superficial proceeding resulted in the conviction of three individuals who are not responsible for having committed the crime. They further allege that the criminal proceeding did not bring about effective investigations to identify the intellectual author. The petitioners also complain that the investigation was blocked by the cover-up actions of public officials. The Colombian State has informed the Commission that the investigation in this case has been reassigned to the Human Rights Unit of the Office of the Prosecutor General of the Nation.
24. With respect to the facts analyzed in this section, the Commission notes that journalists cannot be considered military objectives; consequently, they enjoy protection from attacks by the parties to the armed conflict, under the rules of international humanitarian law. In addition, the IACHR emphasizes that the State is internationally liable under the American Convention and other applicable instruments in those cases in which it is established that such attacks were committed directly by the agents of said State, or with their tolerance or assistance. The same is true when the State fails to carry out its obligation to prevent such incidents and to carry out serious, impartial and exhaustive investigations into all complaints regarding crimes of this nature.
25. The Commission is pleased to receive information from the Colombian State indicating that it has taken concrete measures to protect the lives of journalists. According to this information, more than a dozen journalists are currently receiving protection coordinated by the Administrative Department of Security ("DAS" Departmento Administrativo de Seguridad). The State has also informed the Commission that the following actions will be taken in relation to the investigations into the deaths of journalists: 1) Formation of a working group to strengthen the investigations; 2) Visits to regional and local prosecutor offices with the objective of verifying the procedural status of the different investigations; 3) Preparation of a detailed report on the procedural status of the investigations and the entities which are processing them. The Commission will continue to follow with interest the actions taken by the Government in this area.
26. The Commission calls to mind that, in addition to protecting the right to carry out journalistic activities, the right to freedom of thought and expression also guarantees the rights of those who wish to receive information from the press or elsewhere. The States international responsibility may be engaged it fails to ensure this right. In the report which it published in the case of Tarcisio Medina Charry, the Commission found that members of the National Police disappeared the victim, at least in part because he carried with him a copy of "La Voz," a communist newspaper, when he was detained in an operation to check documents. The Commission thus decided that Mr. Medina suffered a violation of his right to seek, receive and impart information and ideas, protected by Article 13 of the Convention.(14)
D. LIMITATIONS ON JOURNALISTIC ACTIVITY
27. Constitutional protection for the right to freedom of thought and expression has been subjected to regulatory provisions adopted by various organs of the Colombian State. The Commission will analyze the situation of two provisions governing the press in Colombia which some sectors have characterized as limitations on the free and full exercise of journalism.
1. Statute on Journalists
28. In Colombia the exercise of journalism is protected by the Constitution. Article 73 provides that "journalistic activity shall enjoy protection so as to guarantee its freedom and professional independence." In this context, the IACHR has closely followed the debate on the so-called "journalist's card," which was required in order to exercise the profession in Colombia, leading to a proceeding challenging the constitutionality of this requirement before the Constitutional Court. As part of this proceeding, the Minister of Communications, José Fernando Bautista, stated that the Government did not support the journalist's card requirement, because it could become a limitation on the freedom of information.
29. The Inter-American Press Association ("IAPA") set forth its position on the issue in a statement issued March 14, 1998, in Puerto Rico. The IAPA resolved "to urge the highest constitutional court of Colombia to derogate the requirement to have a professional card, a requirement which undermines guiding principles relating to freedom of expression, and is at odds with the very essence of journalism."
30. The decision of the Constitutional Court, adopted on March 18, 1998, was to declare the unconstitutionality of the entire law that established the journalist's card, Law 51 of 1975, known as the Statute on Journalists. In explaining their decision, the members of the Court invoked the importance of full protection for the right to freedom of expression.
31. The IACHR observes, however, that some Colombian journalists' organizations stated their concern at the outcome. They noted that the claim of unconstitutionality did not refer to the Statute on Journalists in its entirety, but specifically to the requirement of possessing a card in order to exercise the profession. The apprehensive response is due mainly to the fact that Article 11 of the Statute on Journalists, which was derogated as unconstitutional, guaranteed professional secrecy. Pursuant to the rule of professional secrecy, no journalist may be required to reveal his or her sources.( 15 ) Questions were also raised about the Constitutional Court's nullification of other provisions that protect journalistic activity, such as access to public documents and preference in exercising the right to petition. Critics suggested that these changes could endanger the very existence of the schools of social communication and journalism.
32. With respect to the questions raised, the President of the Constitutional Court of Colombia, Vladimiro Naranjo, declared as follows:
33. The Inter-American Court of Human Rights issued an advisory opinion, at the request of the Government of Costa Rica, on the requirement of compulsory membership in an association prescribed by law for the practice of journalism. The Inter-American Court stated:
34. Mindful of all of the foregoing, the Commission notes as positive the above-mentioned decision of the Constitutional Court, as well as the position of the Government of Colombia favorable to effective observance of the right to freedom of thought and expression. The IACHR shall continue to evaluate closely the development of possible statutory provisions and judicial interpretations on this issue in Colombia, in light of the provisions of Article 13 of the American Convention, the case law of the inter-American human rights system and other applicable international norms.
2. Law on Television
35. The Constitution of Colombia, at Article 75, defines the electromagnetic spectrum as "an inalienable and unprescribable public good, subject to the administration and control of the state." That same provision guarantees equal opportunity to make use of it "in the terms prescribed by law." The Colombian Constitution further provides that the State shall intervene, pursuant to the law, to guarantee pluralism of information and competition, and to "prevent monopolistic practices in the use of the electromagnetic spectrum." Articles 76 and 77 of the Constitution provide that State intervention in this activity will be entrusted to a public entity, which will implement television policy "without detriment to the liberties set forth in this Constitution."
36. On July 29, 1997, the Constitutional Court declared Article 25 of Act No. 336, known as the "Television Act" ("Ley de Televisión"), unconstitutional. ( 18 )( 19 ) This provision established a number of requirements for the evaluation of contracts for news and opinion programs such as informational balance, veracity, impartiality and objectivity, social responsibility and predominance of public over private interest with a view to rating the programs or even nullifying the contracts. In its observations to the present Report, the State noted the position of the Office of the Procurator General of the Nation in this matter. This entity considered that the criteria established in Article 25 allowed for the imposition of sanctions that were not suited to journalistic activity and therefore affected the right to freedom of expression and information enshrined in Articles 20 and 93 of the Constitution as well as some international treaties ratified by Colombia.
37. The Commission considers that the decision of the Constitutional Court is consistent with the right to freedom of expression enshrined in the American Convention and other international instruments. It also wishes to highlight the positive role of the Office of the Procurator General of the Nation in the process. The Commission shall continue observing the evolution of the laws regulating the media in Colombia.
E. HUMAN RIGHTS DEFENDERS AND SOCIAL ORGANIZATIONS
38. The IACHR has received several complaints of acts committed in Colombia to intimidate members of human rights organizations, and of social organizations, which are analyzed in Chapter VII of this Report. Such acts are committed, at least in part, in reprisal for the information reported by the defenders, and consequently constitute a limitation on the right to freedom of thought and expression, in violation of Article 13 of the American Convention.
Based on the foregoing, the Commission makes the following recommendations to the Colombian State:
( 1 ) Annual Report of the Inter-American Commission on Human Rights, 1980-81, OEA/Ser.L/V/II, at 121. ( 2 ) I/A Court H.R., "Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29, American Convention on Human Rights)", Advisory Opinion OC-5/85, November 13, 1985, par. 70. ( 3 ) Democracy is intimately linked to the right to freedom of thought and expression, as the Inter-American Court has also understood:
The concept of rights and freedoms as well as that of their guarantees cannot be divorced from the system of values and principles that inspire it. In a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad. Each component thereof defines itself, complements and depends on the others for its meaning.
I/A Court H.R., "Habeas Corpus in Emergency Situations (Articles 27(2), 25(1), and 7(6), American Convention on Human Rights)", Advisory Opinion OC-8/87, January 30, 1987, par. 26.
Along the same lines, the General Secretariat of the United Nations has considered freedom of expression and of opinion, together, as the "touchstone of all the freedoms to which the United Nations is devoted." Annotations to the text of the draft International Covenant on Human Rights (prepared by the Secretary General), 10 U.N. GAOR, Annexes (Item 28 on the agenda) 50, UN Doc. A/2929 (1955).0( 4 ) Cambio 16, No. 158, July 24-31, 1996, at 9; Data from a research project on the violent conduct of Colombians by the Ministry of Health. ( 5 ) The Inter-American Court has established that:
[F]reedom of expression includes imparting and receiving information and has a double dimension, individual and collective.
The Court believes ... that the freedom and independence of journalists is an asset that must be protected and guaranteed. Inter-American Court of Human Rights, OC-5/85, pars. 75 and 79, respectively.( 6 ) On that occasion, the Commission stated as follows:
Also of concern to the Commission are the complaints made by organizations of journalists about acts of violence, including assassinations, committed against members of that profession. The Commission attaches the greatest importance to such complaints, considering that freedom of expression and of information is a prerequisite and a fundamental pillar of democratic existence.
IACHR, Press Release No. 20/97, December 8, 1997, par. 44.( 7 ) Reporters sans Frontières, Press Communiqué, November 28, 1997. ( 8 ) Inter-American Press Association, 1998 Annual Freedom of the Press Report, at 90-92. ( 9 ) Report of the United Nations High Commissioner for Human Rights, E/CN.4/1998/16, March 9, 1998, par. 55. ( 10 ) Human Rights Watch, World Report 1998, December 1997, p. 101. ( 11 ) The "Extraditables" appeared in Colombia in the mid-1980s, and have been accused of committing murders of politicians and journalists, as well as kidnappings and terrorist attacks, as a means of expressing their views against the extradition of drug traffickers to the United States. ( 12 ) The Commission is processing this case under the number 11.728. The reference to the petition in this Chapter in no manner constitutes a prejudgment as to its admissibility or merits. ( 13 ) The Commission is processing this case under the number 11.731. The reference to the petition in this Chapter in no manner constitutes a prejudgment as to its admissibility or merits. ( 14 ) IACHR, Report No. 3/98, Case 11.221 (Colombia), April 7, 1998, pars. 72-77. ( 15 ) That provision regulated Article 74 of the Colombian Constitution, which sets forth the inviolability of professional secrecy. ( 16 ) "Vale o no el título; "Los derechos;" "Y la identidad?," El Tiempo, March 20, 1998. ( 17 ) I/A Court H.R., OC-5/85, pars. 76 and 81 respectively. ( 18 ) See Constitutional Court, Sentence C-350, July 29, 1997.