In this chapter, the Rapporteur will refer to the following three specific problems: legislation on contempt [desacato]; the requirement that journalists be affiliated with a professional association; and, the murder of journalists.

The Rapporteur has selected these three issues because murder of journalists is the most direct and brutal threat to or violation of freedom of expression. As for the legislation on contempt and compulsory membership in a professional association, the Rapporteur decided to take up these subjects to follow up on recommendations made by the Commission in its report on contempt laws [leyes de desacato] and on the Court’s advisory opinion on compulsory membership in a professional association [colegiación obligatoria].

A.    Contempt Laws [Leyes de Desacato]

The Commission took special care in analyzing the incompatibility of laws punishing offensive expressions directed at public officials, or the so-called "contempt laws," with the right to freedom of thought and expression.59 The Commission concluded that these laws restrict freedom of expression as it is prescribed in the Convention.60 On this point, it had the following to say:

In conclusion, the Commission finds that the use of such powers to limit the expression of ideas lends itself to abuse, as a method for silencing unpopular ideas and opinions, and thus it restricts the public debate which is fundamental to the effective functioning of democratic institutions. Laws that penalize the expression of ideas which does not incite lawless violence are incompatible with freedom of expression and thought, as established in Article 13, and with the basic purpose of the American Convention to protect and guarantee a pluralistic and democratic way of life.61

    The Commission went on to state as follows in that study:

Application of contempt laws to protect the honor of public officials acting in an official capacity unjustifiably grants them the right to a protection that is not offered to other members of society. This distinction is in direct conflict with the fundamental principle of a democratic system, according to which the government is the object of controls, including the scrutiny of its citizens, so as to prevent or control any abuse of its coercive power. If public officials acting in an official capacity are regarded for all effects and purposes as the government, it is then precisely the right of individuals and the citizenry to criticize and scrutinize the action and attitudes of those officials in matters related to their public office.

In addition to direct restriction, contempt laws indirectly restrict freedom of expression because they carry with them the threat of imprisonment or fines for persons who insult or offend a public official. In this regard, the European Court argued that although the subsequent penalties of a fine and revocation of a published article do not prevent the petitioner from expressing himself, "they are nonetheless equivalent to censorship, which might deter that person from formulating criticism of that sort in the future." The fear of punishment and sanctions necessarily discourages citizens from expressing their opinions on issues of public concern, and especially when legislation fails to distinguish between value judgments and facts. Political criticism often involves value judgments.

The Commission further observes that the burden that contempt laws place on persons wishing to participate in the public debate over the proper functioning of the public administration is not lessened by the possibility of proving the truth as a defense. Even the laws that allow truth as a defense inevitably inhibit the free flow of ideas and opinions by shifting the burden of proof onto the person expressing his opinions. This is particularly the case in the political arena, where political criticism is often based on value judgments, rather than purely fact-based statements. Proving the veracity of these statements may be impossible, since value judgments do not allow for proof. Therefore, a rule that requires a critic of public officials to guarantee the factual content of his statements has disturbing implications for criticism of government conduct. Rules of this sort raise the possibility that persons who criticize the government in good faith may be penalized for that criticism. Moreover, the threat of criminal liability for dishonoring the reputation of a public official, even as an expression of a value judgment or an opinion, can be used as a method for suppressing criticism and political adversaries. By shielding officials from defamatory expression, contempt laws establish a structure that, in the final analysis, shields the government itself from criticism.

The Commission is of the opinion that an important distinction should be drawn between misconduct that disrupts or prevents public officials from performing their official functions and discourse that criticizes individual performance. Although it can be argued that contempt laws that require that the offensive discourse be pronounced in person are designed to prevent civil unrest and disturbances, in any event they punish freedom of expression to the extent that it is related to the honor of a public official.

Finally, and most importantly, the Commission notes that the rationale behind contempt laws reverses the principle that a properly functioning democracy is indeed the greatest guarantee of public order. These laws claim to preserve public order precisely by restricting a fundamental human right which is also internationally recognized as a cornerstone upon which democratic society rests. Contempt laws, when applied, have a direct impact on the open and rigorous debate about public policy which Article 13 guarantees and which is essential to the existence of a democratic society. In this respect, reference to the concept of ‘public order’ to justify contempt laws directly inverts the logic underlying the guarantee of freedom of expression and thought established in the Convention.

The special protection contempt laws afford public functionaries from insulting or offensive language is not congruent with the objective of a democratic society to foster public debate. This is particularly so in light of a government’s dominant role in society, and especially where other means are available to reply to unjustified attacks, through government access to the media or civil action against individuals for libel or slander. Any criticism that is not related to the officials’ position may, as is the case for all private individuals, be subject to ordinary libel, slander, and defamation actions. In this sense, the government’s prosecution of a person who criticizes a public official acting in an official capacity does not comply with the requirements of Article 13(2), because the protection of honor in this context is conceivable without restricting criticism of the government administration. As such, these laws are also an unjustified means of limiting speech that is already restricted by laws that all persons may invoke, regardless of their status.

Moreover, the Commission notes that, contrary to the rationale underlying contempt laws, in democratic societies, political and public figures must be more, not less, open to public scrutiny and criticism. The open and wide-ranging public debate, which is at the core of a democratic society, necessarily includes those persons who are involved in devising and implementing public policy. Since these persons are at the center of public debate, they knowingly expose themselves to public scrutiny and thus must display a greater degree of tolerance to criticism.

Articles 13(2) and (3) recognize that the zone of legitimate state intervention begins at the point where the expression of an opinion or idea directly interferes with the rights of others or constitutes a direct and obvious threat to life in society. However, particularly in the political arena, the threshold of state intervention with respect to freedom of expression is necessarily higher because of the critical role political dialogue plays in a democratic society. The Convention requires that this threshold be raised even higher when the state brings to bear the coercive power of its criminal justice system to curtail freedom of expression. Considering the consequences of criminal sanctions and the inevitable chilling effect they have on freedom of expression, criminalization of speech can only apply in those exceptional circumstances when there is an obvious and direct threat of lawless violence. Article 13(5) stipulates that:

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.’

The Commission considers that the state’s obligation to protect the rights of others is served by providing statutory protection against intentional infringement on honor and reputation through civil actions and by implementing laws that guarantee the right of reply or correction. In this sense, the state guarantees protection of the privacy of all individuals without abusing its coercive powers to repress individual freedom to form opinions and express them.

The Rapporteur sets out below which States and which laws have contempt provisions and are therefore not compatible with the terms of the American Convention and should be revoked. This list does not cover all existing legislation on the subject. Many States have other laws that criminalize contempt and that should also be revoked. Some Penal Codes provide as follow:

Article 162: Persons who by any means slander, insult, or libel a public official in the performance of his functions or by reason of them shall be punished by imprisonment ranging from one month to two years.

If the previous acts were directed against the President or the Vice President of the Republic, State Ministers, or members of the Supreme Court or of Congress, the punishment will be enhanced by half.

BRAZIL

Article 331: Showing contempt for a public official in the performance of his functions or by reason of them is punished by imprisonment of 6 months to two years, or a fine.

CHILE62

Article 263: Any person who by deed or by speech gravely offends the President of the Republic or any of the legislative bodies or committees of those bodies, either in the public acts representing them or in the performance of their individual functions, or the high courts of justice, shall be punished by an average to maximum sentence to medium-term imprisonment [reclusión menor] and a fine ranging from eleven to twenty minimum wages.

Article 264: Persons who commit the following acts are considered to be acting in contempt of authority:

1. Persons who seriously breach the order of sessions of the legislative bodies and persons who insult or threaten a deputy or senator during any such sessions;

2. Persons who seriously breach the order of hearings in the courts of justice and persons who insult or threaten a member of those courts during any such hearings;

3. Persons who insult or threaten: First: A senator or deputy for the opinions expressed in Congress. Second: Members of the court for rulings they may have issued. Third: State ministers or another authority in the performance of their official duties. Fourth: A superior officer in the performance of their functions.

COSTA RICA

Article 307. Any person who offends the honor or decorum of a public official or threatens him by reason of his functions, addressing him personally or publicly or by written, cable, or telephone communication, or by line of authority, shall be punished by imprisonment of one month to two years.

A sentence of six months to three years shall apply if the injured party is the President of the Nation, a member of the supreme powers, or a judge, magistrate of the Supreme Election Board, or the Comptroller or Assistant Comptroller-General of the Republic.

CUBA

Article 144. Any person who threatens, slanders, libels, defames, insults, or in any way offends or affronts, by speech or in writing, the dignity or decorum of an authority or public official, or their agents or aides, in the performance of their functions or on the occasion or by reason of them, shall be punished by deprivation of freedom for a term ranging from three months to one year or a fine of one hundred to three hundred cuotas or both.

ECUADOR

Article 231. Any person who uses threats, insults, intimidation, or violence to offend any of the public officials listed in Article 225 while these officials are performing their official functions, or by reason of those functions, shall be punished by imprisonment ranging from fifteen days to three months and a fine of fifty to three hundred sucres. Persons who commit the violations listed in the previous clause against another official who is not performing official duties shall be punished by imprisonment ranging from eight days to one month.

El SALVADOR

Article 339. Persons who offend the honor or decorum of a public official in the performance of his official duties or by reason of those duties, in action or by speech while in his presence, or in a written communication addressed to him, shall be sanctioned by imprisonment ranging from six months to three years.

If the injured party is the President or Vice President of the Republic, a Deputy to the Legislative Assembly, a Minister or the Assistant State Secretary, a magistrate of the Supreme Court of Justice or Court of Appeals, a lower court judge, or a justice of the peace, the sanction may be enhanced by one-third of the maximum sentence.

GUATEMALA

Article 411. Any persons who offend the dignity or decorum, or threaten, insult, or slander any of the presidents of state organs shall be punished with a prison term of one to three years.

Article 412. Any persons who threaten, insult, or slander or in any other way offend the dignity or decorum of a public official or authority in the performance of his functions or on the occasion of them shall be punished with a prison term of six months to two years.63

HAITI

183. When one or several administrative or judicial magistrates or communal chiefs should, in the performance of their functions or on the occasion of said performance, be offended orally or in writing in a way that is injurious to their honor or sensitivity, the offender shall be punished by imprisonment of three months to one year.

184. Any offense committed by means of gestures or threats to magistrates or communal chiefs in the performance of their functions or on the occasion of said performance shall be punished by imprisonment of one month to one year.

185. Any offense committed by gestures, words, or threats against any ministerial official or member of the law enforcement forces, while performing their functions or on the occasion of said performance, shall be punished by a fine ranging from 16 gourdes to 40 gourdes.

Articles 390 and 393 of the Criminal Code

390-10. Any persons who have proffered insults other than those covered by Article 313-323 shall be punished with a fine ranging from 2 – 4 piastres.

393. The persons covered by Article 390 shall in all cases be sentenced to imprisonment for three days.

HONDURAS

Article 345. Any persons who threaten, slander, libel, insult, or any other way offend the dignity of a public authority on the occasion of the performance of those functions, either in deed, in speech, or in writing, shall be punished by imprisonment of two to four years. If the injured party is the President of the Republic or any of the high officials referred to in Article 325 above, the prison term shall be three to six years.

MEXICO

Article 189. Any persons who commit a crime against public servants or agents of the government while such persons are legitimately fulfilling their functions or by reason of said functions, shall be sentenced to one to six years in prison, in addition to any sentence applicable in the case of the crime committed.64

NICARAGUA

Article 347. The following persons shall be in contempt of authority:

1. Persons who provoke to a duel, slander, defame, or insult, in action or in speech, or threaten public officials in the performance of their duties or on the occasion of said duties, in their presence or by notification or in writing addressed to them;

2. Persons who cause a serious breach of order in the courts and tribunals and in any other place where public officials or authorities are performing their functions;

3. Persons who, while armed and without being authorized by law, either openly or clandestinely enter Congress while it is in session, or any of the legislative chambers, or any court or tribunal;

4. Persons who prevent a public official or representative from gaining access to his chamber or office;

5. Persons who openly disobey authority.

PANAMA

Article 307. Persons who publicly offend or insult the President of the Republic or the person replacing him in his functions shall be punished by imprisonment of six months to one year and a 50- to 100-days’ fine.

Article 308. Persons who publicly denigrate a government body shall be punished with a prison term of six months to one year, and a 50- to 100-days’ fine.

PERU

Article 374. Persons who threaten, insult, or in any other way offend the dignity or decorum of a public official by reason of the performance of his duties or at the time of performing them shall be punished with imprisonment of no more than three years.

If the injured party is the President of one of the government branches, the sentence shall be no less than two or more than four years.

DOMINICAN REPUBLIC

Article 368. Public defamation or libel against the Head of State shall be punished by a sentence ranging from three months to one year in prison, and a fine of ten to one hundred pesos and accessory or additional punishment during a period of time equal to the sentence, and complete disqualification and suspension of the civil and political rights set forth in Article 42.

Article 369. Acts of defamation or libel against deputies or representatives to Congress, State Secretaries, magistrates of the Supreme Court or trial courts, or heads or sovereigns of friendly countries shall be punished by imprisonment of one to six months and a fine of fifty pesos.

URUGUAY

Article 173. Contempt is committed by discrediting the authority of officials in one of the following ways:

1. By actual, written or verbal offenses, committed in the presence of the official or in the place where he performs his functions, or outside the place and the presence of that official, but, in the latter two cases, by reason of or on the occasion of those functions.

2. By open disobedience of the orders or instructions of said officials.

Actual offenses are considered as entering with arms the place where the officials perform their functions, physical violence, offensive gestures and shouts, even if they are not directed against said officials.

The crime is punished by a prison term of three to eighteen months.

VENEZUELA

Article 223. Any person who in any way, by speech or by act, offends the honor, reputation, or decorum of a member of Congress, or of any public official, shall be punished as follows, provided the act took place in the presence of said official or on the occasion of his functions:

1. If the offense was directed against a law enforcement officer, the offender is sentenced to a prison term of one to three months;

2. If the offense was directed against a member of Congress or any public official, the offender is sentenced to a prison term of one month to one year, depending on the rank of the persons in question.

Article 226. Any person who in any way, by speech or by act, offends the honor, reputation, decorum, or dignity of any judicial, political, or administrative body shall be punished with imprisonment of three months to two years, if the crime was committed while said body was in session, or while a judicial hearing was being held.

If the offender used violence or threats, the prison term shall be six months to three years.

Action shall be brought only at the request of the offended party. If the crime was committed against bodies not in session, legal action shall be brought only at the petition of the presiding members.

Said petition shall be addressed to the representative of the Office of the Public Prosecutor, to initiate the appropriate proceedings.

Article 227. In the cases stipulated in the preceding articles, the offending party may not present any proof as to the truth or the notoriety of the acts or errors with which the party is charged.

Article 228. The provisions established in the proceeding articles shall not apply if the public official has given cause for the act by arbitrarily exceeding the confines of his powers.

Article 229. In all other cases not covered by a special provision of the law, persons who commit any crime against a member of Congress or any public official by reason of his functions shall be liable for the punishment established for the crime committed, plus an enhancement of one-sixth to one-third.

The Rapporteur wishes to note that a pluralistic and tolerant democracy in one in which a fluid movement of ideas, opinions, and open public debate are permitted. It is within this context so crucial to democracy that civil servant designing and applying public policy including the administration of justice are exposed to public opinion and scrutiny. The contempt laws seek to avoid debate as well as the scrutiny or criticism of state officials. Thus, contempt laws, instead of protecting freedom of expression or civil servants limit freedom of expression and weaken the democratic system.

Likewise, the Rapporteur points out that many States of the Continent still have rules on contempt of public authority that continue to be invoked by the authorities to silence their critics and thus restrain freedom of expression. This situations debilitates the democratic system.

B.    Laws of Compulsory Membership in a Professional Association

On November 13, 1985, the Inter-American Court of Human Rights issued advisory opinion OC-5 in which it stated that the compulsory membership of journalists in a professional association represented a restriction of freedom of expression. The Court reached the following conclusions on the subject:

From the foregoing considerations, it follows that a law requiring journalists to belong to a professional association, and that prevents journalists who are not members of the association from practicing journalism and limits access to the profession to graduates with a specific university degree is not compatible with the Convention. Such a law would contain restrictions to freedom of expression which are not authorized by Article 13.2 of the Convention and would therefore be in violation of both the right of every person to obtain and impart information and ideas through any medium of their choice, and the right of the community in general to receive information without restraint.

Further, in its analysis it had the following to say:

The Court observes that as a rule the organization of professions in professional associations is not per se contrary to the Convention, but it is a method for regulating and controlling legal authority and public morals through the action of associates. Therefore, if the concept of public order is considered in the sense that it was referred to earlier, namely as the conditions that ensure the harmonious and normal functioning of institutions on the basis of a coherent system of values and principles, then it is possible to conclude that the organization of professions is implied in that order.

The Court, however, considers that the same concept of public order demands that, in a democratic society, the widest possible circulation of news, ideas, and opinions be guaranteed, as well as the greatest access to information by society as a whole. Freedom of expression is part of the underlying primary public order of democracy, which is inconceivable without open public debate and without dissident opinions being fully entitled to be heard. In this sense, the Court adheres to the ideas put forward by the European Commission of Human Rights which stated as follows, on the basis of the preamble of the European Convention: that in approving the Convention, it was not the intention of the High Contracting Parties to grant reciprocal rights and obligations with a view to satisfying their national interests, but rather … to establish a common public order of free European democracies for the purpose of safeguarding their common heritage of political traditions, ideals, freedoms and rights. ("Austria vs. Italy," Application No. 788/60, European Yearbook of Human Rights, Vol. 4, 1961, page 138).

It is also important to democratic public policy, as it is conceived in the American Convention, to ensure scrupulous respect for the right of every human being to express himself freely and the right of society as a whole to receive information.

It has been argued that compulsory membership of journalists in a professional association is an attempt to protect a remunerated trade and that it is not contrary to the exercise of freedom of expression, provided that no compensation is involved and that, in this respect, it refers to something different from what is contemplated in Article 13 of the Convention. This argument is based on a contrast between professional journalism and the exercise of freedom of expression, which the Court cannot agree to. According to this line of reasoning, freedom of expression is one thing, and the professional practice of journalism is another. This is not accurate, however, and it can lead to serious dangers if it is taken to its ultimate consequences. The practice of professional journalism cannot be differentiated from freedom of expression. On the contrary the two are obviously intertwined, since a professional journalist neither is nor could be anything other than a person who has decided to exercise his freedom of expression on a continuous, steady, and remunerative basis. Moreover, to regard the two as different activities could lead one to the conclusion that the guarantees contained in Article 13 of the Convention do not apply to professional journalists.

Furthermore, the argument commented on in the previous paragraph does not take into account the fact that freedom of expression includes giving and receiving information, it has a dual, individual and collective, dimension. Because of this circumstance, the issue of whether this right is or is not exercised as a remunerated profession cannot be regarded as one of the restrictions referred to in Article 13.2 of the Convention, because, without disregarding the fact that a trade union is entitled to seek the best working conditions, this does not have to be done by depriving society of other possible sources of information.

The Court therefore concludes that the public policy arguments, which are valid in support of obligatory membership in a professional association for other professions, cannot be invoked in the case of journalism, since they would entail a permanent restriction of the right to make full use of the powers recognized for all human beings in Article 13 of the Convention, to the detriment of journalists who are not members of a professional association, and this would constitute a violation of the primary principles of democratic public policy on which the Convention is founded.

The arguments to the effect that professional membership is the way to guarantee that society has objective and true information provided through a system of professional responsibility and ethics were based on the common good. But in reality, as has been demonstrated, the common good requires a maximum amount of information, and it is the full exercise of freedom of expression that favors that circumstance. Thus it is contradictory in principle to call for a restriction on freedom of expression as a means of guaranteeing it, because this would be ignoring the primary, basic nature of this right as inherent in every human being taken as an individual, even though it is also an attribute of society as a whole. A system for controlling the right to express oneself freely on the pretext that this would supposedly guarantee the correctness and truth of the information that society receives is a potential source of major abuses and, in the final analysis, is in violation of that same society’s right to information.

It has also been argued that the compulsory professional association of journalists is a method for strengthening unions and thus a guarantee of the freedom and the independence of these professionals and a requirement for the common good. The Court is well aware that the free circulation of ideas and information can take place only in a situation where there are many sources of information and respect for the information media. It is not enough, however, that the right to establish or run public opinion agencies is guaranteed, but it is also necessary for journalists and, in general, all the persons professionally involved in the mass media, to be able to work with sufficient protection of the freedom and independence that this trade requires. So this is an argument based on a legitimate interest of journalists and the community in general, especially in situations where the truth of events can and is known to be manipulated as a result of decisions made by certain government or private news organizations.

Consequently, the Court is of the opinion that the freedom and independence of journalists is a common good that needs to be protected and guaranteed. Nevertheless, according to the terms of the Convention, the authorized restrictions of freedom of expression must be those "necessary to ensure" that certain legitimate purposes are met. In other words, it is not enough that the restriction is useful (see 46 above) to meet the purpose of question, that is, the purpose that can be achieved by means of the restriction, but rather that it must be necessary, or in other words that it cannot be reasonably achieved by any other means less restrictive of a right protected by the Convention. In this regard, the compulsory membership of journalists in a professional association is not consistent with the requirements of Article 13.2 of the Convention, because it is perfectly conceivable to establish a law that protects the freedom and independence of all persons who practice journalism, without any need to allow only a restricted group in the community to practice journalism.

The Rapporteur lists below those States that still have laws on their books that establish obligatory membership in a professional association for journalists and that prevent persons not affiliated with those associations from practicing journalism.

BOLIVIA

Various legislative provisions in Bolivia establish the requirement of professional association or licensing to practice journalism, including the following:

Law 494 of 1979:

Article 1. The profession of journalism is recognized and established for those citizens who have obtained the relevant academic degree from a Bolivian University and those citizens who fulfill the requirements established by this law because of their skills and experience acquired from the extended practice of journalism.

Article 6. The National Register of Journalists is established under the Ministry of Education and Culture, and the degrees conferred by the Bolivian University or by the Executive Branch of government shall be entered in it. When this requirement is fulfilled, the Bolivian Federation of Press Workers shall issue the single journalist identification card.

Organic Statute of Bolivian Journalism

Article 27. None of the mass media, including dailies, newspapers, weekly publications, magazines with a permanent circulation, radio stations, television channels, or correspondents of national or international news agencies, may employ for specifically journalistic work any persons who do not have a professional degree and are not registered with the National Register of Journalists.

Article 31. Journalism is considered illegal when it is practiced by persons who do not have a national degree in journalism.

BRAZIL

Decree No. 83284

Article 4. In order to practice journalism, persons must be previously registered with the regional office of the Ministry of Labor. To register, persons must present the following documents:

I. Proof of Brazilian nationality;

II. Proof of never having been accused or convicted of practicing an illegal act pursuant to criminal law.

III. A diploma from an advanced course in journalism or the media, accreditation in journalism, provided by a recognized school pursuant to the law, for the functions listed in items I to VII of Article 11;

HONDURAS

Organic Law of the Association of Journalists

Article 3. The following are members of the Honduran Association of Journalists:

a) Graduates in journalism from a university in the country;

b) Graduates in journalism from a foreign university whose degree has been recognized by the National Autonomous University of Honduras;

c) Graduates in related professions who meet the requirements established by the Association, and can so demonstrate.

Article 8. Only members of the Honduran Association of Journalists may practice the profession of journalism in the country. For the offices of director, assistant director, chief editor, and information chief, persons must also be Honduran by birth. To provide the intellectual, political, and administrative direction of printed, radio, or television news, persons are required only to be Honduran by birth. Press officers and persons who are working in public relations or in information offices in public and private institutions must be members of the Association. The office of press attaché in Honduran diplomatic missions abroad shall be held by journalists who are members of the Association.

Article 45A. Persons who practice professional journalism and are not members of the Honduran Association of Journalists shall be punished with a fine of five hundred lempiras. In the case of a second offense, the fine shall be imposed on the party responsible for this violation.

Article 59. Permanently employed and part-time columnists and commentators, either salaried or not, may perform their functions freely, and are not required to be members of the Association. Their scope of action, however, will be limited to those jobs, and they may not work as a specialized or nonspecialized reporter.

Article 61. Only persons who are registered as members of the Association and are duly identified in their work shall be regarded as journalists vis-à-vis the national authorities.

PANAMA

Law No. 67, "Regulating Practice of the Profession of Journalism in the Republic of Panama"

Article 2. The following persons shall be recognized as eligible to practice journalism:

a) Persons with the appropriate academic degree (Master’s degree in communications or the equivalent) conferred by a university in the country or by foreign universities and revalidated by the University of Panama; or

b) Persons who can prove that they have been practicing journalism continuously for no less than five years prior to the valid date of this law; or

c) Persons who, at the time this law takes effect, have been practicing journalism for at least three continuous years and have continued to work in a professional capacity up to a period of five years.

Article 4. To demonstrate that the foregoing requirements are fulfilled and obtain the qualifying certificate issued by the Technical Journalism Board, the following requirements must be met:

a) Presentation of the duly registered national university diploma with the specialty in journalism; or

b) Presentation of the revalidated degree in journalism issued by a foreign university; or

c) Written proof from the director or directors of the information media or the employers for whom the candidate has worked for five years while engaged in the professional practice of journalism, or written proof from legally established journalism organizations that the applicant has been a member of the union for five years.

Article 6. The following positions may be held only by journalists:

National or regional director of the information media and national or regional directors of information offices and heads of the information section in public relations offices of public or private agencies, head of a newspaper, editorialists, columnists, reporters, editors or writers, press photographers, title editors, diagrammers, correspondents, revisers or editors of the written information media; directors, assistant directors, chief editors, graphic reporters of radio, television, or film information programs.

Article 17. Persons who practice journalism without being legally authorized to do so shall be punished with a fine of one hundred to five hundred balboas. The fine imposed on a violator will be doubled in the event of a second offense.

A natural or legal entity that contracts the professional journalism services of a person who is not legally authorized as a journalist shall incur the same penalty.

Venezuela65

Article 2. To practice the profession of journalist, a person must have a university degree in journalism, a university degree in the information media, or an equivalent degree issued in the country by a University, or a legally revalidated degree, and must be affiliated with the National Association of Journalists [Colegio nacional de Periodistas (CNP)] and with the Journalists Welfare Institute [Instituto de Previsión Social del Periodista (IPSP)]. Only citizens who meet the requirements established in this provision shall be authorized to use the title of professional journalist.

Article 39. Persons who practice the profession of journalism illegally shall be punished with imprisonment of three to six months. The criminal courts have jurisdiction to hear and decide such cases, and the legal procedure shall be ex officio, by complaint, or at the request of a party.

The Rapporteur observes that the legislation of some States still require belonging to a particular association or having a specific university degree in order to work as a journalist, neither of which is compatible with the American Convention.

Regarding the latter point, the Rapporteur will continue observing the situation of freedom of expression. The Inter-American Court has established those requirements such as compulsory membership or university degrees constitute a limitation to freedom of expression.

1.    Recent case laws on laws regarding of compulsory membership in professional
       association in the hemisphere

The Rapporteur would like to take this opportunity to highlight decisions handed down by the constitutional review agencies in Costa Rica and Colombia, where the obligation of professional association of journalists was found to be contrary to freedom of expression as it is established in the American Convention. The Constitutional Division of the Supreme Court of Costa Rica ruled that Article 22 of the Organic Law of the Association of Journalists, which required journalists to become members in order to practice the profession, was unconstitutional. The grounds for this decision was Inter-American Court of Human Rights advisory opinion OC-5.66 Colombia, for its part, challenged a law regulating the practice of journalism,67 in which the requirements to practice journalism on a permanent basis are established. The Constitutional Court of Colombia, in a judgment handed down on March 18, 1998, declared that the law under challenge was unconstitutional.68 In this way, the highest constitutional courts of both Costa Rica and Colombia accepted the interpretation of the Inter-American Court on Human Rights on the American Convention on Human Rights in relation to the limits of domestic laws regulating freedom of expression, thereby giving it obligatory and binding force in internal law.69

C.     Murder of Journalists

The murder of journalists is used as the most brutal method for curtailing freedom of expression in the hemisphere. This practice has had two specific objectives. On one hand, it has been used to eliminate those journalists who conduct investigations into violations, abuses, irregularities, or illegal acts of all kinds carried out either by public officials, organizations, or private parties in general, so that their investigations cannot be concluded or revealed to the public or simply in retaliation for those investigations. On the other hand, assassination of journalists also has been used as a tool for intimidation, by which a clear message is sent to any persons in civil society who are involved in the investigation of violations, abuses, irregularities, or illicit acts of any kind. In this way, the perpetrators seek to silence the press as a non institutional control mechanism or to make it an accomplice of those persons or institutions that engage or are involved in illegal or abusive acts. In the latter case, the objective is to prevent society from being informed of the events in question, at all costs.

Around 150 journalists have been murdered in our hemisphere in recent years. In this respect, the Rapporteur has been able to ascertain that in many of these assassinations, there has not been a firm determination on the part of the authorities to conduct an effective investigation into these events and punish the intellectual authors or the actual perpetrators of the crime, thereby engendering an impunity for this type of crimes on numerous occasions. On this point, the Rapporteur would like to point out that pursuant to the American Convention on Human Rights and other instruments of international law, states have a duty to investigate effectively the events surrounding the murder of journalists and to punish all the authors of the crime.70

The duty of States to investigate is an "obligation pertaining to a means or conduct," which cannot be considered as unfulfilled only because the investigation may have failed to produce a satisfactory result, but "it must be undertaken seriously and not as a simple formality doomed in advance to be futile." The investigation "must be meaningful and must be taken on by the state as its own legal duty, and not as a simple measure adopted for private interests, based on the legal initiative of victims or their family members or on inputs that have no evidentiary value, without any attempt on the part of the authorities to pursue an effective search for the truth."71

It is appropriate to quote a text from the principles of the Declaration of Chapultepec that speaks to the same point:

Assassination, terrorism, kidnapping, abuse of power, intimidation, unfair imprisonment of journalists, the physical destruction of the information media, violence of any kind and the impunity of the aggressors severely limit freedom of expression and freedom of the press. These acts must be promptly investigated and severely punished.72

Likewise, the United Nations Education, Science, and Culture Organization (UNESCO) has expressed its concern at the growing number of journalists murdered in recent years as a result of the practice of their profession and at the impunity of these crimes. UNESCO made the following recommendations, among others, to the member states:

a. That governments adopt the principle that they will not prescribe crimes against persons when they are perpetrated to prevent the exercise of freedom of information and expression or when they are committed for the purpose of obstructing justice.

b. That governments will improve their legislation to facilitate the prosecution and conviction of the intellectual authors of murders of persons who were exercising their right to freedom of expression.73

The same concern was shared by the United Nations Special Rapporteur for promotion and protection of the right to freedom of thought and expression, who had the following to say:

Governments must … make every effort to investigate acts or threats of violence, intimidation, or harassment against the personnel or offices of the information media and to prosecute the responsible parties.

In this regard, the Rapporteur express as has said the Inter- American Commission on Human Rights that the failure of a government to conduct an effective and complete investigation into the murder of a journalist and to punish the intellectual authors and the actual perpetrators of the crime is particularly serious because of the impact this has on society. This type of crime not only has an intimidating effect on other journalists, but it also has that effect on any citizen, since it generates fear of reporting violations, abuses, and illicit acts of any kind. This effect can be prevented only by decisive action on the part of states to punish the perpetrators of assassinations of journalists. In this way states can send a strong and direct message to society to the effect that there will be no leniency for persons who commit such serious violations of a person’s right to freedom of expression.74

In conclusion, the Rapporteur stated, namely that failure to conduct an effective and complete investigation into the assassination of a journalist and to punish both the intellectual and the material authors of the crime entails a violation of the right to inform and to express oneself publicly and freely. At the same time, the murder of journalists is an offense against all citizens who may have occasion to report arbitrariness and abuse to society, aggravated by the impunity of all or some of its authors. Thus, failure to conduct a serious and complete investigation into the murder of a journalist leads to international responsibility on the part of states for violating the right to freedom of expression of the murdered journalist and the right of citizens in general to receive information freely and to know the truth.

The Rapporteur would like to conclude this analysis by making specific reference to the relationship between the murderer of a journalist, the impunity of all or some of the authors of the crime, and social mobilization as a form of protest at the death of such persons and as a way of making people aware of the importance of freedom of expression and public debate in a democratic society.

On many occasions, civil society has realized that a journalist was murdered so that it would not be informed of a specific fact or event, and it has peacefully mobilized in protest against this brutal violation of the right to life and freedom of expression. A clear example of this was the assassination of Argentine journalist José Luis Cabezas in 1997. On that occasion, large sectors of Argentine society were mobilized and demanded that the authorities investigate the incident and prosecute the actual perpetrators and the masterminds of the crime. Although in this case the actual perpetrators of the murder were arrested, the persons who planned the crime were not. Human rights organizations and a number of journalists in Argentina repeatedly expressed their concerns over the irregularities and inefficiency of the investigations during the judicial phase.

The case of Journalist José Luis Cabezas shows that mobilization of society is fundamental to create a awareness on the part of society of the importance of freedom of expression to strengthen democracy, and the need for an objective, effective, complete, and independent investigation, so that these crimes do not go unpunished. The peaceful mobilization of society is also the best guarantee that such crimes will not be repeated. In this way, the silence that was sought by murdering a journalist disappears and is turned against the authors of the crime by the repudiation of society.

1.    Cases concerning the murder of journalists in this hemisphere during 1998

The Rapporteur has received information on cases regarding the killing of journalists during 1998.

The various groups devoted to the protection of freedom of expression have produced different data on the killing of journalists. Given the information received, the Rapporteur has decided to account for those cases where there is reasonable indicia that the reason for the killing was linked to the exercise of the journalistic activity. This list does not constitute a determination of State responsibility and has the sole purpose of highlighting that this is one of the most dangerous professions in the world.

COLOMBIA:

Murders

Consolidation of democracy in the hemisphere is closely related to freedom of expression. When freedom of expression is limited, the development of democracy is interrupted, since the free debate of ideas and opinion among citizens is impeded. There is no doubt that freedom of expression has advanced in recent decades, hand in hand with the growth of democratic openness. However, this development has not prevented authoritarian tendencies from persisting in various countries, which continue to seek ways to limit the right to freedom of expression of the citizens of the Americas.

The mechanisms used to limit freedom of expression are many and varied. The range of options runs from murder of journalists to more sophisticated means such as the constant harassment of journalists through lawsuits, restrictive legislation, or steps taken by those in power, who place unnecessary obstacles in the way of freedom of expression. All violations of freedom of expression are serious, and the Rapporteur, in cooperation with governments and organizations in civil society that defend freedom of expression, is interested in finding ways to better defend this right in all the countries of the hemisphere.

Of all the ways in which freedom of expression is violated, murders and physical attacks are the cases that are of the greatest concern to the Rapporteur. The Americas is the most dangerous region of the world in which to practice the profession of journalism. In the past decade, there have been approximately 150 cases of murdered journalists, and many cases of physical attacks and threats. The governments of the region are responsible for making sure that these crimes against journalists do not be unpunished. The best way for states to strengthen freedom of expression is by guaranteeing an effective, wide-ranging, objective, and independent investigation into all cases of murders, attacks, and threats.

The Rapporteur recommends that the Member States carry out an effective, serious and impartial judicial investigation, according to the rules of due process, in cases regarding attacks or killings of journalists in order to clarify the facts and sanction the material and intellectual perpetrators.

Aside from the gravity of murders and acts of physical aggression against journalists, the Rapporteur is especially concerned over the use of other arrangements to control freedom of expression, which may be less direct than murder and physical aggression, but which are capable of causing greater damage to the strengthening of democracy. Examples include attempts to restrict freedom of expression by passing laws that are incompatible with Article 13 of the Inter-American Convention, such as provisions on contempt and compulsory membership in a professional association, or cases in which the government, through its intelligence services, seeks information for the purpose of harassing or denigrating journalists. Democratic institutions must be the primary guarantee of the defense of freedom of expression. When they are used as an instrument to limit that freedom, then it remains defenseless in the face of abuse on the part of authorities.

The Rapporteur recommends that the Members States adjust their domestic legislation on freedom of expression to the standards established by the American Convention on Human Rights, particularly in the area of compulsory membership pf associations and contempt.

Lastly, the Rapporteur wishes to acknowledge the assistance of the States that have collaborated with him as well as that provided by the Inter-American Commission on Human Rights and its Executive Secretariat.

The Rapporteur also wishes to acknowledge the work of independent journalists who every day carry out one of the most important tasks in a democratic society, that is, assisting citizens in the exercise of their rights and fulfillment of their obligations by providing them with the necessary information.

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59  IACHR, Report on Compatibility between Contempt Laws and the American Convention on Human Rights, OAS/Ser L/VIII.88, Doc.9 rev (1995), pages 210 to 223.

60  At the same time, it is important to note that the Commission received a complaint from journalist Horacio Verbitsky against the Argentine government, which referred to restrictions on freedom of expression in the form of contempt laws. In this case, a friendly settlement was reached. In the report on the friendly settlement, it was pointed out that: "In accordance with Article 49 of the American Convention, the Commission analyzed the content of the friendly settlement in question to ascertain its conformity with the Convention. The Commission is of the opinion that annulment of the crime of contempt in the context of the case in point would bring Argentine law in conformity with the American Convention, since it would eliminate a legal basis for government restriction of freedom of expression, as established in the American Convention." See annex 3.

61  Op. Cit. at 60.

62  In Chile, Article 6(b) of the State’s Internal Security Law is also often used as a contempt [desacato] law.

63  Articles 411 and 412 of the Criminal Code should be considered together with Article 35 of the Political Constitution and Article 35 of the Ley Constitucional de Emisión del Pensamiento [Constitutional Law on Expression]. Article 35 of the Constitution states as follows: "Publications that contain reports, criticism, or accusations against public employees or officials for acts performed while exercising their duties shall not constitute crimes or offenses…. "

Public employees and officials may demand that a court of honor, formed as determined by law, declares that the publication affecting them is based on inaccurate facts or that the charges against them are unfounded. A court decision vindicating the injured party must be published in the same information medium where the accusation or offending statement appeared.

Article 35 of the Constitutional Law on Expression states: "Criticism of public employees or officials for purely official acts performed as part of their official position shall not constitute the crime of slander or libel, even if they have left those public offices at the time that the accusations are made."

64  At the same time, the 1917 press law establishes in its Article 3: "[…] causes injury to the authorities of the country for the purposes of causing hatred or scorn or ridicule of them, or for the same purposes attacks professional public bodies, the Army or the National Guard, or the members of those groups, by reason of their functions;"

65  The Venezuelan Supreme Court of Justice is expected to hand down a ruling on an appeal to nullify, on grounds of unconstitutionality, certain provisions contained in the Law on the Practice of Journalism. The Court’s ruling could annul the professional association requirement, which is what the Colombian Constitutional Court did in a recent decision. According to the latest information received by the Rapporteur, the Court decided not to approve the ruling presented by Magistrate Humberto la Roche, who, according to the press, proposed that the legal provisions under challenge be repealed. Instead, the Court reassigned the case to a magistrate of the majority.

66  See Judgment No. 2312-95 of 5/9/95.

67  See Law 51 of December 18, 1985, "Regulating the practice of journalism and establishing other regulations.

68  See Judgment No. C-087/98 issued by the Constitutional Court of Colombia on 3/18/98.

69  See Ayala, Carlos, "Del Amparo Constitucional al Amparo Interamericano como Institutos para la Protección de los Derechos Humanos ", Instituto Interamericano de derechos Humanos, editorial juridica Venezolana, Caracas/ San Jose, 1998, pages 86 to 90.

70  The Inter-American Court has said, "The State is obligated 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 violations 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 and with immunity to the detriment of the rights recognized by the Convention." See, Inter–American Court of human Rights, case Velásquez Rodríguez, Judgement July 29, 1988, par. 176.

71  See the Inter-American Court on Human Rights, Case of Velásquez Rodriguez, Judgment of July 29, 1988, para. 177.

72  Principle No. 5, Declaration of Chapultepec, adopted by the Hemispheric Conference on Freedom of Expression, held in Mexico City, March 11, 1994.

73  UNESCO, Resolution 120 of November 12, 1997.

74  See the Inter-American Commission on Human Rights, Report No 50/99 case 11.739 (Mexico) OEA/Ser/L/V/II. Doc.57, April 13, 1999.