D.        The Internet and freedom of expression 

          The Rapporteur for Freedom of Expression believes that the Internet is an instrument with the capacity to fortify the democratic system, assist the economic development of the region’s countries, and strengthen full enjoyment of freedom of expression.  The technology of the Internet is without precedent in the history of communications and it allows rapid access of and transmission to a universal network of multiple and varied information. 

          The Internet is a medium with great possibilities because it allows individuals to participate openly in discussions and exchanges of information on issues of interest to them. The global scope of the Internet allows people to communicate and obtain information immediately, regardless of geographical borders and distinctions based on race, sex, religion, or social origin. 

          Maximizing the population’s active participation through the use of the Internet furthers the political, social, cultural, and economic development of nations by strengthening democratic societies.  In turn, the Internet has the potential to be an ally in the promotion and dissemination of human rights and democratic ideas and a major tool in the actions of human rights organizations, because of its speed and breadth which allow it to immediately transmit and receive information on situations affecting fundamental rights in different regions. 

          The community of American states has explicitly recognized the protecting of the right of freedom of expression in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights.[55]  These instruments allow a broad interpretation of the scope of freedom of expression. Internet content is covered by Article 13 of the American Convention on Human Rights. The Rapporteur urges the member states to refrain from implementing any sort of regulation that would violate the terms of the Convention.

E.         Freedom of expression and information in some member states 

          Restrictions and threats to freedom of expression and information are present in virtually every State of this Hemisphere.  Absolute respect for freedom of expression and information is as impossible as absolute respect for other fundamental rights.  Nevertheless, States in which the restrictions on freedom of expression and information are part a systematic campaign by authorities to silence criticism of the government, must be distinguished from those in which the restrictions and threats to freedom of expression and information are not symptomatic of systematic persecution by government authorities.  In the latter cases, the democratic institutions themselves can find ways to put a stop to such attacks and threats. 

          Both situations are of concern to the Rapporteur.  A State is responsible for the abuses or acts committed.  Of the two, however, systematic persecution on the part of government authorities is by far the more disturbing because it threatens other fundamental rights and the preservation of the democratic system of government. 

          In line with this, the Rapporteur distinguishes three main categories of restrictions on and threats to freedom of expression: 1) States without freedom of expression; 2) States where freedom of expression is severely limited owing to systematic persecution by government authorities to silence their critics; and 3) Other cases. 

          The Office of the Rapporteur is most concerned with the first two categories, because of the serious implications such situations have for the existence of a democratic society.  The cases outlined below are not an exhaustive list of the complaints that this Office received in 1999. 

          First of all, mention must be made of some cases of progress made by states in defending and protecting freedom of expression. 

            Progress 

Panama 

            The Annual Report for 1998 stated that there were a number of anachronistic laws in Panama that constituted a legal obstacle to the full exercise of the right to freedom of expression.   Public officials frequently used those laws to silence their critics and to harass journalists and the press in general.

The great majority of these laws are still in force in Panama and public officials continue to use them against journalists.[56]  Some of the laws restricting freedom of expression and information are: Article 33 of Panama’s Constitution, Articles 202 and 386 of the Judicial Code, Article 827 of the Administrative Code on Correctional Penalties, Articles 307 and 308 of the Penal Code.  All these are, in one way or another, a contempt law.  Article 903 of the Administrative Code, Cabinet Decree No. 251 of 1969 and Article 177 of the Electoral Code allow censorship.  Certain articles of 1978 Law 67 regulate journalistic activities by requiring that those practicing journalism fulfill certain requirements set by the Ministry of Government and Justice. 

The new Administration of President Mireya Moscoso has expressed its willingness and has signaled its intention to make it possible to repeal these laws.  Two ad hoc committees have been appointed, composed of lawyers and journalists, to study the laws that curtail freedom of expression and information and prepare bills for their repeal or amendment. 

In December 1999, the ad hoc committees introduced their first two proposals, which lead to repeal of the laws (the Rapporteur is awaiting the texts for the proper citation). 

The commitment, effort and drive that the Administration of President Mireya Moscoso has put behind the goal of repealing or amending the laws that restrict freedom of expression and information are laudable.  The Office of the Special Rapporteur is very gratified that two laws have already been repealed.  However, the repeal of these two laws is a first step but does not completely dismantle the body of laws that curtail freedom of expression.  Any amendment or legal initiative related to freedom of expression and information must conform to the parameters set in Article 13 of the American Convention on Human Rights. 

Argentina 

          The Argentine Senate is now examining a bill to amend the libel and slander law.[57]  The Office of the Rapporteur is urging continued action on this bill, which can serve as an example to the other nations of the hemisphere and become one of the most important advances for freedom of expression and information in the years ahead. 

            1.         Restrictions and threats to freedom of expression 

a.         States without freedom of expression 

            Cuba 

          Freedom of expression does not exist in Cuba.  Unless and until changes are introduced to democratize the country and the other basic rights are recognized, freedom of expression and information will not grow in Cuba.[58] 

          Many laws in Cuba restrict freedom of expression and information.  The Cuban Constitution provides that no means of communication can be the target of private appropriation, thus “ensuring that all media will be used exclusively to serve the proletariat and the interests of society.”  The government censors all foreign material entering the island and arbitrarily refuses entry to foreign journalists.[59] 

          Chapter VII of the Cuban Constitution, on “Basic Rights, Duties and Guarantees” recognizes freedom of expression, information and the press, but only “in accord with the ends of a socialist society.”  Freedom of artistic expression and information is also limited, as the Constitution stipulates “that artistic freedom exists only insofar as its content is not counter-revolutionary.”  The Constitution also establishes the legal grounds for censorship, which is that only the State has the authority to determine whether oral or written expression is counter-revolutionary. 

          The Cuban Constitution also states that “none of the freedoms accorded to citizens may be exercised to challenge the Constitution and laws, or the existence and purposes of a socialist State, or the decision of the Cuban people to build socialism and communism.  Violation of this principle is a punishable offense.”[60] 

          In February 1999, Law No. 88 was enacted, called the Law on Protection of the National Independence and Economy.  This law makes it a crime to impart, search for or obtain subversive information or to bring subversive materials into the country, reproduce them or circulate them.  It also criminalizes collaboration –either direct or through third parties- with radio or television transmitters, newspapers, magazines or other mass communication media for the purpose of disseminating subversive materials.[61]   This law establishes penalties of up to 20 years imprisonment for the authors of these acts and their accomplices.  Cuban authorities are using this law to threaten journalists if they persist in activities with which the State is uncomfortable.[62]  

          Cuban authorities frequently use laws on the books criminalizing certain behaviors, such as enemy propaganda,[63] contempt, state of danger, operation of clandestine printing presses, circulation of unauthorized news, insult to fallen heroes and acts committed against the security of the State, to silence critics and dissidents and to restrict to the maximum freedom of expression and information. 

          In 1999, the Cuban government tried a number of dissidents and detained more than thirty independent journalists and activists.  On March 15, 1999, a court convicted four leaders of the Grupo de  Trabajo de Disidencia Interna (GTDI) [Internal Dissidence Working Group] for “acts against the security of the State” and sentenced them to prison.  In 1997, this group had published the document La Patria es de Todos, where it analyzed the Cuban economy, suggested amendments to the Constitution, debated human rights issues and criticized the fact that Cuba recognized only one political party.[64]

           The following persons are also serving prison sentences:  Bernardo Arévalo Padrón, sentenced to six years in 1997 for the crime of speech offensive to President Fidel Castro and Vice President Carlos Lage; Manuel Antonio González Castellanos, arrested in October 1998 and sentenced to two years and six months in prison, and Leonardo Varona González, arrested in October 1998 and sentenced to sixteen months in prison, both for speech offensive to President Fidel Castro; and Jesús Joel Díaz Hernández, Director of the Cooperativa Avileña de Periodistas Independientes, arrested on January 18, 1999, and sentenced to four years’ imprisonment for the crime of “posing a danger to society.” 

          In September 1999, the Rapporteur received information to the effect that the Cuban government had refused journalist Raúl Rivera, founder and director of the Cuba Press independent news agency, permission to travel to the United States.  He was on his way to receive the prestigious María Moors Cabot award that New York City’s Columbia University bestows each year.  That same month, journalist Angel Pablo Polanco from the independent news agency Cooperativa de Periodistas Independientes was arrested at his home by State police and his telephone line was cut.  The journalist, known for his coverage of the activities of human rights organizations, was accused of participated in illegal activities. 

          According to information received, on November 10, 1999, during a human rights demonstration staged on the occasion of the Ibero-American Summit in Havana, journalist Angel Pablo Polanco from the Cooperativa de Periodistas Independientes was arrested again, along with journalist Omar Rodríguez from the Agencia Nueva Prensa.  That same day, journalists Aurora García del Busto from the Cooperativa de Periodistas Independientes, Ohalis Victores from Cuba Voz and  José Antonio Fornaris from Cuba Verdad were placed under house arrest. 

          In December 1999, journalists Juan González Febles, Adela Soto Alvarez, María del Carmen Carro and Santiago Martínez Trujillo were detained in an apparent maneuver by Cuban authorities to prevent them from reporting on an anti-government protest demonstration.  Six other journalists were placed under house arrest: Meri Miranda, Osvaldo de Céspedes, María de los Angeles Gómez, Amarylis Cortina, Ricardo González and Alida Viso. 

          The cases mentioned here clearly illustrate that freedom of expression and information does not exist in Cuba.  The Special Rapporteur urges the Cuban authorities to change their posture with regard to an independent press and dissident voices and to recognize the Cuban people’s right to freedom of expression and information.

            b.         States where freedom of expression is severely limited 

            Peru 

            The Special Rapporteur holds that Peru is lacking the guarantees needed for full exercise of the right of freedom of expression.[65] Between the in loco visit in November 1998 and the publication of this report, there was no progress indicating a positive trend vis-à-vis freedom of expression.  

          In a number of its reports, the Commission has stated that the judiciary in Peru has little independence and autonomy.  As a consequence, there is no effective judicial control of the constitutionality and legality of the government’s acts.  This leads to illegalities and abuses of authority.[66]  

          Given this situation, the independent press is playing a vital role in Peru by reporting the authorities’ irregularities, bringing to light acts that elude the scrutiny of democratic control mechanisms and whose authors find their allies and accomplices among the ranks of the authorities. 

          As a consequence of these reports, the media and independent journalists and opposition politicians have been the targets of a systematic plan of harassment by intelligence services and police.  The attacks have range from threats and smear campaigns to serious human rights violations.  Compounding the harassment plan is the judiciary’s passive attitude, as it refrains from conducting serious and effective investigations into the abuses and crimes committed against journalists.  The judiciary has also allowed itself to be used as a means to harass and intimidate investigative journalists. 

One of the most frequently attacked media outlets in Peru is La República, a newspaper with a reputation as one of the government’s sternest critics.  Its publisher, Gustavo Mohme Llona, has received death threats on several occasions, and both he and the newspaper he heads are and have been the target of a campaign clearly intended to offend and tarnish the newspaper and its team of journalists.  

Other journalists of the newspaper have also been threatened. The journalist Angel Páez Salcedo, head of the investigative unit of the newspaper and correspondent for Clarín of Argentina, received a death threat in December 1998.  As a journalist, he reported on corruption involving Peru’s government officials and military leaders. 

In addition, Mohme, Páez, and other journalists of the newspaper have been the target of a smear campaign by various tabloid press media such as Repúdica, which was published in May 1999, but survived only one issue, because the Instituto Nacional de Defensa de la Competencia y la Propiedad Intelectual (National Institute to Defend Competition and Intellectual Property) passed a resolution banning its circulation. Repúdica  was replaced by Repudio, which had the same content and objective of discrediting these journalists.  Subsequently, in September 1999, a new anonymous publication called Repútica del Gran Sur came out in Puno.  Like Repúdica, it also aimed to discredit La República and its publisher.  The injured parties filed a complaint requesting a thorough investigation. 

Attacks on La República continued in October 1999 when the newspaper received 150 offensive faxes that jammed its telephone lines. It also received numerous threatening and insulting calls targeting the publisher and the editor-in-chief of the newspaper, Blanca Rosales.

 The campaign against these newspapers was also carried on, in late 1998, via Internet. The web page was updated from Peru by the so-called Asociación Pro Defensa de la Verdad (APRODEV) (Association for the Defense of the Truth) with material similar in content and tenor to the editorials of certain of the above-mentioned anonymous lampoon media. 

          Another example of serious violations to the right to freedom of expression is the case of Mr. Baruch Ivcher Bronstein.  Mr. Ivcher was born in Israel and acquired Peruvian citizenship in 1984.  Under Peruvian law, Peruvian citizens may own shares in companies holding concessions for television channels in Peru.  Within this legal framework, Mr. Ivcher owned 53.95% of the equity of Compañía Latinoamericana de Radiodifusión, the company that operates Channel 2, Frecuencia Latina. 

In April 1997, Television Channel 2 broadcast news on torture committed by members of the Peruvian Army Intelligence Service.  In July 1997, the Peruvian government passed a resolution annulling Mr. Ivcher’s citizenship.  Subsequently, in August, 1997, a judge suspended the ownership rights of Baruch Ivcher as president of the television company, prohibited the transfer of shares, and revoked the appointment of Ivcher as president of the firm. 

In 1998, the Inter-American Commission on Human Rights issued a report on the case, and found that the Peruvian Government had violated the rights under the American Convention on nationality, due process, freedom of expression, property, and effective judicial protection to the detriment of Mr. Ivcher.  Consequently, the Commission filed the case before the Inter-American Court, requesting that it order the Peruvian Government to restore to Mr. Ivcher Peruvian nationality and all the rights and prerogatives of which he had been arbitrarily deprived.  

          The Office of the Rapporteur also received information that police or army agents would go to the media to request information on the political affiliation of the owners, journalists, and activities of the various media, and also to ask them for copies of programs they broadcast.  For instance, in August 1999, in Huancavelica, the Military Commander with Political Authority in the region (Jefatura Político Militar) ordered the media in the area to submit the news content of their radio programs.  The memorandum addressed to media managers instructed them “… to make arrangements to send to the Office of the Military Commander with Political Authority, on a daily basis, and beginning from today, information transmitted by his/her radio station.  On orders from our superiors, all information broadcast in this emergency zone must be monitored.”  A few days later, the Command Headquarters of National Security Sub-Zone for Center No. 8 issued a press release in which it reported that Captain Adolfo Delgado Ruíz had been dismissed and punished, and that charges had been brought against before the Army’s Second Judicial Zone. 

          Similarly, the Rapporteur received information to the effect that the news program Radio Tigre in Iquitos had been arbitrarily shut down.  The report stated that the executives of the radio station were under pressure from the Army who told them to order their employees to stop reporting the irregularities committed by high-ranking members of the Army. 

          The Rapporteur received information to the effect that in March of 1999, a number of journalists from Radio Marañon were threatened in a variety of ways.  For example, two men in hoods shot journalist José Luis Linares Altamirano in his home in Jaén.  Reporter Homero Marín Salazar was the victim of an assault in his own home.  The director of the radio said that he believed these attacks were part of an intimidation campaign possibly being waged by local groups that were uncomfortable with the programming. 

          In September 1999, Juan Sánchez Oliva, director of the radio news program Quasar en la noticia in the city of Huaraz, complained that he and his family were the victims of constant threats and aggression.  Similarly, Angel Durán, a colleague of Sánchez Oliva, received phone threats that month and in November was shot in the right thigh while on his way to interview the mayor of Alija.  The Special Rapporteur had an opportunity to speak by phone with the journalist in the hospital and offered him his support.  Journalist Juan Sausa Seclén, a correspondent for La República and journalist for Radio Marañon, also received death threats. 

          In November 1999, the Commission received a request asking that precautionary measures be ordered for the journalist Guillermo Gonzales Arica, that had been harassed by State agents and agencies because of his journalistic activities.  On November 21, the Commission asked the Government of Peru to grant precautionary measures to journalist Guillermo Gonzales Arica.

c.         Other cases 

As mentioned earlier, attacks on and threats to freedom of expression and information are present in all the member States.  The cases presented here are hardly representative of all the problems in the hemisphere.  Only the most disturbing of the cases reported to the Rapporteur are mentioned here. 

In Colombia there are cases of journalists being murdered, kidnapped, assaulted and threatened.  In Chile, a restrictive law is on the books that some authorities use, as happened with the censorship of a book in 1999.  In the Dominican Republic, there are laws that require an identification card for journalist activities.  In Venezuela, the concept of truthful information was introduced in the Constitution.  These governments have repeatedly emphasized their commitment to making every effort possible to recognize and protect the right to freedom of expression.  There are bills before the Chilean legislature, introduced by the executive branch and by members of the legislature, to amend some of the laws now on the books that effectively abridge freedom of expression. 

            Colombia 

          As the armed conflict escalated in Colombia in 1999, so did there the violence and intimidation against journalists and the media. 

          The violence targeted against journalists and the media left five journalists dead, killed while practicing their profession.  Others have been kidnapped and/or threatened by members of armed dissident groups.  According to reports received, fifteen journalists working for major media outlets were forced to flee the country in fear for their lives.  But this figure is compounded by the number of journalists who leave the country or move, but file no complaint with the Office of the Rapporteur. 

          While at home in March 1999, Plinio Mendoza, a columnist for the newspaper El Espectador, received a package containing a bomb, which was quickly deactivated.  The armed dissident group called Ejército de Liberación Nacional (ELN) claimed responsibility for the attempt and described Mendoza as a propaganda machine for State and paramilitary violence. 

          In March and August 1999, journalist Jaime Orlando Aristizabal was arrested, threatened with death and stripped of his journalism material by the Audodefensas Unidas de Colombia (AUC), because of his journalistic work for the RCN chain.  In 1994, the journalist was the target of similar acts of violence and was forced to resign from his job at the Notipacifico television news.  Aristizabal had reported these acts of violence to State security agencies, but got no response. 

          On April 11, 1999, Hernando Rangel Moreno, director of the newspaper Sur 30 Días and a radio broadcaster, was killed.  Jaime Garzón, a popular journalist and humorist, was killed on August 13.  Guzmán Quintero Torres, editor-in-chief of the regional paper El Pilón and a news correspondent for Tele Caribe, was killed on September 16.  Rodolfo Luis Torres, correspondent for Radio Fuentes in Sincelejo, was killed on October 21 and Pablo Emilio Medina Motta, a television cameraman, on December 4.[67] 

          In August 1999, flyers began to circulate in Bogota, Cali, and Medellín.  In those flyers, the Ejército Rebelde Colombiano named three journalists and 21 intellectuals as enemies of the peace process in Colombia.  The journalists mentioned were Alfredo Molano and Arturo Alape, columnists with El Espectador, and Patricia Lara, former owner of the weekly publication Cambio and a columnist for the Bogota newspaper El Tiempo.  In early 1999, Molano had to leave the country after his wife was threatened by a leader of one of Colombia’s armed dissident groups. 

          In September 1999, the National Television Commission censored the program Hechos y personajes, done by journalist Ramón Jimeno, on the grounds that the journalist’s profiles constituted a defense of criminal conduct. 

          On October 26, 1999, Henry Romero, reporter/photographer for the Reuters news agency, was abducted by the armed dissident group that calls itself Ejército de Liberación Nacional (ELN), as he was covering the release of a group of people from the Church of María de Cali who had been abducted since May 31, 1999.  He was abducted immediately and held in order to explain why he published photographs showing the face of various ELN members.  He was finally released the city of Suárez, on November 3, after nine days in captivity. 

          On October 29, 1999, seven journalists and a cameraman were abducted by an armed dissident group in the department of Bolívar.  They were Wilson Lozano from Radio Caracol, Idamis Acero and Reynaldo Patiño of RCN Television, Blanca Isabel Herrera and John Jairo León of CM Noticias, Ademir Luna from Vanguardia Liberal, and Franklin Chaguala from Noticiero de las siete.  One of the kidnappers spoke with the media to report the kidnapping and said that the journalists would not be released until they reported the real truth about the atrocities that paramilitary forces had committed against peasants in that region.  The group was finally released on November 2. 

          On November 12, 1999, seven journalists and their driver were abducted by armed dissident groups in the department of Cesar.  They were David Sierra and Isabel Ballesteros from RCN Televisión, José Urbano Céspedes and Aldemar Cárdenas of Caraco Televisión, Pablo Camargo Alí from the newspaper El Pilón, Libar Gregorio Maestra from CM  news and Edgar de la Hoz from the Bucaramanga newspaper Vanguardia Liberal.[68]   After being held by their abductors for five days, the journalists were released. 

          On November 14, 1999, a bomb containing six kilograms of dynamite exploded at a bus stop, close to the offices of the Cali newspaper El Tiempo.  Three employees of the newspapers were wounded in the explosion, which did considerable property damage as well.  The identity of the parties responsible for the attack is not known. 

          In June 1999, an armed dissident group abducted Jorge Rivera Serna, a journalist with Cartagena’s newspaper Universal, and held him for one week.  He was beaten and pressured to denounce other armed groups in his reporting.  Later, Mr. Rivera Serna decided to leave Colombia, saying that he was retiring from the profession because there were no guarantees of  professional growth. 

          Similarly, journalist Juan Carlos Aguilar, television cameraman Javier Jaramillo, investigative journalist and columnist for the newspaper El Tiempo Alejandro Reyes Reyes and the deputy director of Noticiero de las Siete and columnist for El Tiempo Hernando Corral, left Colombia in 1999 after receiving numerous threats to their lives and/or their families. 

          The Office of the Rapporteur received information indicating that the Office of the Attorney General of the Nation would create a special unit to investigate the murders of journalists.  The Special Rapporteur urges the Colombian authorities to move forward with this important initiative, which can help see to it that the murders of journalists are investigated. 

            Venezuela 

The Special Rapporteur is concerned about Article 58 of the new Venezuelan Constitution.  It provides that  “Everyone has the right to timely, truthful, impartial and uncensored information.”  As explained earlier in this report, information is not susceptible of preconditions or qualifiers.  Requiring that information be truthful, timely, and so on is a kind of prior censorship expressly prohibited in the American Convention on Human Rights. 

            Chile 

          In June 1999, the Special Rapporteur visited Chile in response to an invitation to participate in several seminars on freedom of expression and information, in connection with the censorship of the book titled El Libro Negro de la Justicia Chilena by Chilean journalist Alejandra Matus. 

          During his stay in Chile, the Special Rapporteur met with various officials, journalists, representatives of civil society and professors and found that some laws on freedom of expression were anachronistic.  The Constitution still allows for film censorship and although prior censorship is prohibited in the Constitution, lesser laws allow it and are applied by the Chilean courts.  The law also still criminalizes expression disrespectful of authority.  These and other laws are incompatible with Article 13 of the American Convention and inconsistent with one of the objectives of a democratic and pluralistic society, which is to encourage public debate. 

          During his visit to Chile, the Special Rapporteur got a commitment from a number of Chilean authorities that they would introduce bills to amend or repeal the existing legislation on freedom of expression and information that is restrictive and incompatible with the American Convention and other international human rights instruments. 

          The laws that need to be repealed or made compatible with the American Convention owing to their frequent use are:[69] 

1.                  Article 6(b) of Law 12.927 on Internal State Security 

This law establishes penalties for violations of public order and stipulates that these offenses occur whenever the president of the Republic, ministers of state, senators, deputies, members of the courts, the comptroller general, commanders-in-chief of the armed forces or the director general of the Carabineros is insulted, irrespective of whether the defamation, libel or slander is related to the offended party’s performance of his official duties.[70] 

2.                  Articles 16 and 30 of the State Security Law 

Article 16 of the State Security Law is very akin to Article 6(b).  It reads as follows:  “If the press, radio or television are used to commit any crime against State security,” in other words, if it is perceived as violating or harming the public order, the court hearing the case may suspend publication of up to ten editions of the newspaper or magazine and up to ten days of broadcasting of the radio or television station.  In serious cases, the court can order immediate confiscation of any edition in which an abuse of freedom of expression punishable under this law is apparent.

          This article gives very broad discretionary authority to the examining judge.  He need only assert “some apparent abuse of freedom of expression” to order confiscation of publications or temporary shutdown of other media of expression.  Judges are thus able to ban circulation of books before deciding whether the law itself has been violated.  The law is, therefore, authorizing or allowing judges to engage in prior censorship of a publication.  The Rapporteur was informed of some concrete cases in which this law was used.[71] 

          Article 30 states that in any proceeding instituted pursuant to the State Security Law, “the examining judge shall first order that the printed materials, books, pamphlets, records, films, tapes, and any other object that may have been used to commit the crime be immediately compiled and turned over to the court.” 

          The Rapporteur is of the view that a law of this nature would have the same legal consequences as those described in the case of Article 16 of the State Security Law, i.e., authorizing judges to engage in prior censorship of publications. 

          Other laws that need to be repealed or made to conform to the American Convention on Human Rights are Articles 263 and 264 of the Penal Code and Article 284 of the Code of Military Justice, which also recognize and establish penalties for the crime of desacato (expression offensive to authority). 

          Some public officials are indeed using this anachronistic legislation.  A case in point: an episode occurred in Chile in 1999 that was a regretable setback for freedom of expression and information in that country, and so disproportionate that it became international news.

           On April 13, 1999, the book titled El Libro Negro de Justicia Chilena, written by journalist Alejandra Matus and published by Editorial Planeta, was banned in Chile.  Police confiscated the book in question from Chilean bookstores and the warehouses of Editorial Planeta.  Its circulation was banned in Chile by order of Judge Ismael Huerta, in response to a court action brought by a sitting justice of the Chilean Supreme Court and its former chief justice, Servando Jordán.  The latter invoked article 6(b) of the State Security Law and other laws to request that the book be confiscated and its circulation banned throughout Chile. 

          In addition to the court-ordered confiscation and ban of the book, journalist Alejandra Matus and Editorial Planeta were charged with defamation under the State Security Law.  When Matus learned of her imminent arrest, she left for Buenos Aires and then the United States.  The latter granted her political asylum in June 1999.  Charges were also brought against Bartolo Ortíz, manager of Editorial Planeta, and Carlos Orellana, editor of Planeta.  The Police arrested them on June 16 and held them for two days.  Both were then released. 

          As of this writing, El Libro Negro de la Justicia Chilena is still banned and its author is under indictment.

          In April 1999, a group of Chilean congressmen introduced a bill to amend the State Security Law.  The most important changes were to eliminate desacato from Article 6(b) and to amend Article 16, which the judges use to ban publications.  The executive branch later proposed some additional amendments.  These legislative initiatives are still in Congress. 

          Finally, the Chilean Constitution still contains a clause allowing film censorship.  It stipulates that “the law shall establish a censorship system for the screening and advertising of films.”  This clause is contrary to Article 13 of the American Convention, which states that the right to freedom of expression and information cannot be subject to prior censorship but shall be subject to subsequent imposition of liability.  The only exception is for the purpose of regulating children’s access to public entertainments.[72] 

          The Special Rapporteur urges the Chilean authorities to act swiftly on those initiatives aimed at repealing contempt laws that penalize expression offensive to public officials [desacato], laws that allow film censorship, and any other law on freedom of expression and information that is contrary to the American Convention. 

            Dominican Republic 

          Rule 824 on the operation of the National Entertainment and Radio Commission authorizes the Commission to suspend entertainment containing portions the Commission has not approved; while Article 71 requires organizers to submit librettos to the Commission for review.  These provisions could result in prior censorship, which is a violation of Article 13 of the American Convention. 

          According to reports received, some individuals have been barred from speaking on radio and television.  By analogy to Advisory Opinion OC-5/85, issued by the Inter-American Court of Human Rights, one could argue that this rule is contrary to Article 13 of the Convention, since it denies those who do not have the identification card issued by the Commission their right to exercise their freedom to speak on radio or television. 

          The Court has held that: 

76.  The Court concludes, therefore, that reasons of public order that may be valid to justify compulsory licensing of other professions cannot be invoked in the case of journalism because they would have the effect of permanently depriving those who are not members of the right to make full use of the rights that Article 13 of the Convention grants to each individual.  Hence, it would violate the basic principles of a democratic public order on which the Convention itself is based.

77.  The argument that licensing is a way to guarantee society objective and truthful information by means of codes of professional responsibility and ethics, is based on considerations of general welfare.  But, in truth, as has been shown, general welfare requires the greatest possible amount of information, and it is the full exercise of the right of expression that benefits this general welfare.  In principle, it would be a contradiction to invoke a restriction to freedom of expression as a means of guaranteeing it.  Such an approach would ignore the primary and fundamental character of that right, which belongs to each and every individual as well as the public at large.  A system that controls the right of expression in the name of a supposed guarantee of the correctness and truthfulness of the information that society receives can be the source of great abuse and, ultimately, violate the right to information that this same society has.

…

80.  The Court also recognizes the need for the establishment of a code that would assure the professional responsibility and ethics of journalists and impose penalties for infringement of such a code.  The Court also believes that it may be entirely proper for a State to delegate, by law, authority to impose sanctions for infringement of the code of professional responsibility and ethics.  But, when dealing with journalists, the restrictions contained in Article 13(2) and the character of the profession, to which reference has been made (supra 72-75), must be taken into account.

81.  It follows from what has been said that a law licensing journalists, which does not allow those who are not members of the “colegio” to practice journalism and limits access to the “colegio” to university graduates who have specialized in certain fields, is not compatible with the Convention.  Such a law would contain restrictions to freedom of expression that are not authorized by Article 13(2) of the Convention and would consequently be in violation not only of the right of each individual to seek and impart information and ideas through any means of his choice, but also the right of the public at large to receive information without any interference.[73]

F.         Assassination of journalists 

The Office of the Rapporteur has received information on the journalists killed in 1999.  Given the various stories received and after investigating the veracity of the information, it has decided to refer to those cases in which there are reasons to suppose that the motive behind the murders was related to the victims’ practice of journalism. 

            Argentina 

          May – Ricardo Gangeme (56).  This journalist was killed on May 13, in the city of Trelew, province of Chubut.  He was director of the weekly El Informador Chubutense and was killed as he was parking his car in front of his home.  Gangeme had previously reported irregularities and corruption in the provincial government and by some local businessmen.  Five days before he was killed, the journalist had filed a complaint of death threats, allegedly from Argentine businessman Héctor Fernándes.  On June 23, 1999, the judge hearing the case ordered that the businessman be indicted and, as the record shows, some days before Gangeme’s death, the businessman had told him:  “You’re going to die for the things you’re writing.”  In November 1999, preventive detention was ordered for six people charged in Gangeme’s death and according to the sentencing arguments, the journalist was most likely killed for his investigative journalism.

             Colombia 

          April – Hernando Rangel (44).  This journalist was killed on April 11, 1999, in Plato, Magdalena.  Rangel was director of the local publication Sur 30 Días and was attacked at the home of a friend.  An unknown assailant shot him four times in the head.  The journalist was also working independently and had a reputation for reporting corruption in government.  The investigations conducted by the Prosecutor’s Office found that the suspected intellectual author of the crime was Fidias Zeider Ospino, a mayor of that municipality who had been suspended.  He was arrested on December 7, 1999. 

          August – Jaime Garzón (36).  This journalist was killed on August 13, 1999, in Bogota.  He was both a journalist and humorist with Radionet and Caracol Televisión and was assaulted by two men on a motorcycle, as he was listening to the radio.  At the outset, a man who spoke on behalf of the Autodefensas Unidas de Colombia (AUC) claimed responsibility for the murder; later, however, this group denied the information in a fax sent to the Radionet station.  The journalist was known for his role in the peace negotiations to obtain the release of persons abducted by guerrilla movements.  He had also lobbied to get the authorities to begin talks with the Ejército de Liberación Nacional (ELN). 

          September – Guzmán Quintero Torres (34).  This journalist was killed on September 16, 1999, in Valledupar, capital of the department of Cesar.  He was editor-in-chief of the newspaper El Pilón.  An armed man approached him and shot him several times in the head and in the chest.  He then fled the scene on a motorcycle.  Two El Pilón journalists who were with Quntero Torres that night were witnesses to the event.  Quintero was respected in journalistic circles.  He was founder and vice president of the Valledupar Journalists’ Club and a correspondent for Televista, a news program carried by Telecaribe, a regional television chain.  He was also coordinator of the program to train communicators for community participation, conducted by the Universidad Nacional Abierta y a Distancia. 

          The motive for the killing has not yet been determined.  According to his colleagues, Quintero had not received threats in the days leading up to the killing, although some years back he had received threats for publishing a note in the newspaper El Heraldo about the Autodefensas Unidas de Colombia (AUC), a paramilitary group fighting other guerrilla groups.  After these threats, the journalist stopped reporting on political matters and devoted himself exclusively to the finance area.  However, Quintero Torres had been investigating the murder of journalist Amparo Leonor Jiménez , which was on August 11, 1998. 

          October – Rodolfo Luis Torres (38).  Torres was killed on October 21, 1999, in the city of San Onofre in the department of Sucre.  The body of the journalist, a correspondent for Radio Fuentes of Sincelejo, was found along a highway with three bullet holes to the head.  According to witnesses, very early that morning four men had forcibly dragged him from his home. 

          Torres was also working as a mayor’s press secretary.  He had once been a correspondent for Radio Caracol and the newspaper Meridiano in Sincelejo.  Torres’ colleagues were certain that the journalist was killed in retaliation for his published articles.  One year later, a series of anonymous pamphlets distributed in the city accused him of belonging to an armed dissident group called the Ejército de Liberación Nacional (ELN). 

          December – Pablo Emilio Medina Motta (21).  This journalist was killed on December 4, 1999, between the cities of Gigante and Garzón, in the department of Huila.  According to the first police report, Pablo Emilio Medina, a television cameraman for TV Garzón, was believed to have been killed by an armed dissident group called the Fuerzas Revolucionarias de Colombia (FARC) while covering the group’s offensive on the city of Gigante.  Members of FARC allegedly fired on Pablo Emilio Medina as he, riding in a police motorcycle at the time, was filming the attack.  Local journalists said that the FARC members fired because they mistook him for the police.

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