OEA/Ser.L/V/II.53
REPORT
ON THE SITUATION OF HUMAN RIGHTS
CHAPTER
VII FREEDOM
OF THOUGHT AND EXPRESSION1
1.
As indicated in Chapter I of this report, the Constitution of the
Republic establishes that thought may be freely expressed without prior
censorship and that any person who abuses this right by acting with a disregard
for private life or morality shall be held responsible before the law. Moreover,
the Constitution prescribes that “no person may be persecuted or molested for
his opinions or for his acts which do not involve an infraction of the law.”2
2.
Regulations governing freedom of thought and expression are contained in
the law on Expression of Thought, in Decree Nº 9 of the Constituent Assembly,
promulgated on April 28, 1966, on the basis of the pertinent constitutional
provisions. This legal code provides that “thoughts may be freely expressed in
any form, and in no case may bond or surety be required for the exercise of this
right, nor may it be subject to prior censorship.” Printed matters is
classified into books, booklets, newspapers, leaflets, and title pages. Freedom
of information is characterized as unrestricted, with the statement that
journalists shall have access to all sources of information.3
In accordance with the legal code, publications shall be represented
before the courts of justice and administrative authorities by the director, the
editor in chief, or the legal representative of the particular publication,
through acts originating in the law. Publishing houses and radio and television
stations shall enjoy the benefits of the Industrial Development Law, provided
that they comply with the requirements established by that law.4
The Law on Expression of Thought provides that no one may be persecuted
or molested for his opinions, but anyone who acts with a disregard for private
life or morality or who commits a legally-punishable crime or misdemeanor, shall
be held responsible before the law. It is provided in this respect that a jury
trial and punishment may result when publications abuse freedom of expression of
thought in the following cases: a. when they imply treachery to the fatherland;
b. when considered subversive under the law; c. when damaging to moral
principles; d. when failing to respect private lives; and e. when slanderous or
severely damaging.5
Attacks on public officials or employees for purely official acts carried
out in the exercise of their positions, are not crimes of slander or damage
under the law, even if the persons concerned have already left these positions
at the time that a charge is made against them. Newspapers are obliged to
publish clarifications, corrections, explanations, or refutations sent to them
by any individual or juridical person to whom they inexactly attribute acts,
whom they accuse, or in any other way directly and personally make reference.
Crimes and misdemeanors in the expression of thought through the media shall be
judged exclusively by a jury, which shall declare in each case, to the best of
its knowledge and belief, whether or not the act is a crime or misdemeanor. When
any person considers himself damaged by the content of a publication or issue,
he shall present a document to the judge of the first instance of the domicile
of the party presumed responsible for the publication and bring suit against
that party. The document must meet certain requirements. When the verdict is for
acquittal, the judge must dismiss the case during that proceeding and notify the
interested parties; and if the verdict is for conviction, the judge must impose
the appropriate punishment in that same court. The decision may be appealed
within 48 hours after it is issued, and the condemned may be released from jail
under bail or promissory bond at the decision of the judge. The decision of the
Court of Appeals on the appeal presented and processed must adhere to the
punishment imposed by the judge of the law, and the court may not consider or
modify the verdict of the jury. There is no recourse whatever against the
decision of the Court of Appeals. At the request of the interested party, a
court of honor shall consider attacks against or denunciations of public
officials or employees for purely official acts in the performance of their
duties. The decision of this court may not be contested, and the publication so
obliged shall insert it without comment, either before or after, although if it
so wishes it may present excuses or explanations to the injured party in a
separate article.6 B.
Effect of this law in practice
1.
Although it is true that journalists in Guatemala exercise their
profession in the various media, it is also true that freedom of thought and
expression is constrained by the prevailing climate of fear and threat, and that
many journalists have been victims of the violence disrupting this country. Some
Guatemalan intellectuals consider that freedom of expression of thought is
seriously restricted.7
2.
On February 7, 1981, in view of the murder of the journalist Jorge
Marroquín on the 6th of that month, international news services
reported that 17 journalists had been murdered in less than a month “by groups
associated with the government and with activities of harassment against the
police.” Marroquín, who worked for the paper Teleprensa, was killed by
gunshot when on his way home, and the Association of Newspaper Journalists of
Guatemala condemned this attack.
3.
Freedom of thought and expression is restricted by the aforementioned
circumstances, not only as regards journalists and other members of the media.
Restrictions also extend to the dissemination of culture and freedom in teaching
and in educational judgment. In this respect, criminal acts have been committed
against professors and student leaders and there have been activities of
harassment against the University of San Carlos, as set forth in documents in
the possession of the Commission. This situation is incompatible with the
provisions of the Constitution, which guarantee “freedom of instruction and of
teaching criteria”; and provide that the University of San Carlos of Guatemala
“is an autonomous institution with juridical personality,” which shall
organize, direct, and develop public higher learning and university professional
education in the nation, encourage with all the means at its disposal scientific
and philosophical research in the advance of culture, and cooperate in the study
and solution of national problems.8
The document with the denunciations on violations of human rights in Guatemala,
presented to the Commission on March 1981 by the Frente Democrático contra la
Represión, refers to the following matters, among others:
In 1980, 226 elementary school teachers, 389 high school and university
students, and 89 university professors were murdered. At the same time, hundreds
of teachers, university professors, students, and professionals, were forced to
abandon their professional activities or studies, or go into exile.
As far as the present government is concerned, the university is the
“center of subversion” and as such must be attacked, just as there are
different sectors that are accused of being “communist,” for the simple
reason of thinking about of organizing themselves for protection. The President
of Guatemala himself and his staff members have made a number of statements
attacking and accusing the university, as a means of justifying the many
terrorist attacks against it.
The University Center of Occidente of the National University of San
Carlos de Guatemala was burned and dynamited twice in 1980. Its most
distinguished leaders and some of the country's outstanding intellectuals were
murdered; in the meantime, others went into exile. At the beginning of April
1980, criminal persecution of the University of San Carlos become worse; its
teaching and administrative staff and the student body became victims of
government violence.9 4.
In accordance with its statutory provisions, the Commission has also
processed several denunciations on this matter. By way of example, note should
be made of the kidnapping, torture and murder of José León Castañeda, a
journalist, (Case 7359) on which the Commission adopted a resolution, (given in
Chapter IV of this Report).10
5.
As pointed out in the previous chapter, the Commission feels that there
are no formal limitations in Guatemala on the freedom of thought and expression,
nor are they the target of direct attack by the Government. Nevertheless, the
climate of insecurity and terror prevailing in the country do in fact inhibit
the full exercise of those freedoms because of the risks created for journalists
who wish to exercise their profession freely. This explains, for example, a
certain self-censorship which seems to be prevalent in virtually all the mass
media. [ Table
of Contents | Previous | Next ] 1 Article
13 of the American Convention on Human Rights reads as follows: “Freedom
of thought and expression. 1. Everyone has the right to freedom of
thought and expression. This right includes freedom to seek, receive, and
impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing, in print, in the form of art, or through any other
medium of one's choice. 2. The exercise of the right provided for in the
foregoing paragraph shall not be subject to prior censorship but shall be
subject to subsequent imposition of liability, which shall be expressly
established by law to the extent necessary to ensure: a. respect for the
rights or reputations of others; or b. the protection of national security,
public order, or public health or morals. 3. The right of expression may not
be restricted by indirect methods or means , such as the abuse of government
or private controls over newsprint, radio broadcasting frequencies, or
equipment used in the dissemination of information, or by any other means
tending to impede the communication and circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2 above, public entertainment
may be subject by law to prior censorship for the sole purpose of regulating
access to them for the moral protection of childhood and adolescence. 5. Any
propaganda for war and any advocacy of national, racial, or religious hatred
that constitute incitement to lawless violence or to any other similar
illegal action against any person or group of persons on any grounds
including those of race, color, religion, language, or national origin shall
be considered as offenses punishable by law.” 2 Articles
45 and 65 of the Constitution. 3 Articles
1, 3, and 5 of the law. 4 Articles
11 and 14 of the law. 5 Articles
27 and 28 of the law. 6 Articles
35, 37, 48, 53, 54, 67, 68, 69, 70, 71, and 77 of the law. 7 In
his report on the situation of human rights in Guatemala, Dr. Rafael Cuevas
del Cid, former Rector of the University of San Carlos states the following:
“Severe conditions, generally not written, restrict freedom of thought.
Almost every expression of protest or denunciation must be published, when
it is so permitted, in paid media. A simple review of the daily press
reveals how much influence free enterprise also has here, since, in the last
analysis, it is this that determines what may and may not be published. The
right to freedom of expression of thought includes freedom to seek, receive,
and disseminate information and ideas of all kinds, without consideration of
boundaries, whether orally, or in writing, either in print or in the form of
art, or through any other chosen procedure. Indeed, anyone accustomed to
receiving all types of information will be immediately surprised at the
frugal coverage in our press and other media of news, articles, or comments
that do not originate in the western world. Of course, this is
notwithstanding the fact that well-known news services will make it a print
of presenting only one side of the coin to the reader, with the usual
division of the world into the good and the bad. The low cultural and
political level of the great masses of our people—and even of many
intellectuals—does not allow the Guatemalan to discern the degree of the
ideological bombardment to which he is constantly being subjected, or how
much of an attempt is being made to see that he confuses the interests of
the owners and reporters with freedom of expression. 8 Articles
93 and 99 of the Constitution. 9 It
should be noted that on May 28, 1980, Dr. Francisco Villagrán Kramer, who
was then Vice President of the Republic, wrote to the Rector of the
Universidad de San Carlos to express his consternation over the acts of
violence committed against that university and the assassination of
university professors and students, and his solidarity with them. The letter
reads as follows: I wish to express to you, in your capacity as Acting
Rector, and through you, to the Honorable Higher University Council my deep
consternation and solidarity with you in the face of the series of events
affecting the free and autonomous functioning of the Universidad de San
Carlos, and particularly, the assassination of both university professors
and students, such as Carlos René Recinos Sandoval, Professor of
Administrative Law and Adviser to the People's Legal Aid Bureau. As you have
said in statements to the national press, the University is perturbed by any
act that affects the life of any Guatemalan citizen, or that impinges upon
his right to an existence free of poverty and oppression of any kind. Both
in my capacity as an academic and as Vice President of the Republic, I
cannot but express to you that that concern is widespread and shared. In the
face of the tragic events that have affected the working class as well as
members of the Catholic Church, I have made it my point of duty to take
action to have those acts clarified legally, and to ensure that the rightful
legal guarantee is enforced as established by the Constitution. I attach
copies of notes I sent to the President of the Congress of the Republic and
to the Apostolic Nunciature accredited to Guatemala. The first has had no
results, but I have been informed that the second letter has been forwarded
to His Holiness Pope John Paul II. While these efforts would appear destined
not to have any results, I find that I share the advice given me by the
great Colombian writer, Gabriel García Márquez, that as small or modest as
the effort may be, one must always strive to point out specific acts
involving the violation of the rights of citizens and to see to it that
action is taken within the confines of the law. I also attach the findings
of an investigation undertaken at my request regarding Jesús Mendes
Cotzajay and Hugo Alberto Espino Chávez. Not only do I wish to express to
you my solidarity with the Universidad of San Carlos, but I also wish to
offer you my cooperation in any action in which you or the Honorable Higher
University Council feel it appropriate and advisable for my office to
intervene in support or on behalf of the University's efforts.” 10 See
Chapter IV, page 48. |