Freedom of Expression
Press Release 66/02
SPECIAL RAPPORTEUR FOR FREEDOM OF
EXPRESSION URGES THE GOVERNMENT OF CHILE TO ABOLISH
THE CONTEMPT /“DESACATO” LAWS
The Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS), Eduardo A. Bertoni, visited Chile on December 16 and 17, 2002. The Rapporteurship for Freedom of Expression is a functionally autonomous, full-time office with its own budget, established by the Inter-American Commission on Human Rights within the Commission’s sphere of competence and operating under the same legal framework. The Office of the Special Rapporteur originated in the Second Summit of Heads of State and Government of the Americas, held in Santiago, Chile, in April 1998.
The Rapporteurship seeks to stimulate the awareness for the full observance of freedom of expression in the hemisphere, given the fundamental role it plays in the consolidation and advancement of the democratic system and to make specific recommendations on freedom of expression to member States and to promote adoption of progressive measures to strengthen this right. In furtherance of these objectives and the mandate of the Rapporteurship, the visit was paid in response to an invitation from the Government of President Ricardo Lagos, during which the Special Rapporteur was able to gather information regarding the status of freedom of expression in Chile. This information will be later processed and included in the Annual Report of the Rapporteurship to the ICHR. Notwithstanding, the Special Rapporteur makes on this occasion some preliminary observations.
During the visit, the Rapporteur’s agenda included meetings with the Secretary General, Heraldo Muñoz Valenzuela; the President of the Supreme Court of Justice, Mario Garrido Montt; members of the Human Rights Commission of the Senate; the President of the Human Rights Commission of the House of Representatives, Sergio Ojeda Uribe; the General Director of Foreign Affairs, Department of Foreign Relations, Ambassador Carlos Portales; the President of the Court of Appeals for Santiago, Carlos Cerda Fernandez; the Judicial Director of the Department of the Secretary General, Ernesto Galaz Cañaz; and the National Coordinator for the Fund for the Development of Culture and the Arts, Eugenio Llona. Additionally, the Rapporteur met with journalists, journalists associations and non- governmental organizations. He also participated in a meeting organized by the Chilean Forum for the Freedom of Expression.
Lately, Chile has witnessed some progress adapting its domestic legislation to the international standards that guarantee the observance of the exercise of the freedom of expression. In that respect, it is important to emphasize that the Cinematographic Rating Law was recently passed, showing the abolition of censorship in the constitutional framework, a significant step forward in the observance of freedom of expression in Chile. It is important to highlight that prior censorship is specifically forbidden by the American Convention on Human Rights.
However, the Rapporteur expresses his concern regarding certain judicial decisions that harm the right to freedom of expression. The Rapporteur received information on a seizure order of the book “Cecilia, una vida en llamas” (“Cecilia, a life in flames”), by Juan Cristóbal Peña, in the frame of a criminal action filed for serious defamation. The Rapporteur recalls that restrictions on the free circulation of ideas and opinions violate the right to freedom of expression, according to Principle 5 of the Declaration of Principles on Freedom of Expression. The Rapporteur expresses his deep concern regarding the judgment, which imperils the right to freedom of expression and information in Chile.
Regarding the laws of contempt, the Rapporteurship has already expressed that, notwithstanding the significance of the abolition of section 6 b of the Law of Internal State Security, legislation in Chile still includes the elements of contempt in other bodies of law. With regard to this offense, the IACHR holds that contempt is not compatible with the American Convention, because it could be abused as a way to silence ideas and opinions, suppressing debate, which is critical for the effective operation of democratic institutions. Moreover, contempt legislation dissuades people from criticizing for fear of being subject to judicial actions that, in some cases, may bear monetary penalties.
During his visit, the Rapporteur also gathered information on a bill sent by the Executive to the Congress about the abolition of the laws of contempt that are included in the Criminal Code and the Code of Military Justice of Chile. The Rapporteur recommends that the Congress discuss this promising initiative and promptly pass the law, to finish the process that started with the abolition of section 6 b of the Law of Internal State Security. As long as this bill is not passed, Chile will continue to have legislation on contempt, thus, contravening the international standards universally established, as the Rapporteurship has noted in its previous reports.
The Rapporteur understands that once this necessary process of legislative reform is completed, there will still remain the review of other laws that bear the same effects than contempt laws when applied by government officers. Admitting that government officers and public people are subject to a lower and not higher degree of protection against critics and public examination means that the distinction between public and private people must be applied also to ordinary laws on slander and defamation. The chances of abusing those laws to silence critical opinions are as high as in the case of the laws of contempt.
In this sense, the Rapporteur was briefed on cases that concern journalists and individuals that had criticized government officers or public people. The Rapporteur will carefully follow upon those and other cases, and points out that one of the main concerns of the Rapporteurship for Freedom of Expression is the use of the judicial system in many countries of the hemisphere as tools for intimidation, that in practice becomes an instrument to restrict the freedom of expression.
The Office of the Special Rapporteur for Freedom of Expression will continue its close monitoring of the status of freedom of expression, particularly regarding the current processes of legislative reform, the application of these reforms by the Courts, and the judicial decisions related to this fundamental right.
The Rapporteur would like to thank the Government of Chile for the cooperation and facilities it provided for this visit, as well as the non-governmental organizations and civil institutions for its preparation and fulfillment.
Eduardo A. Bertoni
IACHR Special Rapporteur for Freedom of Expression
Washington, D.C.