Violations of freedom of expression in Chile are atypical when compared with other countries in the hemisphere. To varying degrees, most countries have a relatively open and diverse press and a dynamic and often acrimonious public debate, but journalists may frequently face physical reprisal from the state for their work. In Chile, journalists and opposition politicians do not generally face physical risk, but the public debate appears comparatively muted, attenuated and timorous, as if uninhibited expression were either personally risky or dangerous to society. Since the return to democratic rule, violations of freedom of expression can be traced not to repressive action by the executive branch but to the persistence of laws that fail to protect essential democratic values and hamper the vigorous discussion that democracy requires.
Chile has always been a society with a pronounced respect for the formalities of the written law. By long tradition courts follow the rule that their job is to apply the law in its literal sense, and they are reluctant to interpret it in the light of underlying concerns, such as the preservation of democratic values and international human rights principles.98 Many of the laws affecting freedom of expression have their roots in the last century and were refined and developed in the 1930s and during the Cold War period, with striking continuity in their provisions.99 While progress to repeal or amend these laws in the legislature has been extremely slow, senior judges, with a few exceptions, have only superficially addressed the constitutional principles involved or the underlying human rights principles.
Two areas of legislation are of particular concern. The first deals with laws that restrict political criticism by prohibiting expressions that are considered offensive to senior officials in state institutions. The second areaconcerns a range of laws and statutes that limit the public’s right of access to information far more strictly than international human rights standards permit. Constitutional protection of right to freedom of expression is limited in both areas. The right to honor and privacy, like freedom of expression, is guaranteed in the constitution’s bill of rights. However, freedom of expression is not protected sufficiently from restrictions imposed in the name of honor or privacy. There is no explicit guarantee of the public’s right of access to information, and many of the most serious restrictions on this right emanate from the courts themselves.
The Weakness of Constitutional Protection of Freedom of Expression
The constitution of 1980 acknowledges, but does not sufficiently safeguard, freedom of expression. Brainchild of the military and its conservative supporters, it was designed to create an “authoritarian, vigorous, protected democracy, based on the concept of unity, participation and integration of all the sectors of the country.”100 The political institutions were protected permanently against left-wing subversion, which the military considered to be the permanent danger of democracy: Article 8, for example, outlawed the expression of ideas considered to be contrary to the essence of Chilean institutionality, by banning the “propagation of doctrines which attack the family, promote violence or a conception of society, the State of the legal order of a totalitarian character or based on the class struggle,”101 a clear reference to Marxism. In a historical parallel with the repeal of the Law of Defense of Democracy at the end of the Ibañez government in 1958, Article 8 was repealed in August 1989, following negotiations between the democratic opposition and the military government. This does not alter the basic authoritarian nature of the constitution.
Many other norms reflecting this “protected democracy” concept remain intact. On freedom of expression, General Pinochet laid down guidelines — as he did on other matters — for the nine conservative lawyers who began drafting the new constitution four years after the military coup. Significantly, his recommendation to the commission regarding the media seemed to address free expression as an afterthought. The general called for:
revision of the legislation on media of social communication with the objective of preventing that they be used to destroy the institutional order, moral principles, the value of nationality or the honor of persons, while respecting legitimate freedom of expression.102
The qualification of “freedom of expression” by the adjective “legitimate” is eloquent. It transfers attention immediately to the conditions which must be observed by the person who exercises the right, making it from the start a conditional right, and highlights its potentially negative consequences for society. While international standards do permit certain restrictions on freedom of expression, such restrictions must be shown to be both legitimate and necessary, and they may not jeopardize the principle of free expression itself. This is considered in international law to be a cornerstone of a democratic society.
Article 19 (12) of the constitution provides explicit protection to “the freedom to express opinions and to inform” and prohibits prior censorship.103 However, it does not specify on what grounds the right may be restricted by the imposition of legal penalties for its misuse, beyond saying that such groundsmust be established by law. It is clear, nevertheless, that abuses must be dealt with by the imposition of subsequent penalties, not by prior censorship. The rights of others to be protected from abuses of freedom of expression are also explicitly safeguarded in Article 19 (4). The correct balance between the enjoyment of these competing rights must be struck by the courts when they investigate accusations involving the misuse of freedom of expression. Unfortunately, as we note in Chapter IV, judicial precedent established in recent years considers the right to honor and privacy to have superior status to that of freedom of expression, a position that has no support in the constitution. This doctrine has led to instances of prior censorship by the courts, violating the constitutional prohibition of this practice.
Although the language adopted in Article 19 (12) refers only to the right to express opinions and transmit information, legal experts consulted by Human Rights Watch agree that it includes the right to search for and receive information. The point was addressed by the Ortúzar commission which concluded that the right to be informed was implicit in the right to inform.104 The right to “seek, receive and impart [information]” is included in the wording of both the International Covenant and the American Convention.105 In Human Rights Watch’s view this right should be interpreted as generally entailing a right of access to official information, as well as information that is generally available. Although international human rights law does not explicitly provide a right to official information, the state is required to “ensure” and “give effect” to the right to inform oneself.106 Since the right to seek information is an essential part of the right to free expression, the same limitations apply to it as apply to freedom of expression. Consequently, the state can only invoke specific circumstances to limit access to official information, subject to the same rules oflegitimacy as apply to limitations on freedom of expression generally. The importance of access to official information in deepening democratic participation has been recognized in European courts and the Council of Europe since the early 1980s.107 As we note below, Chile has a weak tradition of public access to official information, a fact that has been recognized by the government and has motivated legislative proposals to expand access.
The prohibition of prior censorship and the requirement that laws punishing abuse of the right to inform be approved by an absolute majority of Congress together represent important formal safeguards of freedom of expression. These basic guarantees are part of Chilean democratic tradition. Similar language can be found in the 1925 constitution, and in the 1833 constitution, generally considered to inaugurate Chile’s republican democratic era.108 In the earlier texts, formal protection of freedom of expression was not buttressed by any specification of the limits governments must observe in restricting the right. While the earlier norms provided some protection from arbitrary acts of the executive branch, they did not, therefore, protect the right from restrictive laws introduced by parliamentary majorities. The problem isaddressed to a limited degree in the 1980 constitution, Article 19 (26) of which states:
The assurance that the legal precepts mandated by the Constitution to regulate or complement the guarantees established by it or limit them in the cases that it authorizes, may not affect rights in their essence or impose conditions, tributes or requirements which prevent their free exercise.” [Emphasis added.]109
The effectiveness of this guarantee clearly depends on the sense given to “rights in their essence,” a phrase that leaves unsettled the question of what the essence of a right is. Protection of freedom of expression is weakened by failing to specify the permissible grounds for restrictions of freedom of expression, such as those found in Article 19 (3) of the International Covenant and Article 13 (2) of the American Convention.110
Defamation and the right to honor and privacy
Protection from defamation, as well as invasion of one’s private life, is also listed in the constitutional bill of rights. Paragraph 4 guarantees:
Respect and protection of private and public life and the public esteem (honra) of the person and of his or her family. The transgression of this precept committed through a medium of social communication and which consists in the imputation of a fact or act which is false, or which unjustifiably causes harm or discredit to a person or his or her family, shall constitute a crime and shall receive the punishment determined by the law. Nevertheless, the medium of social communication may be exempted if it proves before the respective court that the imputation is true, unless it constitutes by itself the crime of libel against private persons. Furthermore the owners, directors and administrators of themedium of social communication shall be jointly responsible for the damages which may be imposed.111
The term honra in Spanish refers to a person’s public reputation or prestige. Chilean law distinguishes defamation from offenses against honor, which involve not only public esteem but also its subjective or personal aspect, such as an offense against a person’s self-respect or the honor of his or her family.112 Offenses against honor constitute libel (injurias).113 There is an important difference between defamation and libel. The defendant in a defamation suit may establish innocence by proving the truth of the offensive statement (exceptio veritatis).114 In the case of libel, truth is not a defense unless the person affected is a public servant and the injurious statement concerns his or her official function.115 As we note below, the rule that the defense of truth is not applicable has also generally been applied to prosecutions under the Law of State Security.
No law currently exists covering defamation as a specific offense. However, in recent parliamentary discussion of a government bill to reform the law governing the press, discussed below, one right-wing opposition senator proposed an amendment to transform Article 19(4) into a special law on defamation, increasing penalties above those in existing libel provisions in the Criminal Code. The motion was fortunately defeated.
Constitutional guarantees of freedom of expression are insufficiently protected when the state restricts them under emergency powers. A so-called state of assembly may be declared when the country is at war, during which freedom of expression and information may be restricted or suspended entirely. During internal conflict (state of siege) or instability provoked by natural disasters (state of catastrophe), these rights may only be restricted. The blanket suspension of rights protected under the International Covenant is not permissible even when derogations are in force: restrictive measures must be adopted only “to the extent strictly required by the exigencies of the situation.”116 Moreover, Chilean courts are prohibited under article 41(3) of the constitution from ruling on the validity of the justification given by the authorities in declaring derogations or restrictions. Although this article may be interpreted as not preventing the judge from ruling on the proportionality of restrictions imposed, in practice judges have almost unanimously interpreted the rule as strictly prohibiting such judgments.117 This jurisprudence, established even before the constitution came into force in 1980, is contrary to the position of the Inter-American Court of Human Rights, which has established that governments may not suspend rights on the basis of an executive decision whose grounds the courts are not permitted to question.118 When emergency measures are in force the courts are called upon to play an essential role in checking abuse of executive power.
Chile has a set of laws whose purpose is to punish expressions of contempt for those occupying high positions in any of the three branches of government. Contempt of authority provisions exist in the Criminal Code, in the State Security Law, and also in the Code of Military Justice.119 The underlying logic of these laws rests on the notion that people are obliged to show respect to those in authority because of their rank, reflecting a view of the ordinary person as a subject rather than a citizen.
Laws penalizing offensive or injurious criticism of public authorities are common to most Latin American countries: such laws can be found in the penal codes of Bolivia, Brazil, Chile, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Haiti, Mexico, Paraguay, Peru, Uruguay and Venezuela. They have become known generically as leyes de desacato (laws of contempt).120 As defined by the Inter-American Commission on Human Rights:
Desacato laws are a class of legislation that criminalizes expression which offends, insults, or threatens a public functionary in the performance of his or her official duties. These laws have a long history, originally promulgated in Roman times to defend the honor of the emperor. Today, the desacato laws which persist in many member States are justified as necessary to protect the proper functioning of the public administration. Desacato laws are said to play a dual role. First, by protecting public functionaries from offensive and/or critical speech, these functionaries are left unhindered to perform their duties and thus, the Government itself is allowed to run smoothly. Second, desacato laws protect the public order because criticism of public functionaries may have a destabilizing effect on national government since, the argument goes, it reflects not only on the individual criticizedbut on the office he or she holds and the administration he or she serves.121
The contempt of authority provision in the State Security Law potentially criminalizes criticism of a congressperson, a high court justice or the chief of police, among other state dignitaries.122 According to Article 6(b) of the law, it is an offense against public order to insult
the President of the Republic, Ministers of State, Senators or Deputies, or members of the Higher Courts of Justice, the Comptroller General of the Republic, Commanders-in-Chief of the Armed Forces or the General Director of Carabineros123 whether or not the defamation, libel or calumny is committed with respect to the exercise of official functions of the offended party.
This law has been used to curb political criticism for four decades since it was enacted in 1958 by President Ibañez. Ironically, it was the left-wing administration of President Allende that added the chiefs of the armed forces and the uniformed police to the list of authorities who could sue under the law.
Contempt of authority offenses are dealt with according to special norms that reduce due process guarantees and rights of defense and prescribe higher penalties. Telescoped investigative procedures allow significantly less time for defense than the crime of libel in the Criminal Code. The initial hearingis conducted by an appeals court judge, who both investigates and rules on the charge. The decision may be appealed to the full appeals court, but rights of appeal to the Supreme Court are limited. Those convicted under Article 6(b) go to prison (although sentences are frequently suspended). The maximum penalty for libel or calumny is three years’ imprisonment, while penalties for an infraction of Article 6(b) may rise to five years. In effect, contempt of authority is a more serious offense than ordinary libel.
The special procedures applicable show that legislators and judges have conceived of the law as a tool for dealing summarily with expressions construed as likely to disturb public order. The law defines contempt of authority as a crime against public order. In practice, courts have long refrained from assessing whether an allegedly contemptuous or insulting expression in fact endangered public order, or was intended to have that effect. Instead they have considered the danger to be implicit in the insult itself. In none of the Article 6(b) cases from 1970 to 1998 that Human Rights Watch studied, was the causal connection proven. Most judges have even ruled that evidence presented on this point was inadmissible, although it is the most obvious defense in a case of this kind.124 Public order is, in fact, a disguise, one of several disguises contempt of authority accusations assume. The real nature of the offense is the insult or criticism itself.
Article 6(b) is ambiguous as to whether its purpose is to shield public office itself from criticism, or just the incumbent against whom the criticism is directed. The law has been interpreted in both senses. Prosecutions presented on behalf of public institutions have been rarer, but as recently as 1995 a critic was convicted of offending the honor of Congress as an institution, without having named any of its members in particular.125 Is it legitimate to conceive of public institutions as having honor and consequently a right to protection comparable to any private individual? The matter is not addressed explicitly in relevant human rights treaties and there is little consistent international human rights jurisprudence specifically addressing the issue. Our view is that public institutions, being answerable to the general public in a democratic system of government, must be subject to an intense level of scrutiny, as public officialsare, and should not therefore enjoy such a high level of protection against injurious attacks as private citizens. Democracies must allow a broad margin of tolerance of destructive and unreasonable criticism in order to safeguard the protection of the essential right to criticize. Furthermore, debate is needed in order to define in what respects, if in any at all, it is legitimate to protect public institutions against unreasonable criticism. Human Rights Watch’s view is that citizens should be free, and feel free, to criticize the institutions that represent them and to which they contribute taxes, unless freedom of expression is expressly limited due to an emergency that threatens the life of the nation.126 It must be remembered that public officials who belong to the institution under criticism still have an individual right of reply as well as access to the press to defend the institution publicly.
A rule in Article 6(b) proceedings allowing an offended official to both launch a prosecution and withdraw it at will further facilitates abuse of this law to silence criticism. As a general principle, the only criminal accusations that may be withdrawn by the victim under Chilean legislation are those that do not involve a public interest, such as private libel suits. The public order offenses of Article 6(b) are by definition a matter of public interest, yet despite this the plaintiff has the liberty to call a halt to the proceedings at any time. In this way the law can easily be pressed into service to intimidate critics with the prospect of criminalization and an unequal prosecution.
In its report on contempt of authority legislation laws published in 1995, the Inter-American Commission on Human Rights concluded that “desacato laws are incompatible with Article 13 of the American Convention on Human Rights because they suppress the freedom of expression necessary for the proper functioning of a democratic society.”127 On the issue of whether or not these laws are necessary, the commission argued:
The special protection desacato 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 the light of a Government’s dominant role in society, and particularly where other means are available to reply to unjustified attacks through the government’s access to the media or individual civil actions of libel and slander. Any criticism that is not related to the official’s position may be subject, as is the case for all private individuals, to ordinary libel, slander, and defamation actions. In this sense, the Government’s prosecution of a person who criticizes a public official acting in his or her 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 public administration. As such, these laws are also an unjustified means to limit certain speech that is already restricted by laws that all persons, regardless of their status, may invoke.128
The commission considered it inevitable that contempt of authority laws would chill free expression. Its report cited a decision of the European Court of Human Rights that although the penalties or fines did not prevent a petitioner from expressing himself, “they nonetheless amounted to a censure, which would be likely to discourage him from making criticism of that kind again in the future.”129
In the debate on the report, the commission’s opinion was strongly contested by the Chilean government delegate, Edmundo Vargas Carreño. Vargas maintained that the issue was “not a basic human rights concern in the continent.” He noted that the relevant article of the Chilean Criminal Code was more than a century old and that it had been rarely, if ever, applied. Referring to allegations of lack of tolerance by officials of public criticism he said, “ I thinkthat it is a problem — I admit — of possibly more theoretical importance, because I have not seen problems in practice which might raise difficulties.”130
On each of these points Vargas was inaccurate. The relevance of the issue and the problems it posed had been demonstrated by the Verbitsky case in Argentina, which, when presented to the commission in 1992, motivated the commission’s study on contempt of authority laws.131 In his comments on the Chilean criminal code, Vargas failed to mention that only three months before his speech, the Chilean congress had invoked Articles 263 and 264 of the Criminal Code in a highly publicized contempt prosecution that was still underway.132 A more serious omission was his failure to mention at all the State Security Law and the twenty-four journalists and politicians who have been prosecuted for freedom of expression offenses under this law during the Aylwin and Frei administrations.
The Chilean armed forces and the uniformed police have their own contempt of authorities laws, which are applicable to civilians. They include Article 284 of the Code of Military Justice (threats, offenses or insult to the armed forces) and Article 276, relating to the crime of sedition. Offenses committed by civilians under the sedition law are tried by military courts, depriving defendants of the right to be tried by an independent and impartial court. Despite the fact that convictions have been rare, the prosecution itself is intimidating and curbs an essential democratic right to criticize members of the armed forces for a violation of human rights.
Article 284 of the Code of Military Justice penalizes those who “verbally, in writing or by any other medium, threaten, offend or insult theArmed Forces, one of its members, units, agencies, branches, classes or specific bodies.” The current wording of the article was introduced by a law enacted by the military government in 1984. Until then the article had been rarely invoked and the maximum penalty had been sixty days of imprisonment. The article was broadened to include any member of the armed forces regardless of rank, made the form of its commission extremely ample (“by word, in writing or by any other means”) and increased penalties to a maximum of ten years in prison.133 Offenses were tried by military courts until 1992, when an Aylwin criminal reform bill transferred them to civilian courts and reduced the maximum penalty to three years of imprisonment.134 Article 417 of the Code of Military Justice establishes the crime of offensive language against the Carabineros. This article was routinely invoked by the police in the context of street protests and demonstrations against the military regime. Article 284, by contrast, was directed selectively against lawyers, politicians, and journalists. Neither the Aylwin nor the Frei governments have repealed it. Prosecutions under the law virtually ceased, however, when civilian courts were awarded jurisdiction, suggesting that the military lost confidence in its ability to win prosecutions in courts outside military control.
Critics of the army or the police, however, have continued to face prosecution for comments considered seditious by the military, under Article 276 of the Code of Military Justice. Typical defendants (journalists and human rights defenders) and typical offenses in these sedition accusations were similar to those of Article 284. This strongly suggests that the sedition article has essentially stood duty as a surrogate desacato law. Article 276 of the Code of Military Justice refers to:
Whoever, by word, in writing, or resorting to any other medium, induces any disturbance, alarm, or disorder, or brings to the knowledge of the troops matters intended to cause them discontent or half-heartedness in service.
Again, there is unlikely to be any causal connection between a criticism of the army made by a civilian and a deterioration of military discipline andmorale. In effect, what the law does is shift the blame for the morale-weakening effects of alleged army irregularities onto those who denounce them publicly. Damage to military morale or discipline is not a legitimate ground for punishing a civilian for exercising his right to speak out and criticize what he or she feels is wrong behavior by the institution or one of its members.
The United Nations Special Rapporteurs on Freedom of Opinion and Expression have pointed out the dangers of blurry definitions in this type of offense: “Mention should be made of the problems arising from the ambiguity of provisions defining the concept of military or State secrets, etc. or the penalization of incitement to treason or sedition. Here again caution is called for; the term “sedition” may be given a very broad interpretation and used to bar the exercise of the right to freedom of expression.”135
At a moment when Chile is embarking on a radical reform of its judicial system, the wide powers still vested in military courts to try civilians under outdated military laws and without basic guarantees of judicial independence are a glaring anomaly. As the Andean Commission of Jurists wrote in 1995:
The expansive capacity of military justice presently constitutes one the most serious problems of human rights protection in Chile. Military justice is not a simple “authoritarian enclave” or an area still waiting to be democratized. Rather, through its daily exercise, it continues to demonstrate its expansive and pre-eminent character which the institutional system has assimilated without notable criticism or movements for its reform.136
Trial of civilians by military courts for criticism of the armed forces or the police are especially questionable, since in these cases the offended party is the military institution itself, which acts as prosecutor and judge in its own case. Since military judges are officers on active service who form part of a institutional chain-of-command, their independence to rule against the interests of the institution, as these are perceived by their superior officers, is extremely restricted, if not non-existent. Where there is a conflict between the values ofmilitary discipline and rights protected in the constitution, the courts must be sufficiently independent to ensure that the defense of military discipline does not encroach on rights that are essential to the proper functioning of a democratic society.
Civilians tried by military courts do not have the same guarantees of an impartial hearing available in ordinary criminal prosecutions. The Military Appeals Court (Carte Marcia) is composed of five judges, three of whom are military officers on active service and two of whom are civilian appeals court judges, the most senior of whom presides the court. To all effects, therefore, the armed forces have the dominant influence at the appeals level.137 In addition, the most important military justice official — the general auditor of the army — or the substitute, sits on the Supreme Court panel that hears final appeals against military court verdicts.138
Human Rights Watch opposes the trial of civilians by military courts. In our view, based on our assessment of such courts in many countries, they fail to provide adequate conditions of independence and impartiality and often violate guarantees of due process. The Human Rights Committee of the United Nations has stated that “while the Covenant does not prohibit such categories of courts...the trying of civilians by such courts should be very exceptional and take place in conditions which genuinely afford the full [due process] guarantees stipulated in Article 14 ” of the International Covenant.139 The Interamerican Commission on Human Rights has gone further than the Human RightsCommittee, stating that the trial of civilians by military courts would only be compatible with the American Convention if a legitimate state of emergency was in force.140 In a more recent report, the Special Rapporteur on the independence of judges and lawyers, Param Cumaraswamy, considered the position of the Human Rights Committee to be too cautious, “...in the light of the current development of international law which is towards the prohibition of military tribunals trying civilians.”141
Press Regulation and Access to Information
For the past thirty years the Chilean press has been subject to detailed regulation in a law known as the Law on Abuses of Publicity.142 Freedom of expression for the press, which is restricted in a number of important ways in that law, has been the subject of ongoing debate in Congress for several years. In July 1993 President Aylwin presented a bill to Congress to replace the Law on Abuses of Publicity. Aylwin’s bill, known as the Bill on Freedom of Opinion and Information and the Exercise of Journalism, or simply the Press Law, is still in the final stages of debate in the Chamber of Deputies.143
The difference between the bill’s title and that of the existing law is significant. The Law on Abuses of Publicity has only two articles (the first two)protecting freedom of expression.144 The rest of the law is devoted to rules governing the functioning of newspapers and radio stations, the public’s right of reply, and a list of criminal offenses (“abuses of publicity”) that are punishable by prison sentences or fines. These offenses fit the general categories considered in international law to be legitimate grounds for restrictions of freedom of expression, such as public health, public order, public morals and the rights and reputations of others.145 Yet they are often very broadly defined, particularly with regard to libelous or defamatory expressions published or transmitted in the media, and in regard to violation of privacy. The law restricts the ability of the press to publish certain types of information or report on certain issues, and does not protect the confidentiality of journalist’s sources.
The proposed press law was introduced to remedy some of these defects. The long discusssions in Congress and numerous amendments proposed to the original Aylwin draft have revealed strong disagreements on crucial themes such as rights to practice journalism, protection against defamation and the promotion of pluralism. As we note below, the version that has emerged from committee negotiations in the Senate is a significant advanceon current legislation (the text is not definitive since it must still be approved by the Chamber of Deputies). It abolishes reporting restrictions, establishes a right to information, protects the confidentiality of journalists’ sources, and reduces penalties for press infractions. However, it retains many of the punitive measures of the existing law.
In essence, the existing Law on Abuses of Publicity is a catalogue of crimes that may be committed by journalists in abuse of the right to freedom of expression. While these prohibitions fall broadly within the categories allowed under international law, they are highly restrictive in certain areas. For example, a journalist may be sued for libel for publishing facts about the private or family life of a person without that person’s authorization and may not defend itself by substantiating the facts, except in restricted circumstances such as when a public interest is involved.146 It also penalizes the transmission or publication of recordings, films or photographs of any person without that person’s consent.147
Libel under the Criminal Code and the Law on Abuses of Publicity is subject to criminal prosecution and may incur a prison sentence and/or a fine, in addition to damages payable to the offended party. Although prison sentences are generally suspended and are rarely served, it is common for defendants to spend several days behind bars until bail is agreed. Both criminal and civil penalties may be waived or reduced by the court if a prompt and complete correction or apology is printed. The law attempts to draws a line betweenprivate and public affairs, with more lenient standards in the latter case, in which the defendant may be acquitted if he or she can substantiate his or her allegations. The inadmissability of the defense of truth in libel suits initiated by private citizens and in State Security Law prosecutions evidently prejudices the defendant. Barring expressions not involving questions of fact, in which the exclusion of the defense of truth is clearly legitimate, a priori exclusion of any reasonable defense is unjustifiable.
The exception made in cases in which plaintiffs are public officials is a recognition that different criteria apply when a public interest is involved. Nevertheless, the requirement that the defendant prove the truth of the allegations to establish innocence in a libel accusation makes defense very difficult, and penalizes journalists who publish incorrect facts without malicious intent.148 Neither the Criminal Code nor the Law on Abuses of Publicity permit acquittal if malicious intent cannot be proven. Current laws place the onus squarely on the defendant to substantiate the allegation. This norm is likely to have a chilling effect on public criticism. Those who make allegations against public officials on well-founded information but without conclusive proof, as is frequently the case in journalistic investigations, are liable to a criminal conviction for libel.149 In one illustrative case discussed in Chapter IV, anewspaper editor chose to retract a report on corruption — subsequently proven to be correct — rather than risk the conviction of a journalist. The requirement to prove the truth of an allegation in court can also place at risk the journalist’s obligation to protect his or her sources.
Distrust of free public debate is evident in a series of bans and restrictions in the Law of Abuses of Publicity that affect public access to information. Restrictions affect mainly two areas: access to official data and information on criminal investigations underway in the courts.
Chile, like many other Latin American countries, has a long tradition of secrecy in public administration. There are no statutes safeguarding public access to official information and specifying the circumstances in which public agencies may refuse access to such information. Decisions to restrict access to documents deemed confidential are commonly taken by low-level public officials. These officials are not required to specify the criteria on which access is refused, nor are they accustomed to having to answer for their actions, since there is no constitutional mechanism specifically tailored to ensure respect for this right.150 Difficulty of direct access to data has contributed to a tendency among journalists to depend on press conferences and interviews with officials, in which it is the minister or official spokesman, not the inquirer, who selects the information that will be eventually published. A more inquisitive investigator is likely to encounter immediate obstacles.
A recent editorial on crime prevention in the country’s best-selling news weekly began with the observation:
In any place where the fight against crime is taken seriously, the figures published by this magazine in its cover article would be no scoop. They ought to be old news since January 1 of this year. Yet obtaining the official statistics on crimes committed in the country during 1977 turns out to be something of a trophy. To access something that in a civilized country is received by fax after a simple phone call to a lower-ranking public official here took intense efforts. In the end, someone was found who dared to flout the government’s official policy of keeping the figures under seven locks. This policy not only lays bare once again the way in which power is administered in Chile, in which the government of the day considers it a concession to provide data which show their effectiveness in the management of state policies and funds.151
The effects of this kind of informal, but often insuperable, restriction can be seen in the case of the newspaper La Epoca, which in August 1994 published a story about alleged fraud in Santiago’s Military Hospital. The paper described an investigation being conducted by military prosecutors into irregular hospital acquisitions, attributing its information to unidentified sources in the judiciary. Unable to substantiate its allegations because it had been refused access to judicial records in the military courts, the paper, which had been sued for libel and sedition by the army, published a retraction. Subsequent events, however proved the story to have been correct. In 1998 a major military inquiry resulted in the prosecution of several hospital officials and suppliers. The inquiry had been launched before the La Epoca story came out and continued for four years without any further disclosures in the press.152 A more limitedinquiry of our own met the same unjustifiable barriers. In carrying out research for this report, Human Rights Watch was denied access to trial documents pertaining to the cases of journalists prosecuted by military courts during the Aylwin government. After ten days of futile efforts to gain access to the dossiers we gave up the attempt. The denial of access in this instance was in plain contradiction to the law governing access to court documents, and demonstrates how pervasive is the predisposition to limit dissemination of data that are, legally, in the public domain.153
With respect to the secrecy of military trial documents, we are glad to note that the government has proposed legislation in Congress to establish the same norms of public access to these documents as apply to the proceedings of ordinary civilian courts. This new norm would retain secrecy in exceptional cases. The bill has been approved at committee stage in the Chamber of Deputies. This is an important step in the direction of increasing the transparency of military court proceedings. It does not, however, make the trial of civilians by military courts any more legitimate.
Article 19 of the Law on Abuses of Publicity makes it an offense to knowingly publish “orders, agreements, or official documents which have a secret or confidential character under the provisions of the law or under the terms of an official decision based on the law.” This ban is reflected in other legislation. The Administrative Statute of 1989 regulates the obligation of public officials to “respect secrecy in matters which have the character of being confidential.”154 In practice, the law allows public officials to determine at their own discretion that a document be kept confidential. The law regulating the functioning of Congress provides that “information which by express provision of the law has the character of secret or confidential” must be provided by official bodies to Congress at its request but may only be seen by members of the respective congressional committee, meeting in secret.155 Again, it is apublic official who determines whether or not official data may be discussed in open parliamentary debate. Regulations in the Code of Military Justice prevent public access to any document “whose content is directly related to the security of the state, national defense, interior public order or the security of persons.” Judges also may be refused access to documents that military authorities consider to fall under that description.156 The office of the comptroller general of the republic has consistently upheld discretionary decisions made by public officials on confidentiality.157
As current laws stand, administrative decisions denying the right to be informed on grounds of secrecy are only appealable to the courts in exceptional cases.158 Chile still lacks a specific constitutional procedure for this purpose. A protection writ may be sought against denial of the right to information, but it is rare for Chileans to seek a court injunction in these circumstances.
The general lack of protection of the right to information in the Law on Abuses of Publicity is aggravated by provisions that allow a judge discretion to ban the press from reporting any information on a criminal investigation by the court. The judge may introduce the ban at any stage “when the publication could impede the success of the investigation or offend against good customs, the security of the state or public order.”159 Judges are allowed to declare a reporting ban that prevents the press from carrying any information whatsoever on the progress of a criminal investigation until the court lifts the ban. Specific reasons showing why the ban is necessary do not need to be given. Reporting bans extend not just to confidential documents or information pertaining to theinvestigation (under long-established laws all the proceedings of judicial investigations in the early phase are secret anyway). They include any information relating to the case whatsoever.
While each of the grounds given in the Law on Abuses of Publicity for restricting information on court cases is permitted in international human rights law, Human Rights Watch considers that use of the measure by Chilean courts has far exceeded permissible grounds. Both the International Covenant and the American Convention allow some restrictions on the publicity of trials. According to Article 8 (5) of the American Convention “criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.” Article 14 of the International Covenant allows restrictions on the publicity of trials, “for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice....” As in any restriction of freedom of information, however, the test of necessity and proportionality must be observed. It is important to note that “the interests of justice,” the most common ground given for reporting bans in Chile, may only be invoked as a reason for prohibiting trial publicity “in special circumstances” and “to the extent strictly necessary.” This requires the courts both to specify the nature of the special circumstances and limit both the extent and duration of the ban. Reporting bans in Chile deviate from these requirements in that the courts are not obliged to specify the special circumstances in which publicity could prejudice a trial, nor to limit the time period in which they are in force. Over many years the bans came to be applied systematically to controversial cases, and have usually prevented the press from informing or commenting on either the crime or its investigation, placing an unacceptable limitation on the public debate. The systematic practice of banning information on trials contravenes the letter and spirit of international norms and the more general principle of transparency in the administration of justice.
Abuse of this measure became habitual under the military government. The courts failed to specify in what respects publicity could prejudice criminal investigations nor did they limit reporting bans to confidential aspects of the investigation. Abuse was also facilitated by a provision in the law that allows defense lawyers to request a reporting ban to protect their clients’ public reputations even in private litigitations, such as libel suits. Under democratic government bans have continued. In the period between March 1990 and March 1994 the law was applied in twenty-three cases. Nine of these involvedhuman rights crimes committed under the military government, three were private libel suits against journalists and included a ban on publication of extracts from or comments on the books concerned, five related to terrorist crimes, and only one involved a non-political violent crime.160 Several newspapers were prosecuted for violating the bans; in November 1994 one issue of La Epoca was confiscated because of failing to respect a ban on reporting a human rights case. Human rights organizations argued that the bans contributed to impunity by imposing a blanket of silence and uncertainty about the development of judicial investigations into human rights crimes. Coverage of some of these cases had been silenced for years.
Opposition to reporting bans has mounted and has coalesced into an increasing consensus for their removal. The situation with regard to investigations of some emblematic human rights cases was truly shocking. In September 1996 the Journalists Association threatened to break a reporting ban on a criminal investigation into the murder by government agents of journalist José Carrasco Tapia on September 8, 1986. At the tenth anniversary of his death the ban had been in force for more than five years, although no one had been charged with the crime. Cases like this raised quite reasonable suspicions that judges were using the bans to conceal lack of progress in such cases. In this case, the judge promptly withdrew the ban after the journalists’ protest.
In June 1997 Judge Beatriz Pedrals of the Fifth Court of Viña del Mar ordered a reporting ban on an investigation of drug-trafficking and money laundering that involved allegations of corruption by judicial officials. The reason given was repeated leaks to the press of documents pertaining to the secret investigation and, exceptionally, Judge Pedral imposed a three-month time limit. Complete enforcement of the bans like this become increasingly impossible with technological developments.161 Not only did cable television have difficulty enforcing this ban, but one newspaper, La Tercera, successfully circumvented it by posting information on the case on an Internet website located outside Chilean borders.
In a rare intervention upholding freedom of expression, President Frei sharply opposed the publication ban in a speech to a gathering of journalists.
Days later the Valparaíso Appeals Court revoked it, ruling that the measure was tacitly repealed by Article 19 (12) of the constitution, which guarantees freedom of information and prohibits prior censorship. However, one year later, another Valparaíso judge, Marcos Felzenstein of the Sixth Criminal Court of Valparaíso, applied a 120-day reporting ban on the “Operation Ocean case,” which also involved a major drug-trafficking and money-laundering operation.162 La Tercera again posted news on the case on its extra-territorial website and carried daily advertisements of the site on its cover page. The ban was lifted on July 30, 1998 by a unanimous decision of the Valparaíso Appeals Court.
Apart from reporting bans, the public’s access to accurate information on the course of police investigations is hampered by a provision in the criminal procedures code, which prevents the police from providing information on the investigations they conduct.163 They are also obliged not to reveal any data about the case provided by the judge. The purpose of this prohibition is to enforce the police’s subordination to the investigating judge and to protect criminal investigations from damaging public revelations. This prohibition is absolute, irrespective of whether a leak is made public or whether the investigation is in fact affected. It has been justified, in part, as a protection of suspects’ rights.164 As in the limitation of trial publicity, a test of proportionality should be applicable to restrictions on the public’s access to information about police investigations. However, under Chilean law prohibition is absolute, irrespective of whether a leak is made public or whether or not the investigation is in fact affected. Although the law does not appear to be routinely enforced,the police have been subject to occasional clamp downs when police bulletins or news conferences have given offense.165
The government upholds the need for such restrictions. Its new criminal procedure code, a major reform of the judicial process that is currently in debate in Congress, retains them.166 All decisions on the release of information will be taken by the prosecutor (fiscal), the official of the Public Ministry (Ministerio Público) created under the new law to lead criminal investigations. Evidence collected in criminal investigations will be ordinarily accessible to the parties to a case but not to outsiders, abolishing the secreto of the sumario (pre-trial investigation). The police may not release this information to the press, nor may it reveal the identity of suspects until a formal indictment has been issued; the names of victims and witnesses may not be revealed for the entire duration of the trial. (There are, however, divisions within the governing coalition on this issue. A bill has been tabled to limit the effects of the prohibition, on the grounds that it limits freedom ofinformation.167) Blanket bans on police information unjustifyably restrict access to information of public interest. Any restriction in this area must be tailored to protect a legitimate interest such as the rights of suspects and witnesses, while not endangering the general public right to be informed promptly and accurately.
Steps towards a new regime on press freedom and access to information
At the time of writing, Chile is still waiting for the new Press Law to clear the final hurdles in Congress, after a five-year discussion that has been fraught with disagreement.168 The most conflictive themes have been a proposal in the original draft restricting the hiring of journalists to those holding a university journalism qualification, a principal demand of the Journalists Association, and amendments subsequently proposed to oblige newspapers to be pluralistic. As noted in Chapter II, these latter amendments motivated a writ of unconstitutionality that was accepted by the Constitutional Court. Another amendment to introduce into the law a new crime of defamation was also rejected.
In each case the rejection of these proposals was a gain for freedom of expression. The Inter-American Court of Human Rights has ruled that the compulsory licensing of journalists is incompatible with Article 13 of the American Convention if it denies any person access to the full use of the news media.169 Protection of the rights of journalists can be achieved without restricting the expression of views and opinions in the press to holders of a professional qualification.
Politicians concerned at the disappearance of left-wing publications in the early 1990s made some proposals which amounted to a legal obligationon media to publish minority views. They proposed that the law recognize “the right of all sectors of the population to be duly informed about the totality of cultural, social and political expressions which exist in society.”170 To guarantee this right they proposed that people might apply to a court for an injunction to force a newspaper to publish an item they considered to have been “deliberately silenced” if it was “of importance to society.” Although motivated by a concern to promote pluralism, this would have meant an impermissible judicial intervention in editorial decisions.
As noted at the beginning of this chapter, the effect of the defamation amendment, proposed by Renovación Nacional Sen. Miguel Otero, would have been to give public officials yet another layer of protection against public criticism in addition to the libel and slander provisions in the ordinary penal code and Article 6(b) of the State Security Law. This proposal met with firm resistance from the National Press Association, a powerful lobby representing the interests of media proprietors.
The bill enhances protection of press freedoms in several important respects. It eliminates discrimination against non-Chileans owning a newspaper or magazine. (The Law on Abuses of Publicity limits ownership to Chileans resident in the country.) It gives proprietors and directors freedom to contract the staff they want by granting no special privileges to holders of a professional title, although it does not allow those without a title to call themselves journalists, except for correspondents or stringers working for non-Chilean publications.171 It protects the confidentiality of sources. During the Senate discussions this right was extended to journalism students on practice assignments and non-journalists, and its coverage was to include information on drug trafficking and terrorism, which had been previously excluded. Another right protected in the law’s current draft is the so-called “conscience clause” which in its first formulation allowed journalists to prevent their bylines frombeing used in articles “substantially” cut or altered without their consent and, in serious cases, to terminate their contracts if this right was abused. Although the original terms were watered down, the bill still prohibits editors from modifying the substance of articles without the author’s consent and prohibits writers from being obliged to engage in unethical journalistic conduct.
The bill also abolishes reporting bans, ending one of the most serious current limitations on the right to information. The text approved by the Chamber of Deputies had retained these powers in a more restricted form; their proposed removal from Chilean legislation reflects a growing consensus that they are incompatible with the monitoring responsibilities of the press and the transparency of the judicial process in a democratic society. Nevertheless, the bill retains a prohibition on the press revealing the names of minors involved in crimes either as authors, accomplices or victims, and includes minors who witness crimes. Moreover, the press is prohibited by current Chilean anti-narcotics legislation from divulging details of drug-trafficking investigations.172
The most far-reaching change envisaged in the new press law is a norm establishing that administrative information and documents, as well as the reports of private enterprises serving a public function (such as utilities), are public and may be freely accessed. An official asked for information must provide it within forty-eight hours or else provide the reasons for its refusal. If refused, the applicant may lodge an appeal to a judge against denial of access, and if the access is granted, the official who denied it may be liable to a fine. Any public official who prevents the free circulation of opinions and information is liable to fines or imprisonment.
In January 1995, the Frei government presented a bill to the Chamber of Deputies on “Access to Administrative Information” which complements these provisions of the draft Press Law. The aim in the preamble is to improve rights of access to information “so that we may approach the levels of transparency in the management of information that characterize the most advanced and solid democracies in the world.”173 The bill would establish a general right of access to public documents and lists the circumstances in which senior civil servants may deny such access. It provides a mechanism of appealagainst denial of access both to the Appeals Court and the Supreme Court. Senior civil servants who unjustifiably deny access to public documents, or provide access after the time limits allowed in the law have been exceeded, are liable to a fine. In addition, the bill requires all public administration departments to publish an annual report summarizing their goals, achievements, and budgetary allocations. Apart from this detailed bill regulating the right of access to public information, the government proposes to incorporate this right into the constitution.174
Restrictions on press freedom in defense of honor and private life, in the Press Law as currently in the debate follow the general lines of the Law of Abuses of Publicity; little advance has been made in this area. The bill over-regulates the press to protect honor and privacy to the point of endangering the public functions of the press as a watchdog body in a democratic society and encouraging it to be excessively timorous.175 Although the senators avoided the introduction of additional restrictions, such as the defamation amendment, changes in the existing norms were marginal. They rejected other reforms which would have strengthened the defense of the press against libel accusations, such as an amendment that sought to broaden the circumstances in which the defense of truth may be admitted in libel suits. Nevertheless, penalties for offenses committed by the press were generally reduced, with a tendency to replace imprisonment by fines.
100 Speech of Gen. Augusto Pinochet in the meeting of the Comisión de Estudio de la Nueva Constitución Política del Estado, June 9, 1977, cited in Constitución de 1980, Comentarios de Juristas Internacionales (Santiago: CESOC, 1984), p. 7. (Translation by Human Rights Watch.)
101 Translation by Human Rights Watch.
102 Letter from Gen. Augusto Pinochet Ugarte to Enrique Ortúzar E., dated November 10, 1977, cited in CESOC, Constitución de 1980, p. 139.
103 Article 19 (12) of the constitution guarantees
freedom to express opinions and to inform in any way or through any media, without prior censorship, in whatever form or by whatever means, notwithstanding the obligation to respond for any crimes or abuses which may be committed in exercise of these freedoms, according to the law, which must be approved by a special quorum.
(Translation by Human Rights Watch.) A special quorum is an absolute majority of the deputies and senators holding office.
104 See José Luis Cea Egaña, “Estatuto Constitucional de la Información,” Revista Chilena de Derecho, Vol. 8, No. 1-6, 1981, p. 8, cited in Ciro Colombara López, Los Delitos de la Ley Sobre Abusos de Publicidad (Santiago: Ediciones Jurídicas,1996), p. 222.
105 Articles 19 and 13, respectively.
106 According to Article 5 of the constitution “the exercise of sovereignty recognizes as a constraint the need to respect essential rights which emanate from human nature. It is the duty of the organs of State to respect and promote those rights, guaranteed by this Constitution, as well as by the international treaties ratified by Chile and which are in force.” (Translation by Human Rights Watch.) The final sentence was added as part of the constitutional reforms negotiated by the Concertación in the post-plebiscite period.
107 Several resolutions and recommendations of the Committee of Ministers of the Council of Europe have addressed the issue. A recommendation of January 1973 proposed to expand Article 10 to include the freedom to seek information “with a corresponding duty on public authorities to make information available on matters of public interest, subject to appropriate limitations.” In February 1979, the assembly made a similar recommendation, noting that “parliamentary democracy can function adequately only if the people, in general, and their elected representatives, are fully informed.” Free access to official information was identified as a key target in a Declaration of Freedom of Expression and Information of April 29, 1982, which espoused “the pursuit of an open information policy in the public sector, including access to information, in order to enhance the individual’s understanding of, and his ability to discuss freely, political, social, economic and cultural matters.”
The European Commission of Human Rights has established a link between the right to be informed and the obligation of the state to provide access to official data. In a decision of April 7 1987, the Commission stated that “although the right to receive information as embodied in Article 10 is primarily intended to guarantee access to general sources of information, it cannot be excluded that in certain circumstances it includes the right of access to documents which are not generally accessible.” Council of Europe, Critical Perspectives on the scope and interpretation of Article 10 of the European Convention on Human Rights (Strasbourg: Council of Europe Press, 1995), pp. 44-45.
108 As noted in Chapter II, the 1833 constitution tempered liberal principles with a commitment to firm government and a powerful presidency, in order to subjugate the warring factions that contended for power at the time.
109 Translation by Human Rights Watch.
110 The ICCRP and the American Convention stipulate identical grounds, consisting in the protection of the rights and reputation of other, the protection of national security and public order, health or morals.
111 (Translation by Human Rights Watch.) The inclusion of honor and privacy in the constitutional bill of rights is consistent with international human rights law. Article 17 of the International Covenant provides that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor or reputation.” Article 11 of the American Convention holds that everyone has the right to have his honor respected and his dignity recognized; no one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation; everyone has the right to the protection of the law against such interference or attacks.
112 Jose Luis Cea Egaña , “Estatuto Constitucional de la Información y Opinión,” Revista Chilena de Derecho, Universidad Católica de Chile, Vol. 8, 1981, p. 186-197. Cea points out that the borderline between the private and public spheres alluded to in Article 19(4) is not clearly defined. The drafters of the constitution preferred to leave these definitions to jurisprudence.
113 The Criminal Code contains two offenses, libel (injurias) and calumny (calumia). Libel is defined as “an expression proffered or action taken in dishonor, discredit or disrespect for another person.” Calumny has the more specific meaning of falsely imputing a crime to someone.
115 Criminal Code, Article 420.
116 International Covenant on Civil and Political Rights, Article 4 (1).
117 See Cecilia Medina and Felipe González, “National Security, Freedom of Expression and Access to Information in Chile,” in Stephen Bowen, Sandra Coliver, Joan Fitzpatrick and Paul Hoffman (eds.), Secrecy and Liberty: National Security, Freedom of Expression and Access to Information (The Hague: Kluwer Law International, forthcoming, 1998); Cecilia Medina, “Libertad de expresión...,” p. 188.
118 Inter-American Court of Human Rights, Habeas Corpus in Emergency Situations, Advisory Opinion OC-8/87 of January 30, 1987, and Judicial Guarantees in State of Emergency, Advisory Opinion OC-9/87 of October 6, 1987.
119 The provisions in the Criminal Code (Articles 263 and 264) that protect the president, government ministers, members of congress, and the judiciary from libelous attack have been rarely used, and will not detain us here.
120 The term is somewhat confusing because in most Latin American countries, including Chile, desacato has a more specific sense of “contempt of court,” and only in Argentina and Uruguay is the term used to refer to libelous or insulting allusions to public authorities.
121 Inter-American Commission on Human Rights, “Report on the Compatibility of ‘Desacato Laws’ with the American Convention on Human Rights,” (Washington: Annual Report of the Inter-American Commission on Human Rights 1994, OEA/Ser.L/V/11.88,1995.
122 The Law of State Security (Law No. 12, 927) was enacted on August 6, 1958.
123 Carabineros is the uniformed police force. It is a branch of the armed forces, subject to military discipline and subordinated to the minister of defense. There is also a plainclothes criminal investigations branch, Investigaciones. In this report we refer to Carabineros as the “uniformed police” and Investigaciones as the “civil police.” The Comptroller General of the Republic (Contraloría General de la República) is an autonomous body, headed by an official appointed by the president with the approval of the Senate, which is responsible for auditing government funds and overseeing the legality of government actions.
124 There are some notable exceptions, particularly the Santiago Appeals Court decision on the Cuadra case, in which Judge Carlos Cerda, the court’s president, analyzed the issue in detail, concluding that there was no threat and acquitting the defendant. The decision was overruled by the Supreme Court. See Chapter IV.
125 The Cuadra case, discussed below in Chapter IV.
126 The right to criticize without limits is the essential point. Coincidentally, Chilean legal scholars argue that institutions legally do not enjoy the riht to protection of honor that individuals enjoy. Only individuals can be maliciously accused of a crime or of immoral acts, both of which are essential elements of the crimes of libel and calumny in the Criminal Code. See Alfredo Etcheberry, Derecho Penal (Santiago: Editorial Carlos Gibbs, 1965), p. 14. Article 19 (4) of the constitution, which refers to protection of the honor “of the person and of his or her family,” is clearly inapplicable to an institution. (Jose Luis Cea Egaña, “Estatuto Constitucional de la Información y Opinión,” p. 14).
127 "Report on the Compatibility of Desacato Laws....”
129 European Court of Human Rights, Lingens Case, Judgment of July 8, 1986, cited in the Commission’s report, p. 204.
130 Comisión de Asuntos Jurídicos y Políticos, Acta de la Sesión Celebrada el 17 de abril de 1995, p.18-19.V.
131 A serious conflict between the press and the government erupted in Argentina when journalist Horacio Verbitsky was convicted under Argentina’s desacato laws for insulting a Supreme Court justice. Verbitsky presented his case to the commission in 1992. In September of that year the parties reached a “friendly settlement” under the commission’s auspices, requiring the government to remove the offense of desacato from the criminal code. The commission agreed to carry out a study on the compatibility of descato laws with the American Convention as part of the settlement.
132 The Cuadra case, discussed in Chapter IV.
133 Colegio de Abogados de Chile, Justicia Militar en Chile (Santiago: Editorial Jurídica Ediar-Conosur Ltda. 1990), p. 199.
134 Law No 19,047, part of the penal reform package known as the “Cumplido laws” after Aylwin’s justice minister, Francisco Cumplido.
136 Comisión Andina de Juristas: Chile: Sistema Judicial y Derechos Humanos, May 1995, p.55. (Translation by Human Rights Watch.)
137 The original draft of the “Cumplido laws” included reform of the composition of the Military Appeals Court. The Aylwin government proposed to shrink the courts to three members: the two appeals court judges and a military justice official in retirement. The proposal fell foul of opposition objections in the Senate and has not been reinstated since. All that was achieved in Law 19, 047 was to give the three military judges three-year tenure in their posts, a modest improvement which does not alter the fact that the military judges retain a majority on the court. Furthermore, tenure does not safeguard independence, given the officers’ duties of obedience. See International Commission of Jurists, Chile: a Time of Reckoning, Human Rights and the Judiciary (Geneva: 1992), pp. 166-168.
138 A bill to remove the military official from the Supreme Court was defeated in the Chamber of Deputies on August 4, 1998 when the quorum necessary for a constitutional reform was not met.
139 Human Rights Committee, “Equality before the courts and the right to a fair and public hearing by an independent court established by law (Article 14),” General Comment 13, April 13, 1984.
140 Inter-American Commission on Human Rights, Report on Chile (Washington DC: Organization of American States, 1985), pp. 138-140, 143.
141 Commission on Human Rights, Fifty-fourth session, Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy, E/CN.4/1998/39/Add.1, February 9, 1998.
142 Ley 16,643 Sobre Abusos de Publicidad. Regulation of constitutional guarantees of freedom of expression by means of a comprehensive law regulating the mass media can be traced back at least until 1875, when article 137 of the criminal code, still in force today, required that “crimes related to the free exercise of suffrage and the freedom to emit opinions through the press shall be classified and penalized by the laws of elections and of the press, respectively.”
143 Proyecto de Ley Sobre Libertades de Opinión e Información y el Ejercicio del Periodismo.
144 As modified in 1991, Article 1 states that “the publication of opinions by the press and in general the public transmission by any medium of the oral or written word is not subject to any authorization or prior censorship whatever. The right guaranteed to all the inhabitants of the Republic by paragraph 12 of Article 19 of the Political Constitution of the State includes the right not to be pursued because of one’s opinions and the right to investigate and receive information and to diffuse it without limitation of frontiers by any medium of expression.”
145 Chapter 3 of the law is titled “crimes committed through the medium of print or other form of diffusion.” These relate to public order (overlapping with the State Security Law), public morals, public health, and the right to honor, reputation, and privacy. Paragraph 1 refers to the provocation or instigation of crime, and statements in defense of the commission of a crime (apologia), which may be considered an offense against public order and against the criminal law principles concerning instigation. Paragraph 2 punishes the “malicious” publication of false news whose effect is to cause “grave harm to public security, order, administration, health or the economy or harm to the dignity, credit, reputation or the interests of natural persons and their families, and that of legally recognized institutions.” This section also addresses public order concerns but includes as well those affecting “public health” and the “rights and reputation of others.” Paragraph 3 refers to crimes against “good customs” (buenas costumbres) such as the dissemination of pornography and the transmission of indecent advertising, which fall under the category of “public morals.” Finally, paragraph 4 refers to “crimes against persons” including calumny, libel, extorsion and invasion of privacy.
146 Article 22 penalizes the publication of any information about a person’s private or family life which, while not amounting to calumny or libel, may cause that person offense or “some form of discredit.” This article was part of the Cumplido laws, a packet of penal reform laws enacted by the Aylwin government in 1991. It replaced a previous, even broader privacy article in Law No. 18,313, introduced in 1984 under the military government. The Aylwin administration had intended to repeal the military law outright, which had been vigorously criticized as a press gag. However, in the congressional debate it was forced to concede its position in favor of an amended version, at the insistence of right-wing senators. It is interesting to note in this context that the paragraph of Article 19(4) of the constitution (the privacy article) that expressly criminalizes offences against privacy and honor was also a last minute inclusion---at the insistence of conservative president Jorge Alessandri. See Colombara, Los Delitos, pp. 322, 324.
147 The existence of this law helps explain why Chile has been largely free of paparazzi and publications devoted to local celebrity gossip. In general, information on private life is based on the interview format, in which the author unlikely to commit inaccuracies or speculation which could lead to legal suits.
148 The doctrine of “actual malice” (real malicia), commonly applied by United States and many European courts, is not widely accepted as a defense in Latin American jurisprudence. According to this doctrine, untrue allegations directed against public officials concerning matters of public interest do not constitute libel unless the plaintiff can prove that their author was aware that they were untrue or published them with evident disregard for standards of evidence. However, some countries have increasingly recognized the validity of this principle. An example was the landmark verdict of the Argentinian Supreme Court in November 1996, acquitting journalist Joaquín Miguel Morales Solá of libel after finding that the sentencing court had failed to give due weight to evidence of his good faith. See Fernando Barrancos y Vedia, “La libertad de expresión y el debate de los temas de interés público (El caso Morales Solá),” La Ley (Buenos Aires: November 26, 1996).
149 Chapter 3 of the law is titled “crimes committed through the medium of print or other form of diffusion.” These relate to public order (overlapping with the State Security Law), public morals, public health, and the right to honor, reputation, and privacy. Paragraph 1 refers to the provocation or instigation of crime, and statements in defense of the commission of a crime (apologia), which may be considered an offense against public order and against the criminal law principles concerning instigation. Paragraph 2 punishes the “malicious” publication of false news whose effect is to cause “grave harm to public security, order, administration, health or the economy or harm to the dignity, credit,reputation or the interests of natural persons and their families, and that of legally recognized institutions.” This section also addresses public order concerns but includes as well those affecting “public health” and the “rights and reputation of others.” Paragraph 3 refers to crimes against “good customs” (buenas costumbres) such as the dissemination of pornography and the transmission of indecent advertising, which fall under the category of “public morals.” Finally, paragraph 4 refers to “crimes against persons” including calumny, libel, extorsion and invasion of privacy.
150 Some Latin American countries have specific remedies, as, for example habeas data in Paraguay and mandato de segurança in Brazil. In general, the right to official information is being increasingly recognized in Latin American legislation in judicial and administrative procedures designed to oblige the state to release public documents on request. See summary in Luis Catalán Olivares and Xavier Dupret, “Ley de Prensa en Chile y su Tratamiento en el Derecho Comparado,” Cuaderno de Estudio Transparencia y Probidad No. 2, (Santiago: Forja and Instituto Probidad, 1998), p. 7.
151 Cristián Bofill,”La Política del Avestruz,” Qué Pasa, No. 1411, April 25, 1998, p. 13.
152 Human Rights Watch interview with Alejandra Matus, the reporter who covered the Military Hospital story, March 5, 1998. See Alejandra Matus, “Indagan presunto fraude en Hospital Militar,” La Epoca, August 12, 1994; "Presentan querella contra La Epoca,” La Epoca, August 18, 1994; "Hospital Militar: auditor Torres confirma causa en justicia castrense,” La Epoca, December 17, 1994.
153 Article 9 of the Organic Code of Courts (Ley Orgánica de Tribunales) establishes a general rule applicable to all trials that “the proceedings of the courts are public, except for the exceptions expressly established in the law.” The chief exception are the pre-indictment judicial investigations, known as the sumario, which are secret. The proceedings of the plenary, or trial phase, are therefore public and are in principle available to the public, not just the parties to the case.
154 Article 55 (h) of Law No. 18.834.
155 Article 9 of Law No. 18.918,
156 Article 436 of the Code of Military Justice. Cuyo contenido se relaciona directamente con la seguridad del estado, la defensa nacional, el orden público o la seguridad de las personas ..,” Article 144.
157 See Cecilia Medina, “Freedom of Expression...” p.208. Medina cites a 1994 decision of the comptroller’s office that denied the National Association of Employees of Internal Revenue (Asociación Nacional de Empleados de Impuestos Internos) access to the findings ofinternal inquiries into malpractice by tax officials.
158 Military prosecutors may appeal to the Supreme Court for authorization to include classified military documents in their investigations if the respective branch refuses them access.
159 Article 25 of Law No. 16,643, on Abuses of Publicity.
160 Comité de Defensa de los Derechos del Pueblo (CODEPU), Informe Derechos Humanos, 1990-1994 (Santiago: April 1994), p. 23.
161 In response to the ban, one cable operator, VTR Cablexpress, announced that it would seek advance warning from international news networks of any item on the case and would block the signal if necessary as a precautionary measure to avoid sanctions. “Prohibición de informar: difícil para el cable,” La Epoca, June 25, 1997; "VTR bloqueará noticias sobre el Cabro Cabrera,” El Mercurio, June 19, 1997.
162 “Operación Oceano: silencio por 120 días,” La Tercera, June 26, 1998; Ceina Ibertti, “Los secretos de la prohibición,” Qué Pasa, No. 1421, July 4, 1998.
163 Article 74 (Bis B) of the Criminal Procedure Code: “dar informaciones sobre los resultados de las pesquisas que practiquen y de las órdenes que deban cumplir.” The article was introduced in Law No. 18.857, in 1989.
164 This was the view of Supreme Court Justice Alberto Chaigneau. Human Rights Watch interview, May 11, 1998.
165 In August 1997, Investigations police ran into serious trouble after the media revealed details in a press conference about the August 18 arrest and questioning of Hernán Errázuriz Talavera, former Chilean ambassador to the United Kingdom, in connection with an alleged money-laundering operation by a Mexican drug trafficker. On August 27, the Santiago Appeals Court ordered Judge Dobra Lusic to open a criminal investigation to establish whether the police had broken the secrecy rules in releasing information on the arrests. Errázuriz, who was released without charge after being held incommunicado for twenty hours, filed a lawsuit against the chief of the Investigations police anti-narcotics brigade for providing the information to the press, claiming that his professional reputation had been irrevocably damaged. "Ex-embajador H. Errázuriz se querelló contra jefe antinarcóticos,” El Mercurio, September 4, 1997.
166 The new Code of Criminal Procedures, currently in debate in the Senate, is part of an extensive program to modernize the criminal system and the administration of justice. One of its purposes is to replace the secret, inquisitorial system of criminal investigation, led by a judge who combines the functions of investigation, judgement and sentencing, with an accusatorial system based on oral and public trials. Criminal prosecutions would be led by an official of a new Public Ministry (Ministerio Público), whose head, the fiscal nacional (attorney general), is expected to be appointed by the end of 1998 or early 1999. The new court system is expected to be operating in the year 2000 in pilot regions in the north and south of the country. “Reforma penal partirá según el programa,” El Mercurio, July 27, 1998
167 The more liberal bill was proposed by Sen. Sergio Bitar of the Party For Democracy. He argued in a press interview, “No one should have his or her name dragged in the mud by linking it with a crime which is only beginning to be investigated, but this cannot be at the cost of preventing freedom of expression, in which case the cure would be worse than the disease.” Ana Maria Sanhueza, “Artículo 74 Bis ‘es una ley mordaza’,” La Tercera, September 23, 1997.
168 A total of 300 amendments to the draft bill were tabled in the Senate. “Presentadas 300 indicaciones al proyecto de nueva ley de prensa,” El Mercurio, June 19, 1997.
169 Advisory Opinion OC-5/85 of November 13, 1985, “Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 of the American Convention on Human Rights),” Organization of American States, 1985.
170 Soledad Miranda Herrera, “Las Paradojas de la Ley de Prensa,” El Mercurio, July 9, 1995.
171 The Chilean Journalists Association has insisted, so far unsuccessfully, on a closed shop to protect the interests of the profession, which is heavily oversubscribed. An earlier
version of the bill established that functions of habitual reporting, writing and editing news “preferentially” belonged to journalists, defined as holders of a professional university qualification. The rights established in the bill were limited explicitly to journalists defined according to this criterion. The elimination of the “preferential” status of title-holders implies that these rights, such as the protection of sources, may be exercised by anyone.
172 Article 17 of the Norms on the Illicit Traffic of Drugs and Psychotropic Substances (Law 19,336 of 1995 and its Reglamentation, decree 565 of 1996 of the Ministry of Justice).
173 Mensaje de S.E. el Presidente de la República con el que se inicia un proyecto de ley sobre acceso a la información administrativa, República de Chile, Ministerio Secretaría General de Gobierno, January 12, 1995.
174 Human Rights Watch interview with Ernesto Galaz, J.Olivares and Guillermo Laurent, Legal Division of the General Secretariat of Government, January 29, 1998.
175 During the Senate debate, these criticism were expressed by Luis Ortíz Quiroga, representing the Federation of Communications Media, Federación de Medios de Comunicación (the media propietors lobby), El Mercurio, July 16, 1997.