CHAPTER VII

 

THE SITUATION OF FREEDOM OF EXPRESSION

 

A.        Introduction

 

385.          The right to freedom of expression is essential for the development and strengthening of democracy[413] and for the full exercise of human rights.[414]  Respect for the exercise of freedom of expression is one of the priority issues on the Commission's agenda when it analyzes the human rights situation in one of the member states of the Organization of American States.  Freedom of expression consolidates other fundamental freedoms by facilitating citizen participation in decision-making processes, by serving as a tool to attain a more tolerant and stable society, and by dignifying human beings through the exchange of ideas, opinions and information.  In addition to contributing to the protection of other fundamental rights, freedom of expression plays an essential role in the control of public administration, by exposing abuses of power and infractions of the law committed to the detriment of the citizenry.

 

386.          The Inter-American Court has consistently emphasized the importance of this right, stating:

 

Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.[415]

 

387.          The Commission and its Rapporteurship on Freedom of Expression have given special attention to the state of freedom of expression in Guatemala through their annual reports, the Fifth Report on the Situation of Human Rights in Guatemala in 2001, the Follow-up Report on the Recommendations made by the IACHR in 2003, press releases and a visit to Guatemala carried out by the Rapporteur's Office in 2000.

 

388.          The Inter-American Commission on Human Rights requested that the Office of the Special Rapporteur for Freedom of Expression[416] ("the Office" or "the Rapporteurship") assist with the preparation of this chapter.  The Rapporteurship drafted the chapter based principally on the information gathered during the on site visit and from other reports and complaints received subsequently.  The Commission approved the text presented and decided to include it as part of the present report.

 

389.          The Commission observes that the complexity of the sociopolitical situation in Guatemala has a direct impact on the exercise of freedom of expression and access to information.  One of the basic pillars of democratic systems is respect for the fundamental rights of individuals under the principles of equality and non-discrimination.  The state of poverty and social marginalization in which a large percentage of the Guatemalan population lives affects freedom of expression, because these people have difficulty entering the debate of ideas and opinions.  In this sense, as the Commission has indicated in previous chapters, the existence of discriminatory practices and policies directed at indigenous groups, among others, violates the Peace Agreements and limits the full exercise of the right to freedom of expression of these sectors.  Their marginalization in public discussion fora deprives Guatemalan society of hearing these large sectors of the population in the development of national policies that directly affect them.[417]  As a result of the commitment made by the State in the Peace Agreements, it becomes essential that both the State and Guatemalan society strive to put into place the measures necessary to overcome this marginalization and guarantee the freedom of expression of the different sectors of Guatemalan society.

 

390.          During the visit, both the State and sectors of civil society stated that in Guatemala the press is free to criticize the public administration and its functionaries.  However, the Commission has, on numerous occasions through its Rapporteurship on Freedom of Expression, indicated that full respect for freedom of expression implies the possibility of expressing one's ideas freely and of carrying out investigative journalism without suffering arbitrary consequences or intimidating actions.  In recent years, the Commission and its Rapporteurship have received information indicating that in Guatemala the exercise of freedom of expression has resulted in assassinations and the intimidation of journalists.  Especially troubling is the existence of a marked increase in some of these illegal acts during 2003, to the detriment of investigative journalists and human rights defenders who exercise their right to freedom of expression.

 

391.          The Commission observes that in both cases the attacks are aimed at silencing denunciations and investigations related to violations of fundamental rights that were perpetrated in the past or that involve politically sensitive issues.  The Commission also received information indicating that some of these intimidating actions include the illegal seizure of documents containing proof of human rights violations or information relating to the parties responsible for these crimes.[418]

 

392.          During the visit, the Commission also received denunciations regarding a campaign to discredit communications media that are critical of the actions of public officials.[419]  In addition to this disparagement campaign, there were reports of acts of harassment, such as the prohibition of entry of press personnel at public functions and the citation of journalists by the Attorney General's Office to force them to reveal their sources.[420]

 

393.          The following section contains an analysis of the relationship of the previously mentioned issues and the state of the Rule of Law in Guatemala, within the framework of the Guatemalan Constitution and international human rights law on freedom of expression.  It also addresses issues of interest, such as access to state-held information, the right to exercise the action of habeas data, the situation of community radios, the existence of monopolies in communications media, desacato laws, and other, indirect means to restrict freedom of expression.

 

B.        Intimidating acts and threats against social communicators

 

394.          In the area of freedom of expression, Article 35 of the Political Constitution of Guatemala[421] of 1985, reformed in 1993, establishes that "Ideas can be expressed freely through any medium without prior censorship or authorization."

 

395.          Although the Political Constitution of Guatemala advocates for freedom of thought and expression, the Commission received information during the visit that indicates that the full exercise of this right has been obstructed by intimidating actions directed at communications media and independent journalists.[422]  Threats, intimidation  and  harassment as a  result  of  the  exercise  of  the right  to  freedom  of  expression  constitute  serious threats to coexistence in democracy and to the development and strengthening  of  the Rule of Law.[423]  The Commission  observes  with concern  the  attack  on  social  communicators  that  cover  investigations related  to  public  administration, acts of corruption[424]  and  human rights  violations.[425]  Recently-received  denunciations include  attacks  directed  at journalists José Rubén Zamora,[426] Juan Luis Font,[427] both managers of the newspaper El Periódico, Elizabel Enríquez,[428] Maria de los Ángeles Monzón[429] and death threats directed at journalists and human rights defenders.[430]  At the time this report was being drafted, the threats had not ceased,[431] and some communications media had provided their employees with forms of protection, such as bullet-proof vests.[432]

 

396.          During the visit, the Commission received information about the presentation of 75 complaints of threats against journalists before the Attorney General Specializing in Crimes against Journalists and Unionists (Fiscal Especializado en Delitos contra Periodistas y Sindicalistas).[433]  The Commission and its Rapporteurship continue to be gravely concerned about the vulnerability of social communicators and those who criticize governmental decisions.[434] 

 

397.          Although the Attorney General's Office has received these complaints, the available information indicates a lack of significant progress in the investigation and sanction of those responsible for these attacks and intimidating actions.[435]  Impunity in the investigation of these attacks contributes further to creating an atmosphere of intimidation and fear for the full exercise of the right to freedom of expression and investigation in Guatemala, given that it discourages the denunciation of human rights violations.  At the same time, it directly affects freedom of expression by sending an encouraging message to the perpetrators of such crimes, who are supported by a pattern of impunity that allows them to continue these activities.  The existence of a pattern of impunity demonstrates the lack of political will on the part of the Guatemalan State to take preventative measures to put an end to these crimes against social communicators.

 

398.          The Commission recalls the commitment expressed by the Heads of State and Government during the Third Summit of the Americas that the States would ensure that "(…) journalists and opinion leaders are free to investigate and publish without fear of reprisals, harassment or retaliatory actions (…)"  
 

399.          On the other hand, during the visit the Commission received information that indicated an increase in the number of summons to journalists aimed at questioning them on their sources of information.[436]  In the opinion of the Commission and its Office of the Special Rapporteur for Freedom of Expression, the disclosure of the sources of information creates a negative and intimidating effect on journalistic investigation.  Faced with the possibility that journalists may be forced to reveal the identities of sources who have provided information under a guarantee of confidentiality or during the course of an investigation, potential sources of information will restrict their contributions to journalists.  The fundamental justification of the right to confidentiality is that in order to furnish the public with the information necessary to satisfy the right to be informed, journalists provide the important public service of gathering and reporting information that would not otherwise reach the public.  Professional confidentiality relates to the granting of legal protection to guarantee anonymity and avoid possible reprisals derived from the disclosure of certain information.  Confidentiality, therefore, is an essential tool for the journalist's task and for the duty that society has bestowed upon journalists to report on issues of public interest.[437]  The European Court of Human Rights has recognized the importance of the protection of journalistic sources, as "one of the basic conditions for press freedom"[438].  The European Court declared that:

 

Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 (Art 10) of the Convention unless it is justified by an overriding requirement in the public interest.[439]

 

400.          The Commission has also pointed out, through the approval of the Declaration of Principles on Freedom of Expression, that the protection of journalistic sources is part of the general guarantee of protection of press freedom.[440]  It is important to highlight that this right does not entail a duty, because the social communicator does not have an obligation to protect the confidentiality of the sources of information, except for reasons of professional conduct and ethics.[441]

 

C.        Access to state-held information

 

401.          Contrary to what is established in Article 30 of the Constitution of Guatemala,[442] the Commission received complaints during its visit regarding an increase in incidents of harassment of journalists and communications media and expressions aimed at discrediting them coming from high levels of the Government.  These include the express order by highly-ranked public officials to ban the press from accessing public events.[443]  The Commission has maintained that the right to access information means “a presumption that all meetings of governing bodies are open to the public”.[444]  This presumption is applicable to every meeting in which decision-making power is exercised, including administrative proceedings, court hearings and legislative proceedings.  Any limitation of the openness of such meetings must be subject to the same requirements that apply in the case of the withholding of information.[445]  The Office of the Special Rapporteur for Freedom of Expression has held in the past that these types of actions by highly-ranked public officials may constitute acts of harassment that contribute to creating a climate that is unfavorable for the guaranteeing of the free exercise of freedom of expression in Guatemala as protected by Article 13 of the American Convention.  The Commission urges the authorities in Guatemala to seek solutions that allow a greater tolerance towards dissent and scrutiny by the press and other sectors of the civil society with respect to public administration.  The right of the inhabitants of Guatemala to scrutinize the actions of the public administration, by seeking and imparting information on matters of public interest, strengthens democracy by guaranteeing access to information.

 

402.          On the other hand, the Commission recalls that two years have elapsed since its Office of the Special Rapporteur for Freedom of Expression recommended the passing of a law on access to state-held information, and this raises the concern of the Commission in relation to the Guatemalan State's lack of political will to pass such a law.  During the visit to Guatemala by the Special Rapporteur for Freedom of Expression in 2002, the State made a commitment to adopt a law, supported by the civil society of Guatemala, that would regulate and implement the right to access state-held information.  To this effect, the Office of the Special Rapporteur looked favorably upon the initiative of the State to invite several civil society organizations to discuss and develop a bill on access to state-held information.  However, according to the information obtained from the recent visit, the project of discussion with civil society was cancelled, and the bill in question, submitted to Congress on July 2002, was modified without the participation of the initial working group.[446]  The Commission considers that the stagnation of the process initiated with the participation of the civil society of Guatemala in the preparation of the aforementioned bill represents a step back by the State in guaranteeing the effective exercise of


this right.  According to information received during the visit, the lack of a law that regulates this right has promoted the refusal by public officials to provide access to state-held information.[447] 

 

403.          As has been pointed out here, the right to freedom of expression includes the right to seek, receive and impart ideas and information.  On the basis of this principle, access to state-held information is a fundamental right of every individual and States have an obligation to guarantee it.[448]  

 

404.          Additionally, during the visit, the Commission received information regarding the existence of a bill on Official Secrets.  Different sectors of the civil society of Guatemala expressed their concern that the lack of clear guidelines as to what information must be considered to be an official secret or a national security issue and what information must be considered to be classified or unclassified has led to the refusal, by the Ministry of National Defense, amongst others, to provide information and documents requested by district attorneys and judges to support their investigations, alleging that the requested information qualifies as an official secret or pertains to national security.[449]

 

405.          Most laws on access to information contain exceptions that allow the State to deny requested information on the grounds that its disclosure could be detrimental to national security or to the capacity of the State to maintain public order.  However, the Commission considered that these exceptions must only apply to information which clearly affects national security and which, if disclosed, would cause substantial damage to the protected right.[450]  The Johannesburg Principles on National Security, Freedom of Expression and Access to Information[451] offer guidelines on how to balance the public interest to be informed on issues of public administration with the protection of national security.  Principle 1(2) establishes that:

 

Any restriction on expression or information that a government seeks to justify on grounds of national security must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest.

 

406.          In addition, these Principles define the legitimacy of national security interests by stating:

 

(a)        A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government.

 

(b)        In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest[452].

 

407.          Bearing in mind the importance of freedom of expression for the functioning of democracy and for ensuring other fundamental rights, when pondering the suspension of guarantees consecrated in Article 13 of the Convention, the burden of proof to justify the imposition of those restrictions lies on the State. Likewise, the Commission has recommended that in the case of denial of the provision of information that is considered confidential, there should exist an independent judicial mechanism of revision capable of balancing the conflicting interests between the people's right to ask for information held by the State and the protection of national security and defense.

 

D.        The right to exercise the action of habeas data

 

408.          The Constitution of Guatemala contemplates the right to exercise the action of habeas data in its Article 31[453]. According to information supplied before, during and after the on site visit, the bill of the Access to Information Law that has been previously mentioned includes a chapter dedicated to the provision of a regulatory framework for the action of habeas data. The Office of the Special Rapporteur for Freedom of Expression has explicitly separated both rights, given that, although having the function of access to information, their aim is different. The Office of the Special Rapporteur understands that the action of habeas data is based on the following three premises: (1) the right of every individual to undisturbed privacy; (2) the right of every individual to obtain access to information about him in public and private databases in order to modify, remove, or correct sensitive,[454] false, biased, or discriminatory information about him;[455] and (3) the right of individuals to resort to the action of habeas data as an enforcement mechanism.[456]  This right of access to and control over personal data represents a fundamental right in many aspects of life, since the lack of judicial mechanisms for the rectification, updating, or removal of data would directly affect the right to privacy, honor, individual identity, property, and accountability in the collection of data.[457]

 

409.          In addition, the action of habeas data imposes certain obligations for entities that process information: the obligation to use the data for specific, explicitly stated objectives, and the obligation to guarantee the security of the data against accidents, unauthorized access or manipulation.  In cases where the entities of the state or of the private sector obtain data improperly and/or illegally, the petitioner must have access to that information, even when it is classified, so that individuals have control over data that affects them. Public disclosure of illegal practices in the collection of personal data or regarding information about disappeared or extrajudically executed family members can have the effect of preventing such practices by these agencies in the future.[458]

 

410.          In recent years, recourse to the action of habeas data has become a fundamental instrument in the Americas for investigation into human rights violations committed during the military dictatorships of the past. Family members have brought actions of habeas data to obtain information concerning government conduct, to learn the fate of disappeared persons and to determine responsibilities. Therefore, these actions are an important means for guaranteeing "the right to the truth".[459]  Ensuring that the action of habeas data gains importance in the Guatemalan context is essential, given that, as a mechanism that promotes accountability, it contributes to clarify cases and situations related to the activities of the state's security and intelligence agencies that were involved in past human rights violations in particular cases, as well as those related to present scourges, such as corruption.

 

411.          For all the reasons expressed, the Commission urges the Guatemalan State to sanction a law addressing the particular characteristics of this right, and guaranteeing the action of habeas data as a mechanism to protect the privacy of individuals against the arbitrary or illegitimate handling of personal data, and as a means to ensure accountability and the participation of society.

           

E.         Community radios in the Guatemalan context

 

412.          The Secretary for Social Communication of the Presidency informed the Special Rapporteur that the concession of radio frequencies was awarded according to the criteria approved within the framework of the Governmental Accord 316-2002 of September 2002.[460]  Despite this statement, the Commission received information indicating that such accord does not guarantee indigenous peoples equal conditions in the access to the available radio frequencies, and that the awarding of concessions is still being based on economic criteria by which certain sectors of Guatemalan society, such as indigenous peoples, are excluded from access.[461]  By publicly rejecting the Governmental Accord, the Guatemalan Council for Community Communication (CGCC) called upon the Congress of the Republic to accelerate the approval of the proposed draft of the Law on Community Radio-broadcasting, which was introduced to the plenary of the Congress on February 7, 2003.  This bill had been presented by the deputies who are members of the Commission of Indigenous Communities and of other Commissions in January of that same year, with the aim of urging the effective fulfillment of the Peace Agreements of "facilitating frequencies and assuring the observance of the principle of non-discrimination in the use and disposition of the communications media for the development" of the indigenous peoples.

 

413.          During the visit, the Commission received information indicating that the lack of action on the part of the government in assigning the frequencies in accordance with the Peace Agreements, could have its origins, in part, in the complaints about the existence of unauthorized "pirate" radios and community radios that are purely motivated by profit interests.[462]  The complaints resulted in an announcement on February 2003 by the Superintendence of Telecommunications (Superintendencia de Telecomunicaciones) of a plan to impose fines and/or close the unauthorized frequencies.  The announcement of the Superintendence of Telecommunications caused members of the Guatemalan Council for Community Communication to present a proposal in Congress to guarantee that 25% of the available frequencies would be awarded to community radio stations.

 

414.          The Commission and its Office of the Special Rapporteur understand that community radios are positive because they foment the culture and history of the communities, as long as they do so within the legal framework.  The Commission recalls that the awarding or renewal of radio licenses should be subject to a clear, fair, and objective procedure that takes into consideration the importance of the media for all sectors of Guatemalan society to participate in the democratic process in an informed manner.  Community radios, in particular, are of great importance for the promotion of national culture, the development and the education of the different communities that compose Guatemalan society.  Therefore, the auctions that contemplate only economic criteria or that award concessions without offering equal opportunity for all sectors, are incompatible with democracy and with the right to freedom of expression and information guaranteed in the American Convention on Human Rights and in the Declaration of Principles on Freedom of Expression.  The obligation of the State to maintain democratic criteria in the concessions of television channels and radio frequencies is made evident in the actual Guatemalan context of democratic consolidation and enforcement of the Peace Agreements.[463]  The Accords characterize this country as a multiethnic, multicultural and multilingual nation; and favor the inclusion and participation of those majority sectors of the population traditionally vulnerable and excluded, such as indigenous peoples, peasants, women and youths.  It is therefore recommendable that the criteria and regulations of access and equal participation in the media of expression promoted by the State should contemplate the particular characteristics of Guatemala and, in particular, should be guided by the obligations assumed under the Peace Agreements.

 

F.         Monopolies in the media

 

415.          Article 135 of the Political Constitution of the Republic of Guatemala prohibits monopolies and privileges.[464]  In the year 2000, during his visit to Guatemala, the Special Rapporteur for Freedom of Expression had received worrisome information regarding the existence of a de facto monopoly in the media.  On the last visit, the Special Rapporteur confirmed that this situation persists with respect to the television channels.[465]  According to the information received, the four open television channels in Guatemala and several radio broadcasting stations belong to Mexican owner Angel González.  The existence of this de facto monopoly in the air waves seriously affects the freedom of expression and the right to information of the Guatemalans.[466]  In this sense, the vast majority of the people with which the Special Rapporteur held meetings during his visit to Guatemala expressed that, even when open television channels are registered as corporations, the shareholder of the majority of their stocks is one person.[467]

 

416.          Regarding the existence of monopolies in the media, the Inter-American Court stated that:

 

It is the mass media that make the exercise of freedom of expression a reality. This means that the conditions of its use must conform to the requirements of this freedom, with the result that there must be, inter alia, a plurality of means of communication, the barring of all monopolies thereof, in whatever form, and guarantees for the protection of the freedom and independence of journalists.[468]

 

417.          The Court has also ruled that:

 

[...] given the broad scope of the language of the Convention, freedom of expression can also be affected without the direct intervention of the State. This might be the case, for example, when due to the existence of monopolies or oligopolies in the ownership of communications media, there are established in practice "means tending to impede the communication and circulation of ideas and opinions"[469].

 

418.          The IACHR reiterates that the existence of such practices in the media seriously affects freedom of expression and the right to information of the people of Guatemala, and that they are not compatible with the free exercise of the right to freedom of expression in a democratic society.

 

419.          In its Annual Report 2000, the Rapporteurship stated that one of the fundamental requirements for the right to freedom of expression is the need for a wide diversity of information.  In modern societies, the mass media, such as television, radio and the press, have an unquestionable power in the instruction of the people in aspects such as culture, politics, religion, etc.  If these media are controlled by a reduced number of individuals, or by only one individual, this situation would create a society in which a reduced number of individuals, or just one, would exert control over the information and, directly or indirectly, on the opinion received by the rest of the people.  This lack of plurality in sources of information is a serious obstacle for the functioning of democracy.  Democracy requires the confrontation of ideas, debate and discussion.  When this debate does not exist, or is weakened by the lack of sources of information, the main pillar for the functioning of democracy is harmed.[470]

 

G.        Insult laws

 

420.          Articles 411, 412, and 413 of the Criminal Code of the Republic of Guatemala establish a sanction for desacato (insult or disrespect) against the presidents of the governmental organs and against their authority[471].

421.          The Commission and its Rapporteurship note that these laws contradict Article 35 of the Political Constitution of Guatemala, which establishes that the publication of denouncements, criticism or imputations against public officials for acts committed in the exercise of their duties will not constitute a felony or misdemeanor.  That constitutional norm establishes that Article 35 is regulated by Constitutional Law on Freedom of Expression (Ley Constitucional de Emisión del Pensamiento), which establishes that criticism of public officials or public employees for official conduct committed in the exercise of their duties will not constitute the crime of defamation, even if the public official or employee is no longer employed in public functions when the offending statements are made[472].

 

422.          The Commission reviewed the compatibility of the desacato (insult) laws with the American Convention on Human Rights in 1995[473], and concluded that those laws are not compatible with the Convention because they are subject to abuse as a means to silence unpopular ideas and opinions, thereby repressing the debate that is critical to the effective functioning of democratic institutions[474].

 

423.          To bring into line the national laws with the jurisprudence of the Inter-American System, and with the Political Constitution of Guatemala—binding over any other national law—the Commission recommends the repeal of the provisions criminalizing desacato from the Criminal Code of Guatemala.

 

H.        Indirect means of restriction of freedom of expression

 

424.          During the visit, many media denounced being victims of constant harassment by the government, intended to weaken and to diminish their credibility. Those media complained that the representatives of the Superintendencia de Administración Tributaria (SAT) (the national revenue administration), which audits the financial situations of the publishing companies of Nuestro Diario, Prensa Libre and El Periódico, exceeded their authority when they ordered the handover of private documents of the publishing companies to take them out of their offices instead of reviewing them in the companies’ headquarters[475].  After reviewing a complaint based on these facts, a judge ruled in favor of Diarios Modernos, S.A. and ordered the SAT to abstain from seizing the documents.  The Commission understands that the tax audits by the government are legal actions, but when they are used by the State as a means to harass or to intimidate, they become an obstacle for the free debate of ideas and opinions and they limit freedom of expression and the development of the democratic process.

 

425.          Even if the SAT has legal faculties to do the necessary audits of any company, it cannot exceed its authority through abusive conduct as an indirect means to harass the press exclusively.  Tolerating restrictive criteria that can be used as a covert mechanism of censorship contravenes Article 13 of the Convention.  Indirect restrictions of freedom of expression aimed at limiting the free interchange of ideas and information also diminishes the strengthening of democracy and the rule of law in the country.  The Commission urges the State to adopt all the measures that are necessary so the media can do their work and carry out their social function freely without the threat of facing indirect and restrictive pressures.

 

I.         Conclusions and recommendations

 

426.          As stated before, the threats, the acts of direct or indirect intimidation, the denial of access to public information, and the lack of opportunities for some groups of Guatemalan society to fully participate in the social and political life of the country, among other problems, promote the existence of an atmosphere of intimidation and intolerance for the full exercise of freedom of expression in Guatemala.

 

427.          The Commission and its Rapporteurship for Freedom of Expression consider that social communicators exercise freedom of expression on a daily basis, seeking and imparting information to society, and, because of that, any attack or aggression against their personal integrity implies a serious attack on freedom of expression.  These attacks have a chilling effect on society by sending an intimidating message to those responsible for informing the public.  In many cases, the press has publicly exposed illegal or abusive conduct as well as acts of corruption by public officials and, as a consequence of these denunciations, the mass media and social communicators become targets of attacks and campaigns to discredit them.  In this regard, the Commission considers that it is the responsibility of the State to promote the necessary protection for social communicators through strong-minded measures to prevent these acts of intimidation, so they can carry out their function of informing the public[476].

 

 

428.          On the basis of the foregoing analysis, the Commission offers the following recommendations to the Guatemalan State:

 

1.              Take the necessary measures to protect the physical integrity of social communicators, to protect the infrastructure of the media, and to ensure that a serious, impartial and effective investigation is carried out into the acts of violence and intimidation against them; and that the persons responsible for violations of freedom of expression are prosecuted and punished.

 

2.              Take the necessary measures for ensuring the autonomy, independence and impartiality of the judiciary so that it can perform its role of protecting freedom of expression according to the standards of international law in the investigation of the incidents described against social communicators and media outlets.

 

3.              Promote progressive measures that can lead to the passage of a law on access to information in the hands of the State, taking into account the international standards on this matter, since this right is vital as a tool of transparency of the acts of the government and the strengthening of the democratic system in Guatemala.

 

4.              Promote the repeal of the desacato laws of the Criminal Code of Guatemala.

 

5.              Put in practice policies that take into account democratic criteria and equal opportunities of access to the concessions of radio and television broadcast frequencies, according to the obligations assumed by the State when signing the Peace Agreements in 1996.

 

6.             Take all the necessary measures to enforce antimonopoly laws, and take affirmative actions to guarantee that minority groups will have access to the mass communications media.

 

7.             Implement the principles from the Declaration of Principles on Freedom of Expression, approved by the Inter-American Commission on Human Rights during its 108th regular session, as a juridical framework to regulate the protection of freedom of expression.

 

8.             Undertake promotion activities for agents of the State and the members of Guatemalan society to raise awareness of the importance of respecting and protecting freedom of expression.

 

 

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[413] As an example of this, at the end of the General Assembly of the Organization of American States celebrated in Santiago, Chile in June of 2003, the Ministers of Foreign Affairs approved by acclamation the "Declaration of Santiago on Democracy and Public Trust: A New Commitment to Good Governance for the Americas," which recognizes that democracy is strengthened through full respect for freedom of expression.

[414] The American Convention on Human Rights establishes the right to freedom of expression in its Article 13 in the following terms:

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 entertainments 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 incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

[415] I/A Court H.R., Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, November 13, 1985, para. 70.

[416] The Office of the Special Rapporteur for Freedom of Expression is a permanent office with functional independence and its own budget.  The Inter-American Commission on Human Rights created the Office within the scope of its authority and competence.  The Office operates within the legal framework of the Commission.  The Office of the Special Rapporteur has received the institutional support of the Heads of State and Government, both in the Summit that took place in Santiago, Chile in April of 1998 and in the one celebrated in Quebec, Canada in April of 2001.

[417] The United Nations Verification Mission in Guatemala (MINUGUA), in its Report to the Meeting of the Consultative Group for Guatemala of May 7, 2003 and the 2002 Report of the United Nations Development Program (UNDP), indicates that in Guatemala poverty and extreme poverty primarily affect the indigenous population, which continues to be deprived of access to basic services and which finds itself subject to severe ethic discrimination and social and economic marginalization.  These documents were submitted to the IACHR during its visit in March of 2003.

[418] See Fifth Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.111, Doc. 21 rev., April 6, 2001, in which the IACHR denounced the existence of a planned and progressive pattern since 2001, aimed at obstructing investigations or denunciations related to violations of human rights.  Other human rights organizations have corroborated the persistence of this pattern; for example, acts of forced entry and search of the headquarters of various human rights organizations and social or rural movements that were not carried out in order to obtain valuable objects, but rather to obtain information and documentation related to investigations or denunciations of illegal actions by security agents or state agents.  Additionally, these sources have denounced that investigative journalists, particularly those who cover issues related to these searches, have been the objects of threats and robberies.  See "Guatemala, defenders in danger: massive and recurring aggressions with impunity," International Investigation Mission of the Observatory for the Protection of Human Rights Defenders, 2001; see also "La Situación de los Defensores de Derechos Humanos en Guatemala 2001-2002" ("The Situation of Human Rights Defenders in Guatemala 2001-2002"), Comité de Unidad Campesina, ODHA and Movimiento Nacional de Derechos Humanos.

[419] See Article in Prensa Libre of March 24, 2003, citing the Inter-American Press Association on Guatemala.

[420] See Annual Report of the Committee to Protect Journalists: Attacks on the
Press in 2002, at www.cpj.org.

[421] The Guatemalan Constitution establishes:

Article 35. Freedom of expression.  Ideas can be expressed freely through any medium without prior censorship or authorization.  This constitutional right cannot be restricted by any law or governmental decree.  Whoever infringes due respect for privacy or morality in the exercise of this freedom shall be held accountable according to the law.  Whoever believes their rights have been infringed in that regard shall have the right to have their defense, clarification or rectification published.

Publication of a denunciation, criticism or accusation against public officials or employees regarding acts carried out in the exercise of their official duties shall not constitute an offense.

Public officials or employees may go before an honor tribunal, constituted according to the law, to ask it to declare that an Article that affects them is based on inexact information or that the charges against them are unfounded.  Any judgment favorable to the victim must be published in the same medium that published the original accusation.

The activity of the mass media is considered a matter of public interest and these may not be expropriated.  They may not be closed, embargoed, subject to intervention, confiscated or seized for any crime committed in the dissemination of ideas, nor may the operations of enterprises, workshops, equipment, machinery or other property be interrupted.

Free access to sources of information is considered a right and no authority may limit it.

Pressure or threats related to authorization, limitation or cancellation of concessions granted by the State shall not be used to limit the exercise of the freedom to disseminate ideas.

Any trial regarding an offense referred to in this Article shall be heard by a jury.

All matters related to this constitutional right are regulated by the Ley Constitucional de Emisión del Pensamiento (Constitutional Law on Freedom of Expression).

Owners of mass media shall provide their reporters with economic protection in the form of life insurance.

[422] Informe de Casos Illustrativos de Violaciones de los Derechos Humanos de Enero a Marzo de 2003 (Report on Cases Illustrative of Human Rights Violations, January to March 2003), Procurador de los Derechos Humanos de Guatemala (Human Rights Ombudsman of Guatemala), given to the IACHR during its on site visit.  This report mentions the case of Maria de los Ángeles Monzón and highlights the existence of "governmental intolerance for the activities of human rights organizations, journalists and other social leaders that denounce existing limitations in the democratic system" and asserts that the cases denounced before this organ seem to use similar methods through "robbery, threats via telephone and stealing of personal or institutional documents with the aim of extracting information." 

[423] For information about the situation of social communicators during 2002, see IACHR Annual Report 2002, Volume III, Report of the Office of the Special Rapporteur for Freedom of Expression, Chapter II: Guatemala, at www.cidh.org.

[424] In January of 2003, the radio station Pop 95.1 FM of Chimaltenango was the object of sabotage at its transmission plant, when unidentified individuals cut the high-tension cable that powers the station, causing the station to go off the air for four days.  According to Concepción Cojón Morales, Director of the radio, the incident could be related to various denunciations that the station's reporters had broadcast, about acts of corruption, non-compliance with the Peace Agreements, political manipulation by the government's party, and the resurgence of the Patrullas de Autodefensa Civil (PAC) (Civil Self-Defense Patrols).  Cojón Morales added that besides this attack, various reporters from the station had received death threats or had been victims of intimidation.  According to the information received during the on site visit, this radio station has been functioning for the past three years with programming directed particularly at the Mayan community.  This information was contained in an Article dated January 25, 2003 from Guatemala Hoy, received by the IACHR during its on site visit.

[425] On April 4, 2002, journalist David Herrera, a freelance reporter with the U.S.-based National Public Radio, was kidnapped by unidentified armed men.  The kidnappers demanded that the journalist hand over recently-gathered material about an investigation of threats directed at forensic anthropologists who are exhuming bodies of victims of the massacres that occurred during the years of violence.  Due to this incident and other threats he received, Herrera left the country.  This information was given to the Special Rapporteur for Freedom of Expression during the on site visit.

[426] According to the information received, on Tuesday, June 24, 2003, at 8:30 am, armed men entered the home of the journalist José Rubén Zamora, president of the newspaper El Periódico.  The unknown men intimidated Zamora and his wife with their weapons and assaulted their three children (aged 13, 18 and 26) over a period of two hours.  Days later, Zamora was followed while he drove to El Periódico.  Through a press release (PREN/83/03) by the Office of the Special Rapporteur for Freedom of Expression, the Special Rapporteur, Eduardo Bertoni, expressed his serious concern about the threats received by Zamora, president of El Periódico.  This incident occurred within the context of a wave of aggression directed at other journalists, including Carmen Judith Morán Cruz, a correspondent with the Centro de Reportes Informativos sobre Guatemala (Cerigua) in Baja Verapaz, and Luis Eduardo De León, an investigative journalist with El Periódico.  On June 29, Carmen Judith Morán Cruz received two telephone calls from a man who threatened her with death and ordered her to resign from Cerigua, or her children would pay the consequences.  On July 3, the same individual repeated this threat.  In another incident, on July 3, several unidentified men broke through the door and entered the home of the journalist Luis Eduardo De León.  The men took a computer, diskettes and books.  De León explained that the disks contained information relating to his journalistic work.  Unfortunately, these attacks against Guatemalan journalists are not isolated incidents.

[427] During the months of June and July of 2003 there was an increase in the number of aggressions and acts of intimidation towards various managers and journalists of the newspaper El Periódico.  During the first half of 2003, Edgar René Saenz, a correspondent for El Periódico in Sololá, was threatened.  The residence of journalist Luis de León of the investigative bureau of El Periódico was broken into illegally.  These incidents were in addition to the attack against José Rubén Zamora, president of El Periódico, mentioned above.  On July 11, 2003, two men entered the installations of El Periódico asking for Ms Maria Luisa Marroquín, manager of the printing plant and cousin of the journalist José Rubén Zamora.  They opened fire on the security guard who informed them that Ms Marroquín was not there at the moment.  The security guard was wounded.  Additionally, according to the information received, the journalist Claudia Méndez Arriaza received a call informing her of the existence of a plan to intimidate journalists, particularly targeting Juan Luis Font.  The communication indicated that that Font was in serious danger.  On July 23, 2003, the IACHR requested that the Guatemalan State adopt precautionary measures to protect the life and personal integrity of Mr. Juan Luis Font.

[428] On February 24, 2003, the journalist Elizabel Enríquez was attacked at the entrance of the building that houses Cerigua.  The attackers beat her, threatened her and stole her purse, taking the keys to the office.  According to the information received, Cerigua has been the object of several intimidating acts and attacks.  Information provided by the Commission on Freedom of the Press of the Association of Journalists of Guatemala (APG, by its Spanish acronym) during the on site visit of the IACHR.

[429] On March 2, 2003, Maria de los Ángeles Monzón, a columnist with Prensa Libre and a radio presenter, denounced that she had been the victim of death threats.  According to the information received, the journalist had been receiving telephone threats as a result of the publication of Articles about the incidents that befell the Azmitia Dorantes family, whose case is under the consideration of the IACHR.  In addition, the journalist reported that she had received threatening calls after the publication of a column related to the assassination of the indigenous leader Antonio Pop, during which she was told she would suffer the same fate.  In another incident, on the morning of March 2, 2003, she received another threatening call, after which unidentified individuals entered her house and stole the front panels of her two car radios.  On March 18, the Commission requested that the Guatemalan State adopt precautionary measures to protect the life and personal integrity of the journalist. 

[430] On June 7, 2002, Abner Gouz, of the newspaper El Periódico, Rosa María Bolaños, of the newspaper Siglo XXI, Ronaldo Robles and Maria de los Ángeles Monzón, of the radio station Emisoras Unidas, as well as seven members of organizations of human rights defenders, received death threats.  In an anonymous communication sent to the headquarters of the various organizations and communications media, a group labeling themselves as the "true Guatemalans" called them "enemies of the homeland" and threatened to "exterminate" them.  On June 14, 2002, the IACHR issued Press Release Nº 27/02, expressing concern about the situation of the journalists and human rights defenders.  See in Press Releases: www.cidh.org.

[431] According to the information received by the agency Cerigua on July 28, 2003, various journalists in the interior of the country continue to be the objects of intimidation.  For example, in Zacapa, the journalists Juan Carlos Aquino, conductor of the news program "Punto Informativo" and Nehemías Castro, director of the television program "Personajes," denounced new aggressions against them after they reported about the mobilization of supporters of the FRG party and denounced the political manipulation to which various peasants and teachers had been subjected, to support violent actions on behalf of the official party.

[432] See "Incitan Violencia contra Periodistas en Guatemala" (“Violence is incited against journalists in Guatemala”), La Prensa (Nicaragua), July 29, 2003.

[433] According to the information provided by Víctor Garrido, Attorney General Specializing in Crimes against Journalists and Unionists (Fiscal Especializado en Delitos contra Periodistas y Sindicalistas), during the meeting between the IACHR and the Special Attorney Generals, carried out on March 25, 2003, in the context of the on site visit.

[434] The Myrna Mack Foundation (Fundación Myrna Mack) reported that: "the wave of violence has signified an increase in attacks against members of civil society, human rights activists, judges, prosecutors and other lawyers, unionists, indigenous leaders and peasants, journalists and persons marginalized from society.  In synthesis, there is a systematic pattern of political violence against individuals who criticize governmental decisions and advocate for the fight against impunity and organized crime.  The existence of clandestine security organizations and similar structures has been shown.  These operate, with the acquiescence of the State, against members of the political opposition, activists and academics with the aim of silencing their protests (…)."  From the report "Follow-up of the Recommendations of the United Nations Special Rapporteur on the Independence of Judges and Lawyers in Guatemala" ("Seguimiento de las Recomendaciones del Relator Especial de Naciones Unidas sobre Independencia de Jueces y Abogados en Guatemala"), Myrna Mack Foundation, covering the period between January 1, 2002 and February 1, 2003 and provided to the IACHR during its on site visit.  See also supra notes 14 and 15, which detail a series of acts of violence and intimidation against social communicators during the months of June and July of 2003.  On July 7, 2003, the Office of the Special Rapporteur for Freedom of Expression issued a press release (PREN/83/03) expressing serious concern about the increase in threats and acts of harassment against journalists and warning that these acts create an adverse atmosphere for the exercise of the right to freedom of expression in Guatemala.  Additionally, the IACHR, through Press Release No. 18/03, condemned the acts of violence that took place on July 24, 2003, during which various social communicators were sprayed with gasoline and beaten and photographic equipment was destroyed.

[435] During the visit, the Commission had the opportunity to meet with a group of special prosecutors to discuss issues related to the pending investigations in cases of assassinations and acts of aggression against or intimidation of human rights defenders and social communicators.  The Attorney General's Office submitted a report on criminal cases in which the status of crimes against human rights and the case of the journalist Jorge Mynor Alegría Armendáriz are detailed.  The Attorney General's Office reported that during the first oral trial, the criminal cases against the syndicalists Jairo Gómez Sandoval, Benjamín Orozco Estrada, Eric Castañeda and Marco Antonio Cantoral were kept open.  Orders of apprehension were also sought against Reyes Mendoza Avalos and Estuardo Azañon.  A special appeal (Recurso de Apelación Especial) was filed to contest the conviction of the syndicalists.  This information was taken from the "Report on Criminal Cases in Guatemala, October 2002" ("Informe de Procesos Guatemala, October 2002"), Public Ministry, given to the IACHR during the meeting held on March 25, 2003 with the Attorney General of the Nation, Carlos de León Argüeta, in the context of the on site visit.

Additionally, the MINUGUA office submitted a report with the conclusions of the investigation of the murder of the journalist Jorge Mynor Alegría Armendáriz indicating that: "On February 16, 2002, Eric Rolando Duarte Flores affirmed, in his capacity as a witness, that Jorge Mario Chigua, then-mayor of Puerto Barrios and currently a fugitive from the law, had paid two assassins from an Izabal gang to kill Mynor Alegría Armendáriz.  (…)  Mynor Alegría Armendáriz was assassinated by hit men who had contacts with local authorities.  Mynor Alegría Armendáriz was assassinated because he reported on his radio program about allegations of corruption in the Municipality of Puerto Barrios and the Port Authority of Santo Tomás de Castilla (Portuaria Santo Tomás de Castilla).  In this sense, MINUGUA has confirmed that the death of this journalist was an extrajudicial execution motivated by political reasons."  Press Release 40/2002, MINUGUA, submitted to the Special Rapporteur during the on site visit.

[436] In a report released on March 2003, the Inter-American Press Association (IAPA) pointed out that in December and January, the Public Ministry summoned, in an intimidating manner, several journalists with the objective that they judicially ratify the complaints that they had reported in their newspapers.  Representatives of El Periódico refused to respond to the subpoena to guarantee the protection of their sources.  Information received by the Office of the Special Rapporteur for Freedom of Expression from the organization Journalists against Corruption (Periodistas Frente a la Corrupción, PFC).

On the other hand, the Attorney General of the Republic, Carlos de León Arguetta, summoned Mr. Zamora, director of the newspaper El Periódico, to bring forward evidence in his possession in relation to an interview published in the newspaper on November 9, titled "Corporation linked to the Attorney General fails to complete projects: A 16 million Quetzal road remains unfinished" (“Empresa vinculada al Fiscal incumple obra. Una carretera de Q16 millones permanece inconclusa").  The interview indicated that the legal representative of the construction company, as well as the partners of the company, maintained a relationship with Mr. de León.  According to information received during the visit, the summoning was conducted under the threat that if he continued to refuse to hand over documents and reports to the Public Ministry, he would be brought before the Prosecutor against Corruption, who was assigned to the investigation.   Finally, Zamora had to send the information on which the interview had been based and that ratified its content, in writing.  Article by the International Center for Journalists (ICJF) of February 19, 2003, and Report “Follow-up of the recommendations of the UN Special Rapporteur on the Independence of Judges and Lawyers in Guatemala,” by the Myrna Mack Foundation on the period from January 1, 2002, to February 1, 2003.  This information was handed to the IACHR during the on site visit.

[437] IACHR, Annual Report 2002, vol III, Report of the Special Rapporteur for Freedom of Expression, OEA/Ser.L/V/II.114, Doc.20 rev., p. 24.  See also Felipe Fierro Alvídez, El Derecho y la Libertad de Expresión en México, debates y reflexiones (The Law and Freedom of Expression in Mexico: Debates and Reflections), in Revista Latina de Comunicación Social, December 2002, available at: http:/www.ull.es/publicaciones-latina-04fierro.htm. 

[438] Eur. Court H.R., Goodwin v. United Kingdom, Judgment of March 27, 1996, Reports of Judgments and Decisions, Nº 7 1996-II, at 483, para 39.

[439] Id. Goodwin v. United Kingdom.

[440] OAS, Basic Documents pertaining to Human Rights in the Inter-American System (updated January 2003), Declaration of Principles on Freedom of Expression, Principle 8, p. 209. 

[441] See Annual Report of the Office of the Special Rapporteur for Freedom of Expression 2000, supra, note 19.

[442] Article 30 establishes: “Publicity of administrative acts:  Every act of the administration is public.  The interested parties have a right to obtain, at any time, the reports, copies, reproductions and certifications that they request and to consult any file, with the exception of information on issues pertaining to military, diplomatic or national security, and information submitted by individuals under the guarantee of confidentiality.”

[443] The information provided below was delivered to the Special Rapporteur during the on site visit in March 2003.

On January 15, 2003, the President issued an order prohibiting the press from attending the act of the handing over of dividends in the Portuaria Quetzal in Escuintla, where armed guards watched over the entrance to the premises to prevent reporters from entering.

On January 20, 2003, a group of journalists from written media, radio and television was denied access to a public act of the inauguration of a school in Zacapa, presided by President Alfonso Portillo.  In relation with this restriction, on January 21, 2003, the Congress approved a resolution by which it condemned the President’s violation of Article 35 of the Constitution, through the order imparted to security personnel to deny access to the press to an official act in Zacapa.  The initiative was put forward by the Partido de Avanzada Nacional (PAN) and approved by 88 State Representatives, 62 of which belonged to the Frente Republicano Guatemalteco (FRG).  CERIGUA, 287/01/2003, January 22, 2003.

On January 28, 2003, a group of journalists that attempted to provide coverage to the unveiling by the President of a bust of Benito Juárez were denied access to the Ministry of Foreign Relations.

In another incident, according to information received, the Frente Republicano Guatemalteco (FRG) restricted the access by the press to the formal sessions of the Congress, depriving them of the right to use the chairs reserved for journalists, allowing that these chairs be used by the Ministers of the State instead.  According to a complaint filed by the social communicators in charge of the coverage of congressional activities, the excuse used by the congressional leadership to expel them from the space reserved for the press was founded on the modifications that would take place in the building to accommodate the representatives.  The President of CERIGUA, Ms. Alamilla, commented that the intention of the congressional leadership to exclude the press from the chairs reserved for them would imply a limitation in the coverage by journalists of legislative sources and would require them to seek public information through a written request.

[444] Article XIX, Principles on Freedom of Information Legislation, Principle 7, available at: www.Article19.org.

[445] Id.

[446] The Organization SEDEM presented a document to the IACHR which states that: “In August 2002, the Secretariat for Strategic Analysis (SAE, by its Spanish acronym) invited more than 20 civil society organizations to discuss a bill on access to state-held information.  After several unsuccessful attempts to obtain the inclusion by SAE’s legal consultant of the observations by the civil society to their documents, SAE and the civil society decided to form a mixed technical team.  The team was made up of two attorneys from the Myrna Mack Foundation, two attorneys from the Center for Legal Action in Human Rights (CALDH, by its Spanish acronym), two attorneys from the Institute of Comparative Studies in Criminal Science in Guatemala (ICCPG, by its Spanish acronym), and two attorneys from the SAE.  This team prepared a new bill, using as a base the comments, observations and proposals suggested by the organizations that participated in the forum organized by SAE.  Unilaterally, in March 2001, SAE decided to send a bill prepared solely by them.  On July 2002, the Legislative Commission of Congress ruled in favor of SAE´s initiative, identified with the number 2594 and submitted it for discussion.  On October 2002, the Congress studied and approved the main composition of the bill in a second debate.  In order for it to become law, the bill must be approved in a third debate, then by Article to compose the final version, and then sent to the Executive for its approval.  Once passed, it must be published in the official bulletin.  The Representatives modified several Articles of the original bill, leaving certain provisions that had been rejected by the civil society in the process initiated by SAE.

[447] The Special Rapporteur for Freedom of Expression received information in the meeting of March 24, 2003 indicating that sectors of the press and human rights advocates condemned the attitude of the President of the Congress of the Republic, Efraín Ríos Montt, of obstructing the access to documents related to the approval of the budget and its administration during 2002 and 2001.  Press Release of Cerigua, April 2003, submitted during the visit of March 2003.

[448] IACHR, Declaration of Principles on Freedom of Expression, Principle 4: “Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.”

See also the report by the Special Rapporteur in charge of the protection and promotion of the right to freedom of expression and opinion, Mr. Abid Hussain, Human Rights Commission, 55th period of sessions, UN Doc. E/CN/.4/1999/64, January 29, 1999, where he stated that the right to seek and receive information "imposes a positive obligation on States to ensure access to information, particularly with regard to information held by government in all types of storage and retrieval systems -including film, microfiche, electronic capacities, video and photographs- subject only to such restrictions as referred to in Article 19, paragraph 3, of the International Covenant on Civil and Political Rights".

[449] “Follow-up of the recommendations of the UN Special Rapporteur on the Independence of Judges and Lawyers in Guatemala,” Report by the Myrna Mack Foundation on the period from January 1, 2002, to February 1, 2003, and Guatemala, Motive for grave concern: the evaluation by Amnesty International on the current situation of human rights in Guatemala, Report by Amnesty International, April 2003, both handed to the IACHR during the on site visit.

[450] IACHR, Declaration of Principles on Freedom of Expression, Principle 4, supra note 36.  In its 2002 Annual Report, the Special Rapporteur for Freedom of Expression noted that this principle establishes the criteria by which the State must abide by to deny access to information in its possession.  Due to the need to promote a greater transparency of the acts of the government as a means to strengthening democratic institutions in the countries of the Hemisphere, the restrictions to access files held by the State must be exceptional.  These must be clearly established in the law, and should only be applied given the existence of a real and present danger which threatens national security in a democratic society.  Therefore, it is considered that instances of restrictions to access information must be dealt with on a case-by-case basis.  The Inter-American Court of Human Rights has interpreted that the limitations to freedom of expression and information must be judged with reference to the legitimate needs of democratic societies and institutions, given that freedom of expression and information is essential to every form of democratic government.  Therefore, in this context, the State must guarantee that in the face of a case of a national emergency, the withholding by the State of information must be limited to the period of time that is strictly necessary in relation to the circumstances, and the situation must be modified once the situation of emergency has ceased to exist.  In the above-mentioned report, the Special Rapporteur suggested the need to ensure that the classification of information is reviewed by an independent judicial instance capable of balancing the interests of the protection of the rights and liberties of individuals with national security. 

[451] The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (November 1996), Principle 1, available in http://www.Article 19/docimages/511.htm.  For a discussion regarding the authoritative nature of the Johannesburg Principles, see also Kate Martin and Andrzej Rzeplinski, “Principles of Oversight and Accountability,” in In the Public Interest: Security Services in a Constitutional Democracy, Project of the Helsinki Foundation for Human Rights, Warsaw, Poland, in cooperation with the Center for National Security Studies, Washington , DC, January 6, 1998.

The Commission, as well as other international authorities, considers that the Johannesburg Principles on National Security, Freedom of Expression and Access to Information provide authoritative guidance for interpreting and applying the right to freedom of expression in light of considerations of national security.  The Johannesburg Principles constitute a set of voluntary principles drafted by a committee of international experts on human rights and media law, and are frequently invoked by the UN Commission on Human Rights (see, e.g., Commission on Human Rights Resolution 2002/48, UN Commission on Human Rights, 58th Sess. UN Doc. E/CN.4/RES/2002/48 (2002), Preamble, Resolution 2001/47, UN Commission on Human Rights, 57th Sess., Supp. Nº 3, at 209, E/CN.4/RES/2001/47 (2001), preamble, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (See. e.g., Report of the Special Rapporteur, Mr. Abid Hussain, pursuant to Commission on Human Rights resolution 1993/45, UN Commission on Human Rights, 52nd Sess., E/CN.4/1996/39, 22 March 1996, para. 4.), the UN Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy, Addendum, Report on the mission to Peru, UN Commission on Human Rights, 54th Sess., E/CN.4/1998/39/Add.1, 19 February 1998, introduction.) and the Special Representative of the Secretary-General on human rights defenders (See, e.g. Report submitted by Ms. Hina Jilani, Special Representative of the Secretary-General on human rights defenders in accordance with Commission resolution 2000/61, UN Commission on Human Rights , 57th Sess, E/CN.4/2001/94, 26 January 2001, para. 14).  See also IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116, Doc. 5 rev.1, October 22, 2002. 

[452] Id., Principle 2.

[453] Article 31 states: "Access to state archives and records. Every individual has the right to learn about the information referring to him contained in archives, records or any other form of state registries, and about the purpose to which this information is dedicated, as well as to its correction, rectification, and updating. Records and archives of political affiliation are forbidden, except those from electoral authorities and political parties".

[454] "Sensitive data" in this context means any information concerning a person's
private life.

[455] See Alicia Pierini, Valentín Lorences and María Inés Tornabene, Habeas Data: Derecho a la Intimidad (Habeas Data: The Right to Privacy), Editorial Universidad, Buenos Aires,
1999 p. 16.

[456] See Víctor Abramovich and Christian Courtis. El acceso a la información como derecho (Access to Information as a Right), CELS, 2000, p. 7.

[457] See Secretaría de Investigación de Derecho Comparado, Tomo 1 (1998), p. 121. Corte Suprema de Justicia de la Nación Argentina.

[458] See Víctor Abramovich and Christian Courtis. El acceso a la información como derecho (Access to Information as a Right), 10 Cuadernos de Análisis Jurídico, 197, 206 (Escuela de Derecho, Universidad Diego Portales, Santiago, Chile, 2000).

[459] See, for example, I/A Court H.R., Barrios Altos Case (Chumbipuma Aguirre et al. vs. Peru), Series C. No. 75, Judgment of March 14, 2001, para. 45. In the Barrios Altos case before the Inter-American Court, the Inter-American Commission on Human Rights alleged that:

[T]he right to truth is founded in Articles 8 and 25 of the Convention, insofar as they are both “instrumental” in the judicial establishment of the facts and circumstances that surrounded the violation of a fundamental right.  (…) [Additionally], this right has its roots in Article 13(1) of the Convention, because that Article recognizes the right to seek and receive information.  With regard to that Article, (…) the State has the positive obligation to guarantee essential information to preserve the rights of the victims, to ensure transparency in public administration and the protection of human rights.

[460] By this Accord, the Government announced the free concession to civil society of nine radio frequencies of national and regional reach.  According to the information provided by the Secretary for Social Communication of the Presidency of the Republic, Alejandro Pérez Martínez, in a meeting with the Special Rapporteur for Freedom of Expression which took place on March 25, 2003, within the framework of the on site visit.

[461] During the visit, the Guatemalan Council for Community Communication (Consejo Guatemalteco de Comunicación Comunitaria- CGCC) handed the IACHR a document on the Situation of the Indigenous Peoples of Guatemala and Freedom of Expression. In that document, it is stated that "the current Government and the previous one have not shown political will to comply with the Peace Agreement on Identity and Rights of Indigenous Peoples". Also, it denounced that "the SIT (Superintendencia de Telecomunicaciones) intensified its campaign of psychological pressure and threats with fines against the community radios and publicly called for new auctions to take place in September 2002 […] ". Furthermore, the CGCC informed that "in some places the National Civilian Police investigated the location of the radios and who are the persons charge of them […] We warn about the danger that now menaces community radios, given that we are exposed to legal actions or actions of an undercover nature that are aimed at intimidating or dividing our movement, which has demonstrated itself more determined and stronger every time […]". The CGCC called attention to the fact that "the General Law of Telecommunications, by which the auctioning of frequencies is regulated, includes several unconstitutional aspects, particularly regarding the ownership of the radio frequencies that, according to the Political Constitution of the Republic of Guatemala, are inalienable property of the State, but that become private property by means of the auctions."  March 2003.

[462] The Chamber of Radio-broadcasting (Camara de Radiodifusión) filed a complaint before the Public Ministry against 341 radios that function illegally in the country.  According to a document of Guatemala Hoy, dated February 28 2003 and handed to the Special Rapporteur during the on site visit.

[463] See Agreement on Identity and Rights of Indigenous Peoples, subscribed in the City of Mexico by the Government of the Republic and the Unidad Revolucionaria Nacional Guatemalteca, March 31st, 1995, Section III.H.1. Clause H. Mass Communications Media, states:

i)        Open spaces within the official communications media for the diffusion of  indigenous cultural expressions and favor a similar openness within the private media.

ii)       Promote before the Congress of the Republic the necessary reforms in the present Law on Radio-broadcasting with the objective of facilitating frequencies for indigenous projects and of assuring the importance of the principle of non-discrimination in the use of the communications media.  Also promote the abolition of any provision within the legal framework that obstructs the right of the indigenous people to use the communications media for the development of their identity.

iii)     Regulate and support a system of informative, scientific, artistic and educative programs of the indigenous cultures in their languages, through the national radio, television and written media.

[464] Article 135 states: "Monopolies and privileges are prohibited.  The State will limit the functioning of the firms that absorb or tend to absorb production in one or more industries or agricultural sectors, to the detriment of the national economy.  The laws will determine everything relative to this matter.  The State will protect the market economy and will hinder the associations that tend to restrict market freedom or to harm consumers.”

[465] For example, see the Report of the Inter-American Press Association, presented at the 58th General Assembly in Lima, Peru.  The Guatemalan government promised a SIP delegation that visited the country in August to promote the ceasing of the television attacks and assured that a bill to end the TV monopoly exists, which will be announced before next December."  The IACHR and the Office of the Special Rapporteur do not have information about the existence of such a bill.

[466] In this sense, the non-governmental organization IDEA (Instituto para la Democracia y la Asistencia Electoral-Institute for Democracy and Electoral Assistance) has stated that: “(…) The evolution of television reflects the characteristics of the formation of a private monopolistic consortium, with low levels of competition. The operation of four (3, 7, 11 and 13) out of the five open television channels is under the ownership of a consortium of predominantly Mexican capital.  The high degree of media power concentrated in this foreign consortium turns into an extraordinary instrument of political, cultural and economic power, with negative implications for the national democratic process.”

It also expressed that: “One of the results of (…) the lack of competition [In television], is the absence of diversity in the informative and entertainment supply, in national production. (…) Television in Guatemala has suffered a disturbing process of stagnation or reversion.”  International IDEA (Instituto para la Democracia y la Asistencia Electoral-Institute for Democracy and Electoral Assistance), Democracia en Guatemala La Misión de un Pueblo Entero, Santa Fe de Bogotá, 1999, pages 199 and 201.

[467] In the Annual Report on the situation of press freedom in the Americas, the Committee to Protect Journalists (CPJ) expressed that:  "Media tycoon Ángel González, a Mexican national and the brother-in-law of former Guatemalan minister of infrastructure, housing, and communications Luis Rabbé, has used his broadcasting empire to discredit newspapers that criticize the government. Through front companies, González owns all four of Guatemala’s private television stations, which violates constitutional provisions against both monopolies and foreign ownership of the media. He has canceled two independent news programs and wields enormous influence over Guatemalan politics." (see: http://www.cpj.org/attacks02/americas02/ guatemala.html) .

[468] See I/A Court H.R., Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 19 of the American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985, Series A, No. 5, para. 34.

[469] I/A Court H.R., (see supra) para. 56.

[470] Principle 12 of the Declaration of Principles of Freedom of Expression states: “Monopolies or oligopolies in the ownership and control of the communication media must be subject to anti-trust laws, as they conspire against democracy by limiting the plurality and diversity which ensure the full exercise of people’s right to information. In no case should such laws apply exclusively to the media. The concession of radio and television broadcast frequencies should take into account democratic criteria that provide equal opportunity of access for all individuals.”

[471] Article 411:  Anyone who offends in his dignity or honor, or threatens or defames any of the Presidents of the Organs of the State shall be punished with imprisonment from one to three years.

Article 412: Anyone who threatens, defames or, in any other way offends in his dignity or honor, an authority or public official in the exercise of his duties or in relation to them, shall be punished with imprisonment from six months to two years.

Article 413: Anyone accused of defamation against a public official or public authority, can invoke the defense of truth of the imputation, if the imputation is related to the exercise of a public duty. In this case, the accused shall be absolved if the truth of the imputation is proven.

[472] Chapter VII of the Law on Freedom of Expression (Ley de Emisión del Pensamiento) establishes:

Article 71. – An Honor Tribunal will consider disputes related to attacks or imputations against public officials or public employees related to official acts and the exercise of their duties, at the request of the interested party.

Article 72. – The members of the Tribunal shall have the same qualities as the members of the press jury, according to Article 51.

Article 75.- The Honor Tribunal shall limit itself to declaring whether the facts alleged to be committed by the accused are false or inaccurate.

Article 76.- The decision of the Honor Tribunal shall be recorded in the minutes at the end of the hearing, by the judge who had convoked the Tribunal, and those minutes shall be published in the media found responsible for abusing the right to the expression of thought.

Article 77. The decision of the Honor Tribunal cannot be appealed and the media must publish it without adding any comment.  However, the media may, in a separate Article, apologize or give explanations to the offended.

[473] IACHR, Report on the compatibility of the “desacato” laws with the American Convention on Human Rights, OEA/Ser.L/V/II.88, Doc.9 rev., February 17, 1995.

[474] Id., 212. See also, Declaration of Principles on Freedom of Expression, supra. 

Principle 10: “Privacy laws should not inhibit or restrict investigation and dissemination of information of public interest. The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news”.

Principle 11: “Public officials are subject to greater scrutiny by society. Laws that penalize offensive expressions directed at public officials, generally known as “desacato” laws, restrict freedom of expression and the right to information.”

[475] Press Release, Inter-American Press Association (IAPA), in www.sipiapa.org

[476] Principle 9 of the Declaration of Principles of Freedom of Expression establishes that: “The murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression. It is the duty of the state to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation”.

On the other hand, the Inter-American Court of Human Rights in the Velasquez-Rodriguez case, Judgment of July  29, 1988, par. 177, stated that the investigation “(..) must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government (…).”