Laws on Contempt, Compulsory Membership in
a Professional Association, and Murder of
In this chapter, the Rapporteur will
refer to the following three specific problems: legislation on contempt [desacato];
the requirement that journalists be affiliated with a professional association; and, the
murder of journalists.
The Rapporteur has selected these three
issues because murder of journalists is the most direct and brutal threat to or violation
of freedom of expression. As for the legislation on contempt and compulsory membership in
a professional association, the Rapporteur decided to take up these subjects to follow up
on recommendations made by the Commission in its report on contempt laws [leyes de
desacato] and on the Courts advisory opinion on compulsory membership in a
professional association [colegiación obligatoria].
A. Contempt Laws [Leyes de Desacato]
The Commission took special care in
analyzing the incompatibility of laws punishing offensive expressions directed at public
officials, or the so-called "contempt laws," with the right to freedom of
thought and expression.59 The Commission concluded that these laws
restrict freedom of expression as it is prescribed in the Convention.60
On this point, it had the following to say:
In conclusion, the Commission finds that
the use of such powers to limit the expression of ideas lends itself to abuse, as a method
for silencing unpopular ideas and opinions, and thus it restricts the public debate which
is fundamental to the effective functioning of democratic institutions. Laws that penalize
the expression of ideas which does not incite lawless violence are incompatible with
freedom of expression and thought, as established in Article 13, and with the basic
purpose of the American Convention to protect and guarantee a pluralistic and democratic
way of life.61
The Commission went on to state as
follows in that study:
Application of contempt laws to protect
the honor of public officials acting in an official capacity unjustifiably grants them the
right to a protection that is not offered to other members of society. This distinction is
in direct conflict with the fundamental principle of a democratic system, according to
which the government is the object of controls, including the scrutiny of its citizens, so
as to prevent or control any abuse of its coercive power. If public officials acting in an
official capacity are regarded for all effects and purposes as the government, it is then
precisely the right of individuals and the citizenry to criticize and scrutinize the
action and attitudes of those officials in matters related to their public office.
In addition to direct restriction,
contempt laws indirectly restrict freedom of expression because they carry with them the
threat of imprisonment or fines for persons who insult or offend a public official. In
this regard, the European Court argued that although the subsequent penalties of a fine
and revocation of a published article do not prevent the petitioner from expressing
himself, "they are nonetheless equivalent to censorship, which might deter that
person from formulating criticism of that sort in the future." The fear of punishment
and sanctions necessarily discourages citizens from expressing their opinions on issues of
public concern, and especially when legislation fails to distinguish between value
judgments and facts. Political criticism often involves value judgments.
The Commission further observes that the
burden that contempt laws place on persons wishing to participate in the public debate
over the proper functioning of the public administration is not lessened by the
possibility of proving the truth as a defense. Even the laws that allow truth as a defense
inevitably inhibit the free flow of ideas and opinions by shifting the burden of proof
onto the person expressing his opinions. This is particularly the case in the political
arena, where political criticism is often based on value judgments, rather than purely
fact-based statements. Proving the veracity of these statements may be impossible, since
value judgments do not allow for proof. Therefore, a rule that requires a critic of public
officials to guarantee the factual content of his statements has disturbing implications
for criticism of government conduct. Rules of this sort raise the possibility that persons
who criticize the government in good faith may be penalized for that criticism. Moreover,
the threat of criminal liability for dishonoring the reputation of a public official, even
as an expression of a value judgment or an opinion, can be used as a method for
suppressing criticism and political adversaries. By shielding officials from defamatory
expression, contempt laws establish a structure that, in the final analysis, shields the
government itself from criticism.
The Commission is of the opinion that an
important distinction should be drawn between misconduct that disrupts or prevents public
officials from performing their official functions and discourse that criticizes
individual performance. Although it can be argued that contempt laws that require that the
offensive discourse be pronounced in person are designed to prevent civil unrest and
disturbances, in any event they punish freedom of expression to the extent that it is
related to the honor of a public official.
Finally, and most importantly, the
Commission notes that the rationale behind contempt laws reverses the principle that a
properly functioning democracy is indeed the greatest guarantee of public order. These
laws claim to preserve public order precisely by restricting a fundamental human right
which is also internationally recognized as a cornerstone upon which democratic society
rests. Contempt laws, when applied, have a direct impact on the open and rigorous debate
about public policy which Article 13 guarantees and which is essential to the existence of
a democratic society. In this respect, reference to the concept of public
order to justify contempt laws directly inverts the logic underlying the guarantee
of freedom of expression and thought established in the Convention.
The special protection contempt 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
light of a governments dominant role in society, and especially where other means
are available to reply to unjustified attacks, through government access to the media or
civil action against individuals for libel or slander. Any criticism that is not related
to the officials position may, as is the case for all private individuals, be
subject to ordinary libel, slander, and defamation actions. In this sense, the
governments prosecution of a person who criticizes a public official acting in an
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
government administration. As such, these laws are also an unjustified means of limiting
speech that is already restricted by laws that all persons may invoke, regardless of their
Moreover, the Commission notes that,
contrary to the rationale underlying contempt laws, in democratic societies, political and
public figures must be more, not less, open to public scrutiny and criticism. The open and
wide-ranging public debate, which is at the core of a democratic society, necessarily
includes those persons who are involved in devising and implementing public policy. Since
these persons are at the center of public debate, they knowingly expose themselves to
public scrutiny and thus must display a greater degree of tolerance to criticism.
Articles 13(2) and (3) recognize that the
zone of legitimate state intervention begins at the point where the expression of an
opinion or idea directly interferes with the rights of others or constitutes a direct and
obvious threat to life in society. However, particularly in the political arena, the
threshold of state intervention with respect to freedom of expression is necessarily
higher because of the critical role political dialogue plays in a democratic society. The
Convention requires that this threshold be raised even higher when the state brings to
bear the coercive power of its criminal justice system to curtail freedom of expression.
Considering the consequences of criminal sanctions and the inevitable chilling effect they
have on freedom of expression, criminalization of speech can only apply in those
exceptional circumstances when there is an obvious and direct threat of lawless violence.
Article 13(5) stipulates that:
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.
The Commission considers that the
states obligation to protect the rights of others is served by providing statutory
protection against intentional infringement on honor and reputation through civil actions
and by implementing laws that guarantee the right of reply or correction. In this sense,
the state guarantees protection of the privacy of all individuals without abusing its
coercive powers to repress individual freedom to form opinions and express them.
The Rapporteur sets out below which
States and which laws have contempt provisions and are therefore not compatible with the
terms of the American Convention and should be revoked. This list does not cover all
existing legislation on the subject. Many States have other laws that criminalize contempt
and that should also be revoked. Some Penal Codes provide as follow:
Article 162: Persons who by any means
slander, insult, or libel a public official in the performance of his functions or by
reason of them shall be punished by imprisonment ranging from one month to two years.
If the previous acts were directed
against the President or the Vice President of the Republic, State Ministers, or members
of the Supreme Court or of Congress, the punishment will be enhanced by half.
Article 331: Showing contempt for a
public official in the performance of his functions or by reason of them is punished by
imprisonment of 6 months to two years, or a fine.
Article 263: Any person who by deed or by
speech gravely offends the President of the Republic or any of the legislative bodies or
committees of those bodies, either in the public acts representing them or in the
performance of their individual functions, or the high courts of justice, shall be
punished by an average to maximum sentence to medium-term imprisonment [reclusión
menor] and a fine ranging from eleven to twenty minimum wages.
Article 264: Persons who commit the
following acts are considered to be acting in contempt of authority:
1. Persons who seriously breach the order
of sessions of the legislative bodies and persons who insult or threaten a deputy or
senator during any such sessions;
2. Persons who seriously breach the order
of hearings in the courts of justice and persons who insult or threaten a member of those
courts during any such hearings;
3. Persons who insult or threaten: First:
A senator or deputy for the opinions expressed in Congress. Second: Members of the court
for rulings they may have issued. Third: State ministers or another authority in the
performance of their official duties. Fourth: A superior officer in the performance of
Article 307. Any person who offends
the honor or decorum of a public official or threatens him by reason of his functions,
addressing him personally or publicly or by written, cable, or telephone communication, or
by line of authority, shall be punished by imprisonment of one month to two years.
A sentence of six months to three years
shall apply if the injured party is the President of the Nation, a member of the supreme
powers, or a judge, magistrate of the Supreme Election Board, or the Comptroller or
Assistant Comptroller-General of the Republic.
Article 144. Any person who
threatens, slanders, libels, defames, insults, or in any way offends or affronts, by
speech or in writing, the dignity or decorum of an authority or public official, or their
agents or aides, in the performance of their functions or on the occasion or by reason of
them, shall be punished by deprivation of freedom for a term ranging from three months to
one year or a fine of one hundred to three hundred cuotas or both.
Article 231. Any person who uses
threats, insults, intimidation, or violence to offend any of the public officials listed
in Article 225 while these officials are performing their official functions, or by reason
of those functions, shall be punished by imprisonment ranging from fifteen days to three
months and a fine of fifty to three hundred sucres. Persons who commit the violations
listed in the previous clause against another official who is not performing official
duties shall be punished by imprisonment ranging from eight days to one month.
Article 339. Persons who offend the
honor or decorum of a public official in the performance of his official duties or by
reason of those duties, in action or by speech while in his presence, or in a written
communication addressed to him, shall be sanctioned by imprisonment ranging from six
months to three years.
If the injured party is the President or
Vice President of the Republic, a Deputy to the Legislative Assembly, a Minister or the
Assistant State Secretary, a magistrate of the Supreme Court of Justice or Court of
Appeals, a lower court judge, or a justice of the peace, the sanction may be enhanced by
one-third of the maximum sentence.
Article 411. Any persons who offend
the dignity or decorum, or threaten, insult, or slander any of the presidents of state
organs shall be punished with a prison term of one to three years.
Article 412. Any persons who threaten,
insult, or slander or in any other way offend the dignity or decorum of a public official
or authority in the performance of his functions or on the occasion of them shall be
punished with a prison term of six months to two years.63
183. When one or several
administrative or judicial magistrates or communal chiefs should, in the performance of
their functions or on the occasion of said performance, be offended orally or in writing
in a way that is injurious to their honor or sensitivity, the offender shall be punished
by imprisonment of three months to one year.
184. Any offense committed by means of
gestures or threats to magistrates or communal chiefs in the performance of their
functions or on the occasion of said performance shall be punished by imprisonment of one
month to one year.
185. Any offense committed by gestures,
words, or threats against any ministerial official or member of the law enforcement
forces, while performing their functions or on the occasion of said performance, shall be
punished by a fine ranging from 16 gourdes to 40 gourdes.
Articles 390 and 393 of the Criminal Code
390-10. Any persons who have proffered
insults other than those covered by Article 313-323 shall be punished with a fine ranging
from 2 4 piastres.
393. The persons covered by Article 390
shall in all cases be sentenced to imprisonment for three days.
Article 345. Any persons who
threaten, slander, libel, insult, or any other way offend the dignity of a public
authority on the occasion of the performance of those functions, either in deed, in
speech, or in writing, shall be punished by imprisonment of two to four years. If the
injured party is the President of the Republic or any of the high officials referred to in
Article 325 above, the prison term shall be three to six years.
Article 189. Any persons who commit a
crime against public servants or agents of the government while such persons are
legitimately fulfilling their functions or by reason of said functions, shall be sentenced
to one to six years in prison, in addition to any sentence applicable in the case of the
Article 347. The following persons
shall be in contempt of authority:
1. Persons who provoke to a duel,
slander, defame, or insult, in action or in speech, or threaten public officials in the
performance of their duties or on the occasion of said duties, in their presence or by
notification or in writing addressed to them;
2. Persons who cause a serious breach of
order in the courts and tribunals and in any other place where public officials or
authorities are performing their functions;
3. Persons who, while armed and without
being authorized by law, either openly or clandestinely enter Congress while it is in
session, or any of the legislative chambers, or any court or tribunal;
4. Persons who prevent a public official
or representative from gaining access to his chamber or office;
5. Persons who openly disobey authority.
Article 307. Persons who publicly
offend or insult the President of the Republic or the person replacing him in his
functions shall be punished by imprisonment of six months to one year and a 50- to
Article 308. Persons who publicly
denigrate a government body shall be punished with a prison term of six months to one
year, and a 50- to 100-days fine.
Article 374. Persons who threaten,
insult, or in any other way offend the dignity or decorum of a public official by reason
of the performance of his duties or at the time of performing them shall be punished with
imprisonment of no more than three years.
If the injured party is the President of
one of the government branches, the sentence shall be no less than two or more than four
Article 368. Public defamation or
libel against the Head of State shall be punished by a sentence ranging from three months
to one year in prison, and a fine of ten to one hundred pesos and accessory or additional
punishment during a period of time equal to the sentence, and complete disqualification
and suspension of the civil and political rights set forth in Article 42.
Article 369. Acts of defamation or libel
against deputies or representatives to Congress, State Secretaries, magistrates of the
Supreme Court or trial courts, or heads or sovereigns of friendly countries shall be
punished by imprisonment of one to six months and a fine of fifty pesos.
Article 173. Contempt is committed by
discrediting the authority of officials in one of the following ways:
1. By actual, written or verbal offenses,
committed in the presence of the official or in the place where he performs his functions,
or outside the place and the presence of that official, but, in the latter two cases, by
reason of or on the occasion of those functions.
2. By open disobedience of the orders or
instructions of said officials.
Actual offenses are considered as
entering with arms the place where the officials perform their functions, physical
violence, offensive gestures and shouts, even if they are not directed against said
The crime is punished by a prison term of
three to eighteen months.
Article 223. Any person who in any
way, by speech or by act, offends the honor, reputation, or decorum of a member of
Congress, or of any public official, shall be punished as follows, provided the act took
place in the presence of said official or on the occasion of his functions:
1. If the offense was directed against a
law enforcement officer, the offender is sentenced to a prison term of one to three
2. If the offense was directed against a
member of Congress or any public official, the offender is sentenced to a prison term of
one month to one year, depending on the rank of the persons in question.
Article 226. Any person who in any way,
by speech or by act, offends the honor, reputation, decorum, or dignity of any judicial,
political, or administrative body shall be punished with imprisonment of three months to
two years, if the crime was committed while said body was in session, or while a judicial
hearing was being held.
If the offender used violence or threats,
the prison term shall be six months to three years.
Action shall be brought only at the
request of the offended party. If the crime was committed against bodies not in session,
legal action shall be brought only at the petition of the presiding members.
Said petition shall be addressed to the
representative of the Office of the Public Prosecutor, to initiate the appropriate
Article 227. In the cases stipulated in
the preceding articles, the offending party may not present any proof as to the truth or
the notoriety of the acts or errors with which the party is charged.
Article 228. The provisions established
in the proceeding articles shall not apply if the public official has given cause for the
act by arbitrarily exceeding the confines of his powers.
Article 229. In all other cases not
covered by a special provision of the law, persons who commit any crime against a member
of Congress or any public official by reason of his functions shall be liable for the
punishment established for the crime committed, plus an enhancement of one-sixth to
The Rapporteur wishes to note that a
pluralistic and tolerant democracy in one in which a fluid movement of ideas, opinions,
and open public debate are permitted. It is within this context so crucial to democracy
that civil servant designing and applying public policy including the administration of
justice are exposed to public opinion and scrutiny. The contempt laws seek to avoid debate
as well as the scrutiny or criticism of state officials. Thus, contempt laws, instead of
protecting freedom of expression or civil servants limit freedom of expression and weaken
the democratic system.
Likewise, the Rapporteur points out that
many States of the Continent still have rules on contempt of public authority that
continue to be invoked by the authorities to silence their critics and thus restrain
freedom of expression. This situations debilitates the democratic system.
B. Laws of Compulsory Membership in a
On November 13, 1985, the Inter-American
Court of Human Rights issued advisory opinion OC-5 in which it stated that the compulsory
membership of journalists in a professional association represented a restriction of
freedom of expression. The Court reached the following conclusions on the subject:
From the foregoing considerations, it
follows that a law requiring journalists to belong to a professional association, and that
prevents journalists who are not members of the association from practicing journalism and
limits access to the profession to graduates with a specific university degree is not
compatible with the Convention. Such a law would contain restrictions to freedom of
expression which are not authorized by Article 13.2 of the Convention and would therefore
be in violation of both the right of every person to obtain and impart information and
ideas through any medium of their choice, and the right of the community in general to
receive information without restraint.
Further, in its analysis it had the
following to say:
The Court observes that as a rule the
organization of professions in professional associations is not per se contrary to the
Convention, but it is a method for regulating and controlling legal authority and public
morals through the action of associates. Therefore, if the concept of public order is
considered in the sense that it was referred to earlier, namely as the conditions that
ensure the harmonious and normal functioning of institutions on the basis of a coherent
system of values and principles, then it is possible to conclude that the organization of
professions is implied in that order.
The Court, however, considers that the
same concept of public order demands that, in a democratic society, the widest possible
circulation of news, ideas, and opinions be guaranteed, as well as the greatest access to
information by society as a whole. Freedom of expression is part of the underlying primary
public order of democracy, which is inconceivable without open public debate and without
dissident opinions being fully entitled to be heard. In this sense, the Court adheres to
the ideas put forward by the European Commission of Human Rights which stated as follows,
on the basis of the preamble of the European Convention: that in approving the Convention,
it was not the intention of the High Contracting Parties to grant reciprocal rights and
obligations with a view to satisfying their national interests, but rather
establish a common public order of free European democracies for the purpose of
safeguarding their common heritage of political traditions, ideals, freedoms and rights.
("Austria vs. Italy," Application No. 788/60, European Yearbook of Human Rights,
Vol. 4, 1961, page 138).
It is also important to democratic public
policy, as it is conceived in the American Convention, to ensure scrupulous respect for
the right of every human being to express himself freely and the right of society as a
whole to receive information.
It has been argued that compulsory
membership of journalists in a professional association is an attempt to protect a
remunerated trade and that it is not contrary to the exercise of freedom of expression,
provided that no compensation is involved and that, in this respect, it refers to
something different from what is contemplated in Article 13 of the Convention. This
argument is based on a contrast between professional journalism and the exercise of
freedom of expression, which the Court cannot agree to. According to this line of
reasoning, freedom of expression is one thing, and the professional practice of journalism
is another. This is not accurate, however, and it can lead to serious dangers if it is
taken to its ultimate consequences. The practice of professional journalism cannot be
differentiated from freedom of expression. On the contrary the two are obviously
intertwined, since a professional journalist neither is nor could be anything other than a
person who has decided to exercise his freedom of expression on a continuous, steady, and
remunerative basis. Moreover, to regard the two as different activities could lead one to
the conclusion that the guarantees contained in Article 13 of the Convention do not apply
to professional journalists.
Furthermore, the argument commented on in
the previous paragraph does not take into account the fact that freedom of expression
includes giving and receiving information, it has a dual, individual and collective,
dimension. Because of this circumstance, the issue of whether this right is or is not
exercised as a remunerated profession cannot be regarded as one of the restrictions
referred to in Article 13.2 of the Convention, because, without disregarding the fact that
a trade union is entitled to seek the best working conditions, this does not have to be
done by depriving society of other possible sources of information.
The Court therefore concludes that the
public policy arguments, which are valid in support of obligatory membership in a
professional association for other professions, cannot be invoked in the case of
journalism, since they would entail a permanent restriction of the right to make full use
of the powers recognized for all human beings in Article 13 of the Convention, to the
detriment of journalists who are not members of a professional association, and this would
constitute a violation of the primary principles of democratic public policy on which the
Convention is founded.
The arguments to the effect that
professional membership is the way to guarantee that society has objective and true
information provided through a system of professional responsibility and ethics were based
on the common good. But in reality, as has been demonstrated, the common good requires a
maximum amount of information, and it is the full exercise of freedom of expression that
favors that circumstance. Thus it is contradictory in principle to call for a restriction
on freedom of expression as a means of guaranteeing it, because this would be ignoring the
primary, basic nature of this right as inherent in every human being taken as an
individual, even though it is also an attribute of society as a whole. A system for
controlling the right to express oneself freely on the pretext that this would supposedly
guarantee the correctness and truth of the information that society receives is a
potential source of major abuses and, in the final analysis, is in violation of that same
societys right to information.
It has also been argued that the
compulsory professional association of journalists is a method for strengthening unions
and thus a guarantee of the freedom and the independence of these professionals and a
requirement for the common good. The Court is well aware that the free circulation of
ideas and information can take place only in a situation where there are many sources of
information and respect for the information media. It is not enough, however, that the
right to establish or run public opinion agencies is guaranteed, but it is also necessary
for journalists and, in general, all the persons professionally involved in the mass
media, to be able to work with sufficient protection of the freedom and independence that
this trade requires. So this is an argument based on a legitimate interest of journalists
and the community in general, especially in situations where the truth of events can and
is known to be manipulated as a result of decisions made by certain government or private
Consequently, the Court is of the opinion
that the freedom and independence of journalists is a common good that needs to be
protected and guaranteed. Nevertheless, according to the terms of the Convention, the
authorized restrictions of freedom of expression must be those "necessary to
ensure" that certain legitimate purposes are met. In other words, it is not enough
that the restriction is useful (see 46 above) to meet the purpose of question, that is,
the purpose that can be achieved by means of the restriction, but rather that it must be
necessary, or in other words that it cannot be reasonably achieved by any other means less
restrictive of a right protected by the Convention. In this regard, the compulsory
membership of journalists in a professional association is not consistent with the
requirements of Article 13.2 of the Convention, because it is perfectly conceivable to
establish a law that protects the freedom and independence of all persons who practice
journalism, without any need to allow only a restricted group in the community to practice
The Rapporteur lists below those States
that still have laws on their books that establish obligatory membership in a professional
association for journalists and that prevent persons not affiliated with those
associations from practicing journalism.
Various legislative provisions in
Bolivia establish the requirement of professional association or licensing to practice
journalism, including the following:
Law 494 of 1979:
Article 1. The profession of journalism
is recognized and established for those citizens who have obtained the relevant academic
degree from a Bolivian University and those citizens who fulfill the requirements
established by this law because of their skills and experience acquired from the extended
practice of journalism.
Article 6. The National Register of
Journalists is established under the Ministry of Education and Culture, and the degrees
conferred by the Bolivian University or by the Executive Branch of government shall be
entered in it. When this requirement is fulfilled, the Bolivian Federation of Press
Workers shall issue the single journalist identification card.
Organic Statute of Bolivian Journalism
Article 27. None of the mass media,
including dailies, newspapers, weekly publications, magazines with a permanent
circulation, radio stations, television channels, or correspondents of national or
international news agencies, may employ for specifically journalistic work any persons who
do not have a professional degree and are not registered with the National Register of
Article 31. Journalism is considered
illegal when it is practiced by persons who do not have a national degree in journalism.
Decree No. 83284
Article 4. In order to practice
journalism, persons must be previously registered with the regional office of the Ministry
of Labor. To register, persons must present the following documents:
I. Proof of Brazilian nationality;
II. Proof of never having been accused or
convicted of practicing an illegal act pursuant to criminal law.
III. A diploma from an advanced course in
journalism or the media, accreditation in journalism, provided by a recognized school
pursuant to the law, for the functions listed in items I to VII of Article 11;
Organic Law of the Association of
Article 3. The following are members of
the Honduran Association of Journalists:
a) Graduates in journalism from a
university in the country;
b) Graduates in journalism from a foreign
university whose degree has been recognized by the National Autonomous University of
c) Graduates in related professions who
meet the requirements established by the Association, and can so demonstrate.
Article 8. Only members of the Honduran
Association of Journalists may practice the profession of journalism in the country. For
the offices of director, assistant director, chief editor, and information chief, persons
must also be Honduran by birth. To provide the intellectual, political, and administrative
direction of printed, radio, or television news, persons are required only to be Honduran
by birth. Press officers and persons who are working in public relations or in information
offices in public and private institutions must be members of the Association. The office
of press attaché in Honduran diplomatic missions abroad shall be held by journalists who
are members of the Association.
Article 45A. Persons who practice
professional journalism and are not members of the Honduran Association of Journalists
shall be punished with a fine of five hundred lempiras. In the case of a second offense,
the fine shall be imposed on the party responsible for this violation.
Article 59. Permanently employed and
part-time columnists and commentators, either salaried or not, may perform their functions
freely, and are not required to be members of the Association. Their scope of action,
however, will be limited to those jobs, and they may not work as a specialized or
Article 61. Only persons who are
registered as members of the Association and are duly identified in their work shall be
regarded as journalists vis-à-vis the national authorities.
Law No. 67, "Regulating Practice
of the Profession of Journalism in the Republic of Panama"
Article 2. The following persons shall be
recognized as eligible to practice journalism:
a) Persons with the appropriate academic
degree (Masters degree in communications or the equivalent) conferred by a
university in the country or by foreign universities and revalidated by the University of
b) Persons who can prove that they have
been practicing journalism continuously for no less than five years prior to the valid
date of this law; or
c) Persons who, at the time this law
takes effect, have been practicing journalism for at least three continuous years and have
continued to work in a professional capacity up to a period of five years.
Article 4. To demonstrate that the
foregoing requirements are fulfilled and obtain the qualifying certificate issued by the
Technical Journalism Board, the following requirements must be met:
a) Presentation of the duly registered
national university diploma with the specialty in journalism; or
b) Presentation of the revalidated degree
in journalism issued by a foreign university; or
c) Written proof from the director or
directors of the information media or the employers for whom the candidate has worked for
five years while engaged in the professional practice of journalism, or written proof from
legally established journalism organizations that the applicant has been a member of the
union for five years.
Article 6. The following positions may be
held only by journalists:
National or regional director of the
information media and national or regional directors of information offices and heads of
the information section in public relations offices of public or private agencies, head of
a newspaper, editorialists, columnists, reporters, editors or writers, press
photographers, title editors, diagrammers, correspondents, revisers or editors of the
written information media; directors, assistant directors, chief editors, graphic
reporters of radio, television, or film information programs.
Article 17. Persons who practice
journalism without being legally authorized to do so shall be punished with a fine of one
hundred to five hundred balboas. The fine imposed on a violator will be doubled in the
event of a second offense.
A natural or legal entity that contracts
the professional journalism services of a person who is not legally authorized as a
journalist shall incur the same penalty.
Article 2. To practice the profession
of journalist, a person must have a university degree in journalism, a university degree
in the information media, or an equivalent degree issued in the country by a University,
or a legally revalidated degree, and must be affiliated with the National Association of
Journalists [Colegio nacional de Periodistas (CNP)] and with the Journalists
Welfare Institute [Instituto de Previsión Social del Periodista (IPSP)]. Only
citizens who meet the requirements established in this provision shall be authorized to
use the title of professional journalist.
Article 39. Persons who practice the
profession of journalism illegally shall be punished with imprisonment of three to six
months. The criminal courts have jurisdiction to hear and decide such cases, and the legal
procedure shall be ex officio, by complaint, or at the request of a party.
The Rapporteur observes that the
legislation of some States still require belonging to a particular association or having a
specific university degree in order to work as a journalist, neither of which is
compatible with the American Convention.
Regarding the latter point, the
Rapporteur will continue observing the situation of freedom of expression. The
Inter-American Court has established those requirements such as compulsory membership or
university degrees constitute a limitation to freedom of expression.
Recent case laws on laws regarding of compulsory membership in professional
association in the hemisphere
The Rapporteur would like to take this
opportunity to highlight decisions handed down by the constitutional review agencies in
Costa Rica and Colombia, where the obligation of professional association of journalists
was found to be contrary to freedom of expression as it is established in the American
Convention. The Constitutional Division of the Supreme Court of Costa Rica ruled that
Article 22 of the Organic Law of the Association of Journalists, which required
journalists to become members in order to practice the profession, was unconstitutional.
The grounds for this decision was Inter-American Court of Human Rights advisory opinion
OC-5.66 Colombia, for its part, challenged a law regulating the practice
of journalism,67 in which the requirements to practice journalism on a
permanent basis are established. The Constitutional Court of Colombia, in a judgment
handed down on March 18, 1998, declared that the law under challenge was unconstitutional.68 In this way, the highest constitutional courts of both Costa Rica and
Colombia accepted the interpretation of the Inter-American Court on Human Rights on the
American Convention on Human Rights in relation to the limits of domestic laws regulating
freedom of expression, thereby giving it obligatory and binding force in internal law.69
Murder of Journalists
The murder of journalists is used as
the most brutal method for curtailing freedom of expression in the hemisphere. This
practice has had two specific objectives. On one hand, it has been used to eliminate those
journalists who conduct investigations into violations, abuses, irregularities, or illegal
acts of all kinds carried out either by public officials, organizations, or private
parties in general, so that their investigations cannot be concluded or revealed to the
public or simply in retaliation for those investigations. On the other hand, assassination
of journalists also has been used as a tool for intimidation, by which a clear message is
sent to any persons in civil society who are involved in the investigation of violations,
abuses, irregularities, or illicit acts of any kind. In this way, the perpetrators seek to
silence the press as a non institutional control mechanism or to make it an accomplice of
those persons or institutions that engage or are involved in illegal or abusive acts. In
the latter case, the objective is to prevent society from being informed of the events in
question, at all costs.
Around 150 journalists have been murdered
in our hemisphere in recent years. In this respect, the Rapporteur has been able to
ascertain that in many of these assassinations, there has not been a firm determination on
the part of the authorities to conduct an effective investigation into these events and
punish the intellectual authors or the actual perpetrators of the crime, thereby
engendering an impunity for this type of crimes on numerous occasions. On this point, the
Rapporteur would like to point out that pursuant to the American Convention on Human
Rights and other instruments of international law, states have a duty to investigate
effectively the events surrounding the murder of journalists and to punish all the authors
of the crime.70
The duty of States to investigate is an
"obligation pertaining to a means or conduct," which cannot be considered as
unfulfilled only because the investigation may have failed to produce a satisfactory
result, but "it must be undertaken seriously and not as a simple formality doomed in
advance to be futile." The investigation "must be meaningful and must be taken
on by the state as its own legal duty, and not as a simple measure adopted for private
interests, based on the legal initiative of victims or their family members or on inputs
that have no evidentiary value, without any attempt on the part of the authorities to
pursue an effective search for the truth."71
It is appropriate to quote a text from
the principles of the Declaration of Chapultepec that speaks to the same point:
Assassination, terrorism, kidnapping,
abuse of power, intimidation, unfair imprisonment of journalists, the physical destruction
of the information media, violence of any kind and the impunity of the aggressors severely
limit freedom of expression and freedom of the press. These acts must be promptly
investigated and severely punished.72
Likewise, the United Nations Education,
Science, and Culture Organization (UNESCO) has expressed its concern at the growing number
of journalists murdered in recent years as a result of the practice of their profession
and at the impunity of these crimes. UNESCO made the following recommendations, among
others, to the member states:
a. That governments adopt the principle
that they will not prescribe crimes against persons when they are perpetrated to prevent
the exercise of freedom of information and expression or when they are committed for the
purpose of obstructing justice.
b. That governments will improve their
legislation to facilitate the prosecution and conviction of the intellectual authors of
murders of persons who were exercising their right to freedom of expression.73
The same concern was shared by the United
Nations Special Rapporteur for promotion and protection of the right to freedom of thought
and expression, who had the following to say:
make every effort
to investigate acts or threats of violence, intimidation, or harassment against the
personnel or offices of the information media and to prosecute the responsible parties.
In this regard, the Rapporteur express as
has said the Inter- American Commission on Human Rights that the failure of a government
to conduct an effective and complete investigation into the murder of a journalist and to
punish the intellectual authors and the actual perpetrators of the crime is particularly
serious because of the impact this has on society. This type of crime not only has an
intimidating effect on other journalists, but it also has that effect on any citizen,
since it generates fear of reporting violations, abuses, and illicit acts of any kind.
This effect can be prevented only by decisive action on the part of states to punish the
perpetrators of assassinations of journalists. In this way states can send a strong and
direct message to society to the effect that there will be no leniency for persons who
commit such serious violations of a persons right to freedom of expression.74
In conclusion, the Rapporteur stated,
namely that failure to conduct an effective and complete investigation into the
assassination of a journalist and to punish both the intellectual and the material authors
of the crime entails a violation of the right to inform and to express oneself publicly
and freely. At the same time, the murder of journalists is an offense against all citizens
who may have occasion to report arbitrariness and abuse to society, aggravated by the
impunity of all or some of its authors. Thus, failure to conduct a serious and complete
investigation into the murder of a journalist leads to international responsibility on the
part of states for violating the right to freedom of expression of the murdered journalist
and the right of citizens in general to receive information freely and to know the truth.
The Rapporteur would like to conclude
this analysis by making specific reference to the relationship between the murderer of a
journalist, the impunity of all or some of the authors of the crime, and social
mobilization as a form of protest at the death of such persons and as a way of making
people aware of the importance of freedom of expression and public debate in a democratic
On many occasions, civil society has
realized that a journalist was murdered so that it would not be informed of a specific
fact or event, and it has peacefully mobilized in protest against this brutal violation of
the right to life and freedom of expression. A clear example of this was the assassination
of Argentine journalist José Luis Cabezas in 1997. On that occasion, large sectors of
Argentine society were mobilized and demanded that the authorities investigate the
incident and prosecute the actual perpetrators and the masterminds of the crime. Although
in this case the actual perpetrators of the murder were arrested, the persons who planned
the crime were not. Human rights organizations and a number of journalists in Argentina
repeatedly expressed their concerns over the irregularities and inefficiency of the
investigations during the judicial phase.
The case of Journalist José Luis Cabezas
shows that mobilization of society is fundamental to create a awareness on the part of
society of the importance of freedom of expression to strengthen democracy, and the need
for an objective, effective, complete, and independent investigation, so that these crimes
do not go unpunished. The peaceful mobilization of society is also the best guarantee that
such crimes will not be repeated. In this way, the silence that was sought by murdering a
journalist disappears and is turned against the authors of the crime by the repudiation of
1. Cases concerning the murder of journalists in
this hemisphere during 1998
The Rapporteur has received
information on cases regarding the killing of journalists during 1998.
The various groups devoted to the
protection of freedom of expression have produced different data on the killing of
journalists. Given the information received, the Rapporteur has decided to account for
those cases where there is reasonable indicia that the reason for the killing was linked
to the exercise of the journalistic activity. This list does not constitute a
determination of State responsibility and has the sole purpose of highlighting that this
is one of the most dangerous professions in the world.
DATE AND PLACE
Manoel Leal de Oliveira
State of Bahia
Mr. Leal de Oliveira was a journalist and the publisher of A
Regiao, a weekly publication on southern Bahia State. In this weekly magazine, he
published reports of corruption involving local authorities.
José Carlos Mesquita
Mr. Mesquita was a news announcer on "Espaco Aberto." On the
program he frequently criticized the local authorities
Tara Singh Hayer
Mr. Singh Hayer was the publisher and editor of the "Indo-Canadian
Times." He received numerous death threats. He had strong differences with
fundamentalist sectors that wanted to take control of the 70,000 Sikhs in British
Columbia. The Canadian police attributed the murder to two different Sikhs groups:
Federation of Sikhs Youth, and Babbar Khalsa. Mr. Sinngh Hayer colleagues are certain that
his murder was an attempt to intimidate more moderate sectors weeks before the election of
Sikh leadership. The freedon of expression groups have not expressed any concerns about
the judicial investigation in this case.
Oscar García Calderón
Mr. García Calderon wrote on bullfighting for the newspaper "El
Espectador." His colleagues say that the reason for the murder was his
investigation for publication of a book on the connection between bullfights and drug
Mr. Carvajal was a reporter for Radio Sur. According to his colleagues,
this crime was related to his investigation into corruption in the former local
Mr. Cortez Valderrama was a reporter for Noticias CVN on the telepacific
network, the authorities suspect that Mr Cortéz Valderrama was murdered by drug
traffickers because of a program broadcast on June 11, 1997, in which a military operation
to destroy a cocaine laboratory was shown. The police caught the person who actually
committed the murder.
The journalist Amparo Jimenez was working on the Mandato por la Paz
[Mandate for Peace] program, helping former guerrillas to become part of society. In 1996,
he was investigating the intimidation tactics of paramilitary groups on the property of a
former public official, Carlos Arturo Marulanda. The authorities have arrested the persons
who actually committed the homicide.
Mr Aristizabal Galeano was a radio reporter working for Radio Todelar. His
colleagues say that his murder was directly related to his profession.
Mr Salazar Serna was the leader of a radio program, Juventud en Ación [Youth
in Action], in which he was an advocate for peace and coexistence. The police arrested
Gustavo Adolfo Montes Castaño who was accused of killing Salazar Serna during a fight.
Nestor Villar Jimenez.
He was a journalist and a member of Congress, his colleagues say that he
was murdered because of his sharp criticism of drug traffickers.
José Arturo Guapacha
Mr. Guapacha was the publisher of Panorama. His colleagues say that
the motive of the assassination was his articles criticizing drug trafficking and his
attempt to organize a trade union of journalists.
Saúl Oswaldo Alcaraz
Mr Alcaraz was the announcer of the radio station "Mi Rio and
an environmental activist. Before that, he worked as a journalist for a news agency in
Teleantioquia. According to local journalists, he was murdered by men who were disguised
as police officers.
García was Design Director of two magazines: Crisis and Le Monde Diplomatic.
The journalist disappeared on October
20 and was found murdered in his car days later.
|Luis Mario García Rodriguez
He was a
reporter for the Radio Program La Tarde in Mexico City. García made various
investigative reports on the Office of the Attorney General and the Federal Judicial
Police. In his reports, he implicated officials from the Federal Judicial Police with the
Arellano Felix brothers, who supposedly run the Tijuana cartel.
was a United States correspondent for San Antonio Express News. Associations of
journalists are displeased with the course of the judicial investigation in Mr Trues
Hernandez was a correspondent for the official radio and television station in Guerrero.
Prior to his murder, the reporter was working on a program regarding local mafia involved
in child prostitution.
Chumpitaz Panta and
José Amaya Jacinto
couple hosted a program on Radio Satélite. They were murdered by a group of eleven
men. The persons who committed the crime were caught and sentenced to life in prison. The
authorities maintain that the motive was robbery, but Ms Chumpitaz Panta and Mr. Amaya
Jacinto colleagues believe that it was a political crime, since the journalists had spoken
out in favor of the peasants and against the policy of the regional government.
Final Considerations and Recommendations
Consolidation of democracy in the
hemisphere is closely related to freedom of expression. When freedom of expression is
limited, the development of democracy is interrupted, since the free debate of ideas and
opinion among citizens is impeded. There is no doubt that freedom of expression has
advanced in recent decades, hand in hand with the growth of democratic openness. However,
this development has not prevented authoritarian tendencies from persisting in various
countries, which continue to seek ways to limit the right to freedom of expression of the
citizens of the Americas.
The mechanisms used to limit freedom of
expression are many and varied. The range of options runs from murder of journalists to
more sophisticated means such as the constant harassment of journalists through lawsuits,
restrictive legislation, or steps taken by those in power, who place unnecessary obstacles
in the way of freedom of expression. All violations of freedom of expression are serious,
and the Rapporteur, in cooperation with governments and organizations in civil society
that defend freedom of expression, is interested in finding ways to better defend this
right in all the countries of the hemisphere.
Of all the ways in which freedom of
expression is violated, murders and physical attacks are the cases that are of the
greatest concern to the Rapporteur. The Americas is the most dangerous region of the world
in which to practice the profession of journalism. In the past decade, there have been
approximately 150 cases of murdered journalists, and many cases of physical attacks and
threats. The governments of the region are responsible for making sure that these crimes
against journalists do not be unpunished. The best way for states to strengthen freedom of
expression is by guaranteeing an effective, wide-ranging, objective, and independent
investigation into all cases of murders, attacks, and threats.
The Rapporteur recommends that the Member
States carry out an effective, serious and impartial judicial investigation, according to
the rules of due process, in cases regarding attacks or killings of journalists in order
to clarify the facts and sanction the material and intellectual perpetrators.
Aside from the gravity of murders and
acts of physical aggression against journalists, the Rapporteur is especially concerned
over the use of other arrangements to control freedom of expression, which may be less
direct than murder and physical aggression, but which are capable of causing greater
damage to the strengthening of democracy. Examples include attempts to restrict freedom of
expression by passing laws that are incompatible with Article 13 of the Inter-American
Convention, such as provisions on contempt and compulsory membership in a professional
association, or cases in which the government, through its intelligence services, seeks
information for the purpose of harassing or denigrating journalists. Democratic
institutions must be the primary guarantee of the defense of freedom of expression. When
they are used as an instrument to limit that freedom, then it remains defenseless in the
face of abuse on the part of authorities.
The Rapporteur recommends that the
Members States adjust their domestic legislation on freedom of expression to the standards
established by the American Convention on Human Rights, particularly in the area of
compulsory membership pf associations and contempt.
Lastly, the Rapporteur wishes to
acknowledge the assistance of the States that have collaborated with him as well as that
provided by the Inter-American Commission on Human Rights and its Executive Secretariat.
The Rapporteur also wishes to acknowledge
the work of independent journalists who every day carry out one of the most important
tasks in a democratic society, that is, assisting citizens in the exercise of their rights
and fulfillment of their obligations by providing them with the necessary information.
[ Table of Contents (volume III) | Previous | ]
59 IACHR, Report
on Compatibility between Contempt Laws and the American Convention on Human Rights,
OAS/Ser L/VIII.88, Doc.9 rev (1995), pages 210 to 223.
60 At the same
time, it is important to note that the Commission received a complaint from journalist
Horacio Verbitsky against the Argentine government, which referred to restrictions on
freedom of expression in the form of contempt laws. In this case, a friendly settlement
was reached. In the report on the friendly settlement, it was pointed out that: "In
accordance with Article 49 of the American Convention, the Commission analyzed the content
of the friendly settlement in question to ascertain its conformity with the Convention.
The Commission is of the opinion that annulment of the crime of contempt in the context of
the case in point would bring Argentine law in conformity with the American Convention,
since it would eliminate a legal basis for government restriction of freedom of
expression, as established in the American Convention." See annex 3.
61 Op. Cit. at 60.
62 In Chile,
Article 6(b) of the States Internal Security Law is also often used as a contempt [desacato]
63 Articles 411
and 412 of the Criminal Code should be considered together with Article 35 of the
Political Constitution and Article 35 of the Ley Constitucional de Emisión del
Pensamiento [Constitutional Law on Expression]. Article 35 of the Constitution states
as follows: "Publications that contain reports, criticism, or accusations against
public employees or officials for acts performed while exercising their duties shall not
constitute crimes or offenses
Public employees and officials may demand
that a court of honor, formed as determined by law, declares that the publication
affecting them is based on inaccurate facts or that the charges against them are
unfounded. A court decision vindicating the injured party must be published in the same
information medium where the accusation or offending statement appeared.
Article 35 of the Constitutional Law on
Expression states: "Criticism of public employees or officials for purely official
acts performed as part of their official position shall not constitute the crime of
slander or libel, even if they have left those public offices at the time that the
accusations are made."
64 At the same
time, the 1917 press law establishes in its Article 3: "[
] causes injury to the
authorities of the country for the purposes of causing hatred or scorn or ridicule of
them, or for the same purposes attacks professional public bodies, the Army or the
National Guard, or the members of those groups, by reason of their functions;"
65 The Venezuelan
Supreme Court of Justice is expected to hand down a ruling on an appeal to nullify, on
grounds of unconstitutionality, certain provisions contained in the Law on the Practice of
Journalism. The Courts ruling could annul the professional association requirement,
which is what the Colombian Constitutional Court did in a recent decision. According to
the latest information received by the Rapporteur, the Court decided not to approve the
ruling presented by Magistrate Humberto la Roche, who, according to the press, proposed
that the legal provisions under challenge be repealed. Instead, the Court reassigned the
case to a magistrate of the majority.
66 See Judgment
No. 2312-95 of 5/9/95.
67 See Law 51 of
December 18, 1985, "Regulating the practice of journalism and establishing other
68 See Judgment
No. C-087/98 issued by the Constitutional Court of Colombia on 3/18/98.
69 See Ayala,
Carlos, "Del Amparo Constitucional al Amparo Interamericano como Institutos para
la Protección de los Derechos Humanos ", Instituto Interamericano de derechos
Humanos, editorial juridica Venezolana, Caracas/ San Jose, 1998, pages 86 to 90.
Inter-American Court has said, "The State is obligated to investigate every situation
involving a violation of the rights protected by the Convention. If the State apparatus
acts in such a way that the violations goes unpunished and the victims full
enjoyment of such rights is not restored as soon as possible, the State has failed to
comply with its duty to ensure the free and full exercise of those rights to the persons
within its jurisdiction. The same is true when the State allows private persons or groups
to act freely and with immunity to the detriment of the rights recognized by the
Convention." See, InterAmerican Court of human Rights, case Velásquez
Rodríguez, Judgement July 29, 1988, par. 176.
71 See the
Inter-American Court on Human Rights, Case of Velásquez Rodriguez, Judgment of July 29,
1988, para. 177.
72 Principle No.
5, Declaration of Chapultepec, adopted by the Hemispheric Conference on Freedom of
Expression, held in Mexico City, March 11, 1994.
Resolution 120 of November 12, 1997.
74 See the
Inter-American Commission on Human Rights, Report No 50/99 case 11.739 (Mexico)
OEA/Ser/L/V/II. Doc.57, April 13, 1999.