ON THE SITUATION OF
RIGHT TO FREEDOM OF THOUGHT AND EXPRESSION
The right to freedom of expression is fundamental to ensuring the rule of
law and the functioning of democratic institutions.
In this regard, Article IV of the American Declaration of the Rights and
Duties of Man sets out that “Every person
has the right to freedom of investigation, of opinion, and of the expression and
dissemination of ideas, by any medium whatsoever.”
Article 13 of the American Convention stipulates that “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.”
The state of freedom of expression in the Americas is a priority concern
for the Inter-American Commission on Human Rights.
On the basis of this concern, and pursuant to the request of a broad
spectrum of groups within civil society and international organizations, and
with the full support of the Heads of State and Government of the Americas, the
Inter-American Commission on Human Rights of the OAS decided during its 98th
regular session to establish the Office of the Special Rapporteur for Freedom of
Expression. The Office is a
functionally independent body operating within the legal framework of the
Given the basic role freedom of expression plays in the consolidation and
development of democracy and the protection of all other human rights, one of
the Office’s goals is to raise awareness throughout the Americas of the
importance of respecting this right. Another objective is to assist member
states in adopting positive measures in this field by making specific
recommendations on matters related to freedom of expression. With these goals in
mind, the Office of the Special Rapporteur visits countries when invited to do
so in order to study specific situations.
4. Upon the invitation of President Alfonso Portillo Cabrera, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights visited Guatemala for four days in April of 2000. The trip provided him with the opportunity to meet with a wide range of sectors of civil society and gain insight into various aspects of the current state of freedom of expression in Guatemala. A number of these aspects will be covered in the following sections of the present report.
5. The Special Rapporteur is deeply troubled by recent reports of a climate of uncertainty and tension between State authorities and some members of the media. The same can be said of the increasing number of cases of intimidation and threats against journalists in recent months. These matters will be more thoroughly examined in a special report on freedom of expression in Guatemala being prepared on the basis of all the information gathered during and after the visit made in April of 2000. The Office of the Special Rapporteur is currently finalizing that report, which will also delve into the discrepancy between practices that still allow for prosecution of media professionals under contempt laws (leyes de desacato) and the prohibition of such practices under Article 35 of the Political Constitution of Guatemala. Moreover, the report will take a close look at the question of monopolies and measures to ensure non-discrimination and plurality in the granting of frequencies, in accordance with the commitment made by the Government of Guatemala in the Agreement on Identity and Rights of Indigenous Peoples.
6. The following section examines the current legal basis of freedom of expression in Guatemala.
1. Legislation and Freedom of Expression
7. The Special Rapporteur for Freedom of Expression recognizes that freedom of expression covers a broad spectrum of activities that directly affect all individuals. Freedom of expression includes the right to seek, receive, and impart information and ideas of all kinds. Thus it has a dual character. On the one hand, it means that no one can be arbitrarily limited or impeded in expressing ideas. On the other, it implies a collective right to receive information without limitation and to have access to the ideas expressed by others.
8. Any study of legislation directly impacting freedom of expression and information must be carried out with due consideration to the fundamental role this right plays in a democratic society. Moreover, all of the principles set out in Article 13 of the American Convention of Human Rights must be taken into account. Democracy’s dependency on effective and wide-ranging freedom of expression is not simply rooted in an exigency to respect the right per se, but also on the essential role that freedom of expression and information plays in assuring that all other basic rights are respected.
9. Article 35 of the Political Constitution of Republic of Guatemala expressly recognizes the right to freedom of expression of ideas in the following terms:
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
10. This provision
of the Constitution prohibits prior censorship and limits responsibility for the
contents of information transmitted to the subsequent imposition of liability.
This is in accordance with Article 13(2) of the American Convention, which
stipulates that the exercise of the right in question:
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:
respect for the rights or reputations of others; or
the protection of national security, public order, or public health or
In addition to the express prohibition of prior censorship, the
Constitution of Guatemala contains provisions against indirect censorship. It
prohibits acts that could impede the performance and operations of the media,
such as expropriation, forced closing, embargo or seizure.
The Constitution of Guatemala contains additional provisions pertinent to
freedom of expression, namely on access to information in the hands of the State
the action of habeas data (Article 31)
and the prohibition of monopolies (Article 130).
In regard to exceptions to the right to access information in the hands
of the State, Article 30 indicates that State bodies may deny access to military
or diplomatic information only when making it available would endanger national
security. Although Article 30 establishes the general principle that all acts of
the administration are public in nature, Guatemalan legislation neither provides
for concrete procedures that make it possible to effectively exercise the right
of access to information, nor for an independent appeals body to resort to if
access is denied.
President Alfonso Portillo Cabrera informed the Office of the Special
Rapporteur that he intends to present draft legislation to Congress that would
ensure that the right of access to information and the action of habeas
data can be effectively exercised. According
to information provided by the State, the Government, through the Secretariat
for Strategic Analysis, has invited diverse groups of civil society to
participate in the development of the draft law on access to information and habeas
Guaranteed access to information in the hands of the State contributes to
greater transparency in Government operations and to a consequent reduction of
corruption in State administration.
Citizen access to documents and files in the hands of the State is an
effective control mechanism that fosters greater transparency in State
administration and reduces corruption, thereby enhancing the democratic process.
The Office of the Special Rapporteur welcomes this initiative, as the
right of access to information and action of habeas
data are fundamental aspects for the strengthening of a democratic society
and broad freedom of expression and information.
The Special Rapporteur for Freedom of Expression acknowledges that the
advance of democracy in Guatemala has greatly contributed to assuring the
exercise of the right of freedom of expression. More specifically, the Office of
the Special Rapporteur recognizes that the peace accords have been fundamental
in fostering the inclusion and participation of all sectors of Guatemalan
society in public debate, thus strengthening the democratic system. The Office
hopes that the Government’s current willingness to defend and broaden the
right of all Guatemalans to freedom of expression will continue unabated
throughout its term in office.
on Freedom of Expression
The Situation Facing Journalists and other Social Commentators
A free press is one of the most important pillars of democracy. The
Special Rapporteur underscores that respect for freedom of expression is
essential to the development and safeguarding of democracy.
The Rapporteur notes that it is those working in the field of social
communication who principally carry out the task of informing the public and
fostering debate that is so essential to building stronger institutions.
The Office of the Special Rapporteur welcomes the willingness of the
current Government to maintain open lines of communication between high-level
officials and journalists. This in itself is a guarantee of a broad-based
freedom of expression grounded in transparency in government, a fundamental
component of any democratic system.
Nevertheless, it must be mentioned that the Office has received
information about cases and situations in which restrictions have been placed on
freedom of expression. This is of
great concern to the Office of the Rapporteur, which stresses that such cases
must be investigated by the authorities with the utmost seriousness.
During the Rapporteur’s visit to Guatemala, he was informed that Martín
Juárez, Luis Escobar, Enrique Castañeda and Silvia Gereda, all journalists
working in the Investigative Journalism Unit of the daily El
Periódico, had been followed and had received threatening phone calls. According to the information received, such actions were
intended to dissuade them from publishing the results of an investigation into
the structure of Guatemalan intelligence services.
Additionally, the Rapporteur expresses grave concern about information
received subsequently concerning the April 27, 2000 murder of Roberto Martínez
Castañeda, a journalist working for the daily Prensa
threats against the agency Centro de
Reportes Informativos sobre Guatemala (CERIGUA),
and acts of intimidation against Sergio Méndez, a journalist for a radio news
program called Guatemala Flash, and Estuardo Pinto, a journalist at the paper Nuestro
Diario, both of whom were covering the trial for the murder of Bishop Juan
The Special Rapporteur for Freedom of Expression issued a press release
on April 28, 2000 concerning the murder of Roberto Martínez Castañeda. In it
he expressed repudiation of the crime and called on Guatemalan authorities to
clearly establish the facts of the case and punish those responsible. The Office
of the Special Rapporteur has repeatedly stressed that the murder of journalists
is the most brutal form of attack against freedom of expression and democratic
The American Convention on Human Rights sets out that states have the
duty to prevent, investigate and punish any violation of the rights enshrined
therein and to make reparation for the damage caused. In regard to journalists,
the Inter-American Commission on Human Rights has maintained that failure to
fully investigate the murder of a journalist and to punish both those who
planned the crime and those who carried it out, is especially grave because of
the impact it has on society as a whole. Impunity
not only inspires fear in other journalists but among people in general,
inhibiting them from denouncing illegal acts and abuses of all kinds.
Lastly, the Office wishes to mention the socio-economic situation of
those who work in the media. During
the visit to Guatemala, the Special Rapporteur was brought up to date on the
situation in general. Such workers are not covered by life or other kinds of
insurance, are not paid for overtime and have no set schedule.
Further, wages are insufficient to cover basic necessities.
It should be recalled that the right to obtain life insurance is
expressly referred to in the Constitution of Guatemala.
The Rapporteur wishes to again emphasize that direct attacks against the
media are not the only way that the right to freedom of expression is violated.
Indirect means, such as through the working conditions of those that have
taken on the task of keeping people informed, can also produce violations.
It is in this sense that the situation described is a violation of
Article 13 of the American Convention.
The Situation of the Media
In meetings and conversations held during the visit to Guatemala, one of
the main concerns voiced was the existence of a de
facto monopoly over broadcast television channels that may be seriously
affecting freedom of expression and the right of Guatemalans to be informed.
Most of those interviewed pointed out that, although the various
broadcast television channels are registered under separate corporations, the
majority shareholder in all of them is the entrepreneur Angel Remigio González.
According to the information received, the current corporate structure of
the media, and especially of radio and television, is based on a set of laws and
practices that has been in effect for the past two decades.
The Special Rapporteur has also received information on radio
broadcasting and concerns regarding the legal framework and criteria for
granting radio frequencies. One basic concern is that the only criteria the
Government uses to grant frequencies are economic ones that effectively deny
access to minority groups such as indigenous peoples, youth and women. The
procedures for the granting and renewal of broadcast licenses should be clear,
fair and objective, and the importance of the media in fostering informed
participation in democratic processes should be given due consideration.
In this sense, the cancellation of the television program “T-Mas de
Noche,” which had been critical of the Government, within a context of a
possible de facto monopoly on
broadcast television channels and complaints about possible conflicts of
interests of Government officials and media entrepreneurs, points to a situation
that is not at all favorable for the full development of freedom of expression.
President Alfonso Portillo Cabrera has expressed willingness to look for ways to
solve these problems. A public offer to make time available on a State-run
television channel is an example of the President’s good will in this regard.
The Office of the Special Rapporteur wishes to point out that democratic
criteria ensuring the participation of all sectors of Guatemalan society should
be taken into consideration when granting licenses for television channels and
radio frequencies. Bidding procedures that do not go beyond economic
considerations, or that do not give a fair chance to all social sectors, are
incompatible with participatory democracy and the right of freedom of expression
and information enshrined in the American Convention on Human Rights.
Draft Reform of the Law on Elections and Political Parties
The Office of the Special Rapporteur would like to call attention to the
Guatemalan Government’s efforts to reinforce freedom of expression, efforts
reflected in its work on and the draft reforms to the Law on Elections and
Political Parties. Attention must,
however, be given to basic aspects of the draft reform
in relation to the principles set out in Article 13 of the Convention.
Various groups that will be affected by the reform have expressed concern
to the Office of the Rapporteur with respect to the Supreme Electoral Court’s
imposition of a maximum time period for election campaigning and of mandatory
registration by media of their advertizing rates for campaign ads. This goes
against the legislation on freedom of expression now in force. The Special
Rapporteur points out that the tying of such requirements to the circulation of
information may constitute a restriction on freedom of expression.
The Special Rapporteur notes that there is a need for clear and precise
rules defining the relationship of Government authorities with the media.
Lack of transparency or clarity and any conflict of interest of public
officials or businesspeople could restrict freedom of expression. Government
officials and businesspeople could try to influence the content of radio or
television programs or press articles in order to hurt or help certain
politicians, governmental authorities or other persons in exchange for direct or
indirect benefits for certain companies.
36. The Special Rapporteur would like to point out that a careful and detailed study should be made of the changes to the Law on Elections and Political Parties now under consideration, keeping in mind that freedom of expression can only be subjected to the restrictions permitted by Article 13 of the American Convention. It would be beneficial to give all parties affected by the law, and especially the media, political parties and other groups representative of society, the opportunity to take part in such a discussion.
With the foregoing in mind, the Special Rapporteur for Freedom of
Expression wishes to recommend that the State of Guatemala:
1. Immediately adopt measures to put a stop to the threats, attacks and murder perpetrated against journalists and other social commentators who are exercising their right to freedom of expression. Article 1 of the American Convention sets out the obligation of states to respect the rights and freedoms recognized therein and to ensure to all persons under their jurisdiction the free and full exercise thereof. From the obligation to ensure the free and full exercise of the rights and freedoms enshrined in the Convention, it follows that states are obligated to prevent, investigate and punish violations of the rights recognized in the Convention, to restore any right so violated, and as necessary, to make reparation for damage caused by the violation of human rights.
2. Pursue the draft reforms to the Law on Elections and Political Parties, and concerning access to information and the action of habeas data, which the President has promised to support, while taking into consideration the recommendations and suggestions put forward by representatives of civil society. The bills in question should contain provisions for an independent appeals body so that any exceptions provided for by law can be challenged directly without having to resort to the final judicial instance.
3. Enact the measures needed to assure that the antitrust provisions of the constitution can be enforced and take progressive steps to ensure minority groups access to the media.
4. Carry out an in-depth investigation of the possible existence of a de facto monopoly in broadcast television and implement mechanisms that will assure greater plurality in the granting of channels.
5. Put in place clear rules to avoid conflicts of interest among Government officials and the media.
the regulations governing the granting of radio and television licenses with the
purpose of incorporating democratic criteria guaranteeing equal opportunity.
American Declaration of the Rights and Duties of Man, adopted by the Ninth
International Conference of American States, Bogotá, Colombia, 1948,
Chapter One, Article IV.
American Convention on Human Rights, Chapter II, Article 13.
Inter-American Court of Human Rights, Compulsory
Membership in an Association Prescribed by Law for the Practice of
Journalism (Arts. 13 and 19 American Convention on Human Rights).
Advisory Opinion OC-5/85, Series A No. 5, paras. 30-32.
Political Constitution of the Republic of Guatemala, Title II, Chapter I,
Other paragraphs of this same article stipulate that:
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.
officials or employees may go before a tribunal
de honor, constituted according to the law, to ask it to declare that
the article in question 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.
activity of the mass media is considered a matter of public interest and
these may not be expropriated. They may not be closed, embargoed,
intervened, confiscated or seized for any offense or crime committed in the
dissemination of ideas, nor may the operations of enterprises, workshops,
equipment, machinery or other fittings be interrupted.
access to sources of information is considered a right and no authority may
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.
trial regarding an offense referred to in this article shall be heard before
a jury. All matters related to this constitutional right are regulated by
the Ley Constitucional de Emisión del
Pensamiento (Constitutional Law on the Dissemination of Ideas).
of mass media shall provide their reporters with economic protection in the
form of life insurance.
American Convention on Human Rights, Chapter II, Article 13.
The Political Constitution of the Republic of Guatemala, Title II, Chapter
I, Article 30, on access to information in the hands of the State,
stipulates that “all acts of the administration are considered public.
Interested parties have the right to obtain reports, copies, reproductions
or certifications upon request, and to access any records they may wish to
consult, except when military or diplomatic matters related to national
security or information provided by individuals under a guarantee of
confidentiality are involved.”
The Political Constitution of the Republic of Guatemala, Title II, Chapter
I, Article 31, on habeas data,
stipulates that “Everyone has the right to know the information relative
to them in files, records or other state registers, as well as the purpose
of that information. They also have the right to correct, rectify and update
such information. The keeping of registers or files on political affiliation
is prohibited, except when done by election officials or political
The Political Constitution of the Republic of Guatemala, Title II, Chapter
II on Social Rights, Section Ten, Article 130, on the prohibition of
monopolies, stipulates that “Monopolies and special privileges are
prohibited. The state shall place limits on the operations of enterprises
that, in detriment to the national economy, take over or move toward taking
over one or more branches of industry or a single commercial or agricultural
The photojournalist was murdered while covering a demonstration protesting a
hike in public transportation fares and attacks against Christian Alejandro
García, employed by a news program, and Julio César Cruz, another
photojournalist. It should be stressed that after the murder, high-level
Guatemalan authorities requested the help of the Office of the Special
Rapporteur in following up on the problems of security and protection of
Guatemalan journalists. According to information provided by the State, Mr.
Martínez was killed by private security guards, one of whom the Tribunal
de Sentencia sentenced to 15 years in prison. Cuerpo Professional de
Seguridad, the company that the perpetrators worked for, is now being sued
in civil court by the family of the victim. An initiative to grant Mr. Martínez’s
underage children a monthly stipend until they reach legal age is under
consideration in the Commission on Legislation and Constitutional Matters of
On July 14, 2000, the Paris-based Reporters without Borders issued
information on threats against at least six CERIGUA journalists over the
previous two months. Special mention was made of a threatening telephone
call received by Ileana Alamilla, Director of Reporters without Borders, on
June 23, 2000. According to comments submitted by the state, the complaint
regarding threats made against Ileana Alamilla and the six CERIGUA
journalists was remitted to the Attorney General’s Office and to the Human
According to information submitted by the State of Guatemala, the Director
General of the National Civil Police and the Attorney General of the
Republic have been requested to increase and speed up efforts to identify
In its comments, the State mentioned that members of Congress unanimously
approved a petition requesting
that life and medical insurance be made available to journalists.
A bill on this matter is currently under study in the Committee on
Legislation and Constitutional Matters of the Congress.
 In this regard, see
IDEA (Instituto para la Democracia y la Asistencia Electoral), Democracia
en Guatemala, La Misión de un Pueblo Entero, Bogotá, 1999, pages 199
evolution of television manifests the creation of a private monopolistic
consortium with low levels of competition. Of the five channels now
available, four (3, 7, 11, and 13) are associated with a consortium in which
Mexican capital predominates. The concentration of media power in the hands
of this foreign consortium effectively gives
it a tool of extraordinary economic, cultural and informative power,
with negative implications for the national democratic process.”
IDEA also pointed out that:
of the consequences of (…) lack of competition (in television) is the
absence of diversity in news and entertainment, in domestic production.
(…) (T)elevision in Guatemala has undergone an alarming process of
stagnation and even regression.”
See footnote 10 on domestic
legislation on monopolies.
Inter-American Court of Human Rights, Velásquez Rodriguez Case, Judgment of
29 July 1988, Series C No. 4, para. 166.