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Introduction: The Public Debate

In this chapter we focus on restrictions affecting the public debate in Chile since the return of democracy in March 1990. We use the term “public debate” to refer to the sum total of information and opinion available to people that enables them to make up their minds about a range of issues that arise in daily life. By no means limited to politics in the narrow sense, it includes discussion of ethical and religious issues, sexual mores, health, environmental concerns, government or business malpractice, consumer issues, cultural criticism, and so on. A wide variety of organizations, including political parties, religious organizations, civil and professional associations, academic and scientific institutions contribute to the public debate, as well as writers, artists, and other citizens. The mass media, which filters all the information and opinion generated by the government and by the wider public, is not a passive or neutral conduit: journalists select, articulate, and continuously recreate the agenda of the day. The public debate, nevertheless, ranges wider than information or opinion offered in the media: it includes many forms of direct public expression, both political and cultural, whether organized or spontaneous — such as street corner oratory, humor, graffiti, spontaneous protest, and the like.

In a healthy society, the public debate is naturally free-ranging. All restrictions on people’s right to obtain information and express opinions, and the media’s freedom to research and publish it are unwelcome. International human rights norms are categorical on this point. In the European system of human rights protection, “freedom of expression constitutes one of the essential foundations of a democratic society.”176 In the American system, freedom of expression is the “primary and basic element of the public order of a democratic society.”177

Yet even though restrictions are always unwelcome, international norms recognize that in certain limited circumstances they are necessary. Thus,Article 20 of the International Covenant requires that any propaganda for war or, “advocacy of national, racial or religious hatred that constitututes incitement to discrimination, hostility or violence,” be prohibited by law.178 Freedom of expression can in certain circumstances be abused to injure other rights. Article 17 of the International Covenant, for example, protects everyone’s right to privacy and honor, and even obliges state parties to provide legal protection against its infringement, such as in libel laws. International human rights law is quite consistent on the circumstances that may be invoked to restrict freedom of expression, and the test that must be applied to determine whether the restriction is acceptable. The permissable circumstances include expressions that endanger “respect for the rights and reputations of others,” national security, public order, public health and public morals.179 In each case, those who infringe these values by exercising their freedom of expression may subsequently be held liable, both in criminal and civil proceedings, but the state may never subject them to prior censorship.

To be justifiable, however, restrictions must pass a strict test. First, restrictions must be legitimate, that is, they must serve one of the purposes mentioned above. Second, they must be established by a law, that is, accessible and precise enough for the citizen to be able to predict the outcome of an act and adjust his behavior accordingly. Vague or imprecise restrictions are threatening because there is no certainty how they will be applied, and this unpredictability has a chilling effect on freedom of expression. The hardest test, however, is the final one. Restrictions on freedom of expression must also be necessary in a democratic society. In a key judgment the European Court of Human Rights ruled that “the adjective ‘necessary’...implies the existence of a ‘pressing social need.’”180 As a general principle, restrictions must be proportionate in severity and intensity to the purpose sought. In a particular case, they must be shown tobe the least restrictive means possible of protecting the right or social value in question. In no case may they jeopardize the principle of freedom of expression itself. 181

Most of the decisions reached by international human rights committees and tribunals on freedom of expression issues have focused on the necessity issue. The Human Rights Committee formed to monitor compliance with the International Covenant has interpreted restrictions narrowly, to the benefit of freedom of expression. It has focused simultaneously on the consequences of the use of the right and the possible negative consequences of its restriction. As the committtee pointed out, “it is the interplay between the principle of freedom of expression and such limitations and restrictions which determines the actual scope of the individual’s right.”182 This kind of legal reasoning is strikingly absent in decisions of the Chilean courts which rarely give second thought to the social costs of a restriction on freeedom of expresion in a democratic society.

A much less visible restriction is informal pressure by government on media owners and directors to avoid the publication or broadcast of undesirable items, even when such pressure is not backed by legal sanctions. From the perspective of freedom of expression principles, the intensity of such pressures is much greater when the medium concerned is under government ownership or its directors are government appointees. The restrictive impact will also be greater if these government-owned or -controlled media enjoy a monopoly or a commanding hold in any segment of the communications market. Even when such conditions do not apply, behind-the-scenes interventions by government officials to preempt or criticize the publication of conflictive items should be considered unacceptable.

Finally, the scope and intensity of the public debate is affected by what might be termed self-imposed restraints. The most important of these is self-censorship. Self-censorship involves editorial suppression of information or language that might incur a sanction that is arbitrary or is based on a law that violates international conventions by unjustifiably limiting freedom of speech. The heavier and more consistently applied the sanctions, the more intense self-censorship is likely to be. Apart from their underlying legitimacy, internationalnorms require restrictions to be defined in law and to be precise in meaning. Laws that are vague, ambiguous, excessively broad, or allow ample discretion in their application facilitate abuse of power and have a chilling effect on freedom of expression.

Self-imposed restraints, however, do not arise necessarily out of avoidance of administrative or legal sanctions. Owners, editors, and writers may suppress facts or opinions from publication (or not search for or articulate them) for a wide variety of reasons that are unrelated to censorship or the fear of censorship. These may include an internalized sense of social or political responsibility (key elements in the early years of the Chilean transition), conformity or deference to conservative moral values, or a pandering to public taste for purely commercial motives. Bad journalistic habits, such as a lack of tenacity and rigor in investigative reporting, over-reliance on official sources, excessive hob-nobbing with politicians, or agenda-setting based on the priorities of government are other tendencies that have been mentioned in this context.183

Sexual codes and family mores are other potentially sensitive topics. Quite stringent standards of sexual conduct and family life are characteristic of Chilean society, although there is a wide gulf between the norms and their actual observance.184 This gulf has been officially recognized; even governmentleaders have referred openly to a strain of hypocrisy in the culture.185 In what has been interpreted by some observers as a safety-valve to allow concealment of disapproved moral conduct, Chilean laws jealously protect the private sphere from intrusion and inspection by the mass media. Informal restraints inhibit frank discussion in these areas too.

These moral concerns are part of an established way of life. If the press and the public concur in excluding from public discussion aspects of social life that are provocative or uncomfortable, these are cultural constraints not attributable to the government in power. Yet it should not be forgotten, also, that censorship and restriction of freedom of expression are usually directed against views that already exist in society (often, it must be said, minority views) or cultural products that many people want access to. While democratic governments cannot force the pace of change, they must encourage a free and open debate by removing the barriers which inhibit any group in society from freely expressing its viewpoint, or receiving the information it desires, within certain clearly defined limits. An open press, of course, plays an essential role in stimulating this change. The government is responsible for removing laws that act as illegitimate barriers to freedom of expression and for taking positive measures to promote the diverse public debate a vigorous democracy requires.

In this section we focus on illegitimate restrictions of the public debate. We begin by looking at the expression of fact and opinion in the written media and television, and at limitations of the freedom of speech exercised by political actors. In the following section we turn to television and cinema, the two most wide-reaching mass media in terms of opinion formation, as well as entertainment.

Government Policy on Freedom of Expression

Apart from the Press Law discussed above, progress to strengthen freedom of expression rights has been meager. As noted in Chapter III, the Aylwin government solved an immediate problem by transferring the cases of journalists accused of insulting the armed forces to the jurisdiction of civilian courts. However, civilians including journalists can still be, and are, tried by military courts for other freedom of expression-related crimes under the militarycriminal code, in violation of their right to a trial before an independent and impartial tribunal. Neither President Aylwin nor President Frei have repealed antiquated and anti-democratic articles of the military criminal code that curtail press freedoms. The provisions of the Law of State Security that criminalize defamation of state authorities have been invoked as recently as August 1998. The government has not proposed reforms to end judicial censorship, even though one case of prior censorship, reviewed below, resulted in a condemnation by the Inter-American Commission on Human Rights, and another is under study by the commission.186 Sections of the Code of Criminal Procedure that are abused by judges to prohibit or suspend the publication of books deemed injurious remain in force.

Official policy toward the media formerly under government control, on the other hand, shows a significant break with the past. The Aylwin government ceded its control of the government newspaper La Nación to a board of directors handpicked by Alywin but with editorial autonomy. The Alwyn government also sold off its interests in Radio Nacional, previously a government-owned station. It restructured Televisión Nacional (TVN), the state television channel as an autonomous channel, under a politically diverse board of directors, an independent editorial policy and a commitment to pluralistic news coverage. The government’s determination to dispense with its inherited press organs, thus distancing itself as far as possible from the practices of its predecessors, was a laudable departure. However, in practice, as we note below, the autonomy of the government-owned media was frequently breached by government officials or government-appointed managers.

Silencing Critics: Military Justice and Sedition Charges

Although prosecutions of journalists and politicians under articles of the Code of Military Justice have become less frequent with the years, the articles of the code that affect freedom of expression are still in force. Even if they are not invoked, many journalist have recent memories of detention and prosecution under these laws. Until they are repealed there is no guarantee that a journalistic investigation into corruption in a branch of the armed forces will not provoke litigation for violation of military laws. They therefore continue to have a chilling effect on the freedom to criticize. As the summary belowindicates, the laws have been invoked periodically over an eight-year period in democracy.

In the early years of the Aylwin administration the number of these prosecutions increased. Charges continued to be filed for “threats, offences or libel against the armed forces” and “incitement to sedition” (Articles 284 and 276 of the Code of Military Justice). Most of the journalists affected by these lawsuits worked for newspapers or publications carrying reports on human rights cases. The laws deterring press denunciations of military wrongdoing helped protect military officials from being held accountable, as did the prohibition on congress investigating wrongdoing by government officials prior to 1990 and the effect of an amnesty law preventing prosecutions for human rights crimes during the height of the post-coup repression (1973-1978).

According to the Chilean Journalists Association, six months into the Aylwin government more than thirty cases, affecting twenty-six journalists, were under investigation by military courts; more than half of them had been initiated over a forty-five-day period between August and September 1990.187 In May 1990 El Siglo Director Juan Andrés Lagos was under prosecution for five separate offenses; in November 1992, together with Francisco Herreros, director of Pluma y Pincel, he was sued on a new sedition charge by Carabineros for publicizing alleged irregularities in a police land purchase. Lagos was detained in May 1990 (for five days), September 1990 and November 1992, and again in February 1993. Juan Pablo Cárdenas, director of Análisis, was detained in October 1990 for two weeks on a charge of publishing a letter from a Chilean exile in Canada considered to insult the armed forces;188 two other cases against him involved articles about human rights violations.

Other journalists affected included Osvaldo Muray (crime editor for Fortín Mapocho), who had been in charge of his paper’s coverage of a death in police custody; El Siglo’s editor Guillermo Torres, jointly prosecuted in May 1990 with Lagos for publishing a list of 900 former CNI agents; Alberto Luengo, deputy director of La Nación, prosecuted in 1990 for a report on an army corruption case; Mónica González, editor of La Nacion, accused of libel in 1991 by the military judge of Santiago and the director of DINE; Análisis columnist Alfonso Stephens, accused of offense to the armed forces; and Manuel Cabieses, director of Punto Final, prosecuted in September 1991 forinciting sedition because of a cover depicting General Pinochet wiping his bloodied nose on a national flag, with the caption “Cynicism and sadism.”189

On February 14, 1991, the Aylwin government promulgated Law No. 19,047, a major penal reform aimed at restoring due process rights for political detainees.190 The law included provisions transferring prosecutions under Article 284 of the Code of Military Justice (threats and insults to the armed forces) to civilian courts. At the same time the maximum penalty for this offense was lowered from five years to three. Twenty-nine cases were transferred to civilian courts, and more than twenty journalists were acquitted in the course of the year.191

The reforms introduced in this law did not benefit journalists prosecuted for other military offenses, in particular sedition. After the law cleared Congress the number of prosecutions for libel against the army under Article 284 dwindled, while those for sedition increased significantly. Some Article 284 prosecutions, such as that of La Nación Deputy Director Alberto Luengo, were relaunched by military prosecutors on sedition charges in an evident effort to retain jurisdiction.192 Although inactive, the cases remain open against the journalists who refused to present themselves to the military courts, a position publicly defended by the Chilean Journalists Association. Guillermo Torres, former editor of El Siglo, who had to go underground to avoid arrest, was declared a fugitive from justice. This anomalous situation is not unique; inquiries in the military courts of Santiago by Human Rights Watch revealed that accusations of sedition against Lagos, and against Abraham Santibañez andAlberto Luengo of La Nación, were still open, even though the cases had been inactive for years.193

In September 1996 the second military prosecutor suddenly reactivated the sedition charge against Manuel Cabieses, also dormant in the military courts since 1991, causing consternation in Chilean journalistic circles and international protests. On September 9, 1996, police went to Cabieses’s home and to the newspaper’s offices in an attempt to arrest him. Cabieses was in hiding for two weeks, during which the Chilean Journalists Association applied for a protection writ on his behalf.194 Cabieses had been previously tried for the same newspaper cover on a charge of infraction of Article 6(b) of the Law of State Security. The civilian and military courts had disputed jurisdiction, and the Supreme Court ruled in favor of the civilian courts, leading to his acquittal in 1995 by the Santiago Appeals Court. After two weeks of confusion, the Military Appeals Court (Corte Marcial) accepted the protection writ and dismissed the charges by a four-to-one majority.195

Espionage or whistle-blowing?

A case in which television journalists were prosecuted for sedition, for broadcasting an interview with an informant who made serious allegations about wiretapping of politicians by army intelligence personnel, illustrates the use of Article 276 to deter damaging revelations about illegal practices which would otherwise probably have remained concealed. In a subsequent statement the army accused the station of attempting to undermine the prestige of theinstitution, whereas the clear intent of the report had been to draw attention to illegal practices. Again, an alleged desacato was at the heart of the prosecution.

The exclusive report, on TVN’s 24 Horas news program, aired on September 22, 1992. It centered on an interview with a former member of the Army Intelligence Department (Dirección de Inteligencia del Ejército, DINE), unidentified and shown in blurred focus, who claimed that DINE was permanently monitoring the mobile phone conversations of ministers, politicians, and business leaders. The broadcast, which came in the wake of espionage allegations involving both the army and the civil police, created enormous public interest by providing convincing evidence that the allegations regarding the army were accurate.196 In the days that followed, crowds and reporters surrounded the DINE’s Santiago headquarters, and the army declared itself in a state of alert.

In an aggressive public statement the army accused the station of “a communications stunt...a continued and repeated campaign to undermine the prestige of the institution...and a seditious plot.” The statement attributed “special gravity” to the fact that the station had investigated an army unit and filmed its activities “on its own account” and without authority of a power of state. (Photography or filming is prohibited in army precincts.) It did not, however, deny any of the allegations.197 On September 28, the army announced it would prosecute senior executives of TVN, including Director Jorge Navarrete, the head of its press department, Patricia Politzer, and anchor Bernardo de la Maza, for inciting sedition. A separate prosecution for espionage was opened against La Nación Director Abraham Santibáñez and journalist Manuel Salazar, for the publication in its September 24 issue of an article on the structure and functions of the DINE, including a photograph of DINE headquarters. The two were questioned by a military judge about their sources for the article but refused to give them.

This blatant attack on the freedom of the press created another uneasy situation for the executive branch. Secretary General of Government Enrique Correa told reporters that the government recognized the right of the armed forces to maintain the secrecy of their installations; at the same time it was committed to freedom of the press and citizens’ right not to be spied on.198 Defense Minister Rojas, however, criticized TVN for its “indiscretion” and said that the report “in some degree affected the security of the country.”199

The army later suspended its charges against TVN. An investigative commission of the Chamber of Deputies into the wiretapping allegations reported on January 5, 1993 that its investigations had been hampered by lack of military cooperation. Concern about the illegal activities of the DINE, however, was sufficiently strong for the commission to recommend a new law to govern the intelligence services — an outcome that seems to have been a result of the public controversy generated in large part by TVN’s report.200

Corruption in the military hospital

The army also filed sedition charges in 1994 to punish La Epoca for a story about corruption involving high-ranking officers attached to Santiago’s Military Hospital. In an effort to keep the military hospital investigation under wraps, the army used the sedition charge to scare the paper off the story and misled the public to avoid exposure of the scandal. The hospital case subsequently led to several arrests and is still under investigation by military courts.201

In a story published on August 12, 1994, La Epoca revealed that an investigation was underway in the Second Military Court of Santiago into allegations of fraudulent deals amounting to nearly a million dollars betweenMilitary Hospital officials and medical suppliers.202 The investigation, La Epoca said, implicated the former director of the hospital, Atiliano Jara Salgado, who had recently been removed from his post, and Brig. Gen. Juan Lucar Figueroa, then vice-commander of the army’s Second Division. In an immediate rebuttal, the army denied there was any investigation in the military courts, or any internal inquiry into irregularities in the hospital, and announced legal action against the paper.203 This was followed by an accusation of sedition filed by the office of the Military Prosecutor (Ministerio Público Militar) against the reporter responsible for the story, Alejandra Matus, and Ascanio Cavallo, then director of La Epoca. A week later, General Lucan opened a libel suit against Matus and Cavallo. His attorney, Col. Enrique Ibarra, told reporters that “the only effect [the report] has is to confuse public opinion especially at this time in which we are coming up to the month of the Glories of the Army (Glorias del Ejército). The gravest thing is that the honor of an official with an impeccable career is affected.” Ibarra denied also that the report of an investigation was true.204 In the face of these legal threats, La Epoca published a retraction and apology, upon which the charges against the paper were dropped.

Subsequent events, however, proved that La Epoca’s story had been substantially correct. Confirmation came in December 1994, when Christian Democrat Congressman Andrés Palma reported that a secret investigation by the comptroller general of the republic had revealed irregularities in hospital purchases involving inflated prices. On the basis of the report General Pinochet had ordered an internal inquiry that confirmed the allegations and led to a criminal investigation by the Second Military Court. Palma’s statement was confirmed by the army’s general auditor, Fernando Torres Silva.205

The case stagnated in the military courts for four years, until the intervention of another civil authority — the Council for the Defense of theState — which made itself a party in the legal proceedings.206 On May 27, 1998, two people — a retired army major and former head of hospital acquisitions, and a civilian supplier of the hospital — were detained and charged with fraud and bribery. The investigations had revealed the payment of fifty-two checks totaling 137 millions pesos in bribes by suppliers and had established that the acquisitions staff had been charging suppliers “commissions” of up to 10 percent for renewing their contracts, as well as allowing them to overcharge for products and issue phony receipts.

When the full story broke in 1998 the civilian medical supplier charged with bribery and fraud received anonymous threats. Six weeks earlier he had denounced to the police that someone had taken a shot at him and the bullet, narrowly missing him, had struck a car in an automobile showroom he owned. The La Epoca reporter covering the case, Jorge Molina, received an anonymous note at his home that said, “We know where and with whom you live. Take note and don’t ask any more questions. We saw you when you entered the hospital at 16.00 hours. Remember that we are more powerful than you think. If you continue with this, things could go very badly for you.” Both men were given police protection.

Retaliation against human rights lawyer Héctor Salazar

The uniformed police, Carabineros, have filed sedition charges on at least two occasions against non-journalists. In April 1994, Carabineros prosecuted a prominent human rights lawyer, Héctor Salazar Ardiles, in an attempt to silence questioning of the Carabineros director at the time, Gen. Rodolfo Stange Oelkers. The Salazar case was a classic example of the use of military justice to intimidate a civilian critic.

On April 14, the second military prosecutor charged Salazar for interviews he had given on TVN and Channel 13 and that had been published in El Siglo. Salazar’s offending words were, “I would ask any member of Carabineros de Chile if he or she is prepared to follow an order from General Stange, running the risk that others have run of facing a life sentence.” Salazar was detained overnight in Santiago’s white-collar prison, the Anexo Capuchinos.

Two weeks before the indictment, on March 31, fifteen former Carabineros intelligence agents had been sentenced to long terms ofimprisonment for the abduction and murder in 1985 of three members of the Communist Party, known as the slit throat (degollados) case. It was a landmark verdict, one of a handful of cases in which members of the security forces had been brought to justice for human rights crimes committed under the military government. The judge, Milton Juica, also called for General Stange and five other police officials (then in retirement) to be prosecuted for obstruction of justice. Amid clamor for the police commander’s immediate resignation, but lacking constitutional powers to fire Stange, President Frei called on him to stand down as an act of good faith. Stange’s flat refusal to do so threatened to provoke a constitutional crisis, averted by allowing Stange to take indefinite leave pending the judicial hearing of his case. The prison sentences, handed down for a crime that General Stange had been accused of helping cover up, motivated Salazar’s comment.207 A former lawyer for the Vicaría de la Solidaridad, Salazar had acted as legal counsel for the relatives of the victims.

The Military Appeals Court upheld the charges against Salazar only to see them dismissed in August 1994 by the Supreme Court, ruling in favor of a complaint against the Appeals Court judges filed by defense lawyer Nelson Caucoto.208 In a divided vote, the court ruled that criminal intent could not be established in view of the fact that Salazar was speaking in his capacity as a litigant in the case. The court also correctly observed that Salazar’s declarations could not be singled out for causing demoralization in the police force, when Stange’s resignation was already a topic of public debate.209

Dissent in the uniformed police

In the following case, the uniformed police made an individual into a scapegoat for his role in drawing attention to a crisis in police morale, this time a rank and file officer who had complained publicly about pay and conditions in the force. The jurisdiction of the military court was legitimate since thedefendant was a serving police officer and a disciplinary offense was involved. Nevertheless, the sedition charge against the defendant was invalid, since the officer’s comments were motivated by a matter of public interest and were not intended to damage the police force. On the contrary, the evidence indicated that widespread discontent in the police force existed before his statement and had, in fact, prompted it.

On May 4, 1998 military prosecutor Juan Solís Torrealba charged police Corp. Hernán Cristóbal Leiva Suazo with sedition following a televised interview that appeared on TVN’s Medianoche on April 28, in which Leiva, in full uniform, faced the camera to denounce pay and living conditions of rank and file police and criticized superior officers for abusive and arbitrary treatment of subordinates. On the following day Leiva was detained and dismissed from the force.

Leiva’s TVN interview was part of a series of events that revealed for the first time the extent and seriousness of grievances in the police rank and file. In early April a group of police wives gave a series of interviews on television and in the press denouncing poor pay and conditions. This motivated an accusation of sedition lodged by the uniformed police high command with the sixth military prosecutor against those “found responsible.”1 At the same time, Metropolitan Region policemen had to sign an undertaking not to engage in “actions that transgress disciplinary principles or affect the institutional prestige of the Carabineros de Chile,” and furthermore to assume personal responsibility for any violation of police regulations by their family group.210 On April 27, a sit-down protest by some seventy police wives was violently broken up by police officers wielding truncheons and dispersed with water cannon. At least four women were injured (later lodging complaints against the police), and seven were arrested. Peaceful protests continued into the night in police housing precincts. It was at this point that Leiva — the first police officer to show his face to the cameras — made his televised protest. “The women took the first step,” Leiva told viewers. “I feel proud of the wives who were in the protest. The balloon had to burst... We cannot express ourselves.” Among other abuses, he alleged that he had been arbitrarily detained for fifty days for lodging a complaint about the detention without a court order of some of his colleagues. Carrying out their previous threat, on the day of Leiva’s arrest the uniformedpolice announced that the police whose wives had been arrested in the protests would be expelled from the force.211

While the police have the right to take disciplinary measures against officers who breach internal regulations, Leiva’s prosecution for the serious offense of sedition implied that he had deliberately instigated this crisis of police morale. This was untenable in the light of the circumstances described. More likely, Leiva was punished for bringing it to public attention. The uniformed police have traditionally resolved internal problems autonomously, without ministerial supervision, and much less, public scrutiny. Leiva’s and other punished expressions of dissent within the police led to an immediate parliamentary debate and the announcement by Minister of Defense Raúl Troncoso on May 7 of measures to modernize the force and make it more accountable. Leiva was released on bail in July 1998, but the case against him continues.

Contempt for Authority: Prosecutions Under the Law of State Security

Defamation of state officials, defined as an offense against public order under the terms of Article 6(b) of the Law of State Security, has formed the basis of most prosecutions affecting freedom of expression since March 1990. Article 6(b) prosecutions launched in the Santiago Appeals Court during this time have affected sixteen journalists or newspaper directors and eight politicians. While the great majority have been launched by the army, one, resulting in a conviction upheld by the Supreme Court, was launched by Congress, acting collectively in defense of its honor. This makes it difficult to argue that this type of contempt accusation is merely a residue of authoritarian attitudes typical of military rule. Chilean courts continue to punish expressions of outrage, moral concern or irreverent satire if the target is a state authority. In most cases the lack of intention to offend was not considered by judges pertinent as a defense, nor was any harm to public order proven in cases in which thedefendants were convicted. These continuing prosecutions and the absence of any government initiative to halt them place a permanent brake on public criticism.

Journalists affected by these writs include Juan Pablo Cárdenas and Maria Eugenia Camus (Análisis), Manuel Cabieses (Punto Final), Agustín Edwards Eastman, Fernando Silva Vargas and Johnny Fraenkel (El Mercurio), Fernando Villegas (RTU television), Juan Andrés Lagos and Francisco Herreros (El Siglo), Roberto Pulido and Cristián Bofill (Qué Pasa), Mario Urzúa (El País), Rafael Gumucio and Paula Coddou (Cosas), and Fernando Paulsen (most recently in August 1998) and José Ale (La Tercera).

Politicians charged under Article 6(b) include Mario Palestro, then a member of the Chamber of Deputies for the Socialist Party; Eduardo Abedrapo, president of Christian Democrat Youth (Juventud Demócrata Cristiana, JDC); Jorge Schaulsohn, member of the Chamber of Deputies for the Party for Democracy; Arturo Barrios, president of the Socialist Youth (Juventud Socialista); Francisco Javier Cuadra, a former Pinochet cabinet minister; Rodolfo Seguel, Christian Democrat member of the Chamber of Deputies; Nelson Avila, PPD member of the Chamber of Deputies; Nolberto Díaz, leader of the JDC; and Gladys Marín, secretary general of the Chilean Communist Party. Socialist leader José Antonio Viera Gallo, former president of the Chamber of Deputies, narrowly escaped prosecution.

Since 1991, General Pinochet has sued for defamation on at least twelve occasions in his capacity as commander-in-chief of the army. Many of the expressions he objected to were outbursts of moral indignation in speeches commemorating those who died in the military coup or uttered in heated television debates. Others were reactions to provocative remarks by Pinochet himself, including callous and insulting references to victims of the coup. The courts dutifully processed the general’s accusations, collecting and analyzing texts and interviewing witnesses. The only real judicial purpose served by these inquisitorial investigations was to establish what had been said or written, that is, the material existence of the purported “crime.” Existing jurisprudence made it difficult, if not impossible, for defendants to plead lack of injurious intent or establish innocence by proof of truth.

For example, Socialist Youth President Arturo Barrios was detained for six days, convicted, and given a 541-day suspended sentence in April 1996 for shouting “Pinochet, Contreras and their henchmen are murderers” at a September 11, 1994 commemoration of the victims of repression following the military coup. Barrios’s defense argued that the remarks had been directed at Pinochet as former head of state, not Pinochet as commander-in-chief of thearmy, and constituted legitimate political criticism. The judge, however, found the statement libelous.

On the same anniversary two years later, Gladys Marín, secretary general of the Chilean Communist Party, said in a speech at the memorial for the “disappeared” in Santiago’s General Cemetery: “The main person responsible for state terrorism, for the crimes against humanity, Pinochet, is still doing politics and giving orders. And he does so because the government allows him to.” Marín was detained on October 29, 1996, when police patrol vehicles blocked the path of her car. She was taken to Santiago’s women’s prison, where she spent three days awaiting the outcome of a protection writ filed with the Supreme Court. The writ was rejected, and the court confirmed her indictment. The fact that Marín was a political leader, that her husband was among the “disappeared” and that her comments were clearly a political judgment was not enough to invalidate the charge. One dissenting member of the court, Emilio Pfeffer, argued that Marín’s remarks had been made in the heat of a political gathering and that it was up to citizens, not the courts, to make value judgments about political opinions.212 After protests and expressions of bewilderment abroad at these events, Minister of Defense Edmundo Pérez Yoma convinced Pinochet to withdraw his accusation adducing “humanitarian reasons.”213

On June 6, 1994, Appeals Court Justice María Antonia Morales sentenced Juan Andrés Lagos and Francisco Herreros of El Siglo to a 540-day suspended jail term for a cover headlined “Chanfreau case: Supreme Court Upholds Pinochet Terrorism,” with a photograph of demonstrators holding a banner stating “Judges Accomplices in Crimes.” The cover referred to a controversial decision of the third chamber of the court to transfer the case of Alfonso Chanfreau, who “disappeared” in July 1974, to a military court.214 The journalists argued that they were exercising their legitimate right to criticize a court verdict. The judge ruled that this was not a sufficient defense in an accusation of defamation under the State Security Law:

Given the juridical value protected by the law (public security and the “normal activity of the State”) is not necessary for there to have been a special purpose of causing dishonor or discredit to the offended party, the generic malicious intent (dolo) inherent in the offense itself, that is, awareness of the injurious meaning of the action, [sic] is sufficient.”215

After pointing out that the cover and contents of the newspaper “tended to discredit” the Supreme Court judges and the auditor general of the army, Judge Morales argued that the journalists’ right to freedom of expression was limited by other rights of equal constitutional importance. The ruling makes the irrelevance of public order to defamation charges absolutely explicit:

In the case of certain persons who hold dignified rank in that they exercise a public function, as is the case of the judiciary, the law has considered their transgression as an attack on public order, by the very fact of it being committed, even though defamation, insult or slander bring about no disturbance in public tranquility or the social peace.216

General Pinochet’s use of the State Security Law as a cattle-prod to keep press and politicians from straying onto forbidden ground was well illustrated by the case of José Antonio Viera Gallo, a member of the Chamber of Deputies for the Socialist Party and a senatorial candidate. After threatening to prosecute Viera Gallo under the State Security Law, Pinochet later withdrew the accusation when Viera Gallo was able to explain away his conduct in making a comment Pinochet found libelous. He made the explanation, he told a newspaper interviewer, to avoid being dragged through the courts in a case he felt at risk of losing due to the difficulty of presenting a defense in a State Security Law case.

In a pre-electoral debate in Chilevision’s High Risk program on September 30, 1997, aggressive questioning about unclarified allegations of corruption in the Frei government prompted a defensive Viera Gallo to retort: “the person who put his hands in the till was General Pinochet, and he is nowcommander-in-chief of the army and may get to be president of the Senate.” Immediately after the program one of the panelists, former Pinochet Justice Minister Mónica Madariaga, alerted the army about Viera Gallo’s remark. Army officials, and reportedly the undersecretary of war, called Chilevision to persuade the station to cut the offending segment. Chilevision refused on the grounds that the station could not be held responsible for the opinions of panelists.

The army decision to sue Viera Gallo under Article 6(b) was announced on October 4, after a specially convened meeting of the generals; it had been approved by Pinochet, who was on army business in China at the time. Fearing a snowball of accusations and counter-accusations if the trial went ahead, the government tried to patch up the dispute, and Minister of Defense Edmundo Pérez Yoma persuaded Viera Gallo to make a conciliatory gesture. On October 7, accompanied by Pérez Yoma, the deputy read his explanation to Pinochet’s representative, Major-Gen. Rafael Villaroel in the Ministry of Defense.217 The photograph in the next morning’s papers of Viera Gallo inclining to shake the hand of the general, watched approvingly by a beaming Pérez Yoma, was an apt image of the contradictions of the Chilean transition to democracy. Pérez Yoma had previously warned Viera Gallo of the consequences if he allowed the trial to go ahead. As El Mercurio reported: “He dined with the deputy on Monday night, and explained to him that in his opinion the situation was delicate because his own legal advisors had reached the conclusion that there were grounds for a libel action, and since they would apply the Law of State Security, he had every chance of losing. This was because according to that law, what must be determined is whether or not there was an offense, and not whether the defendant had the intention to offend or is capable of proving what was said.” [Emphasis added.]218

Viera Gallo later took up the theme in a newspaper interview: “With a Law of State Security like we have now in Chile that protects practically all the authorities, freedom is very restricted. If tomorrow a minister or a senator or a member of a high court or a military officer commits robbery, no one can say anything; they immediately apply the Law of State Security. Its not enough forthe person to prove the accusation is true, for what is being punished is the imputation of a crime. That is extremely serious.”219

The honor of Congress: the Cuadra case

It would be an error to attribute these constraints on the public debate solely to the interest of Pinochet in curbing criticism of the military government. As we noted in Chapter III, defamation laws run like a counterpoint through the history of Chile and were used by state officials to disarm criticism long before September 11, 1973. Other than the army, the executive institutions have not invoked the law since the restoration of democracy, but at least five prosecutions initiated by the judiciary and Congress since 1990 testify that it is still a brake on political criticism.

In one of these prosecutions, Congress collectively sued a former Pinochet minister for a comment in a magazine interview that was interpreted as a deliberate and calculated attack on the prestige of the parliament. The case is of great interest, and of concern, for several reasons. It was an action promoted by a democratic body against a former high-level official of the military government, the reverse of typical State Security Law prosecutions. It involved an alleged offense against the honor, not of an individual, but of an institution. It revealed a troubling consensus, shared by politicians across most of the political spectrum (with the exception of some Party for Democracy leaders), that an action limiting the right of political criticism was legitimate in defense of the prestige of an institution of state. Finally, this view was upheld by the Supreme Court against an appellate court ruling that defended the right to criticize.

The case involved Francisco Javier Cuadra Lizana, a political analyst and former secretary general of government under Pinochet. During his period of office Cuadra, a Pinochet protegé and hard-liner, acquired a reputation for manipulating news and attacking the opposition press that had made him deeply unpopular with the democratic opposition. In a long interview published in the January 14, 1995 edition of Qué Pasa, under the title “Some Members of Parliament Use Drugs,” Cuadra argued that drug consumption in political and government circles was an increasing problem, and he expressed concern that excluding this problem from the political agenda could have dangerous consequences. When asked whether he was referring to drug use by members of the political elite, parliamentarians or public servants, Cuadra replied:

There are reports of it, yes. There are some individuals in the political elite. There are some parliamentarians and other people who hold public office who use drugs. The most serious thing is that they are politicians of potential relevance. We are in a stage of consolidation of democracy, and I would be very concerned if, among other things, the democratic system could not be consolidated because part of the political class is incapable of assuming its responsibilities in due manner.

When pressed by interviewer Cristián Bofill, Cuadra refused to name any officials, parliamentarians or political parties as particularly prone to drug use. He stressed that “fortunately the problem is one of individuals, and of a few individuals, it has nothing to do with the parliament as an institution, nor with the political parties as such, nor with any other public institution in particular.”

These declarations sparked an immediate reaction from members of Congress across the political spectrum. Cuadra’s refusal to substantiate his allegations by naming individuals was felt to undermine the prestige of Congress itself by putting the integrity of all of its members into question. Many thought that this was Cuadra’s express intention. On January 30, 1995, the then-president of the Senate, Gabriel Valdés, laid charges against Cuadra before the Santiago Appeals Court under Article 6(b) of the State Security Law and several articles of the criminal code, including Article 263, the defamation article. Vicente Sota Barros, then president of the Chamber of Deputies, did the same. The two accusations, plus another from Renovación Nacional, were combined into a single case by the Santiago Appeals Court, which appointed Rafael Huerta Bustos as the investigating judge.220 On June 14, after a four-month investigation, Judge Huerta indicted Cuadra under the State Security Law and Article 263 of the criminal code for defaming the honor of Congress. Cuadra was arrested on June 19 and taken to the Anexo Capuchinos prison,where he was detained for nineteen days, until July 7, when he was released on bail.221

On December 19, Judge Huerta convicted Cuadra and sentenced him to a 540-day suspended prison sentence, disqualification for public office for the duration of the penalty, a fine of $220, and assumption of court costs. Cuadra appealed, and on January 18, 1996, the Santiago Appeals Court unanimously reversed Judge Huerta’s verdict and acquitted the defendant. The court held that Cuadra’s expression could not be construed as jeopardizing public order. The litigants lodged a writ of complaint against the appeal judges, which was accepted by the Supreme Court on May 14, 1996.222 The Supreme Court upheld Cuadra’s conviction and reinstated the prison sentence on the State Security Law charge. In accordance with the procedures contemplated under the State Security Law, the sentence admitted no further appeal.

The reasoning on which court rulings were based in the Cuadra case reveals a profound disagreement on the interpretation of Cuadra’s statement and on the notion of public order that the law is supposed to uphold. The Appeals Court, presided by Judge Carlos Cerda, based its judgment on an idea of public order tied intimately to the exercise of human rights, including the right to criticize. It sought to demonstrate that on this definition Cuadra’s allegations had not been harmful but, on the contrary, a constructive use of that right, by criticizing conduct that might bring Congress and hence democratic institutions as a whole into disrepute.223 The trial judge who convicted Cuadra and theSupreme Court chamber that upheld the sentence, on the other hand, interpreted Cuadra’s comments as an affront to the honor of the institutions of state.

Convicting Cuadra, Judge Huerta rejected his defense that he had not intended to offend, using the same argument seen in prior cases, that defamation is an attack on “objective honor,” in which it is unnecessary to prove malicious intent. He also dismissed the argument that an offense under Article 6(b) must be directed against specific individuals, rather than at an institution such as Congress. He countered by referring to the fact that Cuadra had revealed some names in the course of subsequent court interviews. While this was true, the names were not known at the time of the accusation, when Cuadra had expressly declined to reveal them, claiming them to be irrelevant to the point he wanted to make.

The Santiago Appeals Court decision overturning this verdict focused on the relationship between the two values at stake: public order and freedom of expression. Breaking down the meaning of public order into three components — the rules governing the functioning of state institutions, public tranquility, and the basic values underlying social life — the court found that Cuadra’s words were inoffensive. They had not challenged the rules of the state, disturbed the public peace or undermined basic values. On the contrary, stressing the context and significance of Cuadra’s words, the Santiago Appeals Court held them to show

an intent to reveal certain facts in a timely fashion so as to produce a sense of alert regarding a possible threat to the most sacred element of social organization: the parliament as an institution, public institutions in general, the political parties as such, the consolidation of democracy, and the independence of authority in the adoption of its decisions, all of which are consistent with the most essential contents of the axiological definition of public order.

Since public order, the Santiago Appeals Court ruled, was conceived in the preamble to the State Security Law in terms of the human rights preserved and protected under a democratic system of government, it could not be invoked to restrain the right to express criticism except in the most extraordinary circumstances. This was a truly exceptional decision, which faithfully interpreted the fundamental importance that international human rights law gives to freedom of expression. In an unusually forthright aside, the court expressed the hope that

...a decision of this type will have an instructive effect so that, discarding obvious criminality, people will have the courage to speak up about the faults of the public system, however uncomfortable or painful it may be, with the purpose of mitigating those ills for the common good.

The Supreme Court rejected these arguments, scarcely entering into debate on the issues presented in the lower court. It concluded that Cuadra’s statements were

disparaging to all of the parliamentarians in office, because without naming any in particular, they sow doubt about who are the people who may be enslaved by drugs, diminishing consequently their loyalty to the law and national interests. That is, the moral suitability and integrity as patriots which must be demanded of them to fulfill their lofty responsibilities is thus compromised in the eyes of public opinion.224 [Emphasis added.]

By upholding the disciplinary complaint against the Appeals Court, the Supreme Court judges held that their colleagues had incurred in a “fault and abuse” by giving the infractions committed by Cuadra “a different gloss from that which flows clearly and naturally from the legal text.” Their fault was to advocate an interpretation of the law that the Supreme Court ruled to be a maverick one, even though it was consistent with the international human rights obligations of Chile.225 This ruling dashed hopes that the pernicious effects of Article 6(b) could be remedied by judicial interpretation alone.226 The continuing existence of this law is likely to dissuade and deter any outspoken criticism of state authorities even when democratic institutions appear to be functioning normally. It is very troubling that it was precisely elected democratic leaders who initiated this prosecution and that their view that Cuadra’s acquittal was arbitrary found support in the highest court of the land.

In 1996 Human Rights Watch and the Center for International Law and Justice (CEJIL) presented the Cuadra case to the Inter-American Commission on Human Rights.

The price of irreverence: the Cosas case

Recent prosecutions under Article 6(b) of the Law of State Security, launched in January 1998 by former Supreme Court Chief Justice Servando Jordán López against four journalists, seemed to be motivated by little more than resentment against press comment, some of it highly irreverent. They reveal another objectionable element of this law, the dangers of its abuse by officials who invoke their authority to protect themselves against a public slight.

Jordán’s relations with the press had soured during 1997 following allegations of judicial corruption in drug-trafficking cases and the presentation of two impeachment motions against him in Congress, which had received prolonged press coverage. In a motion presented by UDI, Chief Justice Jordán had been linked to an alleged drugs protection racket involving judges and court officials, while the Socialist Party and PPD accused him of allowing the release from prison under controversial circumstances of a Colombian drug kingpin, Luis Correa Ramírez, who promptly fled the country. Although the Chamber of Deputies voted against his impeachment in July 1997, Chief Justice Jordán’s period of office was reduced from three years to two as a result of a law restructuring the Supreme Court passed in December that year, and he retired from the judiciary in early January 1998. The chief justice was bitter at his premature retirement, considering that he had been “expropriated” of one year of his tenure.227

On January 9, 1998, he filed a writ under Article 6(b) against journalists Rafael Gumucio of Rock and Pop television and Paula Coddou of the magazine Cosas. The offending words were a reply by Gumucio to a joke questionnaire published by Cosas in its January 2 issue, as part of a humoristic round-up of 1997, titled “Laughing at 1997: A Fantastic Year.” In answer to the question “Why was minister Servando Jordán not appointed to be a senator?” Gumucio had written, “He was old, ugly, and had a murky past, not like the others on the Supreme Court.” On January 21, acting with unusual speed, Raimundo Díaz Gamboa, the judge appointed by the Santiago AppealsCourt to investigate the allegation, indicted Gumucio and Coddou under Article 6(b) and detained them both. It proved impossible to assemble a quorum of the Santiago Appeals Court bench to approve bail, so Gumucio and Coddou were detained overnight in prison.228 They were released at noon on the following day on payment of bond of approximately $220.

The court ordered the immediate confiscation of all copies of the edition, both those on sale and in stock, as well as faxes of the questionnaire sent to six celebrities and of the respondents’ replies. Police arrived at the Cosas office to impound the material but were unable to do so since the edition had sold out and the faxes had been destroyed.229 Restraint of the publication does not seem to have been legal. Article 41 of Law on Abuses of Publicity says that only four copies may be impounded by the court, unless the offense affects external security, public morality or encourages the commission of a serious crime such as homicide, robbery or arson.230 The demand for the faxes and questionnaire replies was a breach of the confidentiality of the journalists’ sources.

Pleas on behalf of the journalists by dignitaries apparently convinced Jordán to drop the proceedings against Gumucio and Coddou, and the case was closed on February 6. The former chief justice’s ability to stop the prosecution at will exemplifies the power of the litigating party under Article 6(b) to terminate the proceedings unilaterally. As noted in Chapter III, powers of a litigant to terminate a penal action under Chilean law are generally limited to cases in which no public interest is involved, such as ordinary libel proceedings. By contravening this principle, the discretion granted to the litigating authority in State Security Law prosecutions creates a dangerous fusion of public power and private interest. It can be assumed that a threat of prosecution for breach of state security, even if not carried out, would be enough to deter irreverent comment, giving ministers and officials a highly convenient shield from public scrutiny.

Together with the action against Gumucio and Coddou under Article 6 (b), former Chief Justice Jordán also sued La Tercera reporter José Ale, authorof a brief article on the troubled career of the former president of the Supreme Court that appeared in the newspaper on the day of Jordáns’s resignation (January 7), as well as La Tercera’s director, Fernando Paulsen. The objected texts in Paulsen’s case included the Ale article and two letters to the editor concerning the former Chief Justice, as well as an interview with Rafael Gumucio in which he commented on the lawsuit against him. Paulsen and Ale were questioned by judge María Antonia Morales, but immediately released while the investigation continued.

In this case, the former Chief Justice persisted implacably with the litigation. On January 29 Judge Morales had closed the investigation after finding that Ale and Paulsen had not committed an offense. Jordán’s counsel appealed, but Judge Cornelio Villaroel, temporarily replacing Morales, upheld her decision. After a further appeal, on March 10, 1998 the second chamber of the Santiago Appeals Court unanimously confirmed the decision not to press charges.231

The matter did not, however, rest there. In a September hearing to decide the final closure of the case, the Fifth Chamber of the Santiago Appeals Court suddenly reversed the Second Chamber’s earlier ruling and ordered Paulsen and Ale to stand trial. The hearing, held on September 16 before a different panel of the Appeals Court from that responsible for the investigation, was announced at the last minute, and according to Paulsen, his lawyer had no time to plead.232 Paulsen and Ale were detained on September 16 and taken to Capuchinos prison where they both were held for more than twenty-four hours before a court could be assembled to consider bail.

True to form since the early 1980s when this kind of scene became habitual, journalists and members of the public reportedly gave Paulsen and Ale a round of applause as they were taken by police from La Tercera’s offices and shepherded into the courthouse to be notified of the charges. The judges hearing the bail application barred the press from the proceedings. What was described by the mayor of Santiago as “a legal maneuver typical of personalities from the past” proved to be very much in use after eight years of supposedly democratic government. Apart from the mayor, personalities who visited Paulsen and Ale inCapuchinos or telephoned to express support included Deputy Minister of Justice José Antonio Gómez (in his personal capacity), Secretary General of Government Jorge Arrate, Foreign Minister José Miguel Insulza, and Senate President Andrés Zaldívar. Only the former president of the Chamber of Deputies, José Antonio Viera Gallo, himself victim of a close encounter with Article 6(b), was reported to have expressed any criticism of the law, however.233

A Question of Honor: Prior Censorship By the Judiciary

The coexistence in the constitution of the right to privacy and honor and the right to free expression inevitably leads to clashes between these two rights. International human rights norms recognize this potential conflict and deal with it by asserting that the right to free expression is subject to eventual liability and penalty for offenses caused to the honor of third parties. In the cases discussed below, however, the courts considered that protection of private honor was sufficient justification to prohibit the publication of information, opinions or imagery that individuals considered offensive to their honor or that of their families.

One vehicle by which individuals may seek a judicial injunction against a publisher is a protection writ (recurso de protección), a mechanism available to anyone to protect his or her constitutional rights.234 In recent years Chilean jurisprudence has given explicit precedence to the right of privacy and public esteem over the right to freedom of expression and information. In accepting arguments for imposing these injunctions, the courts have failed to take into consideration the very restricted grounds allowed in international law for prior restraint. Such judicial decisions amount to prior censorship, explicitly prohibited under Article 19(12) of the Constitution. There has also been alimited jurisprudence championing freedom of expression and expressing a viewpoint more consistent with modern concepts of democracy. These valuable decisions are highlighted in the comments on the cases that follow.

The banning of Diplomatic Impunity

In justifying its decision to ban the circulation in Chile of Francisco Martorell’s book Diplomatic Impunity, the Supreme Court ruled that censorship could only be practiced by tyrannies or dictatorships. It formed part of a “policy of a non-democratic state, practiced by administrative agents who operate as vigilantes of religious, political or moral ideas — not conduct — that are considered dangerous, preventing them from reaching the public because they are considered contrary to the interests of the rulers, or for the control that they exert over society.” By this view, the justices ruled that censorship did not exist in a democratic society.

They held that the ban was justified in order to prevent a violation of the right to honor, which, they ruled, takes precedence over freedom of expression when the two rights clash. Neither of these arguments can be reconciled with Chile’s international human rights obligations. Under international human rights law, honor is protected from abuse of freedom of expression by the subsequent imposition of liability (prior restraint being impermissible). Article 29 of the American Convention states that governments may not use the defense of one right as a justification for suppressing another or restricting it beyond the limits the convention allows. The International Covenant expresses a similar principle.

Diplomatic Impunity was an investigation into the circumstances leading to the dismissal and sudden departure from Chile of Argentine Ambassador Oscar Spinoza Melo in 1991. It described allegations that Spinoza had attempted to blackmail leading Chilean politicians and businessmen by revealing details of parties held at the embassy, and it included copies of the blackmail letters. Spinoza’s alleged extortion attempts had been denounced to the Ministry of Foreign Affairs by Julio Dittborn, the vice-president of UDI, one of the two conservative opposition parties.235 The publisher, Planeta, which had previously released the book in Argentina, planned to launch it in Chile on April 22, 1993. At the last moment the Santiago Appeals Court ordered the publishers to suspend the release, having received a writ by Andrónico Luksic Craig, one of Chile’s wealthiest businessmen. On May 31, the court voted by a two-to-onemajority to grant Luksic’s writ, and prohibited Diplomatic Impunity from being imported into Chile and distributed in the country. Orders were transmitted to customs authorities in Chile’s ports and airports to seize any copies found in travelers’ luggage.236 In June the Appeals Court verdict was upheld unanimously by the Supreme Court.

Any comment on the book or the judicial proceedings was suppressed under a reporting ban dated April 23, 1993. Two days later, the court withdrew the reporting ban but prohibited any citation of the book by the press. Martorell alleged that he was being intimidated by strangers and himself petitioned a court for protection of his physical integrity. In September he left the country, on the same day that the Santiago Appeals Court ordered him arrested to face charges for libel, and went to live in Buenos Aires. Eight of the personalities named in the book, including Dittborn, successfully sued Martorell for libel, and he was eventually given a 541-day suspended sentence. Martorell returned to Chile, but his book has never been allowed to enter the country.

Regarding the conflict between the right to honor and freedom of expression, the Santiago Appeals Court argued that the rights protected in the constitution were listed in descending order of priority and freedom of expression was listed near the bottom, below the right to honor.237 Upholding this ruling, the Supreme Court held the ban under the protection procedure to be sound, since the purpose of the remedy was to prevent a violation of constitutional rights that would be impossible to fully redress once it had occurred:

the mere initiation of a violation [of the right to privacy and honor] causes harm that is impossible to repair in terms equivalent to the value of respect [for these rights] to the person who possesses them and wishes to preserve them in their integrity and inviolable.

The court also agreed with the Appeals Court that the protection of honor and private life were

values of such hierarchy and transcendence that political society is organized precisely to preserve and defend them, so that no conception of the common good is admissible that allows them to be sacrificed or to convert such sacrifice into a means for the prevalence of another constitutional guarantee.238

In May 1996, the Inter-American Commission on Human Rights found Chile to be in breach of the freedom of expression provisions of the American Convention of Human Rights by prohibiting the import, distribution and circulation of Diplomatic Impunity in Chile. The commission called on Chile to lift the ban and to allow Martorell to return to promote his book in Chile. Martorell has since returned to Chile, where he is now working as a writer and television journalist. The ban is still in force.

Defending the ban to the Inter-American Commission on Human Rights, the Chilean government argued that there was a direct clash between Martorell’s right to freedom of expression and the right of the people referred to in his book to protect their honor. Under Article 25 and Article 11(3) of the American Convention, the government sustained, individuals have a right to legal protection from attacks on their honor and dignity; the preventive use of the protection writ was thus legitimate, the government insisted, if honor and dignity were in imminent danger of being violated.

In rejecting the Chilean government's defense, the commission pointed out that the values at stake included not only the right to express ideas but the “right of the community in general” to receive them.239 It also referred to the “absolute” prohibition of prior censorship in Article 13 of the American Convention; the only circumstances in which prior censorship is permitted in the American Convention is in the case of “public spectacles” that could be harmful to minors. While prohibiting prior restraint, the convention recognizes limits tothe right of freedom of expression by establishing the liability of the authors and publishes should they violate the rights of third parties.

In a joint submission to the Inter-American Commission of Human Rights in representation of Martorell, Human Rights Watch and CEJIL stressed:

The drafters of the Convention, well aware of the debate emphasized by the Chilean government, drew a clear and precise line in accommodating the rights of free expression and of honor. Specifically, in Article 13(2), the Convention makes a critical distinction between “‘prior restraint’ and ‘subsequent imposition of liability.’” In the view of the Convention’s drafters —coinciding with that of a great many respected legal scholars— the imperatives of the right to free expression absolutely preclude recourse to prior censorship as a means of protecting the right to honor. Instead of prior censorship, therefore, the Convention permits “subsequent imposition of liability” as an acceptable and adequate means for curbing any abuses of the right of free expression that might impinge upon the right to honor.

The commission confirmed this doctrine:

Article 13 determines that any restriction imposed on the rights and guarantees contained in it must be effected by the subsequent imposition of responsibility. The abusive exercise of freedom of expression cannot be subject to any other type of restraint.240

The commission also rejected the government position that some rights protected by the convention take natural preference over others. It cited Article 29 of the convention, which expressly prohibits governments from using any of the provisions of the convention to justify suppressing a right or restraining its exercise beyond the limitations contemplated in the Convention. The point has been expanded in a comment on the case by a Chilean expert on international human rights law:

International doctrine and jurisprudence are in absolute agreement that human rights are interdependent and non-hierarchical, so that in international law conflicts between rights are resolved on a case-by-case basis, and it must be the circumstances of each case that decide which right prevails, there being no hierarchy of rights established a priori and in the abstract.... Since international law establishes the limits within which each right may be regulated — and consequently limited— the judge must examine, before resolving the apparent conflict between human rights, if the form of restriction used is permitted in the case of this right and if it complies with the requirements of international law. If these requirements are not met, it is unnecessary to enter into the question of which right should prevail. The judge must declare that the restriction exceeded the permitted limits and consequently rule that it was unjustified.241

The doctrine established by the Inter-American Court of Human Rights is that the right to free expression without prior censorship “has a special scope and character” and is “a cornerstone upon which the very idea of a democratic society rests.”242

The Diplomatic Impunity jurisprudence in Chile contributed to weakening guarantees of freedom of expression. It established that the courts would look favorably on requests for the prohibition of a publication from anyone who felt he or she had been defamed or insulted.243 Furthermore, a court injunction against the circulation of a book or magazine article in Chileprovides no immunity against prosecution of the author or publisher for libel. If the purpose of the injunction obtained by the plaintiffs was to prevent damage to their honor and reputation it seems evident that this purpose was served by the injunction itself, and no further criminal action against the author should have been possible.

The “honor beats free expression” logic of the Martorell decision can be seen in subsequent court rulings. The most recent was in July 1998, when the Fifth Chamber of the Santiago Appeals Court granted an injunction against the magazine Caras. The court acceded to a protection writ lodged by relatives of a man who committed suicide following the death of his daughter in a plane crash in Peru in February 1996. Caras was investigating press reports, based on information attributed to the family’s counsel, that the man had killed himself in a severe depression after an adverse court decision on a compensation claim. Questioned by a reporter, members of his family declined to comment on the case. They also applied for a protection writ on the grounds that Caras had threatened to publish the story without their permission. On July 2 the court granted the writ and ordered the magazine not to publish it or any other information directly or indirectly related to the case. Furthermore, it ordered Caras to hand over its files. Caras suspended the publication but appealed to the Supreme Court. In a public statement, Caras Director Paula Escobar stated convincingly that the court decision “can only be based on the false assumption that public events which involve pain and tragedy for a family cannot be discussed in the press.” Not only did the court ban the article from being published; it also prohibited any discussion of the subject in the magazine or in any other publication in any form whatsoever.244

An exception: the case of the poisoned cakes

The Supreme Court has not consistently confirmed Appeals Court rulings granting protection writs against journalists, suggesting divisions of opinion on the issue of privacy and honor among its judges. A court order suspending the transmission of a television documentary in 1996 on grounds similar to those advanced in the Martorell case was unanimously reversed by the Supreme Court, which upheld the arguments advanced by a dissenting judge. Six months after the lifting of the ban on this program, the Supreme Courtupheld a ban on the transmission on television of Martin Scorsese’s film The Last Temptation of Christ.245

The program in question was an episode in TVN’s Mea Culpa series, dealing with the true story of a student who sent his fiancée poisoned cakes in an attempt to cause her an abortion. Mea Culpa, one of TVN’s highest-rated programs, dramatizes sensational criminal cases using actors resembling the real-life characters, who are also often interviewed in person. The program narrated the story of an architectural student sentenced to thirteen years’ imprisonment for sending his fiancée cakes laced with arsenic, causing permanent injury to two members of her family. Even though the student had been convicted of the crime, his sister successfully lodged a protection writ prohibiting TVN from showing the program. Interviewed in the press, the attorney representing the family argued that the writ was obtained “to protect, over and above freedom of information, a greater right, which is the right of persons to their honor.” In granting the writ, the Appeals Court ruled that transmission of the program would be an “arbitrary and illegal act” affecting the rights of the student and his family, which bore no responsibility for the crime.246 The dissenting judge, Milton Juica, made the following compelling argument:

To prevent the development of a television program on the hypothetical basis that its transmission may affect the honor or dignity of a person, in respect of true events, would constitute a form of prior censorship not permitted in the law. Consequently it would affect another constitutional guarantee, the right of opinion and information contemplated in Article 19 (12) of the Constitution. This does not prejudice the right of the parties to exercise the actions that are appropriate if the transmission effectively includes passages or circumstances that may damage the dignity or honor of any person.247

Juica’s opinion was upheld in December 1996 on appeal by the Supreme Court in a unanimous vote, allowing the program finally to be shown.

Censorship as a precautionary measure

Chilean law allows litigants another line of defense to prohibit the publication of information they consider libelous, even when it is already in the public domain. Precautionary measures which the courts may adopt at the outset of any criminal investigation may include the confiscation of publications named in a libel suit. Under Article 7 of the Code of Criminal Procedure, a judge investigating a crime is required to “give protection to the prejudiced parties, deposit the evidence of the crime that may disappear, and gather and place in custody whatever may lead to the crime being proven and to the identification of the felons....” Article 114 empowers the judge to secure “the instruments, arms and objects of any sort that appear to have been used or intended to be used to commit the crime....” In a freedom of expression “crime,” books, magazines or newspapers are regarded by judges as instruments of the crime or possible crime and may therefore be requisitioned.

Judges may issue injunctions ordering the seizure of copies of a publication at the petition of the plaintiff when he or she opens a suit for libel or slander. Such powers may include the preventive restraint of the publication until such time as the judge rules to lift the measures. Although clearly intended to ensure that a criminal investigation begins by securing protection for the victim of a felony, application of this provision becomes problematic in a criminal libel case, since it carries with it the denial of a constitutional right. In the case of journalist María Irene Soto, analyzed below, a restraint order led to the prohibition for more than four years of a publication that was subsequently found by the judge not to be libelous.

The Secrets of Fra Fra (Los Secretos de Fra Fra), a book by María Irene Soto, an investigative reporter then working for Hoy, was published in Chile on December 27, 1991. It is an investigative report of allegedly controversial land acquisitions and business deals reportedly involving Francisco Javier Errázuriz (popularly nicknamed “Fra Fra”), a prominent entrepreneur, presidential candidate in the 1989 elections for the Center-Center Union Party (Unión de Centro Centro, UCC) and now a senator. The book was published by a small independent press, Mosquito Editores, in a cheap edition and distributed at newspaper kiosks throughout the country. On January 3, 1992, Errázuriz sued Soto for criminal libel and slander. The judge of the First Criminal Court of Santiago, exercising discretionary powers, ordered that the book be impounded immediately. The Secrets of Fra Fra, which had soldbriskly for a week, disappeared from the kiosks within twenty-four hours. On January 6 the judge applied an injunction against press reporting on the case (prohibición de informar). She also banned “the written or oral divulgation of information” concerning the book.248

The Secrets of Fra Fra utilizes sources almost entirely derived from court documents from lawsuits in which Errázuriz appears either as defendant or litigator, most of them unknown to the general public. The book avoids hearsay or rumor. Its contents have public importance since it deals not with the private life but with the business dealings of a political leader and former presidential candidate.

The libel case against Soto languished in the courts until September 23, 1996, when it was finally dismissed by the Supreme Court. During this period of four years and nine months, Soto was never formally charged with any offense. The judge investigating Errázuriz’s allegations in fact refused several petitions from the plaintiff to indict her, being unable to establish that any offense had been committed. When the plaintiff appealed the judge’s ruling to the Santiago Appeals Court, it upheld the judge and returned the file to the court for further investigation. Despite having no evidence that Soto had transgressed the law, the judge refused to reconsider the injunction preventing circulation of the book. Furthermore, the reporting ban imposed by the judge silenced any public discussion of the book or its contents for the full duration of the judicial investigation. The book has not reappeared since in Chile.

The discretionary power of judges to remove books from circulation pending their investigation for injurious content is intended to be a temporary measure to protect the litigant’s honor or reputation while the judge investigates to determine whether an offense has been committed. Current laws do not, however, specify under what circumstances such an injunction is permissible; the judge does not have to justify his decision or observe any time limit. The Soto case indicates that a powerful litigant may hold in check embarrassing disclosures and prevent them from reaching the public by merely presenting a libel writ. Although Errázuriz lost his case, Soto was deeply affected by it. She was subjected to an inquisitorial investigation for nearly five years, suffered considerable financial loss (she eventually recovered only a fraction of the books impounded).

National Security in the Palamara case

Across the world, national security is one of the grounds most frequently cited in justification of censorship. Because of the secrecy that surrounds questions of national security, its invocation as a reason for censorship requires courts to be alert to ensure that a genuine risk is involved, and that any restriction on freedom of expression is tailored and proportionate to the risk. A principle increasingly accepted by international law scholars and U.N. experts is that national security may be invoked only “to protect the existence of the nation or its territorial integrity or political independence against force or the threat of force.”249

One of the most controversial areas in which national security has been invoked concerns the publication of classified documents or privileged information by former military officers, civil servants and journalists. There is a growing weight of opinion in European jurisprudence that the fact of information being classified does not constitute sufficient grounds per se for prosecuting civil servants who divulge it publicly, and that it is necessary to weigh the potential good to the public of the disclosure against the possible harm it could cause.250

This principle implicitly challenges the right of government agencies to invoke national security grounds as a basis for imposing blanket bans on their employees revealing privileged information. Such bans can allow the suppression of innocuous or critical information of public interest, as well as information whose diffusion could cause a genuine security risk. The following case is illustrative.

In early 1993 Humberto Palamara Iribarne, a former naval captain working at the time as a civilian under contract to the navy, was completing a book on military intelligence titled Ethics and Intelligence Services (Etica y Servicios de Inteligencia). Palamara was planning to publish the book with the Ateli press, a small company in the southern city of Punta Arenas, where he was living. The main thesis of the book was that military intelligence must be conducted within a framework of respect for human rights.

Navy regulations forbid persons in its service to publish articles in the press that “involve a criticism of the services of the navy, public institutions or the government” as well as “articles that refer to matters of a secret, reserved or confidential nature, political or religious issues or others that may give rise to a polemic or controversy that could compromise the prestige of the institution.”251 Publications in the press are only permitted with the knowledge and prior permission of the commander or competent naval authority. Palamara applied for permission and was refused on the grounds that the publication would compromise national security. For failing to hand over the book, he was prosecuted for “failure to carry out military duties” and “disobedience,” both offenses under the Code of Military Justice.

On the same day naval court officials visited the Ateli offices and confiscated all the copies of the book, including the originals, and a diskette. They later went to Palamara’s home, where they seized all the copies in his possession and wiped the text from the hard drive of his computer.

The Valparaíso navy appellate court (Naval Corte Marcial de Valparaíso) sentenced Palamara to sixty-one days of imprisonment, a fine of eleven months salary and suspension from his duties for a remark he had made criticizing a naval judge. In June 1996 he was sentenced to 662 days imprisonment on the other two charges. The sentence was later reduced by the Supreme Court to 102 days.

During the trial Palamara was under naval orders not to comment publicly on his case or make “critical comments, in public or in private, written or orally, which disparage or damage the image of the institution, the naval authority or those instructing the lawsuit and administrative investigation against him.”

According to naval experts who testified in his trial, Palamara’s book did not jeopardize national security. Rather than release the book immediately, however, the court extended its inquiries into other aspects of its contents that might be “relevant from the institutional point of view of the navy,” “obtainable only through privileged sources” or that could “affect institutional interests.” Another group of experts was called in, who concluded that the book did not contain information obtained from privileged sources but that it was relevant to the navy and did affect its institutional interests.

In January 1996, Human Rights Watch and the Center for Justice and International Law (CEJIL) have presented the Palamara case to the Inter-American Commission on Human Rights, on grounds that Chile has violated Articles 8 and 13 of the American Convention on Human Rights in the actions it took against Palamara. The case is still under review by the commission.

Autonomy and Political Influence in the State-Owned Media

As noted in the introduction to this chapter, a free-ranging public debate depends not only on freedom from censorship and from illegitimate legal controls and restraints but also on a government policy of encouraging the right to criticize and creating the conditions in which it can be vigorously exercised. Governments that have direct access to influential media, either by ownership or control, have a responsibility to ensure that the intervention of government officials in editorial policy or process is reduced to a minimum and that these media are allowed to function autonomously without government pressure. In this section we look at the policy followed by the Aylwin and Frei governments toward the two state-owned media companies, La Nación and TVN. To what extent has the autonomy and pluralism of these media been respected in practice?

On assuming office President Aylwin was apparently convinced that these media should be allowed to operate autonomously and compete in the market as if they were independent private concerns. The new policy was strongly advocated by Enrique Correa, whom Aylwin appointed to the cabinet post of secretary general of government.252 His posting was a key one, since the job entailed the tricky task of balancing the principle of free expression with the government’s objective of preserving a political climate favorable to the stabilization of civil-military relations. The ideal was that intervention in the press could be avoided altogether if directors and editors themselves exercised self-restraint. Aylwin himself advocated this repeatedly to newspaper owners and journalists. In a speech to the National Press Association on August 24, 1990, he asked owners and editors “to exert extreme caution so that in doing their job of informing, they are vehicles of unity and not of dissension, of truth and not of error.”253 Three years later, in a speech to the Chilean Journalists Association on July 2, 1993, Aylwin said, referring to information that could disturb the public peace, “I think that society has a right to ask of you a self-regulation which for higher reasons you must establish as a norm.”254

During the first two years of the Aylwin government La Nación and other pro-government publications showed every sign of independence, with extended coverage of the human rights debate and exposures of corruption scandals under the military government. This was a continuation of the crusading style developed in earlier years, although it now implied more sensitive dilemmas: how to criticize the former military government without creating problems for a democratic government still vulnerable to military insubordination and under constant vigilance by the pro-military opposition. Inevitably, media directors allowed the imperative of preserving the consensual climate to affect editorial decisions, although to an extent that is difficult toassess.255 The harmonization of editorial policy and governmental objectives was aided by the close contacts forged in opposition under military rule between politicians, media directors and journalists.0 A tendency to self-restraint resulted also from the continuing professional insecurity of journalists, whose rights were still not protected by law even on such basic matters as preserving the anonymity of sources.

However, apart from self-restraint there were also direct pressures from government officials and politicians on the pro-government media to suppress information or opinion, or to publish information in the government’s interest. La Nación and TVN were still treated by some ministers as if they were subservient to the government, while the army evidently did not believe that they were truly independent and assumed any criticism to be instigated from the presidential palace.

Pressures on La Nación

Ministers and undersecretaries exerted pressure on the pro-government press throughout Aylwin’s tenure and have continued to do so during the current administration. During the early years of the Aylwin government, senior staff at La Nación received dozens of telephone calls from government ministers, undersecretaries and local government officials. Irate calls were made to lodge complaints over items that portrayed the government or its representatives in a negative light, to preempt the release of items considered threatening to the transition, or simply to cull publicity for official events.

The most common complaint was that the paper was failing to give sympathetic coverage to activities in which ministers were involved. “They thought they had the right to ask us to publish what they wanted, and not to publish what they did not want,” former La Nación Deputy Editor Luengo told Human Rights Watch. Frequent callers included the then-minister of the interior, Enrique Krauss, and Minister of Defense Patricio Rojas. According to Luengo, there was also an angry reprimand from the minister of agriculture because the paper had interviewed a group of Mapuche Indians with a grievance against the ministry. When photographs later appeared in the paper of the Mapuche protest, the minister called back and angrily demanded the heads of the journalists responsible. “We replied that we were not going to sack anyone, that nothing that we had published was false. And then of course he called Correa to complain, but Correa said, well, they have a director. In fact, Correa often acted as an umbrella to protect us from this rain of accusations.”1

A sensitive theme in the Ministry of Defense was the refusal of General Pinochet to subordinate himself to the authority of the minister, Patricio Rojas, and Pinochet’s insistence on dealing with Aylwin directly. On several occasions Rojas was greeted with whistles and catcalls by army relatives and supporters at solemn public ceremonies. When these were reported by La Nación and La Epoca, the minister reacted angrily, accusing the papers of undermining the government’s credibility.2 Episodes like this persuaded La Epoca’s director,Ascanio Cavallo, that Aylwin’s media policy was a double discourse, and that the reality was often at odds with the version presented to the public.3

Even El Mercurio was not entirely immune from these pressures, despite its vantage point of financial security and political independence from the government. President Aylwin and later President Frei both telephoned the general editor, Juan Pablo Illanes, to complain on several occasions. Illanes told Human Rights Watch that Aylwin called him to complain about an article by writer Enrique Lafourcade he thought to be offensive to Argentine President Carlos Menem on the eve of Menem’s state visit to Chile. In other cases, calls were sparked by the publication of articles or information considered damaging or offensive to the president or members of his family.4

Behind-the-scenes pressure of this kind amounts to unwarranted intervention by the executive branch in editorial freedom, since governments have a responsibility to ensure that state-owned media serve the public interest and are not subjected to political influence by any group. Rather then attempt to alter editorial decisions through urgent messages and telephone calls, government officials have many other resources to get their message across, which ensure that the debate is publicly aired. What is more, their right of reply is protected both in Chilean law and the American Convention.5 The constitution stipulates that “any natural person or legally recognized institution (persona legal) offended or unjustly alluded to by any social medium of communication has the right to have their statement or correction published free of charge, in the conditions that the law shall determine, by the same medium of communication in which the information was published.”

Pressures from the army contributed to this under government interference in the media. On several occasions government ministers publiclyreprimanded media considered to have overstepped the boundaries of prudence, and twice they intervened directly with media directors to prevent the publication of conflictive items. Human rights violations (especially the fate of the “disappeared” and the discovery of the remains of victims of extrajudicial execution in clandestine burial sites) and corruption scandals in which army personnel were implicated were particularly sensitive themes. The press reported both issues energetically.6 With the avenue of direct intervention blocked by the government’s hands-off policy, the army reacted to bad press by lodging a succession of lawsuits against individual journalists, as well as public declarations denouncing press collusion in a campaign of defamation. The government, despite its adherence to press freedom, generally remained aloof from these confrontations rather than defend the media involved.7 There were, however, some dramatic exceptions which revealed the limits of the government’s ability to ward off army attacks on the press. A headline in La Nación in 1993 precipitated the most serious crisis in civil-military relations since the re-establishment of democracy. On May 28, 1993, soldiers in full camouflage combat gear, some carrying bazookas and heavy equipment, appeared in the street outside the armed forces headquarters, where an emergency meeting presided over by General Pinochet was in progress. Thisthreatening demonstration of power was staged at a moment when Aylwin was in Scandinavia and Interior Minister Enrique Krauss was acting president.8

The immediate pretext was a headline in La Nación which had announced a court decision to re-open the case of the so-called Pinocheques, a judicial investigation into the receipt by Pinochet’s son, Augusto Pinochet Hiriart, of checks from the army totalling $3 million for the purchase of a bankrupt arms components manufacturing company. Evidently convinced that La Nación acted on instructions from the presidency, the army called Krauss to demand that the paper carry a retraction on the following day. Krauss agreed to advise the newspaper. Later, La Nación Deputy Director Alberto Luengo received a telephone call from General Concha, head of General Pinochet’s committee of advisors, direct from the meeting room where the generals, including Pinochet, were ensconced in discussions. Concha demanded that the paper carry a headline announcing the correction.

He told me that as the government had warned me, he was calling to order me to publish a denial by the army, that they were going to send me a document which we would have to publish in full. “And now let’s talk about the subject of the headline,” he said. “But you don’t decide the headline, we do that,” I replied. He insisted that the government had authorized the rectification. And their title — I don’t remember the exact words — was something like “Army obeyed law in checks case.” General Concha hung up and said he would call back in half an hour, after talking to the government.

Both Krauss and Secretary General of Government Enrique Correa called the newspaper to insist on the publication of the headline, but Luengo, who received the calls, said the request was unacceptable. “Accept it or not, but publish it,” warned Correa. Luengo replied that if he was forced to publish the headline he would quit immediately, and he was backed by most of his editors and senior journalists. In a later emergency cabinet meeting, Correa told hiscolleagues about the imminent resignations: “Let them resign” was the initial reaction, until Correa announced that if Luengo went, he would go too.9

In the end, the paper devised a compromise that saved the government from a serious split and also rescued La Nación from being dismembered. The army statement was published in a box on the front page, and the issue of the headlines was side-stepped by dispensing with a headline altogether. Instead, a full-page photo, with no comment, showed the menacing presence of camouflaged soldiers in a Santiago street. The crisis passed as the army’s attention turned to more substantive disagreements with the government.10

Limits to pluralism on TVN

In the case of the state-owned National Television (TVN), formal independence from government control and checks designed to ensure a politically diverse managerial board have ensured a degree of autonomy unknown in the company’s history, indeed dramatic when compared with the station’s subservience to the executive branch during the military regime. Paradoxically, however, respect for political quotas in the running of the station has not brought a notable gain in the diversity of its programming so as to ensure possibilities of expression for the widest possible range of opinion or cultural interest. Rather, there has been a tendency, particularly under the current government, for material that might be provocative or challenging to be suppressed or cut in deference to political or conservative moral sensibilities. Rather than pluralism bringing greater diversity — the expression of conflicting views side by side and in healthy competition — there has been a tendency to opt for safety.

Examples abound of controversial programs which have been suppressed or cut on the orders of the station’s executive director, or following pressure from its board of directors. Station executives defend these decisions as the simple exercise of editorial control. In the abstract, this is a legitimate, since editorial control by media directors is an inseparable part of freedom of expression. But the matter is not as simple as that. In some cases, like those we detail below, the surrounding circumstances, or the reasons given by directors to the journalists for omitting material, strongly suggest that political considerations rather than editorial values were the underlying factor. This was also the interpretation of many of the journalists themselves. Most of the material we learned of that had been cut or never shown despite being ready for transmission, and in some cases advertised beforehand — was on politically sensitive or morally controversial topics.

We were told by a senior station executive that controversial programs are normally approved by the executive director prior to transmission and that last-minute cuts or changes are often ordered. This is defensible, in that the executive director is ultimately responsible to the board for all broadcasting content. However, such cuts become questionable when they conflict with the station’s declared commitment to pluralism and the representation of minority as well as majority perspectives. During the early 1990s there was a well-publicized history of friction in the station over pressures from the board on editorial decisions. More recently the cuts appear to have emanated directly from the executive director. One instance was clearly the result of a direct presidential intervention.

Decision-making in TVN is supposed to be shielded from direct external political pressures by a seven-person governing board that is representative of the opposition as well as the government. Six members of the board (which also has a non-voting member of the station employees’ union) are appointed by the Senate, on the basis of a slate presented by the president of the republic, that must be accepted or rejected as a whole. They may not be removed for eight years. The seventh member is appointed directly by the president and has fixed tenure throughout the president’s term. Underneath the board is the station’s executive director, who is appointed by the board with a very large majority, and can only be removed with a large majority. This voting system favors a consensual candidate who, on appointment, is allowed considerable autonomy. The executive director’s senior staff are appointed by him but must also have the approval of a majority of the board. These formal guarantees of independence and political pluralism were introduced by law in May 1992. Government ownership was retained but no form of governmentsubsidy was permitted. Essentially, it was intended that the station become an autonomous self-financing corporation with a public-service vocation.11

Under the military government, TVN had been used aggressively to transmit propaganda and was correctly perceived as heavily biased. Months after the military coup, the military junta issued a decree suppressing TVN’s board of directors and concentrating power in the hands of one person, the director general, appointed directly by the government. Viewed by the public as closely identified with the military, the station lost audiences and ran up large debts until, at the close of the period, it was on the verge of bankruptcy. Mismanagement and corruption reached such a level that President Aylwin’s appointee as executive director, Jorge Navarrete, denounced it in an extended stock-taking which was broadcast and published in full-page newspaper inserts. Several of those implicated were later prosecuted, and a parliamentary investigation was launched, although none of the individuals named replied to the allegations. 12

During the first two years of the Aylwin administration TVN was still governed under the legal regime introduced by the military, with authority vested in an executive director appointed by presidential decree and subject to removal by him at any time. During this period the station’s autonomy was dependent ultimately on the executive director retaining the president’s confidence. By all accounts, President Aylwin set great store on the station’s autonomy. However Aylwin appointee Jorge Navarrete came under great pressure from other sectors of the government and its political parties, especially members of the Christian Democrat Party (Aylwin’s own party). Vexation and incomprehension in the governing coalition with regard to TVN’s “lukewarm” portrayal of government achievements was widely reported in the press. Interviewed by Human Rights Watch, former Executive Director JorgeNavarrete praised Aylwin’s efforts to shield the station from these pressures.13 Although General Secretary of Government Enrique Correa also supported TVN, relations with other ministries were often strained. Revelations about human rights violations implicating serving military officers were of particular concern to the Ministry of Defense. The publicity given to the brief court appearances of these officers provoked resentment in the army, and army pressures were relayed by indignant ministry officials, including the minister in person, to the station.

The Townley interview

Only once did President Aylwin intervene directly in an attempt to alter an editorial decision of TVN. On August 5, 1993, TVN’s Special Report (Informe Especial) was due to air an extended and exclusive interview with Michael Townley, a former DINA agent convicted in the United States for his role in the 1976 assassination in Washington of Allende’s former Defense Minister Orlando Letelier. The interview, programed long in advance and announced a week before its planned transmission, coincided with a crucial moment of the trial in Chile of Townley’s former chief, DINA Director Manuel Contreras, when special investigating judge Adolfo Bañados was on the verge of an indictment. Concerned about the repercussions on the trial if the interview went out, President Aylwin wrote a letter to TVN’s board of directors urging them to delay the transmission. The board voted to accept Aylwin’s request.

The president’s intervention was construed by members of the Special Report team as army-induced, and members of the team publicly criticized Aylwin for betraying his commitment to respect the station’s autonomy. Aylwin explained his motives in a letter to the Chamber of Deputies Committeeon the Constitution (Comisión de Constitución). Referring to the proximity of the trial, Aylwin pointed out that he had merely made a request, not given an order, and he repeated that the station’s executive was autonomous in its decisions. This did not convince TVN journalists, who wrote a letter to Aylwin, signed by forty-two members of the press department, to protest what they interpreted as “a form of pressure” on TVN that betrayed all of Aylwin’s efforts hitherto to protect the channel’s independence.

The Townley interview finally aired on August 16 to audiences swelled by the political controversy it had caused. With hindsight it is difficult to understand Aylwin’s intervention on the grounds given. The interview contained no new material of importance on the Letelier case, and at the moment of the controversial decision to delay the screening, Judge Bañados himself dismissed any possibility that the screening could influence the trial.14 There are strong indications that other factors affecting civil-military relations were involved: the Ministry of Defense was concerned about revelations in the interview affecting a close military advisor of General Pinochet, and a ministry official previewed the program at Executive Director Navarrete’s invitation.15 The row within TVN sparked by the postponement of the program led to the dismissal of the editor of Special Report, Patricio Caldichoury, for breaching theconfidentiality of Navarrete’s memorandum to him explaining the board’s decision.

The scale of the political reverberations of the crisis in TVN surprised even President Aylwin. They starkly revealed the tensions between a policy of genuine media autonomy and the government’s expectation, implicit and rarely stated, that the media respect the political sensitivities of the transition as these were conceived by the executive branch of government. Such considerations had led to the TVN board’s decision in May to postpone a showing of two segments of the program El Mirador at the height of the “Boinazo” crisis. Critics observed that such decisions could only reinforce the military’s conviction that TVN was still controlled from the presidential palace, while undermining the credibility of the station as an independent medium.16

Editorial policy during the Frei government

Paradoxically, an increasing relaxation of civil-military relations and improvements in the troubled relationship between TVN’s executive director and its governing board under the Frei government did not lead to a more relaxed and permissive editorial line at the channel. In fact, external political protests coming from both cabinet ministers and government coalition politicians, as well as from the right-wing parliamentary opposition, multiplied over the years.17 In 1994 President Frei called Executive Director Navarrete to complain about a Special Report feature on Indonesia that documented political cronyism and human rights violations under the Soeharto government. What angered Frei was that the station aired the report on the eve of the president’s official visit to the Asia-Pacific Economic Cooperation (APEC) countries, which led to Chile’s admission to the group. The relationship between the executive director and the board, difficult at the best of times, continued to sour.

More serious for Navarrete, however, was the loss of confidence of the board’s Christian Democrat members in the news staff. There was sharp criticism in party ranks at TVN’s alleged failure to do justice to government achievements. Complaints were voiced about a lowering of moral standards on such themes as divorce and homosexuality, issues on which Christian Democratboard members made common cause with their conservative opposition colleagues. Finally, two Christian Democrat directors cast their vote with the opposition for Navarrete’s removal, and he was fired in November 1994. Nine months later, Navarrete’s replacement, Carlos Hurtado, resigned in exasperation at the board’s lack of confidence and what he claimed was its meddling in day-to-day management and editorial decisions. Station programmers were slammed by conservative board members for the political content of a documentary feature and the portrayal of female homosexuality in an issue of Special Report.18

Following the appointment in 1995 of the current executive director, René Cortázar, former minister of labor under the Aylwin government, editorial control tightened significantly. Unlike his predecessors, Cortázar, reputed to be a conservative on moral issues, established fluid relations with the board. However, he personally assumed day-to-day managerial control of editorial decisions in programs considered sensitive, which caused considerable resentment among staff. TVN journalists told Human Rights Watch that completed programs were shelved or cut, after a meticulous revision of the smallest details, down to the phraseology and language used.19 The stifling rules imposed led to frequent conflicts with program-makers. In an effort to establish ground rules and avoid future incidents, the station management initiated a long internal debate which culminated in 1997 with the publication of a handbook of ethical guidelines.20 In order to suppress damaging publicity, the rules required journalists to avoid public statements that “damage the corporate image of the Channel, its independence, pluralism and objectivity.”

In the following examples, political considerations appear to have been uppermost in decisions to cut material. During the period he worked asanchorman on TVN’s current affairs chat show Midnight (Medianoche), Fernando Paulsen, the current director of La Tercera, was vetoed when he suggested inviting Francisco Javier Cuadra, who had been recently charged under the State Security Law for defaming Congress, to participate in a panel. Paulsen’s planned interview had nothing to do with Cuadra’s own case: he proposed to invite him in his capacity as former Chilean ambassador to the Vatican as a panelist in a discussion of Cuban leader Fidel Castro’s visit to the Vatican. According to Paulsen, the former Pinochet minister had earlier been banned from appearing on De Pé a Pá, a chat show chaired by Pedro Carcuro. Paulsen has since appeared with Cuadra on a panel on the independent channel La Red to discuss the 1997 parliamentary elections, but to our knowledge Cuadra has never been invited to appear on TVN.21

The television program most affected by editorial pressures emanating from the station management has been Special Report, a documentary series on current affairs and social issues, which first aired in June 1984. Unlike most Chilean current affairs programs, which predominantly use the interview or panel format, Special Report features weekly investigative projects on themes of social interest or controversy. In the last years of the dictatorship the program was highly rated because it opened up areas of debate previously taboo such as intra-family violence. This created tensions about how much editorial autonomy would be permitted, and interference and restrictions were frequent. A 1987 program on medical negligence was cut without the journalist’s authorization to remove all references to a well-known public hospital. Another program on religious vocation, which included references to the subject of married clerics, was quietly shelved after its transmission had been announced. “I was in another city at the time,” the program’s maker Marcelo Araya told Human Rights Watch. “I turned on the television to see my work, and out came a different program.”22

Although these limits have been relaxed significantly under TVN’s new management system, the present executive director is known to meticulously control broadcasting. Programs addressing sensitive themes are consistently reviewed, and if necessary amended, before airing. A considerable number are simply shelved and never shown. An example was a 1990documentary on the persistence of armed opposition groups in Chile despite the return to democracy that was never shown.

A broadcast on police abuse and torture was suppressed in September 1996, after it had been approved by the station’s press director and announced the previous week.23 Suppression of this feature censored information about police brutality against young working-class crime suspects. The documentary cited the report recently published by the United Nations Special Rapporteur on Torture, Nigel Rodley, providing an opportunity to make the findings of the United Nations available to the general public.24 According to journalists in TVN, the veto of the program, originally titled Torture in Democracy but later amended to Police and Human Rights (after editorial objections to the original title), was due to management fears that its transmission could torpedo government efforts to reform the Carabineros. Such a concern is consistent with the Frei government’s frequent statements in defense of the Carabineros when the police have been criticized for brutality. It also reveals an ambivalent attitude towards the independence of TVN. If the station were genuinely autonomous and saw its role as informing the public, it would not likely be concerned about the effect its program would have on the government’s relation with the uniformed police. Other programs vetoed in 1996 were a documentary on male striptease dancers (whose subject matter was considered tasteless) and one on gold and copper mining shelved without explanation. These were not projects aborted at the planning stage but completed documentaries ready for transmission.

A program on intra-hospital infection, which aired on October 24, 1997, was cut to avoid identifying the Military Hospital as among the institutions affected by this problem. The documentary included interviews with directors of several public hospitals and mentioned the results of hospital inquiries into negligence leading to the propagation of infections. By coincidence, the one case profiled in the report was of a patient who died as a result of an infection contracted in the Military Hospital. The original report reconstructed the events as told by the patient’s relatives, identified the hospitaland mentioned that its director had refused to be interviewed on the program. The version that finally aired included the interviews with relatives but did not identify the Military Hospital.

TVN’s secretary general, Enrique Aimone, told Human Rights Watch that the torture program had been shelved since the project had not been on the list of programs previously approved by the station management. Assuming this to be true, it hardly explains why the program was not rescheduled and shown later. Aimone did not recall details of the other cuts mentioned above. However, he considered that suppression of the name of the Military Hospital was probably to avoid singling out any institution for blame in what was a general problem affecting many institutions.25 Our information, however, is that the program included interviews with directors of other medical establishments and was a balanced treatment of the issue by an experienced medical journalist. Furthermore, provided documentaries meet traditional standards of objectivity and responsible fact-finding, there is no reason why they should desist from naming those responsible for irregularities, who are already protected in the libel laws from unsupported allegations. Indeed suppression of the identity of those responsible in the interest of a “balanced view” is a questionable journalistic practice. 26

176 European Court of Human Rights, Handyside Judgment, December 7, 1976.

177 Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 of November 13, 1985, para. 69-70.

178 Incitement to racial hatred has been one of the grounds given by the Human Rights Committee established to monitor compliance with the International Covenant in dismissing complaints alleging violation of Article 19 of the Covenant or establishing that restrictions were legitimate and necesssary. See Human Rights Commiteee, J.R.T and the W.G. Party v. Canada, Comm. No. 104/1981, UN Doc. A/38/40, Annex XXIV, pp. 231-236; Robert Fuarisson v.France

Comm. No.550 /1993, views of November 8, 1996, UN Doc, CCPR/C/58/D/550/1993.

179 International Covenant, Article 19(3), American Convention, Article 13 (2).

180 Sunday Times v. United Kingdom (1979).

181 “The Right to Freedom of Opinion and Expresssion.” Final report by Danilo Türk and Louis Joinet, Special Rapporteurs, UN Docs. E/CN.4/Sub.2/1992/9 July (1992)

182 Human Rights Committee, General Comments No. 10 (19), adopted on July 27, 1983. UN Doc. A/38/40, Annex VI, p. 109.

183 See, for example, Alejandro Guillier and Viviana Rojas, Chile: la agenda noticiosa de la transición democrática,” in Universidad Diego Portales, Facultad de Ciencias de la Comunicación e Información, Reflexiones Académicas, No. 9, 1997, pp. 27-56.

184 Protection of the family is one the values promoted in laws affecting freedom of expression. Coming from a “well constituted family” (familia bien constituida) is widely considered a mark of basic respectability. The statistics, however, show that a large minority diverge from this official pattern. As in most of Latin America, informal unions are common in the lower economic sectors. More than 40 percent of children are born out of wedlock, and 9 percent of nuclear families are one-parent. Although Chile still has no divorce law, legal loopholes allow marriages to be dissolved. Between 9 and 14 percent of people have had more than one stable relationship, and each year the Civil Register records around one thousand bigamous marriages. See Teresa Valdés, “Entre la modernización y la equidad: mujeres, mundo privado y familias,” in Toloza and Lahera, eds., Chile en los Noventa. Recently, in October of 1998, discrimination against illegitimate children was eliminated by law.

185 In April 1997, President Frei, attacking the decision of two television channels not to transmit Ministry of Health AIDS commercials advocating safe sex, said “so much hypocrisy causes indignation.” Pilar Molina, “Los Nuevos Tiempos, pluralismo sí, pero sólo el mío,” El Mercurio, April 13, 1997.

186 The condemnation was for the banning of a book by journalist Francisco Martorell, discussed in Chapter IV. The pending case is that of the film The Last Temptaiion of Christ, see Chapter V.

187 "Como en los viejos tiempos,” Análisis, October 1-7, 1990.

188 No. 341, July 1990.

189 The cover was a reaction to Pinochet’s callous comment on the exhumation of victims of extrajudicial executions after the military coup from a common grave in Santiago’s General Cemetery: the burial of the dead in pairs was “a saving for the state.”

190 The law was one of three known as the “Cumplido laws” (leyes Cumplido) after Minister of Justice Francisco Cumplido.

191 Amnesty International, Informe 1992, p. 89.

192 CODEPU, “Libertad de Expresión....” p. 23.

193 Human Rights Watch was denied permission by military justice officials to view the trial dossiers in these cases. The grounds given by the secretary of the Second Military Court, Ricardo Herrera, was that the cases were only temporarily closed and that access to the files was limited to the parties to the case. This confirmed reports received previously by Human Rights Watch from human rights lawyers about difficulties in obtaining access to trial documentation in cases under military jurisdiction. By law, once the investigative phase of a trial (sumario) has been concluded, the trial documents should be available to any member of the public.

194 The recurso de protección is a remedy available to anyone to apply to a court for an injunction to protect his or her constitutional rights if they are violated or in danger of violation

by a government authority or private individual.

195 "Revocan cargos contra director de Punto Final,” La Epoca, September 27, 1996.

196 In August, in a political panel on Megavisión’s A eso de... program, Megavisión’s founder-owner Ricardo Claro shocked his fellow panelists by suddenly playing a secretly recorded tape of a phone conversation between would-be presidential candidate Sebastían Piñeira and a journalist friend, which was highly damaging to Piñeira’s credibility. It later transpired that tape had been recorded by army intelligence agents.

197 "Enérgica declaración castrense contra TVN,” La Epoca, September 25, 1992; and “Televisión Nacional dijo que el Ejército no ha desmentido hasta ahora la denuncia,” La Epoca, September 26, 1992.

198 "Enrique Correa dijo que TVN estudia presentar querella contra el Ejército,” La Epoca, September 30, 1992.

199 "Según Ministro Rojas, TVN habría atentado de alguna manera contra seguridad del país,” La Epoca, October 9, 1992; and “Schaulsohn criticó declaraciones de ministro Rojas acerca de informaciones periodísticas,” La Epoca, October 11, 1992.

200 "Espionaje: comisión propuso nueva ley sobre servicios de inteligencia,” La Epoca, January 6, 1993.

201 "Diagnóstico Reservado,” Qué Pasa, No. 1418, June 13, 1998.

202 Alejandra Matus, “Indagan presunto fraude en Hospital Militar,” La Epoca, August 12, 1994.

203 "Los dos pronunciamientos del Ejército,” La Epoca, June 3, 1998.

204 "Presentan querella contra ‘La Epoca’,” La Epoca, August 18, 1994.

205 "Hospital Militar: auditor Torres confirma causa en justicia castrense,” La Epoca, December 17, 1994.

206 Paula Afani, “Denuncian amenazas de muerte en el caso Hospital Militar,”La Tercera, June 6, 1998. (Translation by Human Rights Watch.) The Council for the Defense of the State (CDE) represents the legal interests of the state in judicial proceedings.

207 Stange was eventually cleared by the court and returned to his post. He is currently a senator.

208 Originally intended as a discretionary power of the Supreme Court to reconsider verdicts in which judges had committed irregularities, the recurso de queja became transmuted over the years into a de facto third-instance appeal, since it was possible to use this appeal to overturn a lower court decision. Recently these powers have been reduced.

209 "Abogado Héctor Salazar quedó libre de cargo de sedición impropia,” La Epoca, August 17, 1994.

210 "Esposas de carabineros enfrentan denuncia por sedición,” La Tercera, April 8, 1998.

211 By July 1998, thirteen policemen, including Leiva, had been fired because their wives participated in the protest. “Oficializada baja de 10 Carabineros,” El Mercurio, July 7, 1998. Among them was Capt. Eduardo Perales Martínez, who claimed he had been summarily dismissed for telling a joke about the alleged disproportionate share of a recent salary adjustment that went to senior officers. The Carabineros denied that he had been fired because of the joke, but a police official confirmed that his witticism had been taken as an insult to the institution. Jazmín Jaililie, “Ex capitán dice lo dieron de baja por contar chiste,” La Tercera, August 5, 1998; and “Carabineros dice que cumplió orden de no inovar,” La Tercera, August 6, 1998.

212 "Confirmaron proceso a Gladys Marín, pero ordenaron su libertad provisional,” La Epoca, October 31, 1996.

213 "Pinochet retiró querella contra Gladys Marín,” La Epoca, November 1, 1996.

214 One of the judges responsible for the decision, Hernán Cereceda, was impeached for gross dereliction of duty in 1993 and dismissed from the judiciary for his role in this case as well as other irregularities.

215 Alejandra Matus, “Condenan a periodistas de ‘El Siglo’ por injurias a Suprema,” La Epoca, June 7, 1994.

216 Ibid.

217 Viera Gallo later insisted it was an “explanation” and not an apology.

218 Blanca Arthur, “La imagen de la paz y la guerra, entretelones de un complejo acuerdo,” El Mercurio, October 12, 1997. (Translation by Human Rights Watch.)

219 Raquel Correa, “Explicando sus explicaciones,” El Mercurio, October 19, 1997. (Translation by Human Rights Watch.)

220 As noted in Chapter III, hearings for the offenses under the State Security Law are rapid procedures that begin with an investigation conducted by an Appeals Court judge.

221 Cuadra could have obtained bail earlier but preferred to wait until a decision by the Supreme Court on an amparo writ lodged with the purpose of canceling the indictment. The writ was rejected by the court on July 5.

222 A writ of complaint (recurso de queja) can be made to the Supreme Court, exercising its disciplinary powers over the judiciary, to correct a fault or abuse in a lower court judgment. This type of appeal became widely used as a de facto last instance appeal, since if the sentencing court is found to be at fault, the Supreme Court may revoke or modify the sentence. In February 1996, a law was passed to restrict the use of this procedure to judgments against which ordinary judicial appeals were unavailable.

223 Carlos Cerda, a distinguished judge and academic, was one of a handful of judges who stood up against the military government. His insistence on pursuing investigations into “disappearances” despite physical danger won him bad grades in the Supreme Court’s annual rating of judges. However, it earned him the respect of his colleagues and the admiration of the international human rights movement.

224 "Condena de 540 días de cárcel para Cuadra,” La Epoca, May 15, 1996.

225 Ibid.

226 In this legal summary of the Cuadra case, we draw on the analysis in Medina, “Libertad de Expresión...” pp. 193-202.

227 Letter from Servando Jordán to Raimundo Díaz Gamboa, the judge investigating charges under Article 6(b) against Rafael Gumucio and Paula Coddou, cited in “Jordán se desistió,” El Mercurio, January 29, 1998.

228 Mónica Retamal Fuentes, “Periodistas al Banquillo de los Acusados,” El Mercurio, January 10, 1998.

229 Jazmín Jalilie Madrid, “Falló intento de requisar revista Cosas,” La Tercera, January 23, 1998.

230 Ley No. 16.643 Sobre Abusos de Publicidad, Article 41.

231 Ana María Sanhueza, “Corte confirmó resolución de no procesar a director de La Hora,” La Hora, March 10, 1998. (Paulsen is also director of Copesa’s evening paper, La Hora.)

232 Jazmín Jalilie, “Detenidos director y periodista de La Tercera,” La Tercera, September 17, 1998.

233 Jazmín Jalilie and Eduardo Rossel, “Libres director y periodista de La Tercera,” La Tercera, September 18, 1998.

234 Judicial protection against violation of a constitutional right is provided in Article 20 of the Constitution. This states that anyone who “as a result of arbitrary or illegal acts or omissions suffers, privation, obstruction or threat to the legitimate exercise of the rights and guarantees established in Article 19... may apply on his of her own account, or through anyone acting on his or her behalf to the respective Appeals Court, which shall immediately take the measures it considers necessary to re-establish the rule of law and assure due protection to the affected party, without prejudice to the other rights that he or she may assert before the authorities or the appropriate courts.”

235 Human Rights Watch takes no position on the information or points of view expressed in Impunidad Diplomática, which remains unavailable to the public.

236 "La surcursal de Planeta en Chile no comercializa libro en el país,” La Epoca, April 24, 1993.

237 By this logic, respect for reputation takes precedence over the right to inviolability of the home and private correspondence (paragraph 5), freedom of conscience and religion, (paragraph 6) and personal liberty (paragraph 7).

238 Article 19 of the constitution contains a final paragraph (no. 26) to the effect that the regulation of constitutional guarantees by other laws must not “affect rights in their essence, nor impose conditions, financial levies or requirements that prevent their free enjoyment.”

239 The commission cited a consultative opinion on the Inter-American Court of Human Rights on this point. See Inter-American Court of Human Rights, Consultative Opinion OC-5/85 of November 13, 1985.

240 Comisión Interamericana de Derechos Humanos, Informe Anual de la Comisión Interamericana de Derechos Humanos, 1996 (OEA/Ser.L/V/II.95), p. 251, para. 58.

241 Cecilia Medina, “Libertad de Expresión...,” p.175.

242 Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 19 of the American Convention of Human Rights, Advisory Opinion OC-5/85 of November 1985, separate opinion of Judge Puza Escalante, Series No. 5.

243 Article 20 of the constitution gives those whose constitutional rights are violated the right to make a formal denunciation to the Court of Appeals, “which shall adopt immediately the measures it deems necessary to re-establish the rule of law and ensure the due protection of the affected party, without prejudice to the other rights that he or she may assert before the authorities or the competent courts.” [Emphasis added.]

244 "Caras: prohibido informar,”El Mercurio, August 2, 1998; “Revista Caras: prohibicion de informar es un atentado a la libertad de prensa,” La Tercera, August 15, 1998.

245 The case is discussed in Chapter V.

246 "‘El desconocido’ reemplazó caso de los pasteles envenenados en TVN,” La Epoca, October 23, 1996.

247 Oscar Pinto, “Levantan prohibición a ‘Mea Culpa,’” La Epoca, December 11, 1996.

248 “Juez prohibe informar sobre libro,”La Epoca, January 7, 1992.

249 The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, para. 29. See also the 1995 report of Abid Hussein, U.N. Rapporteur on Freedom of Expression, which states: “For the purpose of protecting national security, the right to freedom of expression and information can be restricted only in the most serious cases of a direct political or military threat to the entire nation.” report of the Special Rapporteur on Promotion and Protection of the Right to Freedom of Opinion and Expression, Mr Abid Hasten, U.N. Doc. E/CN.4/1995/32 (1994).

250 An example is Section 97B of Germany’s Criminal Code, which provides that publication of a genuine secret by one who erroneously believed that the information was not entitled to be kept secret, is not a crime if the person intended to stop an activity that he or she believed to be illegal. This progressive thinking is reflected in the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. Article 16 of the Johannesburg Principles, referring to “Information Obtained through Public Service” declares that “no person may be subjected to any detriment on national security grounds for disclosing information that he or she learned by virtue of governmental service if the public interest in knowing the information outweighs the harm from disclosure.” (“The Johannesburg Principles on National Security, Freedom of Expression and Access to Information,” Human Rights Quarterly, Vol. 20, No.1, February 1998).

The principles were adopted on October 1, 1995 by a group of experts in international law, national security and human rights convened by Article 19, theInternational Center against Censorship, in collaboration with the Center for Applied Legal Studies of the University of the Witwatersrand in Johannesburg. The principles are based on international and regional law and standards relating to the protection of human rights, evolving state practice (as reflected, inter alia, in judgments of national courts), and the general principles of law recognized by the community of nations. See Sandra Coliver, “Commentary to the Johannesburg Principles on National Security, Freedom of Expression and Access to Information,” in Human Rights Quarterly,Vol. 20, No. 1, February 1998, pp. 66-68.

251 Article 89 of the Ordenanza de la Armada (Navy Regulations).

252 The Secretary General of Government (Ministro Secretario General de Gobierno) combines the functions of a press secretary with overall responsibility for the government’s policy toward the mass media.

253 Cited in Sunkel, “La Prensa...,” p. 26.

254 "Presidente enviará Ley de Prensa en la semana, La Epoca, July 3, 1993.

255 One expert on the Chilean media described the situation in these terms:

Once the process of mobilization for the elections had been concluded, the press proved to be functional — and subordinate — to the scheme of the transition, with dysfunctional behavior limited to certain themes and moments.... It was not a question of any “formal” commitment established after a process of negotiation. Rather it was a tacit agreement by which the actors kept within fixed limits, whose transgression generated a danger signal with regard to the stability of the system.

Guillermo Sunkel, “La Prensa en la Transición Chilena,” Facultad Latinoamericana de Ciencias Sociales (FLACSO), Serie Educación y Cultura, No. 26, 1992.

0 These links were present in the origins of the alternative news media, which were essentially expressions of political resistance organized and run in large part by politicians. The founder and director of Hoy and La Epoca, Emilio Filippi, was a close friend and former associate of President Aylwin. From the early 1980s Filippi had held regular Tuesday breakfasts at the magazine’s office, inviting leading Christian Democrats as well as leaders of the National Party’s moderate wing and some military officers. Abraham Santibáñez, whom Aylwin appointed as the new director of La Nación, had also been a Hoy director. (Human Rights Watch interviews with Santibáñez and Filippi, March 9 and 20, 1998, respectively.) On the political origins and purpose of the alternative media of the 1980s, see Eugenio Tironi and Guillermo

Sunkel, “Modernización de las comunicaciones y democratización de la política: los medios en la transición a la democracia en Chile,” Estudios Públicos, No. 52, Spring 1993.

1 Human Rights Watch interview with Alberto Luengo, deputy director of La Nación from 1990 to 1994, March 18, 1998.

2 Rojas repeatedly telephoned Ascanio Cavallo, who replaced Emilio Filippi as La Epoca’s director in January 1993, protesting at press coverage of these episodes, and reminding him of his responsibility to “protect democracy.” On one occasion, when La Epoca headlined a statement by Interior Minister Enrique Krauss, that there had been a “collision of powers” during a conflict with the judiciary (Krauss claimed to have said thatthere was no collision of powers), a furious Krauss persuaded Correa to call the paper and oblige it to publish a correction, to which the paper agreed.

3 Human Rights Watch interview with Ascanio Cavallo, January 19, 1998.

4 Human Rights Watch interview with Juan Pablo Illanes, managing editor of El Mercurio, April 6, 1998.

5 According to Article 14 (1) of the American Convention, “Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.”

6 During the first four years of the Aylwin government, press coverage of at least eight cases involving human rights violations was prohibited for varying periods by judges using reporting bans. Coverage of four cases involving libel suits against journalists were also prohibited, usually at the request of the litigants. Figures from CODEPU, “Libertad de Expresión...,” p. 23.

7 In a revealing incident in October 1990, Interior Minister Enrique Krauss abruptly abandoned the hall during a Latin American press gathering on discovering the presence of two journalists who had refused to appear before a military court to answer charges involving articles they had written. As Análisis commented:

This gesture of Krauss, who cited his investiture as a representative of a power of state who could not associate himself with an act of contempt of another branch of government, was almost surrealistic in that he simultaneously expressed moral support for the journalists in question. Secretary General of Government Enrique Correa described Krauss’s action as unpleasant duty.

“Como en Los Viejos Tiempos, Justicia Militar versus Prensa,” Análisis, October 1-7, 1990.

8 The incident was referred to as the “Boinazo,” after the black berets (boinas) worn by the special forces who participated.

9 Human Rights Watch interview with Alberto Luengo and Enrique Correa (March 21, 1998). Luengo confirmed to Human Rights Watch that Correa had threatened to resign.

10 It only became known in April 1998 that in the aftermath of the “Boinazo,” Correa and Krauss signed documents with General Pinochet’s representative, Gen. Jorge Ballerino, recording the basis for negotiated agreements on several issues, including the handling of cases of human rights violations under the military government that the courts were investigating. The government also committed itself not to reverse the law passed by the outgoing military government in 1990 which prevented Congress from investigating government actions prior to March 1990. In July the Council for the Defense of the State reopened the checks case, but a week later President Frei ordered it closed, adducing “reasons of state.” “El Documento que puso fin al boinazo,” Qué Pasa, No. 1408, April 4, 1998.

11 Human Rights Watch interview with Enrique Aimone García, general secretary of Televisión Nacional, July 23, 1998.

12 Navarrate is convinced that there were political motives for the catastrophic run-down of TVN. “First of all,” he told Human Rights Watch, “there was plain dishonesty; second, there was what could be called an extraordinary degree of frivolity in managing the company. But third I don’t have any doubt that a significant part of the government and of the administration of the company during the last year [of the military government] worked to create a situation that would be uninheritable and force President Aylwin and the Concertación to do what they [the then-management] had wanted to be done, that is to sell the company and close down TVN.” Human Rights Watch interview with Jorge Navarrete, April 15, 1998.

13 “I would say that during this period President Aylwin to an extraordinary degree surprised even myself with his respect for TVN, even when he didn’t like what we did. He not only respected us, but he was a sort of giant umbrella protecting us from the pressures. Over the months, as we became more and more successful, the pressures increased. Now, I think that all media receive pressures, from government, the churches, business, the unions and the political parties, whatever. The important thing is how you process it. You have to separate what are legitimate demands for the expression of a point of view from what are unacceptable pressures on editorial decisions. We had pressures of this latter kind from every minister in the cabinet. They or their public relations people would call us constantly. These sorts of pressures you have to resist. I would try to explain our editorial line to them, and if I could not convince them, I told them to take their concerns to the president, and a lot of them did. Aylwin was extremely supportive of us.” Human Rights Watch interview with Jorge Navarrete.

14 "Cámara citó a directorio de TVN y a personeros de gobierno,” La Epoca, August 4, 1993.

15 "Schaulsohn dice que Jorge Burgos conocía la entrevista de TVN a Michael

Townley”; “Navarrete confirmó el hecho,” La Epoca, August 11, 1993. Although Aylwin insisted that he had learned of the interview’s contents only through advance publicity and had not seen the program, Executive Director Navarrete confirmed later that he had invited Undersecretary of War Jorge Burgos to a private screening. Navarrete told Human Rights Watch that he had been personally worried about the timing of the screening before he knew of Aylwin’s concern and had invited Burgos for his comments. Burgos had expressed special concern about the possibility that Townley might name serving army officers in his interview — in particular Col. Jaime Lepe, General Pinochet’s secretary, who had been implicated in a judicial investigation into the alleged murder by the DINA of Spanish diplomat Carmelo Soria. Since Burgos was the only government official known to have seen the interview it is probable that the pressure to suspend the screening originated in the Ministry of Defense. Enrique Correa, who opposed Aylwin’s intervention, and as minister responsible for television felt that his authority had been undermined, took sick leave for a week. Human Rights Watch interviews with Jorge Navarrete and Enrique Correa, April 14 and March 21, 1998, and with Marcelo Araya, Special Report editor and maker of the Townley interview, April 21, 1998.

16 Fernando Paulsen, “En la medida de lo posible,” La Epoca, August 10, 1993.

17 TVN had been under criticism from the outset by advocates of privatization. A prominent critic was the Instituto Libertad y Desarrollo, a free-market think tank founded by Hernán Büchi, the right-wing candidate in the 1989 presidential elections. “Instituto de la derecha acusa de parcialidad a TVN,” La Epoca, October 14, 1992.

18 The documentary was a series on the youth movement of the 1960s. The last episode caused offense to some members of the board by ending the story with the military coup. “Carlos Hurtado renunció en forma sorpresive a la dirección de TVN,” La Epoca, October 19, 1995, and Human Rights Watch interviews with TVN officials.

19 For example, in a program on the use of the contraceptive pill in Spain, a reference to Spain as “a Catholic country” was cut to a avoid negative comparisons between Spanish and Chilean Catholics; in a documentary on prisons, references to torture under the Holy Inquisition were also cut. The title of a program on sex and aging, entitled Sex in the Third Age (El Sexo en la Tercera Edad) was changed to Love and the Third Age (El Amor en la Tercera Edad).

20 Televisión Nacional de Chile,"Orientaciones Programáticas,” April, 1997.

21 Human Rights Watch interview with Fernando Paulsen, March 3, 1998.

22 Human Rights Watch interview with Marcelo Araya, editor of Informe Especial, April 21, 1998.

23 "TVN suspende reportaje por ‘asuntos internos’,” La Epoca, September 5, 1996.

24 Despite a notable drop in torture cases since the Pinochet years and the adoption of measures to safeguard detainees’ rights, domestic and international human rights organization, including Human Rights Watch, documented dozens of new cases of police brutality against suspected delinquents during the first five years of the democratic government.

25 Human Rights Watch interview with Enrique Aimone, secretary general of Televisión Nacional, July 23, 1998. Human Rights Watch was not successful in obtaining an interview with Executive Director René Cortázar.

26 Aimone pointed out that in other cases TVN has broadcast conflictive material. He cited Special Report features on the military coup, showing images of the destruction of La Moneda for the first time in color, on the summary execution of Catholic priest Juan Alsina, and the Midnight interview with Corp. Hernán Leiva, during a police protest at pay and conditions. Following the transmission of this program, the uniformed police lodged a complaint against TVN with the Ethics Council of the Communications Media (Consejo Etica de los Medios de Comunicación), a voluntary press standards body.

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