(Santiago, Chile) — The criminal defamation conviction in Chile of a former political prisoner, who claims that she was sexually abused while detained by the Chilean army after the 1973 coup, raises serious freedom of expression concerns, Human Rights Watch said today.
On Monday a court in Santiago found the former political prisoner, Odette Alegría, guilty of libel. Last year, Alegría had alleged in a television interview that the director of Chile’s criminal investigations police, Nelson Mery, had sexually abused her. The court hearing Mery’s defamation case concluded that Alegría had failed to prove that the abuses had occurred.
“This case exemplifies the Chilean justice system’s continuing lack of respect for free expression principles, and suggests its inability to fully confront the abuses of the period after the military coup,” said José Miguel Vivanco, executive director of Human Rights Watch’s Americas Division. “The Chilean justice system failed dramatically in this case.”
The alleged abuse took place in the army’s Artillery School in Linares, which was used as an interrogation center after the 1973 military coup. The report of Chile’s Truth and Reconciliation Commission described the school as a place where almost all detainees were held incommunicado and tortured. The report noted that members of Chile’s criminal investigations police (Investigaciones) participated in interrogations.
Alegría was detained and interrogated at the Artillery School in November 1973. In July 2003, she alleged in a television interview that she had been sexually abused by Nelson Mery, who had been stationed in the Artillery School in 1973 while he was a junior detective in Chile’s criminal investigations police. Mery headed the Chile’s criminal investigations police from 1992 until 2003, when he was suspended during the scandal that followed Alegría’s denunciation. He subsequently resigned from this post.
Judge Lamberto Cisternas of the Santiago Appeals Court found that Alegría had failed to prove that her allegations were true, and had thus libeled Mery. The court gave her a two-month suspended prison sentence, fined her $1,000, and ordered her to pay 2 million pesos in damages (approximately $3,350). Her lawyers have appealed.
The conviction raises serious freedom of expression concerns. In accordance with Article 13 of the American Convention of Human Rights, which guarantees the right “to seek, receive and impart information and ideas, regardless of borders and by any means of communication,” defamation laws must be carefully circumscribed so as not to violate freedom of expression.
In a joint declaration issued in 2000, the U.N. Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression noted specifically that “the plaintiff should bear the burden of proving the falsity of any statements of fact on matters of public concern.”
Similarly, the Declaration of Principles on Freedom of Expression, approved by the Inter-American Commission on Human Rights in 2000, specifies that the plaintiff in a defamation case must prove that the defendant “had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.”
“Because of the clear public interest in this case, the plaintiff should have had to prove that the disputed allegations were false, and were made with malicious intent or with full knowledge of their falsity,” Vivanco said. “Unfortunately the judge put the burden of proof on Odette Alegría, paid insufficient attention to corroborating testimony, and failed even to consider her motivation in making public her complaint.”
A witness in the case, Lidia Carrasco, told the judge that when Alegría returned from her interrogation in the Artillery School “she was in a really bad state, like she was feeling very dirty and she would take long showers.” Alegría also reportedly told Carrasco that her interrogators made her undress and that everyone in the room groped her while she was blindfolded. Carrasco testified that Alegría had said that Mery had tried to force her to have oral sex with him on three occasions while she was sitting alone in a corridor.
The court concluded that the abuse could not be credited since the “testimonies given are few, and are only hearsay—as well as being imprecise—while there are others that contradict them and uphold the conduct of the litigant.”
It noted that several witnesses claimed that they had never been left alone while they were held in the Artillery School. But another witness told the court that he had seen Alegría several times sitting alone in the corridor outside the office where Mery conducted interrogations.
The court opinion also cited Paz Rojas, a well-known psychiatrist with long experience of torture cases, who counseled Alegría in 1990 and in 1992. On her second visit to Rojas, Alegría was extremely distressed, having just learned from the newspapers of Mery’s appointment as director of Chile’s criminal investigations police.
A criminal complaint against officers stationed at the Artillery School in 1973, including Mery, was filed in August 2003, and is currently under investigation by a court in Talca.