The amendment of the State Security Law to eliminate the crime of contempt of authority and the prior censorship of publications, which is currently in the final stages of congressional debate, would be an important contribution to strengthening freedom of expression and democracy in Chile. As recent prosecutions show, discredited public figures have utilized this law in efforts to salvage their damaged reputations. Unfortunately, Chile's politicians have been reluctant to relinquish the special protection these laws give them from public criticism. Moreover, even if the relevant sections of the State Security Law are repealed to eliminate contempt of authority, that crime will continue to exist in other laws.
Contempt of authority or "insult" laws make it a crime, usually punished by imprisonment, to offend the honor or dignity of those holding high office. These laws differ in several respects from the more general category of criminal defamation. In most jurisdictions that embrace criminal defamation, any individual, regardless of their rank or status, may initiate a prosecution against anyone who makes an untrue assertion deemed damaging to their reputation or public standing. Insult laws, by contrast, provide additional legal protection specifically and exclusively to public officials. Also, whereas defamation usually is applicable only where there are false assertions of fact, not true facts or opinions, insult laws punish truth as well as falsehood, opinions as well as factual assertions. Their purpose is to protect the honor of representatives of the State, and they are frequently conceived explicitly to safeguard the dignity of the incumbent's office.26
With their roots in Spanish and French legal traditions, the criminal codes of more than eighteen Latin American states have provisions relating to the crime of contempt of authority. In recent years, only Argentina and Paraguay have repealed their contempt of authority laws (in 1993 and 1998, respectively). Chile has more contempt of authority provisions than any other Latin American country. Moreover, Chile's laws are more repressive in nature and scope, and are used more frequently. Apart from the Law of State Security, versions can be found in the Criminal Code and Code of Military Justice.
The contempt of authority provisions in the military penal codes have not been invoked in recent years, reflecting the armed forces' gradual withdrawal from the political arena. While civilians can still be brought before military courts for the crime of sedition (Article 276 of the Code of Military Justice), the last prosecution of a civilian for this crime was in 1996. The offense of "insult to the armed forces" (Article 284 of the Code of Military Justice), frequently used against human rights critics under the military government, has not been invoked since President Aylwin transferred jurisdiction to civilian courts in 1992. Nevertheless, both of these contempt of authority provisions remain in force.
Articles 263, 264, and 265 of the Criminal Code also deal with insults to and threats against a broad range of public authorities, including the president, members of Congress and its committees, judges, ministers of state (or "other authorities in exercise of their office"), and even "a superior in respect of his duties."27 These articles have been rarely invoked, and when they have it is usually as a secondary charge in prosecutions under the State Security Law. As we note below, Chile's Congress has recently voted against repealing these articles of the Criminal Code. If thecontempt of authority provisions of the State Security Law are abolished, the Criminal Code articles would continue to provide parliamentarians and other officials with special protection against insult or defamation over and above that available to the private citizen.
By far the most frequently used contempt of authority law is Article 6(b) of the State Security Law, which prohibits defamation or disrespect of:
the President of the Republic, Ministers of State, Senators or Deputies, or members of the Higher Courts of Justice, Comptroller General of the Republic, Commanders-in-Chief of the Armed Forces or the General Director of Carabineros whether or not the defamation, libel or calumny is committed with respect to the exercise of official functions of the offended party.
As far as Human Rights Watch is aware, the crime of contempt of authority in the State Security Law is unique in Latin America. In no other country is contempt of authority classified as an offense against public order and state security. The penalties, rising to five years' imprisonment, are more severe than ordinary libel, and procedures for dealing with the crime allow shorter time and fewer possibilities for the defense. Usually, the courts refuse to admit evidence that shows that public order was not endangered by the offending expression, since that risk is conceived to be implicit in the insult itself. The notion of restricting debate to safeguard public order harks back to a pre-democratic era, when by its nature criticism was seen as an act of defiance.28 Indeed, the historical origins of the law can be traced back to the authoritarian origins of the Chilean state in the nineteenth century.29 However, recent cases show that officials' concern for their image or reputation is the real factor behind Article 6(b) prosecutions. This confusion between private and public interest is facilitated by a norm in the law which allows officials to initiate and also to withdraw suits at their own discretion. This makes the law a convenient tool for politicians to stifle and intimidate their critics by harassing them with prosecution or merely the threat of prosecution.
Those subject to a State Security Law contempt of authority prosecution may immediately lose their political rights even before their trial has begun. Once the investigating judge has established that the accusation is well-founded and orders the suspect formally charged, he or she loses the right to vote in national elections and to stand for public office. This is, to be sure, a general principle of criminal law in Chile and is not a special disposition of the State Security Law. Disenfranchisement of those charged with a crime incurring a possible penalty of more than three years imprisonment is mandated in the Constitution, and those affected only recover the right to vote if they are acquitted.30 If they are convicted, their right to vote and to hold public office is suspended until the sentence is served, at which time they must ask to be rehabilitated by the Senate.31 In Human Rights Watch's view, suspension of the voting rights of a person who has not been convicted of any offense violates due process and the right to be presumed innocent unless proven guilty.
Two provisions of the State Security Law allow the state to suppress altogether publications to which the official concerned objects. Judges are empowered to confiscate the entire stock of a book or issue of a publication to protectthe plaintiff's reputation. Article 16 permits the investigating judge "in serious cases, to order the immediate confiscation of any edition in which there appears an evident abuse of publicity punished by this law." Article 30 requires that the judge "place at the disposal of the court the printed matter, books, pamphlets, records, films, magnetic tapes and any other object which appears to have served to commit the crime." Although Article 16 provides a mechanism for appeal against a judicial confiscation order, no such appeal is contemplated under Article 30. Taken together, these articles breach the prohibition of prior censorship in the Chilean Constitution.
This is not, however, how many judges see it. A self-serving doctrine has taken root within the judiciary whereby only restrictions imposed by the executive branch are considered to constitute prior censorship. This doctrine is backed by another common view, that the right to honor takes precedence over the right to freedom of expression and access to information. In banning allegedly libelous publications, it is argued, judges are simply taking appropriate action to safeguard a constitutional right, the right to honor.
Human Rights Watch has documented more than thirty cases in which journalists, human rights critics, politicians and others have faced one-sided contempt of authority prosecutions under Article 6(b) since Chile returned to democratic rule in March 1990.32 Twelve cases that have passed through the courts since the publication of our 1998 report are described below. Politicians who seek to justify the defamation provisions of the State Security Law (not many are prepared to speak out in support of them any more) argue that special legal protection is needed to preserve the prestige of public office and democratic institutions. Yet, most of the litigants in Article 6(b) cases during the period covered by this report have been public figures whose reputations had been already damaged by serious and credible allegations of misconduct. These people often invoked the law effectively to shield themselves from public exposure, rather than to protect the institutions they represented from discredit.
The proposed legislation to repeal the defamation and censorship provisions of the State Security Law had its origins in an act of censorship that vividly demonstrated the most egregious aspects of this law. It occurred, moreover, at a time when the Chilean judiciary, under Chief Justice Roberto Dávila, was beginning a long-overdue process of internal reform in response to criticism from all political quarters.
Alejandra Matus' The Black Book of Chilean Justice is an acerbic and ironic chronicle of intrigue, nepotism and corruption in the cloistered world of Chile's top judges.33 It includes a wealth of detail about their much criticized conduct under the military dictatorship, as well as controversial aspects of their private lives. Its cover, eventually to be cited as offensive in the case brought against the author by former Chief Justice Servando Jordán, depicts three monkeys (hear-no-evil, see-no-evil, speak-no-evil) enthroned on the carved chairs of the country's highest court.
On reading an advance copy of Matus's text, Justice Jordán lodged a complaint against her under Article 6(b) of the State Security Law with the Santiago Appeals Court, which appointed Judge Rafael Huerta Bustos toinvestigate.34 At the request of Jordán, Judge Huerta ordered all the copies of the book confiscated under Article 16 of the State Security Law.35 It was the removal by police of all the copies then on sale and in the publishers' warehouse within twenty-four hours of the book's launch, on April 13, 1999, which brought the case international notoriety.
After news came of her impending arrest, Matus boarded a flight to Buenos Aires, and later traveled to the United States. Acting with unusual speed, in October 1999 the U.S. immigration authorities granted her political asylum on the grounds that if she were to return to Chile she would face a one-sided criminal prosecution and a likely conviction that would make it difficult or impossible for her to carry on with her activities as an investigative journalist.
The 337-page book contained much of interest other than the pages which referred to Jordán, and bore on matters of acute public concern. Besides the negative political reaction to Jordán's action, the book became a black-market success in photocopy, and La Tercera, Chile's most popular serious daily paper, posted parts of the text on a U.S.-based website, multiplying the number of its readers by thousands.
The provisions of the State Security Law had previously not been employed to censor a book since an elected government took power in March 1990. Several civil rights groups challenged the constitutionality of Judge Huerta's action in writs to the Santiago Appeals Court, citing Article 19 (12) of the Constitution which prohibits prior censorship, and arguing that their right of access to information, also guaranteed by that provision, had been violated. The court declared all of them inadmissable. It maintained that the plaintiffs, as members of the public, could not be considered affected parties. This ruling illustrated another limitation on freedom of expression in Chile. More often than not, Chilean courts fail to see a connection between the right to express oneself and the right to have access to information, although in international law the two concepts are seen as inseparable.36 As noted in Chapter III, Article 19 (12) of the Chilean Constitution guarantees only the right to "emit opinions and to inform, without prior censorship, in whatever manner and through whatever medium." It does not explicitly mention the right to be informed. The draft Press Law now in Congress would, if enacted, make this connection explicit by recognizing the individual's "right to be informed about matters of general interest."
Article 16 of the State Security Law allows those affected by orders to seize publications to make recourse to the Appeals Court, which must rule on their claim within twenty-four hours. The Public Interest Clinic of the Diego Portales University, this time representing the author, decided to test the mechanism. The Appeals Court heard the case, but declined, by a majority decision, to overturn Judge Huerta's order. According to one of the authors of the claim:
The majority ruling did not attempt any assessment of the merits of the prohibition in the concrete case. In otherwords, the decision did not attempt any analysis of the reasonableness and proportionality of the measure adopted . . . . from which it must follow that it is up to the judge to determine the "seriousness" of the case and whether or not to prohibit the publication. Nor did it examine the public interest raised by the publication.37
Instead of addressing these essential matters, the court merely sought to define the meaning of the word "edition," concluding from the Royal Academy Dictionary that it referred to "all the copies of a work printed in one run from the same mold."38 There is an obvious difference, both in purpose and effect, between impounding a few copies of a publication, as permitted under the Law on Abuses of Publicity,39 and confiscating the entire stock. The former action may be justified to allow a court to evaluate the basis of a libel charge, whereas the latter amounts to censorship.
Unable to prosecute Matus (Chilean law does not admit trials in absentia), Judge Huerta opened an Article 6(b) suit to prosecute the publishers of the book. On June 16, police arrested Bartolo Ortíz Henríquez, manager of the publishers, Planeta, and the book's editor, Carlos Orellano Riera, and held them for two days. The charge invoked Article 17 of the State Security Law, which provides that criminal responsibility is first vested in the author of an article and the director of the newspaper or magazine in which it appears, and is then passed down the line to the owner of the publication, if neither the author or director can be located, and thence to the printer. Ortíz and Orellano were considered co-authors since they had initially commissioned the project, and had exercised editorial control and approved the text.
In July, the Santiago Appeals Court ordered the charges against Ortíz and Orellano dismissed, finding that the flow-chart of criminal responsibility referred to in Article 17 did not apply to books, and that in any case the two could only be held responsible if the identity of the author could not be established.40
By that time, the Black Book case had gained international notoriety. Together with the Center for Justice and International Law, the Public Interest Clinic of the Diego Portales University had filed a request for "precautionary measures" with the Inter-American Commission on Human Rights on April 26, 1999; on June 18, the commission called on the Chilean government to implement measures to protect the liberty and security of Ortíz and Orellano. On June 23, the OAS Special Rapporteur on Freedom of Expression, Santiago Cantón, visited Santiago after deciding to bring forward a planned visit on hearing of the publishers' arrest. On June 30, Matus herself appealed to the Inter-American Commission, designating Human Rights Watch as co-counsel in her case, claiming that the seizure of the book and the legal action taken against her and her publishers violated Article 13 of the American Convention on Human Rights. On July 19, the commission sent a letter to Chilean Foreign Minister Juan Gabriel Valdés calling onthe Chilean government to guarantee the security and personal integrity of the author, in view of the fact that Judge Huerta had declared her a fugitive from justice and could issue an order for her arrest via Interpol.41 In October 2000, the Inter-American Commission declared Matus's complaint admissible.42
By then, all outstanding appeals in Chile had been rejected. On April 3, 2000, the Supreme Court threw out a plea of unconstitutionality presented in April 1999 by lawyer Hernán Montealegre against the provisions of the Law of State Security under which the Black Book had been banned.43 Previously, however, on May 31, 1999, the court's prosecutor, Enrique Paillas, had even recommended that the court grant the appeal, on the grounds that Article 16 of the law violated the constitutional prohibition of prior censorship.44
The investigation phase of the judicial proceedings against Matus terminated on December 19, 2000. Only one day previously was the defense attorney allowed to review the evidence, allowing far too little time, he informed Human Rights Watch, to enable him to establish Matus's innocence of the defamation charge. Nor was he allowed, even then, to photocopy the case file, although, as he pointed out, Justice Jordán had had access to it for months. For this reason, Human Rights Watch was unable to obtain copies of court documents in the proceedings.
On February 5, 2001 Judge Jaime Rodríguez Espoz, who had inherited the Black Book prosecution from Judge Huerta (Huerta retired from the judiciary in December 1999), temporarily halted the prosecution, citing as a reason that Matus was not available to answer the charges. According to Matus's defense attorney, the judge held that the state security charges were well-founded, rejecting the opinion of the court prosecutor, who disagreed. 45 The temporary closure of the investigation meant that a warrant for Matus's arrest and the prohibition of the book would remain in force. This would make it impossible for Matus to return to Chile without being arrested until the case became subject to a statute of limitations in thirteen years' time.
The fate of the legal appeals in the Black Book case showed that the courts were not prepared to strike down the offensive provisions of the Law of State Security on constitutional grounds. Yet, the case had brought Chile into disrepute internationally and aroused wide public concern within the country. By the time of the April 2000 Supreme Court decision, all but three Supreme Court judges had been appointed by democratically elected presidents. Despite this, a solid majority of the court still refused to ensure that Chile fulfilled its international obligation to respect freedom of expression.46
An indication of what Matus could face if she were to return to Chile is provided by the case of José AleAravena, the court reporter for La Tercera. On February 15, 2000, the Supreme Court sentenced Ale to a 541-day suspended prison sentence for an article he wrote about Jordán's career in the judiciary. His conviction by the Supreme Court reversed several lower court decisions absolving him of any offense.
In January 1998, Justice Jordán sued Ale and the director of La Tercera, Fernando Paulsen, under Article 6(b), for a news story by Ale which appeared in the January 7, 1998 edition of La Tercera. It appeared under the title "Complaining of the press, former court president takes his leave," and was subtitled "Jordán: `I retire in peace.'" The disputed passage of the article read:
Despite his positive intentions to restore his relations with his colleagues broken during the plenary that elected him - by nine votes to seven - a wave of criticisms of Servando Jordán slowly built up. These went back a long time and referred to a sort of "clique" which had enjoyed certain privileges in the judiciary.
This article appeared on the day of Jordán's resignation as Chief Justice. His controversial career had received much attention in the press due to two impeachment motions against him in Congress involving allegations of judicial corruption in drug-trafficking cases. The impeachment efforts did not succeed, but the Chief Justice's period in office as president of the Supreme Court was reduced from three years to two as a result of a law restructuring the court passed in December 1997. Jordán was believed to be bitter about this premature loss of office.47
On account of this disputed passage of the article, Paulsen and Ale became embroiled in two years of litigation, which eventually led to Ale's conviction, although three successive investigating judges dismissed the charges and three different panels of the Santiago Appeals Court upheld Ale's innocence. On September 16, 1998, both journalists were detained and held overnight in Capuchinos prison after the Fifth Chamber of the Santiago Appeals Court decided to press charges at Jordán's request. On July 28, 1999, however, investigating judge Alejandro Solís acquitted both Paulsen and Ale of any offense, citing freedom of expression principles in the International Covenant on Civil and Political Rights and the American Convention on Human Rights. The Santiago Appeals Court upheld their acquittals on September 8, 1999.
As a last resort, Jordán appealed to the Supreme Court, using a mechanism known as a "recourse of complaint" (recurso de queja), whereby the court may be called upon to rule on a fault, abuse, or irregularity in a lower court decision, and which, in practice, serves as a third-level appeal.48 In a divided ruling (three votes to two), the Supreme Court's Second Chamber acquitted Paulsen, but found Ale guilty, overruling his repeated acquittal in the lower courts. The language of the decision seemed intended to send a clear message to the press. Even the minority of judges who voted against the ruling reprimanded Ale for the "flippancy" and "impertinence" of the language used in his article.
The argument of the court's majority restated the traditional doctrine on contempt of authority in the State Security Law. The judges ruled that any "public lack of respect toward relevant public authorities . . . evidently produces a serious risk of weakening of the principle of authority which must be upheld in the Republic." Evidence to prove that public order was not affected was held to be inadmissable:
Any libel, defamation or calumny directed at an authority of the Republic mentioned in the law is, in and of itself, dangerous for the maintenance of public order and the principle of respect for authority, without moreproof being required other than the existence of the expressions offensive to honor, and the verification of the public office of the person alluded to.49
The court's irritation with the press, and with Ale in particular, can be read between the lines of the verdict. Indeed, on January 28, two weeks before it was delivered, Ale presented a complaint to the Supreme Court that one of the judges, Vivian Bullemore, had called him "a professional slanderer" and threatened him in a front of a group of acquaintances at a public event.50 He expressed fears that he would not receive an impartial trial while Judge Bullemore was on the bench, and, moreover, responsible for drafting the sentence. The Supreme Court ignored Ale's complaint and later rejected his appeal for the sentence to be annulled on grounds that Bullemore should have disqualified himself or been replaced.51
Human Rights Watch wrote to then-President Eduardo Frei on March 8, 2000, just before he left office, urging him to grant Ale a pardon as a final act of his mandate. The letter received no reply, but on July 6 President Ricardo Lagos did grant Ale a presidential pardon.
A narrow Supreme Court decision in favor of El Mercurio, Chile's oldest and most venerable newspaper, prevented Justice Jordán from obliging the newspaper to publish his opinions on its editorial page.
The former Chief Justice took exception to an editorial entitled "Freedom of Expression" that appeared in El Mercurio's September 20, 1998 edition. The editorial accused Jordán of using his influence in the judiciary to obtain the arrest of Paulsen and Ale, and to launch a 1992 lawsuit against El Mercurio. Although El Mercurio published Jordán's objections to the editorial on its letters page on September 25, and again on November 28, the former Chief Justice was not satisfied.
Chile's Constitution guarantees the right of reply.52 Section II of the Law on Abuses of Publicity, require that newspapers insert, free of charge, a correction or clarification at the request of any person who feels "offended, or unfairly alluded to in any published, transmitted or televised information" (the right of reply is protected in similar terms in the proposed Press Law, which is due to replace this law). The correction must be published in full and without commentary, and on the same page as the original article. Justice Jordán brought a prosecution against El Mercurio for failing to comply with this norm. In November 1998, investigating magistrate Maria Antonia Moralesfound Jordán's complaint to be justified and ordered the paper to publish his correction on its editorial page. El Mercurio appealed. The Santiago Appeals Court ruled in the newspaper's favor, arguing by two votes to one that newspapers could only be obliged to publish corrections of fact, not of opinion. Justice Jordán lodged a disciplinary complaint against the two appeals court judges, Haroldo Brito Cruz and José Luis Ramaciotti, who had granted the appeal. The Supreme Court ruled in July 1999 in favor of the judges, but a minority of two Supreme Court justices supported Jordán. Thus, El Mercurio was vindicated, but only just.
The judges who opposed Jordán's claim based their argument on a common-sense distinction between fact and opinion. Yet, as the dissenting judges pointed out, the Constitution of 1980 does not explicitly recognize the difference between the two. In fact, the relevant constitutional provision states:
Every natural or legal personality offended or unjustly alluded to by a medium of social communication has the right to have their declaration or correction published without charge, according to the conditions that the law shall determine, by the medium of social communication in which the information was published.53
According to the dissenting judges, the Constitution deliberately ignores the distinction between fact and opinion. It therefore grants the right to reply, they held, not just to refute a lie but to respond to any offending criticism or opinion. In fact, the dissenters argued, the Constitution's drafters considered the Law on Abuses of Publicity far too limited, and believed that the right to reply should include the right to respond to editorials and even to headlines and photographs.54 The minority judges' view finds support in the opinion of a leading constitutionalist, Dr José Luis Cea Egaña.55
The right of reply is protected by the American Convention on Human Rights. However, under no circumstances can it be invoked to force the publication of opinions. If this were so, it would constitute gross interference with the freedom of the press, and could lead to widespread self-censorship. Since past case law does not constitute binding precedent in the Chilean legal system, the issue can only be definitively resolved by a constitutional reform.
Unlike the other instances of contempt of authority described in this report, the two cases described below have no overt political connotations. Instead, they show how the Law of State Security lends itself to abuse by politicians involved in personal quarrels and private litigation completely unrelated to their public status and functions. Here a senator invoked his status in an effort to intimidate and silence opposing litigants who, like all targets of contempt of authority suits, lacked the power to retaliate in kind. In the first case the courts rejected the suit after finding that public order was not affected by the allegedly insulting expression used. In the second, the very same court convicted and sentenced the accused, thereby transforming a private quarrel into a problem of the state.
Francisco Fernández Montero is an attorney employed by the water company ENDESA. On August 21, 1998, Fernández, accompanied by four others, landed by helicopter on a private ranch owned by supermarket tycoon and then-senator Francisco Javier Errázuriz Talavera, to witness an inspection ordered by a court investigating a civil dispute over water rights between Errázuriz and ENDESA. According to Fernández's account, Errázuriz, membersof his family and employees were lying in wait for the helicopter, and when it touched down they surrounded it and chained the machine to a vehicle, preventing the visitors' escape. Errázuriz's farm hands allegedly beat Fernández and pinned him to a truck while Errázuriz punched him in the face. Fernández and ENDESA sued Errázuriz for assault and kidnapping, and in January 1999 the Supreme Court stripped Errázuriz of his senatorial immunity to face trial on these charges. It was the first time a senator had been deprived of his immunity since 1967.
Errázuriz and his wife, Maria Victoria Ovalle, who is herself a member of the Chamber of Deputies, accused the ENDESA lawyer of libel and defamation under Article 6(b) of the State Security Law for insulting them during the scuffle at the ranch. The suit was expanded to include insults Fernández allegedly made against Errázuriz from the hospital bed where he was nursing his injuries from the beating, including a cracked rib. Phrases reported in the national press included "the senator is a crazy cyst who abuses power for his own benefit," and "scoundrels have an example in a Senator of the Republic."56
The Rancagua Appeals Court rejected Errázuriz's case, but he lodged a complaint against the court, claiming, inter alia, that it had wrongly vacated the Article 6(b) accusation on the grounds that no threat to public order was involved.
Errázuriz's lawyers argued that it was "an abuse to demand that (public order) be endangered . . . since the juridical value protected by the norm in question is the moral patrimony of the representatives of the three powers of state."57 In other words, an insult hurled at a congressman is an offense against public order purely due to the status of the target, regardless of the context, or whether the attack was related to his office or was entirely personal. This argument was in line with traditional legal rules applicable to Article 6(b) cases, in which courts have repeatedly held that real damage or threat to public order does not need to be proven in order to sustain the charge, and that it is irrelevant whether the attack relates to the target's official capacity.
Yet, in an important break with its previous approach, the Supreme Court rejected Errázuriz's arguments and acquitted Fernández. It should be noted, however, that Chilean jurisprudence is not binding.58 Indeed, a very different fate awaited fifty-five-year-old farmer Marcos Jaramillo Arriagada, who was convicted under Article 6(b) by the same court in February 2000, in a ruling that strictly followed established doctrine. His case, like the Fernández case, involved Senator Errazuriz .
Studying the two verdicts, Human Rights Watch could find no legal grounds to explain why one man was absolved and the other convicted. It may be relevant to note, however, that Fernández had powerful corporate backing and was defended by a prestigious law firm. Jaramillo, on the other hand, found himself facing the litigious senator alone in defense of his land and his family. He had to rely on a court-appointed lawyer, who resigned from the case hours before the deadline for a last appeal to the Supreme Court.
Marcos Jaramillo Arriagada's family have farmed land in the district of Colchagua, ninety miles south of Santiago, for generations. Jaramillo lives on a ranch bordering the Pacific ocean close to the seaside resort of Pichilemu. In 1993, his aunt sold an estate adjoining Jaramillo's property to Senator Errázuriz. Within a few years,the two men were embroiled in a dispute over their properties' respective boundaries and the ownership of a lagoon which runs between the estates. In 1996, Jaramillo denounced the senator to a local court, accusing Errázuriz of illegally erecting fences on his land and barring him access to the lagoon. The court closed the case in December 1997 without settling the ownership question. Meanwhile, without consultation, Errázuriz's employees, accompanied by his son, removed the existing fence dividing the properties. Incidents like these multiplied and by 1998 there were at least seven lawsuits pending between the two men.59
On January 18, 1998, Senator Errázuriz and his son, armed with shotguns, arrived on horseback at Jaramillo's ranch accompanied by six farmhands and a police officer traveling in a private vehicle accompanied by an Errázuriz employee. Brandishing his gun, according to Jaramillo's account, Errázuriz confronted Jaramillo and warned him that he would suffer serious consequences if he continued to uproot the palm trees the senator had planted around the lagoon. On January 29, Jaramillo filed a writ before the Rancagua Appeals Court, alleging armed trespass and death threats against him and his family. The court admitted the writ. On February 13 there was another violent standoff when Errázuriz's men, in tractors, jeeps and a bulldozer, tried to restake his claim to the disputed land and were met with physical resistance from Jaramillo, his family and employees. Matters came to a head on February 21, after the senator had announced his intention to donate the disputed lagoon to the municipality of Pichilemu as a "resort for the people."
After leaflets had been handed out inviting the public to the lagoon's inauguration and offering as "additional entertainment" the spectacle of Jaramillo's "gang" trying to defend his land, hundreds of day trippers flocked to the site. Violent skirmishes broke out after Jaramillo was unable to prevent their access to the lagoon.
Each of these incidents generated a war of words and conflicting accounts in the press and on television. While Errázuriz disparaged his enemy as "mentally unstable," Jaramillo defended himself by denouncing what he claimed to be the senator's constant abuse of his influence in the courts, the police and the media. Following the events of February 21, Errázuriz filed a criminal libel suit against Jaramillo in Santiago's 11th Criminal Court. When the judge acquitted Jaramillo after finding no intention to insult, Errázuriz filed a second suit, this time under Article 6(b) of the Law of State Security. Investigating judge Victor Montiglio Rezzio of the Rancagua Appeals Court ordered Jaramillo arrested to face charges. On August 27, 1998, police detained him while he was visiting Francisco Fernández in a Santiago hospital where the latter was recovering from his beating at the hands of Errázuriz's employees. Jaramillo was taken to Capuchinos prison, where he was held for six days before being transferred, handcuffed and shackled, to a prison in Rancagua. In all, he spent twelve days behind bars.
On February 8, 2000, Judge Montiglio sentenced Jaramillo to a suspended prison term of sixty-one days, a verdict that was upheld on appeal by the Rancagua Appeals Court. The court was not swayed by Jaramillo's double jeopardy argument (Jaramillo had been acquitted in the earlier suit), ruling that some of the allegedly injurious expressions at issue in the second suit were new (although their tenor was identical to those for which Jaramillo had been acquitted). Nor did it consider that the circumstances of provocation lessened Jaramillo's guilt, even though the court accepted that his conduct "was a response to permanent aggression and attacks which have greatly affected his reputation and honor, and likewise violated his property rights, a situation so unjust that it naturally provoked a reaction of anger and outrage."60 Jaramillo was prevented from appealing the case further. His government-appointed lawyer resigned only hours before the deadline for the submission of a disciplinary complaint against the Rancagua judges to the Supreme Court. The lawyer said he disagreed with the action, and could find nothing wrong with the conduct of the judges.
In February 2001, Senator Errázuriz resorted once more to the State Security Law in defense of his reputation and business dealings, this time targeting El Metropolitano, a small Santiago newspaper. On January 27 and 31, and on February 1, El Metropolitano published articles linking a holding company owned by Errázuriz to a case involving forged legal documents. The newspaper claimed that the forged documents, for which a public notary and his assistant were facing criminal charges, had been used by an Errázuriz-owned company, Inverraz (Inversiones Errázuriz), to preempt a court-mandated embargo of its shares in a private pension company.
On February 5, 2001, Errázuriz filed a criminal lawsuit under Article 6(b) of the State Security Law against Enrique Alvarado Aguilera, director of El Metropolitano, Javier Urrutia Urzúa, its business editor and one of the authors of the articles; and Mireya Muñoz, a photographer, alleging that the articles were defamatory. In particular, the senator objected to the January 27 headline Fra Fra Trapped by Big Scandal: Forged Document Prevented Embargo of Francisco Javier Errázuriz's Shares, and the January 31 headline The Testimonies that Accuse Fra Fra: Affidavit of Forgery Suspect Points to Errazuriz Attorneys.61
On the day the first headline appeared, Errázuriz called up the newspaper and complained directly to the author, Javier Urrutia.62 The senator dictated his observations over the phone to a newspaper official to whom Urrutia had referred him, expecting them to be published with a headline on the following day. Instead, the newspaper published a box on its title page with the title "Errázuriz Says Notary Was Responsible" and a half-page inside article summarizing Errázuriz's version. The senator said in his affidavit that he felt he had been cheated because there had been no headline and the space given to his version was less than he had been led to expect. He did not, however, indicate that any points of fact had been omitted.63
Instead of opening an ordinary criminal libel suit as he would have been entitled to do in believing his reputation to have been maliciously damaged, Errázuriz chose to invoke his senatorial status, with the implication that not only he, but the state, was an injured party in the case. After having been suspended from his senatorial position following the desafuero proceedings, it is open to question whether Errázuriz in fact had legal powers to initiate State Security Law proceedings. In fact, the President of the Senate indicated to the court that although suspended, Errázuriz had not lost his senatorial status.
The inclusion of the photographer, Mireya Muñoz, in the writ, was inexplicable and appeared to be totally arbitrary. She was not accused of any culpable action in the senator's affidavit, and the photograph attributed to her, published on January 27, showed nothing more than an unidentified person viewed from behind entering the office of the notary charged in the case.
Arturo Barrios Oteiza still faces Article 6(b) charges lodged by General Pinochet, of whom he was a vocal critic during his days as a student leader. Now, although he works as an advisor to the Lagos government, Pinochet's legal suit against him still dogs his life. Those like Barrios awaiting judgment under Article 6(b) have their civil and political rights seriously restricted. Because of the seriousness of the alleged offense, once charged they may not vote in national elections, stand for public office, or leave the country for the full duration of the trial.
A former socialist student leader in the early years of the Frei administration, Barrios is still facing a suit under Article 6(b) lodged by General Pinochet in 1995. He has already received one sentence for contempt of authority. In April 1996 he was convicted and sentenced to a 541-day suspended prison term under Article 6(b) for shouting "Pinochet, Contreras and their henchmen are murderers" during the 1994 anniversary of the military coup. Barrios' remark was considered to be criminal calumny in those days (well before the arrest and conviction of the former head of Pinochet's secret police, Manuel Contreras, and years before Pinochet was stripped of his senatorial immunity to face trial for human rights violations).
Now an advisor to Social Affairs Minister Camilo Escalona and with his office in the presidential palace, Barrios is still liable to be convicted for a second offense, dating from June 25, 1995. The occasion was the twentieth anniversary of the "disappearance" of Carlos Lorca Tobar, a socialist member of the Chamber of Deputies, and one of the youngest ever to sit in the Chilean Congress. Addressing a group of some twenty young people at a busy downtown Santiago intersection, Barrios said, with unconscious foresight: "Mr. Pinochet must be judged by the justice of our country as the real culprit for the death of thousands in Chile." In the court investigation, both the Ministry of the Interior and the governor of Santiago declared that they been unaware of the meeting at which Barrios made his comment, and that there had been no disturbance whatsoever of public order.
Despite the fact that Pinochet has subsequently been charged for kidnapping and murder, Barrios still faces defamation charges which could, in theory, lead to a six-year prison sentence if he were convicted (the judge on this occasion would not be able to suspend any prison sentence imposed on Barrios as it would be his second offense, and its repetition would be considered an aggravating circumstance).64 The court investigation has been long completed and the case has now awaited a verdict by the judge, Juan González Zuñiga, for four years. According to Barrios' defense attorney, Maria Elena Oteiza (his mother), both she and attorneys acting for the army have tried to have the case set aside, without result. Oteiza informed Human Rights Watch that in January 2000 she discussed the case with the General Auditor (senior legal official) of the army, who consulted with Commander-in-Chief Ricardo Izurieta. Their decision was to await Pinochet's return to the country from England (where he was still under house arrest) before deciding whether to proceed or drop the case.65 Pinochet has since returned to Chile and now faces trial for the very crimes Barrios denounced, but the case against the former student leader is still open. Consequently, Barrios is still disqualified from exercising his political rights.
Unless Congress grasps the urgency of the State Security Law reforms and approves them rapidly, Chilean democracy will be internationally discredited by further damaging prosecutions and possibly convictions of citizens who exercise their right to denounce abuses. On February 12, 2001, Gen. Hernán Gabrielli Rojas, head of the air force chiefs-of-staff and then acting commander-in-chief, 66 launched a lawsuit under Article 6(b) against three former political prisoners, who had alleged that he participated prominently in the torture of detainees at the Cerro Moreno airbase in Antofagasta in the days immediately following the 1973 military coup.
Carlos Bau, Juan Ruz and Héctor Vera, all of who had been held prisoner at Cerro Moreno, accused Gabrielli of savagely beating a fellow-prisoner, Eugenio Ruíz-Tagle Orrego, who was executed on October 19, 1973, by the military death-squad known as the Caravan of Death. The allegations were made following the publication in theelectronic newspaper El Mostrador of official documents showing that General Pinochet (indicted only weeks earlier by Judge Juan Guzmán Tapia for allegedly ordering the atrocities committed by the Caravan of Death) had been informed by colleagues of Ruíz-Tagle's torture and summary execution, but had denied the veracity of the accounts.
While Gabrielli's decision to invoke the State Security Law (reportedly taken with Commander-in-Chief Patricio Ríos's express consent) alarmed government officials, attempts by Minister of Defense Mario Fernández to persuade Gabrielli to change his mind fell on stony ground. Nor was Fernández successful in persuading Ríos to reassume his duties as soon as his medical leave expired, thereby ending Gabrielli's entitlement to represent the institution in the lawsuit. Compounding the impression of military pressure, government ministers made statements criticizing as irresponsible judicial actions for torture brought by citizens against active members of the armed forces, an ominous departure from the government's stated policy of not intervening in the judicial arena.67 The actions questioned by officials included an obstruction of justice suit filed on January 16 by lawyer Julia Urqueta against all four commanders-in-chief, for allegedly withholding information on the "disappeared."68 As this report went to press, El Mercurio reported that Chile's military top brass were considering the action an attack on military honor and had not "discarded" action against the litigants under the State Security Law.69
At the time of writing, the future of Gabrielli's suit remained unclear. Lawyers acting for the three accused pointed out that the impugned allegations were published in the press before Gabrielli moved into the position of acting commander, and argued that he was not, therefore, entitled to invoke the status.26 See Ruth Walden, Insult Laws: An Insult to Press Freedom (Reston, Virginia: World Press Freedom Committee, 2000), p. 7. 27 Articles 263-265 of the Criminal Code, under the chapter of crimes against order and public security. The archaic nature of these provisions can be seen from the inclusion of a norm that the "a challenge to a duel, whether private or embozado (?) shall be considered a grave threat for the purpose of this article." (Translation by Human Rights Watch.) 28 For a fuller development of this point, see Felipe González Morales, "Leyes de Desacato y Libertad de Expresión," Universidad Diego Portales, Centro de Investigaciones Jurídicas, April, 2000. 29 For a fuller account of the history, see the text cited by Gonzalez (pp. 14-17) and Human Rights Watch, The Limits of Tolerance, pp. 22-24. 30 Article 16 of the Constitution states: "the right to vote is suspended . . . . if the person is facing charges for a crime meriting an afflictive penalty or for a crime which the law classifies as terrorist conduct" (translation by Human Rights Watch). 31 Article 17 of the Constitution. 32 For documentation on cases between 1990 and 1998, see Human Rights Watch, The Limits of Tolerance, pp. 88-101.
33 Alejandra Matus, El Libro Negro de la Justicia Chilena (Santiago: Planeta, 1999). Available on line at http://www.geocities.com/SoHo/Workshop/1132/index.htm. For more than four years Matus was court reporter for the now defunct pro-democracy newspaper La Epoca, and had written extensively on human rights cases. In 1994 she moved to another daily, La Nación. Her lengthy report on the murder of former Foreign Minister Orlando Letelier in Washington, D.C., was published as a book, Crime with Punishment, in 1996, and earned her and her co-author the Ortega Y Gasset award for investigative journalism.
34 In the preface to The Black Book, Matus describes how she had to reply evasively when a journalist from La Tercera called her to ask her permission to print an advance extract from the book before publication, and how their conversation sparked off memories of similar fears at different moments throughout her career. The publishers consulted two experts before approving the final text. Both advised that the publication could lead to a libel suit, but that the risk was worth taking. See Accusation, dictated by investigating Judge Rafael Huerta Bustos, June 11, 1999.
35 The relevant part of Article 16 provides: "In serious cases, the Court may order the immediate confiscation of any edition in which there is a manifest abuse of publicity penalized by this law. The Court may exercise similar powers with regard to any other edition that may be published ostensibly to replace that against which measures have been taken in accordance with this law." (Translation by Human Rights Watch.)
36 See Felipe González, "Leyes de Desacato y Libertad de Expresión," p. 20.
37 Ibid, p. 20.
38 Santiago Appeals Court, decision dated May 27, 1999, reprinted in Gaceta Jurídica, Asociación Nacional de Magistrados del Poder Judicial de Chile, No. 231, September 1999.
39 Article 41 of the Law on Abuses of Publicity allows the judge "to order the collection of no more than four copies of the written or printed matter, posters, films or drawings which have served to commit the crime. But this measure may be extended to all the copies of the abusive work, if it involves crimes against good customs or against the exterior security of the State, or incitation of the crimes of homicide, robbery, arson . . . " In essence this norm allows prior censorship of pornography and material likely to harm national security. Clearly, the "crime" involved in the publication of the Black Book, being a public order offense, did not reach the level of seriousness required for censorship under the Law on Abuses of Publicity. The court, which addressed this point, ruled that the State Security Law took precedence, being a special law dealing with matters of state security. Ibid., commentary by Jean Pierre Matus Acuña.
40 The wording in Article 17 is "a falta de" which could be translated as "in the absence of."
41 "Ordenan al Estado garantizar libertades de A. Matus," La Hora, July 26, 1999.
42 Alejandra Marcela Matus Acuña v. Chile, Case 12.142, Informe N/ 55/00 (October 2, 2000).
43 "Rechazan recurso de periodista," El Mercurio, April 4, 2000.
44 Submission by Enrique Paillas Peña, Fiscal de la Corte Suprema, dated May 31, 1999.
45 E-mail communication from Alejandra Matus, February 5, 2001.
46 In July 2000, Human Rights Watch announced that Alejandra Matus was among a diverse group of writers from twenty-two countries to receive grants recognizing their courage in the face of political persecution. The Hellman/Hammett grants are given annually by Human Rights Watch to writers around the world who have been targets of political persecution. The grant program began in 1989 when the estates of American authors Lillian Hellman and Dashiell Hammett asked Human Rights Watch to design a program for writers in financial need as a result of expressing their views.
47 See Human Rights Watch, The Limits of Tolerance, pp. 98-101, for more details about the impeachment.
48 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. In Article 6 (b) cases there is no avenue of appeal to the Supreme Court for a final cassation judgment.
49 Judgment, February 15, 2000, paras. 8,10.
50 "Caso Jordán: atribuyen inhabilidad a abogado integrante," El Mercurio, February 17, 2000. The event was the funeral wake of the former Chief Justice, Roberto Dávila. According to Ale's statement to the court, Bullemore refused to shake his hand on being introduced, and said: "You are a professional slanderer. I don't know how you have the nerve to turn up here, in the presence of Mr Dávila. You should not be here. You are directing a campaign to discredit me. Lots of people have called me in your name just to insult me and rubbish my honor. This won't end here. Take care, because life is full of surprises." Submission to the Supreme Court (Tengase Presente, Excma Corte Suprema), January 28, 2000. Bullemore later admitted having made the remarks, but claimed that he had already drafted the sentence when he made them. See Mariela Thomas and Pablo Vergara, "Bullemore: el fallo ya estaba redactado,"La Hora, February 17, 2000.
51 The Human Rights Committee of the United Nations affirmed that impartiality "implies that judges must not harbor preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties." Karttunen v. Finland, (387/1989), 23 October 1992, Report of the HRC, vol. II, (A/48/40), 1993, at 120, para. 7.2.
52 Constitution of Chile, Article 19(12) at paragraph 3.
53 Constitution of Chile, Article 3. (Translation by Human Rights Watch.)
54 Supreme Court. Don Francisco Bartucevic Sánchez v. Ministro don Haraldo Brito Cruz y don José Luis Ramaciotti Fracchia, July 29, 1999, p. 10. One of the drafters mentioned is Sergio Díez Urrutia, formerly Pinochet's ambassador to the United Nations, and currently an appointed senator.
55 José Luis Cea Egaña, Constitución de 1980, p. 100, cited by dissenting judges Correa Bulo and Pérez Zañartu.
56 Cited in the Recurso de Queja (writ of complaint) lodged by Errázuriz against the Appeals Court of Rancagua.
58 According to Article 3 of the Civil Code, "judicial sentences do not have binding force except in regard to the cases being ruled upon." (Las sentencias judiciales no tienen fuerza obligatoria sino respecto de las causas que actualmente se pronunciaren.)
59 Human Rights Watch interview with Marcos Jaramillo Arriagada, January 26, 2001.
60 Decision of Investigating Magistrate Victor Montiglio Rezzio, Rancagua, February 8, 2000.
61 In Chile Francisco Javier Errázuriz is popularly known as Fra Fra.
62 Errázuriz tried but was unable to reach Alvarado, the newspaper's director, who was in Viña del Mar the day the article appeared. Human Rights Watch interview with Enrique Alvarado Aguilera, Javier Ignacio Urrutia Urzúa and David Hevia of El Metropolitano, February 19, 2001.
63 Iltma. Corte de Apelaciones, affidavit by Francisco Javier Errázuriz, February 5, 2001.
64 "Arturo Barrios podría ser condenado a seis años de cárcel," La Tercera, February 8, 2000.
65 Telephone interview and faxed communication from attorney Maria Elena Oteiza Mannarelli, February 28, 2001.
66 The titular commander-in-chief, Gen. Patricio Ríos, was recovering from heart surgery when the lawsuit was launched.
67 The most forthright such appeal came from Interior Minister José Miguel Insulza. "Torturas en 1973: Insulza pide que no proliferen las denuncias," El Mercurio, February 15, 2001.
68 Chilean human rights groups, and relatives of victims of human rights violations during the military government, were convinced that the armed forces had withheld information provided in January 2001 following an agreement reached at the so-called Dialogue Round-Table (Mesa de Diálogo).
69 "FF.AA. y Carabineros alistan defensa en conjunto," El Mercurio, February 17, 2001.