In February , six individuals, three of them former political prisoners under the military dictatorship, three of them journalists working for a Santiago newspaper, were accused of insulting public authorities, a crime under Chile's notorious State Security Law. They faced trial and possible imprisonment for exercising their right to free expression. This sudden crop of new State Security Law prosecutions has once more thrown into sharp relief the Chilean state's long-standing failings in the area of freedom of speech. Since Human Rights Watch's report The Limits of Tolerance: Freedom of Expression and the Public Debate in Chile was published in November , Chile has publicly recognized the need to make extensive legal reforms to protect freedom of expression.

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In February , six individuals, three of them former political prisoners under the military dictatorship, three of them journalists working for a Santiago newspaper, were accused of insulting public authorities, a crime under Chile's notorious State Security Law.

They faced trial and possible imprisonment for exercising their right to free expression. This sudden crop of new State Security Law prosecutions has once more thrown into sharp relief the Chilean state's long-standing failings in the area of freedom of speech. Since Human Rights Watch's report The Limits of Tolerance: Freedom of Expression and the Public Debate in Chile was published in November , Chile has publicly recognized the need to make extensive legal reforms to protect freedom of expression.

Progress toward these reforms, however, has been dismally slow. Indeed, most of the reforms described in our report as pending in Congress still await enactment more than two years later. The most glaring example of the sluggish pace of reform is the bill to regulate the press and to protect the rights of journalists hereinafter referred to as the "Press Law" , which has languished in Congress for a full eight years.

The bill was expected to finally become law during the first year of the government of President Ricardo Lagos, who entered office in March , but such hopes were dashed when legislators failed to agree on the package before Congress began its summer recess in February The draft Press Law includes long-overdue provisions to eliminate the crime of contempt of authority desacato from the State Security Law, and to strip judges of their powers under that law to confiscate publications.

It was not until April nine years after Chile returned to democracy that the administration of Lagos' predecessor, Eduardo Frei Ruiz-Tagle, first announced legislation to repeal these sections of the State Security Law, which clearly violate binding international norms on freedom of expression.

Since then, twelve journalists, editors, politicians, and ordinary citizens have been convicted, charged, or face trial under the State Security Law for exercising their right to freedom of expression. A consensus has emerged, albeit painfully slowly, on the need to do away with these antiquated provisions, which make criticism of public authorities a public order offense subject to especially severe penalties.

While this is an advance on earlier years, the political will needed to repeal them has been lacking. Moreover, even assuming that these undemocratic laws are soon rescinded, the principle on which they depend — that authorities of state deserve special protection against "unreasonable" criticism — has still not been seriously challenged by Chile's lawmakers. Indeed, during the congressional debate on the Press Law, a government effort to repeal the contempt of authority provisions of the ordinary criminal code which are very similar in wording to the questioned articles of the State Security Law was decisively rejected.

Some members of Congress, faced with the prospect of these provisions' repeal, even sought to introduce a measure that would make criticism of government authorities an especially grave form of libel. Proposals like this run counter to international freedom of expression principles now well established in democracies across the world. Indeed, international human rights law holds that the limits of permissible criticism must be wider with regard to a person in public office than with regard to a private citizen, because of the overriding need in a democracy for public authorities to be held accountable to public opinion.

Tolerance of criticism, even ill-founded and unfair criticism, is one of the obligations of public office in a democracy. Chile's politicians have shown little sign that they appreciate the overriding importance of this principle. To implement it, all crimes of contempt of authority and criminal defamation protecting government officials must be eliminated from the legal system. Until that is achieved, the repeal of sections of the State Security Law will only be a partial, even if important, advance.

Other reforms in the proposed Press Law address additional concerns that Human Rights Watch highlighted in its report. They also include the transfer to civilian courts of all cases of journalists prosecuted for offenses connected with their trade some crimes of opinion, such as "sedition," are still dealt with by military courts.

Under the new law, fines would replace prison sentences for journalists convicted of criminal libel. Journalists but only those with an officially recognized professional title would enjoy an exemption from the obligation to reveal the identity of their sources to the courts.

All of these long-overdue reforms still await approval in Congress. In other areas relating to free expression, as well, progress has been painfully slow. Congress has moved at snail's pace to push through a constitutional reform, first introduced by the Frei government in , to eliminate film censorship.

While the Chilean government does not currently censor films, it still enjoys the legal authority to do so, authority that is expressly granted it in the Chilean constitution. Representatives of the armed forces and Carabineros, the uniformed police, still sit on the official film censorship board. The board may review any video that enters the country in a traveler's suitcase or a mail-order package, and prevent its owner from seeing it, even in private.

Films prohibited in earlier years, including many banned for ideological reasons under the military government , still may not be seen in cinemas or on broadcast television or video.

Yet the film still cannot be seen legally in Chile. Access to official information is the only free expression right that has been strengthened under Chile's center-left government coalition, the Concertation of Parties for Democracy, which has ruled without interruption for a decade. A Bill on Honesty in Public Administration, establishing that "the acts of the organs of public administration are public, apart from the exceptions established by law," was promulgated in December The bill amends the law that regulates public administration and local government in Chile, establishing that the public has a right of access to official documents except in certain defined circumstances, and providing a mechanism of redress if requests for information are ignored or arbitrarily denied.

Some key cases in , however, reveal that public authorities are still reluctant to concede ordinary members of the public access to such information. Thus, although the restrictions of earlier years have been somewhat relaxed, Chile's balance sheet on freedom of expression is still deeply in debit, and will remain so even if the Press Law is approved in its present form.

A great deal remains to be done to bring Chile's laws into line with international standards. As noted, even if it is eventually expunged from the State Security Law, the crime of contempt of authority will live on in the Criminal Code, and in military laws. Judges will still have powers to remove publications of public interest from circulation to protect the honor of litigants.

Privacy laws currently in force unnecessarily limit the press in covering matters of public interest. Journalists remain at risk of criminal prosecution and imprisonment for violating secrecy rules.

In sum, Chile has failed to embrace the tolerance of divergent opinion that a vibrant democracy requires. The repeal of Article 6 b of the State Security Law, which prohibits insult or defamation of the president, the commanders-in-chief of the armed forces, senior members of the judiciary, and legislators, should be approved in the near future. After almost a decade in which the issue was scarcely addressed by successive governments, a consensus in favor of repealing the provision emerged in the late s.

This was in large part due to the use made of the law by questioned public figures in and Moreover, the survival of a law based on the notion that political criticism threatened public order and the security of the state was unacceptably at odds with the democratic principles professed by most of Chile's politicians. In April , the Frei government promised, with cross-party support, to repeal the law and it backed legislation to do so.

Yet it is doubtful whether the growing consensus in support of reform of the State Security Law amountedto a genuine acceptance of the principle that government officials and legislators should lose their special protection against unfair or offensive criticism.

The Chilean Congress has mauled every proposal placed before it, demonstrating an obvious reluctance to do away with the special provisions that protect members of Congress as well as executive-branch officials. In the meantime, prosecutions under the law have continued unabated. Since the publication of our report, twelve individuals have been convicted, charged, or are currently facing accusations of contempt of authority under the State Security Law.

As this report went to press in February, Gen. While government officials said they deplored Gabrielli's resort to the law, they failed to persuade him to file an ordinary libel suit instead. The armed forces, whose commanders-in-chief had themselves recently been accused in court of obstructing justice by withholding information on the "disappeared," backed Gabrielli's decision.

The case demonstrated, once again, the proclivity of senior military officers to utilize repressive national security legislation to penalize or deter their critics or those who question their records. Chile is unique in Latin America in considering insulting expressions about those who hold office or power to be a crime against public order and state security.

Such offenses are indeed subject to more drastic punishment than ordinary libel. The State Security Law, promulgated in , goes well beyond the legitimate prohibition of actions that might threaten public order or the stability of democratic institutions, and also punishes criticism considered contemptuous or defamatory by public officials.

In practice, this means that all criticism of those in authority must remain within certain undefined limits. While the right to criticize is accepted, the principle underlying the law is that, to merit legal protection, criticism must be responsible and respectful. The use of criminal sanctions to enforce such deference to authority unnecessarily restricts freedom of expression, thereby stifling public debate.

The most authoritative standards by which to assess laws that restrict freedom of expression in Chile are set out in the human rights treaties Chile has ratified. Particular relevant are Article 19 of the International Covenant on Civil and Political Rights and Article 13 of the American Convention on Human Rights, as well as the jurisprudence of the bodies that monitor the implementation of these standards. Although not legally binding on Chile, the standards interpreted by the European Court of Human Rights, which has developed a particularly rich jurisprudence on freedom of expression issues, are also pertinent.

The Inter-American Commission on Human Rights, which monitors observance of the American Convention, has often cited decisions of the European Court as legal precedent. In landmark cases like Lingens v. Austria and Castells v. Spain , the court has consistently held that government officials and politicians should expect to tolerate a greater degree of criticism than ordinary citizens, given that they have voluntarily entered the public arena.

In the Castells case, the court held that such tolerance must extend not only to ideas that are "favorably received," but also to those that "offend, shock or disturb. As the court explained in Castells: "In a democratic system the actions or omissions of the Government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion. This report, which cites the European jurisprudence at length, found that laws that penalize offensive expressions directed at public officials, generally known as "desacato laws," violate Article 13 of the American Convention on Human Rights.

Principle 11 of the Inter-American Declaration of Principles on Freedom of Expression, approved by thecommission at its th regular session, codifies the same finding. Nonetheless, the Chilean Supreme Court has failed to find the country's State Security Law to be inconsistent with Chile's international obligations to protect freedom of expression. These obligations are recognized in the second paragraph of Article 5 of the Chilean Constitution, which provides that "the exercise of sovereignty recognizes as a limit respect for the essential rights that emanate from human nature.

It is a duty of the organs of State to respect and promote these rights, guaranteed by this Constitution, as well as by the international treaties ratified by Chile and in force. Yet in April , on hearing a legal challenge to the law, the court refused to grant a writ finding that the law was unconstitutional. Criticism of the State Security Law in political circles was muted during most of the s.

During the early part of the decade, the great majority of prosecutions were brought by military officials, including Gen. Augusto Pinochet then still its commander-in-chief , and were leveled against human rights critics. One such prosecution is still pending and is described later in this report. While no executive branch officials have initiated prosecutions since the return of democracy, members of the judiciary have done so on more than one occasion, and Congress itself prosecuted a former Pinochet minister Francisco Javier Cuadra in defense of the honor of the institution.

These cases make it difficult to argue that this type of contempt allegation is merely a remnant of authoritarian attitudes typical of military rule. The Cuadra case, in particular, was revealing in that the accusation stemmed from the legislature, and that the freedom of expression issues it raised were never subject to a serious debate at the time. There was, in fact, a "blind spot" in relation to the law and its human rights implications. Proposals for the law's repeal were not adopted by the government until , even though the Press Law, designed to protect the rights of journalist, had been in Congress since On the day of book's publication, he had all the copies in print impounded under Article 16 of the State Security Law, which allows judges "in serious cases" to order the confiscation of the entire stock of a publication.

The actions of the former Chief Justice, who had recently escaped impeachment on corruption charges, created a political storm. A group of parliamentarians from the government coalition promptly tabled a motion in the Chamber of Deputies to amend Article 6 b and Article 16 of the law to abolish the crime of contempt of authority and strip judges of the power to impound all copies of books and magazines.

More prosecutions followed, however, before any progress was reported in the parliamentary debate on the proposed reforms. In June , two senior representatives of Matus' publishers, Planeta, were detained overnight and charged with contempt of authority, under a provision of the law which establishes a chain of criminal responsibility extending to editors, publishers, and eventually even to the printers of an offending document.

His conviction reversed several lower court decisions absolving him of any crime. During the Special Rapporteur on Freedom of Expression's visit to Chile in June , which took place soon after the arrest of the Planeta representatives, government officials and members of the Chamber of Deputies made a public commitment to remove contempt of authority laws from the statute books in Chile. In October , the Inter-American Press Association, meeting for its 56th General Assembly in Santiago, noted with concern that, after fifteen months, Chile had still failed to implement these promises.

Since then, government representatives have told Human Rights Watch repeatedly that they expected that the law would pass within a matter of months. But still therehas been no progress. After an initial consensus was reached regarding the need to amend Article 6 b , the contempt of authority provision, as well as other articles of the State Security Law, the government decided to incorporate the contempt of authority reforms into the proposed Press Law package.


Legal and Regulatory Framework

Groups sympathetic to or related to banned groups must be allowed if they have no history of violence. Esta ley se estructura de la siguiente manera: A YES score is earned if there are any formal rules by law or regulation controlling private contributions to political parties, including prohibitions against foreign donations. Print media entities can freely organize with little to no interaction with the government. In law, there is a confirmation process for national-level judges i. Constitutional Conferences Part V. A YES score is earned if there is a legal or regulatory requirement for independent actuwlizada of civil service asset disclosures. Judges routinely accept significant amounts of gifts and hospitality from outside interest groups and actors seeking to influence their decisions.



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Chile - Progress Stalled: Setbacks in Freedom of Expression Reform


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