Freedom of expression and information.

Undoubtedly, for some years there have been intents in Venezuela to hamper freedom of expression and information. We have seen how, when Government had the most powerful and unique foreign currency-dispensing tool, under the exchange control system, it was used to create difficulties to editors not too friendly with the government when they required paper print imports. Recently we have observed the arrest of a university philosophy professor and "astrologer" for having predicted, at a private economic and political discussion forum, the not so far away disappearance of the Head of State. On another hand, there has been legislation that, when pretending to favor the professional journalists what it really do is violate the freedom of expression and information

Venezuela Analítica thought that it should include now, in the series of comments of the essays in honour of Thomas Buergenthal The Modern World of Modern Rights, essay number 9, by José Thompson.

Freedom of the Press in the Inter American System of Protection of Human Rights is the title of the essay by José Thompson, Professor of International Law at the University of Costa Rica's faculty of Law. The issue of the freedom of the press is most interesting and present, ate least in our of the hemisphere facing so strong and powerful professional corporations in some kind of return to medieval guilds.

To start, Thompson tells us what he thinks is freedom of the press: "that human right determining the possibilities of use and restriction to the use of the right to transmit and to receive oral or written information through socially existing communication media" (Added bold characters). He then goes to consider freedom of the press in substantive norms of the Inter American human rights system.

As a historical summary of the evolution of the Inter American human rights system, we are reminded that the first norm setting intents are found in the Chart of the Organization of American States and that the Inter American Human Rights Commission was created prior to the adoption of the American Convention and that the latter came to influence the Commission's attribution of competence. There is also a reference, in this historical summary, to two basic documents: The American Declaration on the Rights and Duties of Mans and of the American Human Rights Convention. It is made clear that the latter does not derogate the former but that it recognizes it, in article 29.

"No provision of this Convention shall be interpreted as …d) excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have."

Thompson uses this historical disquisition as ground to conclude that both the Inter American Commission of Human Rights and the Court, are governed, other than by provision of the Convention, by the provisions of the Declaration as to problems dealing with freedom of the press. In effect, he reminds us that the American Declaration, in its article IV provides that all persons are entitled to freedom of research, opinion and expression an to diffuse knowledge by any means. Stressing on this competence of both bodies of the Inter American Human Rights system, there is also a citation of what is said in article 13 of the Convention, quoted by him, as follows:

1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
   1. respect for the rights or reputations of others; or
   2. the protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2 above, public entertainment may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.

Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

Thompson points out the importance given by the Convention to what, according to him, today "could be known as the right of information". He underlines also that, under the same instrument, any limitation to this right of information may only be established by way of legislation. He warns on the care one should have, in Latin American, when using "national security" to justify limitations to a so well protected right.

José Thompson's work reviews then in detail the treatment of the problem of freedom of the press within the inter American system of human rights protection, through the action of the Commission and the Court in four main fields. He informs that the Commission has been led to consider the issue of freedom of expression in four main areas: "attempts against this right within the frame of a systematic policy of violation of Human Rights, without any special distinction between political motives and attempts against the media; facts configuring violations of freedom of expression through harassment of journalists; specific cases of unjustified limitation to press media; and only two individual cases. We shall limit ourselves hear to summarize the two individual cases, warning that the second is quite relevant nowadays in Venezuela.

The case of Nicolas Estiverne against Haiti is cited. This Haitian citizen had claimed before the Commission that his government "had declared him a non grata persona" in 1987 and had persecuted him as a result of his permanent criticizing of that country's politicians, The Commission determined that Haiti had violated a series of Estiverne's rights and freedom of expression, but, in reality, it did not consider freedom of the press as such. The other cited case, already a famous one among those who study the problem of freedom of the press, is that of the U.S. citizen, Stephen Schmidt.

Schmidt's case is resumed briefly as follows"

"Stephen Schmidt, a North American citizen, denounced Costa Rica before the Commission for violation of the right of expression by virtue of the fact that he had been criminally condemned for unlawful practice of a profession, a criminal action contemplated by the law of Costa Rica applied to those who practice a profession without being incorporated to the correspondent professional Corporation. In the case of Costa Rica this included, also, journalism under provision of legislative act 4420 of 1959. In a judgment rendered by the Third Hall of the Supreme Court of Justice, on June 3, 983, Schmidt was sentenced to serve a term of three months in prison.

One of this case's peculiar features was the fact that Schmidt had been awarded the professional degree of journalist by a private university of Costa Rica, which degree was not accepted by the College of Journalist for valid professional incorporation.

When referring that the Inter American Commission of Human Rights decided that said act 4420 and the judgment by the Third Hall of the Supreme Court of Costa Rica did not violate article 13 of the Convention, Thompson quotes also the dissenting vote of commissioner Bruce McColm, according to whom "…the limitation created when denying [Schmidt] his right to diffuse information or ideas without previous permit or authorization, constitutes a violation of article 13 of the Convention…" Thompson says also that this issue was again reviewed by the Inter American human rights system, at the level of the Inter American Court. In effect, the government of Costa Rica, applied for a consultation before the Court in order to determine if the Organic Statute of its College of Journalists, "was compatible with the Convention's provisions". Thompson resumes how the Court saw the issue and informs on the contents of the Court's opinion. This is what Thompson says:

"In its reasoning prior to adopting the opinion, the Court underlined the importance of the freedom of the press when saying that ëfor the common citizen the knowledge of others' opinion or of the knowledge others may have is as important as the right to diffuse its own. When comparing with the two relevant articles of the European Convention --article 10-- and the International Covenant on Civil and Political Rights --article 19--, there was wider emphasis on the provision of the San Jose Covenant's article 13. This is specially notorious in the protection of the communication media, when going as far as to prohibit indirect censorship.

It was the court's position that in the case of freedom of expression we were ëfacing a corner stone in the very same existence of democratic society… (y) it is possible to assert that a society not being well informed is not fully free. In this manner, the Court found that freedom of expression should be treated as a fundamental right not only in view of its own force, but also as a foundation of the democratic system. Hence, the Convention's quite clear statement as to authorized restrictions to it use…"

"…Concluding that mandatory incorporation of journalists to a college is not a valid limitation to freedom of expression as it is consecrated by the Convention, the Court was also of the opinion that Costa Rica's Act 4420 of 1969 known as the Organic Statute of the College of Journalists, was not compatible with article 13 of the Convention when authorizing the performance remunerated journalism to members of the College and then limiting access to the College to those graduating from a single university school".

The essay concludes by citing another case brought to the Court for its opinion, related to the right of rectification or answer, expressing that it is sad that the only important case that has been known by the Inter American system, that is the above cited case of Stephen Schmidt, was the subject of a hurried decision by the Commission and of an opinion setting most important precedent but, unfortunately, since it is the result of the Court's consulting jurisdiction are not of its contentious jurisdiction implicating a decision having binding effects. The Government of Costa Rica paid little attention to the opinion and kept the Organic Statute of the College of Journalists with full force.

IIDH, San José, Costa Rica, 1996

(ISBN 9977-962-71-5)