REPORT Nº 55/00
CASE 12.142
ALEJANDRA MARCELA MATUS ACUÑA ET AL.
CHILE*
October 2, 2000 

 

          I.          SUMMARY 

1.       On April 13, 1999, El Libro Negro de la Justicia Chilena [The Black Book of Chilean Justice], written by journalist Alejandra Marcela Matus Acuña and published by the Planeta Publishing Company of Chile, was released in that country.  On that date also, all copies of the aforementioned book were confiscated, under judicial proceedings instituted for violation of the State Security Law of Chile.  On June 16, 1999, Messrs. Bartolo Ortiz and Carlos Orellana, executives at the Planeta Publishing Company in Chile were arrested as part of these proceedings. Two days later, they were both released and charges against them dropped.  Journalist Matus Acuña left the country and has not returned to Chile, since she thinks that she would be detained in proceedings that violate Chilean law and the American Convention on Human Rights (“the American Convention”).  As of the date of this report, the books remain confiscated, and the judicial proceedings in regard to which the journalist has been declared to be in contempt of court, remain open. 

          2.       On April 26, 1999, the Inter-American Commission on Human Rights (“the IACHR” or “the Inter-American Commission”) received a request for precautionary measures from the Center for Justice and International Law, CEJIL, and the Legal Clinic for Public Interest Actions of the Chilean Diego Portales University (AIP Clinic), on behalf of 30 persons whose right to receive information had been impaired by the aforementioned restrictive measure.^[1]  The IACHR subsequently received a petition from the Association of Attorneys for Public Freedoms in Chile (“AALP”), on behalf of five attorneys from that country,^[2] contending that the confiscation of El Libro Negro is an arbitrary and illegal measure and that it violates Articles 1(1), 2, and 13 of the American Convention.  In this petition, the IACHR is asked to establish the international liability of the Republic of Chile (“the Chilean State” or “the State”). CEJIL and the AIP Clinic also filed a petition claiming violation of the right of Alejandra Marcela Matus Acuña and all members of the society to freedom of expression as a result of prior censorship of El Libro Negro de la Justicia Chilena, as well as violation of that journalist’s right to property, since it held that, because of a legal decision, this individual had been denied the right to revenue to which she was entitled under the contract signed with the Planeta Publishing Company.

          3.       The Chilean State reports that the two executives at the Planeta Publishing Company were released two days after detention and charges against them dropped, that there is no outstanding warrant for the arrest of Alejandra Matus, that a draft law has been submitted for amendment of the State Security Law, under which, according to the State, provisions that violate freedom of expression will be repealed, and that the journalist’s intellectual property right to her book is not at issue. 

          4.       In this report, the IACHR concludes that the case meets the requirements set forth in Articles 46 and 47 of the American Convention.  Consequently, a decision has been made to declare the case admissible, to notify the parties of this decision, and to continue analysis of the merits related to alleged violation of Articles 2, 8, 13, and 21 of the American Convention. 

          II.          PROCEEDINGS BEFORE THE COMMISSION 

          5.       The IACHR contacted the Chilean State on April 28, 1999, and requested information, within 10 days, regarding the request for precautionary measures submitted by CEJIL and the AIP Clinic on behalf of the 30 persons listed in footnote one, and all the residents of Chile. 

          6.       On April 28, 1999, the AALP submitted a petition on behalf of its five members, alleging human rights violations resulting from the confiscation of the copies of the book  El Libro Negro de la Justicia Chilena, cited in the request for precautionary measures mentioned above.  On May 4, 1999, the Commission assigned the number 12.142 to the case and requested information from the Chilean State on the pertinent parts of the AALP report within the 90-day period established for this purpose. 

          7.       On May 7, 1999, the State requested “an extension of the deadline fixed for providing information related to this case,” due to the fact that the IACHR communication of April 28, 1999 was not received by the Permanent Mission of Chile to the Organization of American States until May 6, 1999. 

          8.       On June 18, 1999, the Inter-American Commission asked the Chilean State to adopt precautionary measures on behalf of Messrs. Bartolo Ortiz and Carlos Orellana, the General Manager and Editor-in-Chief of the Planeta Publishing Company, respectively. Specifically, the IACHR requested that the arrested warrant issued for both persons be withdrawn, as well as the decision to institute proceedings against them for publication of El Libro Negro de la Justicia Chilena. 

          9.       On June 30, 1999, a request was received for precautionary measures on behalf of Alejandra Marcela Matus Acuña, who claimed that her security and personal integrity were threatened as a result of the warrant for her arrest issued by Judge Rafael Huerta Bustos and by the declaration that she was in contempt of court in the criminal proceedings instituted against her.  The journalist charged that her right to freedom of expression and intellectual property, as the author of El Libro Negro de la Justicia Chilena, was also impaired, to the extent that the judicial decision prevented the distribution and sale of this book.  In that communication, Alejandra Marcela Matus Acuña appointed Jean Pierre Matus Acuña and the Executive Director of Human Rights Watch, Americas Division (HRW/Americas), José Miguel Vivanco, as her legal representatives.  On July 19, 1999, the IACHR contacted the State with a view to expansion of the precautionary measures to include journalist Matus Acuña, with respect to protection of the rights mentioned. 

          10.     On July 30, 1999, the State indicated that the Chilean authorities were “analyzing the recent information” furnished by the Commission with respect to this case, and that it was its understanding that the 60-day time period for the provision of information was to be added to the 90 days mentioned in the communication of May 4, 1999, the date on which the IACHR opened the case. 

          11.          Alejandra Marcela Matus Acuña submitted a document on August 11, 1999, in which she asked the IACHR to submit another request to the Chilean State for precautionary measures or to issue new measures, since her situation had not changed.  On August 23, 1999, the Inter-American Commission contacted the Chilean State and submitted another request for precautionary measures on behalf of the journalist.   

          12.     On October 4, 1999, during its 104^th session, the Inter-American Commission held a hearing related to this case, which was attended by the representatives of the Chilean State, journalist Alejandra Marcela Matus Acuña, and representatives of Human Rights Watch/Americas, CEJIL, and the AIP Legal Clinic. 

          13.     On October 6, 1999, CEJIL and the AIP Legal Clinic sent correspondence to the IACHR on behalf of 27 Chilean citizens, in which they claimed violation of the American Convention in the case of the confiscation of El Libro Negro de la Justicia Chilena.^[3]  The Inter-American Commission acknowledged receipt of this correspondence on October 12, 1999, and included it in the file. 

          14.     In correspondence from Dr. Jean Pierre Matus Acuña dated October 8, 1999, he asserted that the act of declaring the journalist in contempt of court goes hand in hand with an arrest warrant or the imminent issuance of such an order.  The Commission forwarded this correspondence to the Chilean State on November 29, 1999 and asked for its comments in that regard. 

          15.     On December 30, 1999, the Chilean State provided its response to Case 12.142 and to the various requests for precautionary measures on behalf of the persons mentioned above. 

          16.     On March 28, 2000, the IACHR made itself available to the State and petitioners for the purpose of reaching a friendly settlement of the case.  A time period of 30 days was established for that purpose, which elapsed with no written response from the parties.  

          17.     On June 14, 2000, CEJIL and the AIP Legal Clinic reiterated and expanded their claims related to the case filed by them on October 6, 1999. 

          18.     On June 16, 2000, the Chilean State sent a certificate to the IACHR issued by the President of the Chilean Supreme Court, stating that Mrs. Alejandra Marcela Matus Acuña had been declared in contempt of court on May 14, 1999, in the case against her for violation of Law No. 12.927, but that no arrest warrant had been issued against her in that case, which was in the preliminary phase. 

          19.     The Inter-American Commission contacted the Chilean State on July 11, 2000, in order to provide it with the relevant parts of the June 14, 2000 correspondence of the petitioners and to request its comments.  On that date, it informed the petitioners of the certificate provided by the Chilean State.  

20.          The IACHR Special Rapporteur for Freedom of Expression, Dr. Santiago Canton, presented his commentaries and observations pertaining to the instant case, in which he concluded that it is admissible.  The Inter-American Commission considered them during its analysis of the case. 

          III.          POSITIONS OF THE PARTIES 

          21.          During the processing of this case, the Inter-American Commission received various petitions and requests for precautionary measures on behalf of several persons, including journalist Matus Acuña.  All the documents and requests are linked to the alleged violation resulting from the court-ordered confiscation of El Libro Negro de la Justicia Chilena. Later on, in discussing the position of the petitioners, the IACHR will summarize the arguments of the representatives of journalist Matus Acuña, and, where relevant, the other correspondence received with respect to this case. 

          A.      The petitioners 

          22.          Journalist Alejandra Marcela Matus Acuña reports that on April 13, 1999, the Planeta Publishing Company made a public announcement that an investigation was being launched in Chile into her book entitled El Libro Negro de la Justicia Chilena.  That same day, at the request of the President of the Chilean Supreme Court, Servando Jordán López, the Santiago Court of Appeal appointed Rafael Huerta Bustos as the court President to investigate the alleged violation of Article 6(b) of Law No. 12.927 (State Security Law), which imposes sanctions on “those who defame, slander, or libel the President of the Republic, Ministers of State, Senators or Deputies, members of the superior courts, the Comptroller General of the Republic, Commanders-in-Chief of the Armed Forces, or the Director General of the National Police, whether or not this defamation, slander, or libel was committed by reason of the office of the victim”. 

          23.     The journalist also claims that on that day, Judge Rafael Huerta Bustos ordered the confiscation of the entire press run of El Libro Negro as a “precautionary and preventive measure in defense of the alleged victim’s honor,” despite the fact that no final ruling had been handed down.  Mrs. Matus Acuña describes the situation as follows:

One thousand one hundred and forty-one copies of the book were confiscated by the law and order forces on April 14, 1999, from the storeroom of the Planeta Publishing Company and bookstores in Santiago.  The subsequent reprinting of this book was banned, pursuant to the provisions of Article 16 of the State Security Law.  From that time to the present, the confiscation order has remained in effect, and it has already been three months since I have been denied my right to freedom of expression without prior censorship and my legitimate right to the intellectual property confiscated, the publication of which has been banned under the law.^[4] 

          24.          Journalist Alejandra Marcela Matus Acuña contends that the Chilean State has violated her right to freedom of expression, enshrined in Article 13 of the American Convention, as well as her right to property guaranteed under Article 21 of said Convention. In addition, having reviewed the response of the Chilean State, CEJIL and the AIP Clinic maintain that the case should be analyzed from the broader standpoint of the right to freedom of expression and autonomy of all persons.  They therefore question the fact that the State failed to refer to the request for precautionary measures  filed on behalf of the 30 persons listed in this report.  The representatives of the journalist claim that the submission of the proposed amendment to Law 12.927 on State Security does not represent fulfillment by Chile of its international obligation; instead, this action confirms that this law violates the American Convention.  Since this law is still in effect, the petitioners hold the view that it constitutes “a flagrant violation of the American Convention”. They proceed to analyze in detail the amendments to Law 12.927 approved by the Chilean Chamber of Deputies, which they consider to be “insufficient to guarantee freedom of expression, since they fail to address and/or amend Articles 263 et seq. of the Penal Code.” 

          25.     In regard to the right to property, the petitioners contend that the intellectual property right of Alejandra Marcela Matus Acuña to El Libro Negro de la Justicia Chilena should be considered an asset and, as such, to be protected under Article 21 of the American Convention.  In that regard, they maintain: 

[The Chilean State] is seeking, unlawfully, to limit the concept of assets to physical and tangible assets only, such as the books confiscated, and is overlooking the rights derived from intellectual property ownership of the work, based on which, as is the customary practice with the publication and distribution of books, the author of a work receives a percentage of the revenue generated from the sale of the work.^[5] 

          26.          Journalist Matus Acuña maintains that, pursuant to Article 27(k) of the State Security Law, the decision of Judge Rafael Huerta ordering the confiscation of all copies of El Libro Negro cannot be appealed before a higher court.  However, this law provides for a special review in cases to which Article 16 is applied, the course of action followed by Judge Huerta.  The journalist refers to the exhaustion of domestic remedies in this case: 

In the exercise of the action allowed under this remedy, called a “claim,” on May 13, 1999, my representatives filed the pertinent complaint with the Santiago Court of Appeal, which was processed under No. 29,063-99.  However, on May 27, 1999, the Fourth Division of that Court, with the approval of Judge Gloria Olivares and Attorney Francisco Merino, rejected the claim filed. This decision was appealed before the Chilean Supreme Court, and the Santiago Court of Appeal ruled the appeal inadmissible on June 2.  Proceedings for review of leave to appeal were filed against this decision under No. 1742-99, and the Chilean Supreme Court decided not to hear the appeal submitted, arguing that the claim had been settled by a collegiate court.  Consequently, all domestic remedies related to this case have been exhausted.^[6] 

          27.          With regard to the alleged violation of the right of the victims to receive information under the American Convention, CEJIL and the AIP Legal Clinic filed a separate remedy of protection on April 19, 1999, under the No. 1628-99 with the Court of Appeal in Santiago, with a view to the lifting of the legal ban imposed on El Libro Negro de la Justicia Chilena.^[7]  To that end, they cited Article 19(12) of the Constitution of Chile and Article 13 of the American Convention.  On the same date that the remedy of protection was filed, the first division of the Santiago Court of Appeal declared it inadmissible due to the fact that “the complaint filed was a matter that was already being heard by a legally constituted court that was acting within the scope of the authority that the proceeding, initiated by the lawmaker, had conferred on it,” and that the actions and appeals provided for in that proceedings fully protected the rights for which protection was being sought by means of the remedy of protection.  The representatives of the claimants appealed that judicial decision on April 22, 1999 by means of an appeal for reconsideration of judgment “due to the fact that the judicial decisions reflected confusion of the rights of the author of the book, who did indeed have proceedings pending, with the rights of the petitioners, who were claiming violation of the right to have access to information.”^[8]  They therefore maintain that domestic remedies have been exhausted in Chile, pursuant to Article 46 of the American Convention. 

          28.          Furthermore, the Association of Attorneys for Public Freedoms [AALP] submitted a remedy of protection of constitutional guarantees with the Santiago Court of Appeal, since it viewed the confiscation of El Libro Negro as prior censorship, which is prohibited under Article 19 of the Constitution of Chile and Article 13 of the American Convention.   The AALP maintains that the decision of Examining Judge Jordán López is not based on the State Security Law, the Law on the Advertising Abuses, or on any other Chilean legal provision.  It further maintains that the laws enforced in Chile are laws related to contempt, and that their mere existence constitutes an additional violation of Article 2 of the American Convention.  With regard to the exhaustion of domestic remedies, it maintains that the constitutional proceedings instituted by the AALP and Messrs. Bofill, Correa, López, Moraga, Ovalle, and Ruiz Tagle “are specifically aimed at protection of their right to information, to the extent that it protects the recipients of these opinions and this information,” and that the remedy of protection sought is a suitable and effective method of dealing with the violation reported.

          B.       The State 

          29.     In its response of December 30, 1999, the Chilean State provides an account of the requests for precautionary measures and petitions filed with the IACHR in the case under review.  In that regard, it offers a response under the heading entitled “Actions taken by the Chilean State,” which is provided in its entirety below: 

(a)       On April 20, 1999, the Government forwarded a draft law to the Chamber of Deputies amending State Security Law 12.927, with a view to defining law and order offenses and the authorities of the courts to confiscate books or documents that are prejudicial to State security.

 

On June 21, the President of the Republic pointed to the urgent need to settle the matter, qualified as “simple.”  On June 22, the President of the Republic submitted a replacement note pertaining to the draft law, for consideration during the discussion of this matter.  This note specifically replaces Article 6(b) of Law 12.927.

 

At the moment, constitutional steps are being taken with a view to approval of the draft law.  On October 6, the Chamber of Deputies approved amendment of Article 6(b), the first step required under the Constitution.  The draft law is being reviewed by the pertinent Senate committee, the second step under the Constitution.  The draft law approved by the Chamber of Deputies amends Articles 4 and 6, repeals Articles 16-20 and 30, and replaces Article 21 of Law 12.927.  Furthermore, it replaces Article 29 of Law No. 16,643 on Advertising Abuses.  It also amends Article 429 of the Penal Code on the offense of contempt.

 

(b)       Messrs. Bartolo Ortiz and Carlos Orellana were involved in proceedings as accomplices to the offense described in Article 6(b) of Law 12,927.  On June 16, they were detained by the investigative police and that same day, the Examining Judge released them on bail.  On June 18, they were freed following review of the decision by the Santiago Court of Appeal.  Later on, on July 29, the Santiago Court of Appeal decided to overturn the decision of the Examining Judge who ordered the indictment of Messrs. Ortiz and Orellana, and declared that charges against them would be dropped.

 

(c)       Mrs. Alejandra Matus Acuña was summoned by the Examining Judge to appear in court as the defendant in the May 6, 1999 case (the summons was served on April 13, 1999), and, noting that she was out of the country, it was ordered that a summons be served by means of an announcement in El Mercurio newspaper, under penalty of being declared in contempt of court if she failed to appear before the Examining Judge.

 

(d)       To date, NO [sic] indictment or warrant has been issued for the arrest of Alejandra Matus, as stated in the Santiago Court of Appeal certificate, at the request of the Supreme Court.  Messrs. Ortiz and Orellana were indicted and the charges were later dropped, as indicated above.   

          30.          Based on the foregoing information, the Chilean State is asking the Commission to consider the precautionary measures sought on behalf of Messrs. Bartolo Ortiz and Carlos Orellana granted.  Furthermore, it asks the IACHR to declare the obligation to bring its domestic legislation in line with the American Convention as having been “fully discharged, within the framework that can be provided by a democratic state that observes the rule of law and the separation of powers, such as Chile.” 

          31.          With regard to the status of Alejandra Marcela Matus Acuña, the State maintains that “the adoption of special measures would not be appropriate,” since it holds the view that this protection is not jeopardized, and that the request for precautionary measures with respect to the right to intellectual property of that journalist “exceeds the scope of the protection granted under the American Convention on Human Rights.”  In that regard, the State maintains that: 

In this specific case, the copies seized or confiscated are not the property of the author of the literary work---Alejandra Matus Acuña---but of the publishing company (Planeta), which is marketing the work.  In fact, the books were seized from the warehouse of the publishing company.  Second, the seizure or confiscation of goods is a measure adopted within the framework of legal proceedings and in accordance with current laws.  Consequently, it is not an arbitrary or abusive procedure; but rather one that is legitimate under the law.  Third, confiscation is a measure that does not affect property; rather, it is a precautionary measure involving temporary removal from the market of legal assets that are the object of a dispute, serve as evidence, or provide a basis for legal action, based on the public interest, as determined by a judicial decision.

 

Furthermore, the right of Alejandra Matus to the intellectual property in the form of a literary work has never been questioned or threatened.  No one, let alone a state agent, has ever sought to disavow her authorship of the work.  As a result, it does not seem appropriate for the Government to adopt special protective measures to guarantee the intellectual property right of Alejandra Matus Acuña to her work. 

          IV.       ANALYSIS 

A.         Ratione personae, ratione materiae, ratione temporis, and ratione loci competence of the Commission 

32.     The arguments in this case describe actions that certainly violate several rights that are recognized and enshrined in the American Convention, which took place in the territorial jurisdiction of Chile, during the time that Chile had an obligation to respect and guarantee all the rights set forth in that instrument.^[9]  Consequently, the IACHR has ratione personae, ratione materiae, ratione temporis, and ratione loci competence to examine the merits of the complaint. 

          B.          Other admissibility requirements of the petition 

          a.          Exhaustion of domestic remedies 

          33.     The Inter-American Court of Human Rights has established the following with respect to the rule of prior exhaustion of domestic remedies: 

States Parties have an obligation to provide effective judicial remedies to victims of human rights violations (Art. 25), remedies that must be substantiated in accordance with the rules of due process of law (Art. 8(1)), all in keeping with the general obligation of such States to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdiction (Art. 1).^[10] 

          34.     The information submitted by the petitioners and summarized in this report describes in detail the domestic remedies that were sought and exhausted in Chile to address the alleged human rights violations reported to the Inter-American Commission in this case, which the Chilean State did not mention in its correspondence to the Inter-American Commission. 

35.     The Inter-American Court has stated that: “if an objection to the non-exhaustion of domestic remedies is to be considered timely, it must be raised during the initial stages of the proceedings, failing which the interested State can be assumed to have tacitly waived its right to the exercise thereof.”^[11] 

36.     In the case under review, the IACHR notes that the State did not dispute the different claims made by the petitioners with respect to the exhaustion of domestic remedies in Chile.  In the view of the Inter-American Commission, the Chilean State tacitly waived its right to raise this objection in this case, and as a result, considers the requirement set forth in Article 46(1) of the American Convention to have been fulfilled. 

b.          Time-period for submission 

37.     The events that led to this case began on April 13, 1999.  The petition of the AALP, on the basis of which the case was opened, was received on April 29, 1999, well within the six-month time period provided for in Article 46(1)(b) of the American Convention. 

c.          Duplication of procedures and res judicata 

38.     The objections provided for in Article 46(1)(d) and Article 47(d) of the American Convention have not been raised by the Chilean State, and cannot be found in the information contained in this case file. 

d.          Characterization of the claims made 

39.     The IACHR holds the view that if the claims made are determined to be true, they would constitute a violation of the rights guaranteed under Articles 1(1), 2, 8, 13, and 21 of the American Convention. 

V.          CONCLUSIONS 

40.     The Inter-American Commission concludes that it is competent to hear this case and that the petition is admissible pursuant to Articles 46 and 47 of the American Convention. 

41.          Based on the aforementioned arguments of fact and law and without prejudice to the merits of the case, 

 

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS 

DECIDES TO: 

1.          Declare the admissibility of this case with respect to the alleged violation of the rights protected under Articles 2, 8, 13, and 21 of the American Convention. 

2.          Notify the parties of this decision. 

3.          Continue the analysis of the merits of the case. 

4.          Publish this decision and include it in its Annual Report to the OAS General Assembly. 

Done and signed by the Inter-American Commission on Human Rights in Washington, D.C., on October 2, 2000.  (Signed): Hélio Bicudo, Chairman; Juan E. Méndez, Second Vice- Chairman; Members: Marta Altolaguirre, Robert K.  Goldman, Peter Laurie, and Julio Prado Vallejo.