THE RIGHT TO FREEDOM OF EXPRESSION
645. The IACHR attaches the utmost importance to protecting freedom of thought and expression, as an essential component of a democratic system under the rule of law.(186) With this in mind, the Commission decided in 1997 to create a Rapporteur on Freedom of Expression, to give greater impetus to activities having to do with this important right that were being carried out under its authority. The right to freedom of expression has been examined in cases under the system of individual petitions provided for in the inter-American human rights instruments, as well as during on-site visits and in general and special reports. The Commission has also held special hearings on freedom of expression at its headquarters, with the participation of interested sectors. Freedom of expression is a particularly important right in developing democracy, and it is a key right in promoting respect for human rights.
646. The situation with regard to the right to freedom of expression has been a source of concern on the part of various sectors in Mexico. Despite international rules and domestic laws in force in Mexico which protect the right considered here, the IACHR has received reports and complaints involving attacks and other serious acts of violence against journalists, human rights defenders, and members of community organizations.
I. LEGAL FRAMEWORK
A. International law
647. The American Convention establishes the right to freedom of thought and expression in its Article 13, in the following terms:
1. All persons have the right to freedom of thought and expression. This right includes the freedom to seek, receive, and disseminate information and ideas of all kinds, with no consideration of borders, either orally, in writing, or in printed or pictorial form, or by any other method of their choice.
2. The exercise of the right set forth in the preceding paragraph may not be subject to prior censure, but is subject to subsequent liability, which must be specifically established by law, and is required to ensure:
a. Respect for the rights or reputation of others,
b. Protection of national security, public order, or public health or ethics.
3. Freedom of expression may not be restricted by indirect ways or means, such as abuse of official or private controls of paper for newspapers, radio frequencies, or equipment or devices used in disseminating information or any other means designed to prevent the communication and the circulation of ideas and opinions.
4. Public shows or events may be subject to prior censorship by law for the exclusive purpose of regulating access to them for the moral protection of children and adolescents, without prejudice to the provisions of paragraph 2.
5. Any propaganda or advertising in favor of war and any defense or praise of national, racial, or religious hatred which entails an incentive to violence or any other similar illegal act against any person or group of persons for any reason of race, color, religion, language, or national origin shall be prohibited by law.
B. National law
648. Freedom of thought and expression is protected in the Mexican Constitution. The Constitution of that country establishes as follows:
Article 6. - The expression of ideas shall not be the subject of any judicial or administrative inquiry, except in the case that it is an attack on public ethics or the rights of third parties, it causes a crime, or it disrupts public law and order; otherwise, the right to information shall be guaranteed by the State.
Article 7. - The freedom to write and publish written material on any subject is inviolable. No law or authority may establish prior censureship or require authors or publishers to put up a guarantee, or restrict freedom of the press, which has no limits beyond respect for privacy, and public peace and ethics. In no case may printers be confiscated as instruments of crime.
Organic laws shall set forth the regulations required to prevent, on the pretext of charges of an offense of the press, the imprisonment of paper manufacturers or sellers, machine operators, or other persons employed by an establishment which has published written material that is the subject of a complaint, unless the liability of such persons has been previously demonstrated.(187)
II. VIOLENCE AGAINST AND HARASSMENT OF JOURNALISTS
649. A free and critical press has been strengthened in recent years in Mexico, despite the harassment of journalists. The IACHR notes that the media have become increasingly independent and important in that country, and they have undergone sustained growth and cover a wide spectrum of ideas. Attacks on journalists are specifically intended to silence them, and so they also constitute violations of the right of a society to have free access to information. An independent and critical press is fundamental to ensuring respect for other liberties that are part of a democratic system of government and a state in which the rule of law prevails.
650. Reports of serious acts of violence committed against journalists not only continue, but tend to be on the rise. These violations of the right to freedom of thought and expression include acts of intimidation, physical attacks, and even murder. Mexican President Ernesto Zedillo himself has spoken on the subject in specific reference to the Federal District, in the following terms:
Today I would like to underline that it is my conviction and it is the commitment of the national government that the media must be guaranteed the right to denounce criminal acts and the perpetrators of such acts without any restrictions whatsoever. They should be able to report such matters, no matter whom they involve …
As a citizen, as a resident of the Federal District, and as President of the Republic, I categorically condemn these acts of aggression against persons involved in civic work of the greatest importance. These attacks are offensive to all of us who believe in democratic freedoms and justice(188)
651. Despite clear evidence of a desire to combat these violations, Mexico is one of the Latin American countries with the largest number of reported attacks on members of the press. In fact, the Commission has been informed that during the current president's term of office, 428 incidents described as alleged violation of freedom of expression and information have been reported in Mexico, including 11 murders, 89 physical attacks, 67 threats, 57 acts of intimidation, and 14 kidnappings. These incidents, according to reports, have been classified by the Mexican authorities as common crimes, and not as violations of the freedom of expression and information. (189)
652. The Commission has also been advised of the assassination of two journalists in 1997, namely, Jesús Bueno León of the weekly magazine "7 Días" in Guerrero, and Benjamín Flores Guerrero of "La Prensa" newspaper in Sonora. In the case of Mr. Bueno, it should be noted that prior to being murdered, he had written an article indicating that he suspected that State agents were planning to kill him in revenge for his publications. In the case of Flores Guerrero, State officials arrested two persons who were charged with committing the murder on the orders of a drug trafficker.
653. During the same period of time, the IACHR received complaints concerning attacks against the physical integrity of journalists in Mexico. They include the kidnapping of two journalists from the newspaper "Reforma," Daniel Lizárraga and David Vicenteño, in separate incidents which took place in September 1997. According to these reports, both cases were clearly linked to news coverage by those two persons. Also in September of the same year, René Solorio, a reporter for the television channel "TV Azteca," was kidnapped by persons dressed as civilians, who tortured and threatened to kill him if he did not stop his reports criticizing police operations in Mexico City. Subsequent thereto, other reporters working for various media, including "TV Azteca" and "El Universal" newspaper, were victims of physical attacks linked to publication of information on police corruption.(190)
654. The IACHR has received information that in the Mexican states bordering the United States, the media is prohibited from reporting on subjects linked to drug trafficking.(191) A classic example is the case of Jesús Blancornelas, who was threatened in November 1996 as he was getting ready to travel to New York City to accept the International Freedom of the Press award handed out by the Committee to Protect Journalists. Blancornelas wrote for the weekly publication "Zeta," which he co-founded in 1980, and he was reputed for his articles on the relationship between drug lords and the state police, and on the wave of assassinations committed on the orders of drug traffickers. The threat against Blancornelas was acted on one year later. On November 27, 1997, while he was on his way to his office with his bodyguard Luis Valero, he was attacked by the driver of a vehicle that crossed in front of him and opened fire. When Valero tried to escape, another vehicle drove up, and its four occupants proceeded to shoot at him and Blancornelas. Valero was killed, and Blancornelas survived with four bullet wounds.(192)
655. The Commission is examining the circumstances surrounding the murder of two journalists in Mexico and the subsequent investigations among the individual cases under consideration. The first of them is Case 11,739 involving Héctor Félix Miranda, killed on April 20, 1988 in Tijuana. This journalist was co-director of the weekly publication, "Zeta," and was known for his column entitled "Un poco de algo," in which he took a hard line in criticizing and denouncing private and public acts of corruption, crimes in general, and drug trafficking. According to the complaint received by the IACHR, following the arrest and confession of one of the actual authors of the crime, the police did not continue their investigation to track down the person who masterminded the crime, but instead brought it to a sudden halt. The case remains open, but the complainants allege that the investigation is paralyzed. They also allege that the State failed in its duty to investigate the crime, and although they do not lay direct blame for the death of Félix Miranda on the State, they do fault it for a lack of political will and cite omissions, negligence, and various irregularities on the part of the authorities.
656. The other case is No. 11,740, referring to the murder of Víctor Manuel Oropeza on July 3, 1991, in the Ciudad de Juárez. The journalist Oropeza was known for his column entitled "A mi manera" published in the Juárez newspaper, in which he sharply criticized and denounced corruption, especially with regard to the relationship between drug traffickers and the police. According to the complaint filed with the Commission, the first police officers investigating the case were criticized by the victim in his column for their ties with drug trafficking. The complainants also allege that there were strong signs that the authorities ignored evidence, destroyed clues and leads, fabricated data, and arrested innocent people. They indicate that the CNDH determined that the confessions of two prisoners had been obtained by torture and coercion.
657. It is also important to point out that the Inter-American Press Association (IAPA) held its 53rd General Assembly in October 1997 in Guadalajara, Mexico. Among the resolutions approved on that occasion, the IAPA condemned the murders of journalists Abel Bueno León, Víctor Hernández, and Benjamín Flores González in Mexico, and pointed out that these crimes had been committed in retaliation for their work. The IAPA also decided at that meeting to denounce various cases of kidnappings of, and physical attacks, and threats against journalists which occurred in Mexico in the course of 1997.
III. VIOLENCE AGAINST AND HARASSMENT OF HUMAN RIGHTS DEFENDERS AND COMMUNITY ORGANIZATIONS
658. The work performed by human rights defenders and other community organizations is of key importance to the effective exercise of human rights and to peaceful democratic coexistence. In fact, these groups help strengthen democracy through their work to promote and protect human rights, and by reporting violations of those rights. The Commission's experience in the hemisphere shows that these activities help curb authoritarianism and impunity, while at the same time they strengthen pluralism and tolerance.
659. The General Assembly of the Organization of American States has taken various opportunities to indicate the importance it attaches to the need for member states to ensure respect and protection for defenders of human rights. By virtue of Resolution AG/RES. 1044 of June 8, 1990, operative paragraph 4, the OAS General Assembly decided as follows:
To reiterate the recommendation made in previous years to governments of member states that they provide the guarantees and facilities needed to non-governmental human rights organizations so that they may continue their efforts to promote and defend human rights, and that they respect the freedom and integrity of the members of those organizations.
660. The non-governmental organization Amnesty International convened an international conference on protection of human rights defenders in Latin America and the Caribbean, held in Santafé de Bogotá, Colombia, from May 22 to 25, 1996. At that conference, the conclusion was drawn that protection of human rights requires recognition of the "right to defend them." The Declaration of Principles issued on May 25, 1996 at the end of the conference contains a list of rights, with the first one being the right "to defend the fundamental rights and freedoms of other persons, in addition to one's own, and the right to investigate violations of those rights and freedoms and the right to oppose such violations."
661. The final declaration of this conference included the following assertions:
...conditions in the region are not always conducive to defending human rights; there are dangers involved in defending and promoting victims' rights, and often the defenders themselves become victims of imprisonment, torture, murder, and forced disappearance.
...despite abundant government rhetoric in support of human rights, which is part of the political and social transition and the economic transformation going on in the region, there continues to be a huge gap between discourse and reality. New forms of harassment and repression emerge, including campaigns to destroy the reputation of an individual or an institution, attempts to criminalize activities that are part of efforts to defend human rights, and legal restrictions put in the way of acquiring the means needed to defend those rights….
662. The IACHR has received various complaints regarding acts of intimidation committed in Mexico against members of human rights organizations and community groups. The report of the national network of human rights NGOs refers to a campaign under way to curb and restrict legal activities on the part of numerous institutions and individuals:
From 1995 to May 1997, 113 human rights defenders belonging to 29 non-governmental organizations were victims of telephone calls threatening them with death, personal intimidation, persecution, warnings, kidnappings or disappearance, rape, surveillance of their private homes and offices, and theft of materials and information. The fact that the acts of harassment and persecution are targeting members of organizations working in defense of human rights is a dangerous precedent. These institutions are the most sensitive gauge for measuring the illegal deployment of force and the use of government resources to perpetrate acts of repression against the emerging civil society...
At the present time, the government is arranging for the expulsion of persons sent by foreign NGOs to observe the situation with regard to the observance or violation of human rights, which shows that the Mexican government is attempting to prevent the international monitoring of human rights violations..(193)
663. An example of acts of this sort can be found in the expulsion of two human rights workers, Vilma Núñez de Escorcia, a Nicaraguan citizen, and Benjamín Cuéllar, a Salvadoran, which occurred on April 20, 1997. Both of them had entered Mexico the previous week as members of the International Human Rights Federation (FIDH). They were invited by non-governmental organizations in Mexico to investigate reports of human rights violations in the states of Guerrero, Oaxaca, and Chiapas. On the same day that their visas were withdrawn, the FIDH delegation had visited a prison in Acapulco and obtained testimony from victims of torture, including persons accused of belonging to the People's Revolutionary Army (EPR). The reason for expelling Cuéllar and Núñez, according to the immigration officers, was that they had "interfered in the internal affairs of the country."
664. According to the report by Amnesty International, both Núñez and Cuéllar had advised the Mexican consulates in their countries of the reason for their trip to Mexico. Both persons had received tourist visas. Amnesty International regards this action by the authorities as an act of bad faith, based on political motives, and as a breach of the commitment assumed publicly by the Mexican State to allow human rights defenders free access to the country(194)
665. The Commission is examining a complaint regarding the June 1995 expulsion of three priests, Loren Riebe, from the United States, Jorge Barón Guttlein, from Argentina, and Rodolfo Izal Elorz, a Spaniard, as a result of their activities in defense of human rights in the State of Chiapas.(195) The IACHR is looking into those incidents in Case No. 11,610, and, as part of those proceedings, it held a hearing with the parties involved during its 98th Regular Session. It subsequently adopted an admissibility report during its 99th Special Session. The report concluded that the events described in the complaint appear to refer to a possible violation of rights protected by the American Convention, and hence the Commission is competent to consider and issue an opinion on the merits of the case.(196)
666. According to information received by the Commission, various social and political movements and organizations, in addition to students, activists, and attorney groups in Mexico, have been the victims of threats, kidnappings, arbitrary detention, robbery, searches and raids, fabricated charges, and disappearance. The following organizations are among those that have been affected: Coordinación de solidaridad con las luchas alternativas [Coordinating Group for Solidarity with Alternative Struggles] (COSLA); Comité de Unidad Tepozteca [Tepozteca Unity Committee] (CUT) from Tepotzlán, Morelos; Coordinadora Estatal de Trabajadores de la Educación y Consejo de Pueblos Tlapanecos [State Coordinating Agency for Education Workers and Council of Tlapaneco People]; Asociación Nacional de Abogados Democráticos [National Association of Democratic Attorneys](ANAD); Alianza Cívica [Civic Alliance]; and, Alternativa Socialista [Socialist Alternative]. The complaints also refer to specific incidents of harassment of individuals, including the following cases; the student activist Ruth Ortega in Mexico City on October 2, 1996; Mario Guzmán Olivares, a student, in Oaxaca, on September 19, 1996; Ofelia Media, an actress and social activist, on July 26, 1996; the social activist Israel Gutiérrez, in September 1996; Antonio García Vital, a case-worker [consejero ciudadano] in the Federal District, on January 25, 1997; and, Epifanio Escamilla, a case worker [consejero ciudadano] in Coyoacán, on October 2, 1996.(197)
667. The Commission has in recent years asked the Mexican State to adopt precautionary measures, to protect the life and physical well being of various human rights defenders.(198)
668. The IACHR expresses its concern over the serious incidents of harassment and violence affecting human rights defenders and the members of social organizations in Mexico, and it urges the Mexican State to conduct a serious examination of the situation described, so as to avoid any repetition of these events.
669. In light of the situation reviewed above, the IACHR makes the following recommendations to the Mexican State:
670. That it facilitate an open and democratic review of laws regulating Articles 6 and 7 of the Mexican Constitution, so that the guarantees established in those articles may be fully effective, in accordance with the right to freedom of thought and expression, which is enshrined in the American Convention.
671. That it adopt the necessary measures to punish the perpetrators of crimes committed against persons exercising the right to freedom of expression, including a speedy, effective, and impartial investigation into complaints of harassment involving journalists, human rights defenders, and members of community organizations.
672. That it offer all the guarantees so that both Mexican and foreign human rights defenders are able to carry out their important work to promote and defend those rights, without any abusive interference on the part of the authorities.
186. The Inter-American Court of Human Rights has stated as follows:
Freedom of expression is a cornerstone of a democratic society. It is indispensable in forming public opinion. It is also a sine qua non condition for the full development of political parties, labor unions, scientific and cultural associations, and, in general, of anyone that wishes to exert collective influence. It is also required in order for a community to be adequately informed when it comes time for it to exercise its options. Finally, it can be said that a society that is not fully informed is not entirely free.
Inter-American Court of Human Rights, "La Colegiación Obligatoria de Periodistas" [The Required Professional Association of Journalists] (Arts. 13 and 29 of the American Convention on Human Rights), Consultative opinion OC-5/85 dated November 13, 1985, para. 70.
As for the democratic system, the following explanation offered by the Court is worth mentioning:
The concept of rights and freedoms, and of their guarantees, cannot be separated from the system of values and principles that inspire them. In a democratic society, the rights and freedoms inherent in a human being, the guarantees applicable to those rights and freedoms, and the rule of law form a triad. Each component of that triad is a separate entity, complements the others, and depends on the others for its significance.
Inter-American Court of Human Rights, "El habeas corpus bajo suspensión de garantías" ["Habeas Corpus under Suspension of Guarantees"](Arts. 27.2, 25.1, and 7.6 of the American Convention on Human Rights), Consultative Opinion OC-8/87, of January 30, 1987, para. 26, p. 41.
187. Both articles have been regulated by the Press Law of April 12, 1917.
188. Reply of President Ernesto Zedillo to the fourth report of the President of the Human Rights Commission of the Federal District, published under the title "Impulso a la prevalencia del derecho sobre la impunidad ["An Impetus to the Prevalence of the Law on Impunity"], "El Nacional" newspaper, September 19, 1997.
189. Red Nacional de Organismos Civiles de Derechos Humanos "Todos los derechos para todos", report submitted to the IACHR, 98th Period of Sessions, February 1998, pp. 19 and 20.
190. Human Rights Watch, World Report 1998, December 1997, p. 128.
191. See note 4 supra.
192. Events described in Breaking Away: Mexico's Press Challenges the Status Quo, Joel Simon, Committee to Protect Journalists, in process of publication, p. 1 and 2.
193. Red Nacional de Organismos Civiles de Derechos Humanos, op.cit, pp. 18 and 19.
194. Amnesty International, AMR 41/29/97, May 6, 1997.
195. In is comments on this report the government took the following position:
…the Mexican government's immigration policy has always featured an openness to the outside world and acceptance of large inflows of people, which enriches the social, cultural, and economic life of the country.
However, as the IACHR knows, all governments have the sovereign right to legislate immigration matters and to determine the conditions governing the legal stay of foreigners in their country. In the event that the authorities should decide it necessary for a foreigner to leave the country, that decision is in keeping with the principle of legality enshrined in Article 16 of the Constitution.
196. IACHR, Report 34/98, Case 11,610 - Mexico, May 5, 1998, par. 26, p. 5
197. Report on Repression and Harassment of Human Rights Advocates, Community Organizations, and Journalists in Mexico, May 1997, document presented to the IACHR by the National Network of Civilian Human Rights Organizations "All rights for all", pages 13 to 19. This report contains a description of each of the incidents referred to.
198. 1996 Annual Report of the IACHR, OAS/Ser.L/V/II.95, Doc. 7 rev., Chapter II.a "Precautionary Measures Approved or Extended by the Commission in 1996", March 14, 1997, pages 30, 31, 33, and 35.