"The Last Temptation of Christ" Case, Judgment of February 5, 2001, Inter-Am Ct. H.R. (Ser. C) No. 73 (2001).
In
the “Last Temptation of Christ” (Olmedo Bustos et al.) case,
the
Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American
Court”), composed of the following judges:
Antônio A. Cançado Trindade, President
Máximo Pacheco Gómez, Vice President
Hernán Salgado Pesantes, Judge
Oliver Jackman, Judge
Alirio Abreu Burelli, Judge
Sergio García Ramírez, Judge and
Carlos Vicente de Roux Rengifo, Judge;
also
present,
Manuel E. Ventura Robles, Secretary
and
Renzo Pomi, Deputy Secretary
pursuant to Articles
29 and 55 of the Rules of Procedure of the Court (hereinafter “the Rules of
Procedure”), delivers the following judgment in this case.
I
Introduction
of the case
1.
On January 15, 1999, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the Inter-American Commission”) submitted
to the Court an application against the Republic of Chile (hereinafter “the
State” or “Chile”), arising from a petition (No. 11,803), received by the
Secretariat of the Commission on September 3, 1997. The Commission invoked
Articles 50 and 51 of the American Convention on Human Rights (hereinafter
“the Convention” or “the American Convention”) and Articles 32 ff. of the
Rules of Procedure in its application. The
Commission filed this case for the Court to decide whether Chile had violated
Articles 13 (Freedom of Thought and Expression) and 12 (Freedom of Conscience
and Religion) of the Convention. The
Commission also requested the Court to declare that, as a result of the alleged
violations of the said articles, Chile had failed to fulfill Articles 1(1)
(Obligation to Respect Rights) and 2 (Domestic Legal Effects) of the Convention.
2. According to the petition, the said violations
were committed to the detriment of Chilean society and, in particular, Juan
Pablo Olmedo Bustos, Ciro Colombara López, Claudio Márquez Vidal, Alex Muñoz
Wilson, Matías Insunza Tagle and Hernán Aguirre Fuentes, as a result of the
“judicial censorship of the cinematographic exhibition of the film “The Last
Temptation of Christ”, confirmed by the Supreme Court of Chile [...] on June
17, 1997.”
3. The Commission also requested the Court
to order the State:
1. To authorize the normal cinematographic exhibition and publicity
of the film “The Last Temptation of Christ.”
2. To adapt its constitutional and legal norms to the standards
of freedom of expression embodied in the American Convention, [in order] to
eliminate prior censorship of cinematographic productions and their publicity.
3. To ensure that, in the exercise of their different powers,
public bodies [,] their authorities and officials [effectively] exercise the
rights and freedoms of expression, conscience and religion recognized in the
American Convention and [...] abstain from imposing prior censorship on cinematographic
productions.
4. To make reparations to the victims in this case for the
damage suffered.
5. To pay the costs and reimburse the expenses incurred by
the victims when litigating this case in both [the] domestic sphere and before
the Commission and the Court, as well as reasonable fees for their representatives.
II
Competence
4. Chile has been a State Party to the American
Convention since August 21, 1990, and recognized the contentious jurisdiction
of the Court the same day. Therefore,
the Court is competent to hear this case.
III
Proceeding before the Commission
5. On September 3, 1997, the Secretariat
of the Commission received a petition filed by the Asociación de Abogados
por las Libertades Públicas A.G., representing Juan Pablo Olmedo Bustos, Ciro
Colombara López, Claudio Márquez Vidal, Alex Muñoz Wilson, Matías Insunza
Tagle and Hernán Aguirre Fuentes and “the other inhabitants of the Republic
of Chile.” The Commission informed the State of the petition and asked it
to submit the corresponding information within 90 days.
6. On January 8, 1998, the State transmitted
its answer to the Commission, which forwarded it to the petitioners, who submitted
their reply on February 23, 1998. On June 16, 1998, having been granted an extension,
the State submitted a brief answering the reply that the petitioners had submitted
to the Commission.
7. On February 27, 1998, a hearing was held
at the seat of the Commission, attended by the petitioners’ representatives,
but not by the State, although it had been duly convened.
8. During its 99th regular session, the Commission
adopted Report No. 31/98, in which it declared the case admissible. The report
was forwarded to the State on May 18, 1998.
9. On June 22, 1998, the Commission made
itself available to the parties in order to reach a friendly settlement in
the case, pursuant to Article 48(1)(f) of the American Convention. However, it was not possible to reach this
type of settlement.
10. On September 29, 1998, during its 100th
regular session, the Commission, pursuant to Article 50 of the Convention,
adopted report No. 69/98. In this
report, the Commission concluded:
95. That the judgment of the Court of Appeal of Santiago, Chile,
of January 20, 1997, and its confirmation by the Supreme Court of Chile on
June 17, 1997, annulling the administrative decision of the National Cinematographic
Classification Council that approved the exhibition of the film “The Last
Temptation of Christ”, on November 11, 1996, when the American Convention
on Human Rights, ratified by the State on August 21, 1990, had already entered
into force in Chile, are incompatible with the provisions of the American
Convention on Human Rights, and violate the provisions of Articles 1(1) and
2 of the Convention.
96. With regard to the persons in whose name this case has been
filed, the State of Chile has failed to comply with its obligation to recognize
and guarantee the rights established in Articles 12 and 13 in relation to
Articles 1(1) and 2 of the American Convention on Human Rights, to which Chile
is a State Party.
97. When a constitutional provision is not
compatible with the Convention, pursuant to Article 2, the State Party is
obliged to adopt the necessary legislative measures (of either a constitutional
or ordinary nature) to make effective the rights and freedoms guaranteed by
the Convention.
98. The Chilean State has not complied with
the provisions of Article 2 of the American Convention, since it has not adopted
the necessary legislative or other measures, in accordance with its constitutional
procedures, to make effective the rights and freedoms contained in the Convention.
99. The Commission evaluates positively the democratic Government
of Chile’s initiatives aimed at the adoption by the competent organs of the
necessary legislative or other measures, in accordance with its existing constitutional
and legal procedures, to make effective the right to freedom of expression.
And
the Commission recommended that Chile should:
1. Abolish the censorship in force with
regard to the exhibition of the film “The Last Temptation of Christ”, in violation
of Article 13 of the American Convention.
2. Adopt the necessary measures to adapt its domestic legislation
to the provisions of the American Convention on Human Rights, so that the
right to freedom of expression and all the other rights and freedoms contained
in it are fully valid and applicable in the Republic of Chile.
11. On October 15, 1998, the Commission transmitted
this report to the State, and granted it a period of two months to comply
with the recommendations. When the
period elapsed, the State had not submitted any information on compliance
with the recommendations and it did not comply with them.
IV
Procedure
before the Court
12. The application in this case was submitted
to the Court on January 15, 1999. The
Commission appointed Carlos Ayala Corao, Robert K. Goldman and Alvaro Tirado
Mejía as its delegates, Manuel Velasco Clark and Verónica Gómez as its advisors,
and Viviana Krsticevic, Executive Director of the Center for Justice and International
Law (CEJIL) as its assistant. The Commission also advised that Juan Pablo
Olmedo Bustos and Ciro Colombara López would represent themselves and that
the other alleged victims, Claudio Márquez Vidal, Alex Muñoz Wilson, Matías
Insunza Tagle and Hernán Aguirre Fuentes, would be represented by the Asociación
de Abogados por las Libertades Públicas A.G., through Pablo Ruiz Tagle Vial,
Javier Ovalle Andrade, Julián López Masle, Antonio Bascuñan Rodríguez and
Macarena Sáez Torres.
13. On January 27, 1999, after the President
of the Court (hereinafter “the President”) had made a preliminary examination
of the application, the Secretariat notified it to the State, and informed
the State of the periods to answer it, file preliminary objections and appoint
its representatives.
14. The same day, the Secretariat requested
the Commission to forward the address of the Asociación de Abogados por las
Libertades Públicas A.G., the powers of attorney certifying that Pablo Ruiz
Tagle Vial, Javier Ovalle Andrade, Julián López Masle, Antonio Bascuñan Rodríguez
and Macarena Sáez Torres López were the representatives of Claudio Márquez
Vidal, Alex Muñoz Wilson, Matías Insunza Tagle and Hernán Aguirre Fuentes;
and the addresses of Juan Pablo Olmedo Bustos and Ciro Colombara López, in order to advise them of the
contents of the application, in accordance with Article 35(1)(e) of the Rules
of Procedure.
15. On January 27, 1999, the Commission submitted
Annex V to its application, which corresponded to the book entitled “The Last
Temptation” by Nikos Kazantzakis. The
following day, this annex was forwarded to the State.
16. On January 29, 1999, the Commission forwarded
the addresses of the Asociación de Abogados por las Libertades Públicas A.G.,
and of Juan Pablo Olmedo Bustos and Ciro Colombara López. On February 2, 1999, the Secretariat notified
the application to them.
17. On February 9, 1999, the Commission submitted
the powers of attorney granted by Claudio Márquez Vidal, Alex Muñoz Wilson,
Matías Insunza Tagle and Hernán Aguirre Fuentes to the Asociación de Abogados
por las Libertades Públicas A.G.
18. On March 26, 1999, the State requested the
Court to grant it an additional period of 30 days from March 27, 1999, to
file preliminary objections and appoint its agent. On March 27, 1999, the Secretariat informed the State that the period
for appointing its agent had expired on February 27, 1999, and that the period
for filing preliminary objections expired on March 27, 1999. Lastly, it informed the State that its request
would be submitted to the President for consideration, as soon as possible.
On April 5, 1999, on the instructions of the President, the Secretariat
informed the State that an extension had been granted until April 12, 1999.
19. On April 12, 1999, the State advised that
it was “preparing a proposal intended to end the dispute and the respective
litigation” and requested “an additional period of 30 days for that purpose.”
The same day, on the instructions of the President, the Secretariat
informed the State that an extension had been granted until April 24, 1999.
20. On April 26, 1999, Chile submitted a brief
in which it expressed its willingness to “eliminate and/or modify any legislation
that harms or violates freedom in its highest form” and proposed some elements
for an agreement to settle the case.
21. On April 30, 1999, Jorge Reyes Zapata submitted
a brief, signed by himself and by Sergio García Valdés, Vicente Torres Irarrázabal,
Francisco Javier Donoso Barriga, Matías Pérez Cruz, Cristian Heerwagen Guzmán
and Joel González Castillo, asking to be heard by the Inter-American Court
in the capacity of amici curiae.
Moreover, they requested to be heard “in all the oral and written instances
that the rules of procedures allow.” On
June 1, 1999, on the instructions of the President, the Secretariat
informed Mr. Reyes Zapata that “until the reparations stage, the possibility
of participating in the proceedings before [the] Court was restricted to the
parties to the respective case, that is, to the Inter-American Commission
for Human Rights and the respondent State” and, consequently, it was not possible
to accede to their request to be heard as collaborating third parties.
22. On May 25, 1999, the Commission submitted
its observations on the State's brief of April 26, 1999.
23. On May 27, 1999, the State appointed Edmundo
Vargas Carreño, Chilean Ambassador to Costa Rica, as its agent and indicated
that it would receive notifications at the Chilean Embassy in Costa Rica.
24. On September 2, 1999, the State submitted
its answer to the application.
25. On October 12, 1999, the Commission submitted
a brief in which it stated that the answer to the application submitted by
Chile was “manifestly time-barred” and requested the Court to reject it and
to abstain from considering it when examining the case.
26. On October 25, 1999, the Commission submitted
the final list of witnesses and expert witnesses offered in its application
and requested the Court to substitute the expert witness, Lucas Sierra Iribarren,
with the expert witness, Juan Agustín Figueroa Yávar. On October 26, 1999, on the instructions of
the President, the Secretariat granted the State until November 1, 1999, to
submit its observations on the substitution requested by the Commission.
27. On October 26, 1999, the President issued
an order in which he convened the Commission and the State to a public hearing
to be held at the seat of the Court at 10 a.m. on November 18, 1999, and summoned
to the hearing the witnesses, Ciro Colombara López, Matías Insunza Tagle and
Alex Muñoz Wilson, alleged victims in the case, and also the expert witnesses,
Humberto Nogueira Alcalá, José Zalaquett Daher and Jorge Ovalle Quiroz, all
of them proposed by the Commission in its application. In the same order, the parties were notified
that they could present their final oral arguments on the merits of the case
immediately after the evidence had been received.
28. The State did not submit observations on
the substitution of the expert witness named by the Commission within the
period granted to it. On November
6, 1999, the President issued an order convening Juan Agustín Figueroa Yávar
to appear before the Court to give an expert report.
29. On November 8, 1999, Chile submitted a brief
indicating that it had no objection to Juan Agustín Figueroa Yávar appearing
before the Court. It also requested
the Court to convene José Luis Cea Egaña and Francisco Cumplido, the persons
it had proposed in its answer to the application, to give an expert report
in the public hearing on the merits of the case.
30. On November 9, 1999, the Court issued an
order in which it decided to reject the brief answering the application as
it had been presented by the State after the statutory time limit had expired
and, based on the provisions of Article 44(1) of the Rules of Procedure, to
convene José Luis Cea Egaña and Francisco Cumplido to appear before the Court
to give expert reports.
31. On November 15, 1999, Hermes Navarro del
Valle submitted a brief to the Court, in the capacity of amicus curiae.
32. On November 11, 1999, the Commission advised
that Alex Muñoz Wilson and Jorge Ovalle Quiroz, respectively witness and expert
witness offered by the Commission, could not be present at the public hearing
on merits convened by the Court.
33. On November 18, 1999, the Court received
the statements of the witnesses and also the reports of the expert witnesses
proposed by the Inter-American Commission and the expert witnesses convened
by the Court itself, in accordance with Article 44(1) of the Rules of Procedure,
in the public audience on merits. It
also heard the final oral arguments of the Commission and the State.
There
appeared before the Court:
For
the Inter-American Commission of Human Rights:
Carlos Ayala Corao, delegate
Manuel Velasco Clark, advisor
Verónica Gómez, advisor
Juan Pablo Olmedo Bustos, assistant
Javier Ovalle Andrade, assistant
Viviana Krsticevic, assistant, and
Carmen Herrera, assistant
For
the State of Chile:
Ambassador Edmundo Vargas Carreño,
agent; and
Alejandro Salinas, advisor
As
witnesses proposed by the Inter-American Commission:
Ciro Colombara López, and
Matías Insunza Tagle.
As
expert witnesses proposed by the Inter-American Commission:
José Zalaquett Daher
Humberto Nogueira Alcalá, and
Juan Agustín Figueroa Yávar.
As
expert witnesses called by the Inter-American Court (Article 44(1) of the
Rules of Procedure)[1]:
José Luis Cea Egaña, and
Francisco Cumplido.
34. On September 18, 2000, Sergio García Valdés
submitted a brief as an amicus curiae.
35. On October 6, 2000, on instructions from
the President, the Secretariat notified the Commission and the State that
it granted them until November 6, 2000, to submit their final written arguments
on the merits of the case. On October
23, the Commission requested an extension of 20 days. On October 24, the Secretariat informed the parties that the President
had granted them an extension until November 27, 2000.
36. On November 27, 2000, the Commission submitted
its final written arguments.
37. On November 30, 2000, on the instructions
of the Court in plenary and in accordance with Article 44 of the Rules of
Procedure, the Secretariat requested the Commission to submit the documentary
evidence that justified the request for payment of costs and expenses submitted
in the petitionary clauses of its application, together with the corresponding
arguments, by December 13, 2000, at the latest. On December 12, 2000,
the Commission requested an extension of one month to submit that information.
On December 13, 2000, the Secretariat informed the Commission that
the President had granted it a non-extendable period until January 8, 2001.
38. On January 8, 2001, the Commission submitted
the documentary evidence that, in its opinion, justified the request for the
payment of expenses, submitted in the petitionary clauses of its application,
together with the corresponding arguments. The following day, the Secretariat acknowledged
reception and, on the instructions of the President, granted the State until
January 24, 2001, to submit its observations.
39. On January 22, 2001, the State submitted
a note providing information on the procedure being followed for the draft
constitutional reform that would eliminate cinematographic censorship in Chile. The same day, the Secretariat transmitted this
brief to the Commission.
40. On January 25, 2001, Ambassador Guillermo
Yunge Bustamante submitted a copy of the note issued by Heraldo Muñoz Valenzuela,
Minister for Foreign Affairs of Chile, a.i., advising that Alejandro Salinas
Rivera, Director of Human Rights of the Ministry of Foreign Affairs of Chile
had been appointed agent and the Chilean Ambassador to Costa Rica, Guillermo
Yunge Bustamante, deputy agent.
41. On January 31, 2001, the State submitted
its observations on the Commission’s brief of January 8 that year, with regard
to the request for payment of expenses submitted in the petitionary clauses
of the application. Although the State's
brief was presented seven days after the statutory time limit, the Court admitted
it, applying the criteria of reasonableness and considering that the delay
did not impair the balance that the Court should ensure between the protection
of human rights and legal security and procedural equity. The Secretariat informed the State of this
on February 3, 2001.
V
The
Evidence
*
* *
Documentary
Evidence
42. With the application brief, the Commission
presented copies of five documents in five annexes (supra paras. 1 and 12).[2]
43. The State did not present any evidence,
because its brief answering the application was rejected by the Court as time-barred
(supra paras. 24 and 30).
44. The Commission forwarded five annexes containing
five documents with the brief concerning expenses requested by the Court (supra
para. 38).[3]
*
* *
Testimonial and Expert Evidence
45. In a public hearing held on November 18,
1999, the Court received the declarations of two witnesses and the reports
of three expert witnesses proposed by the Inter-American Commission, and also
the reports of two expert witnesses convened by the Court, by virtue of the
authority indicated in Article 44(1) of the Rules of Procedure. These statements are summarized below, in the
order in which they occurred.
a. Testimony of Ciro Colombara López, alleged
victim in the case.
He
was 28 years of age when the film “The Last Temptation of Christ” was censored.
He was, and still is, a lawyer in private practice, and performed academic
duties in the Catholic University of Chile.
He has not seen the film “The Last Temptation of Christ”. Professionally and academically he is very
interested in criminal law, freedom of expression and international human
rights law. He has published a book
in Chile on punitive measures relating to freedom of expression.
When
the proceeding designed to prohibit the exhibition of the film was filed in
Chile, through a remedy for protection filed by seven lawyers purporting to
represent the Catholic Church and Jesus Christ, he decided to become involved
for several reasons. He felt that
it was “tremendously serious” that someone would claim to represent the Catholic
Church and
Jesus
Christ and attempt to prohibit the exhibition of a film; an issue that was
decisive for freedom of expression in Chile, because it would establish a
precedent, was going to be decided; he believed that it was important that,
when deciding the case, the Chilean court should give special attention to
the applicable rules of international human rights law; and he believed it
was particularly serious that artistic freedom of expression was violated.
The
judgment that prohibited the exhibition of the film prejudiced him directly
and indirectly. Although it cannot
be imputed to the State, his academic career at the Catholic University ended
as a result of his professional involvement in the case, because he was told
that his participation was not compatible with the performance of his academic
functions. He believes that it is
extremely serious that the Chilean courts made no reference to the American
Convention or to international human rights law. The fact that the film was prohibited caused him serious harm, due
to his academic activities and his professional interests in freedom of expression,
because he now gives classes on freedom of expression in the School of Journalism
of the University of Chile and is in contact with academics in other countries.
He was prejudiced as an individual, because he was prevented from having
access to an artistic film with an apparently religious content.
Consequently, he was deprived of the possibility of having elements
of judgment, forming an opinion and having access to information that was
relevant to him. Lastly, as he is
not a Catholic, he considers that his freedom of conscience was violated,
because a group of people of a specific religion attempted to impose their
own vision about what others may see.
b. Testimony of Matías Insunza Tagle, alleged
victim in the case.
When
the exhibition of the film “The Last Temptation of Christ” was censored, he
was in his fourth year of law studies at the University of Chile and was a
student representative. He has not
seen the film “The Last Temptation of Christ”, owing to the judgment of the
Supreme Court of Chile.
When
the proceeding designed to prohibit the exhibition of the film through a remedy
of protection was filed in Chile, he had two reasons for becoming involved.
One was personal, and was that, by filing a remedy of protection, a
group of lawyers attempted to impede access to information.
The second reason was that he had been a student representative, since
the University he attended was public and tolerant, open to different ideas
and expressions, and this prompted him to become part of a remedy for protection
to prevent censorship of the exhibition of the film.
The
judgment that prohibited the exhibition of the film caused him a moral prejudice
and impaired his intellectual development, because, owing to the censorship
that was imposed, he was prevented from having access to information that
was fundamental in order to be able to form an opinion based on solid arguments
and not on prejudices. Owing to his
education and because he was a law student, he needed to have an opinion based
on legal arguments and on “civic arguments.”
His possibility of intellectual development in order to take part in
the public discussion that was generated was restricted.
His
freedom of conscience was affected by the impossibility of having access to
information, and also of thinking in a specific way and establishing, maintaining
or changing his own ideas and convictions on a subject. He was deprived of the possibility of growing
and developing intellectually.
c. Expert report of José Zalaquett Daher,
lawyer, specializing in human rights.
The
protection of freedom of expression in Chile, in accordance with international
law, has two stages. The first was
prior to the State of Chile’s ratification of the American Convention, when
the legislation had serious defects in relation to international standards. The second stage began when the American Convention
was ratified, which is when the standards established in that treaty were
incorporated into domestic law.
Freedom
of expression may be subject to restrictions, but these must respect certain
limits.
Article
19(12) of the Constitution of Chile stipulates that the law will establish
a system of censorship for the exhibition and publicity of cinematographic
productions, while article 60 says that only those issues that the Constitution
expressly indicates are a matter of law.
If the provisions of the Convention and the rights that it regulates
are considered to be of constitutional rank, the Convention would have modified
article 19(12) of the Chilean Constitution, in the sense that the censorship
system could only relate to classifying public entertainments in order to
protect children and adolescents. Even
if we believe that the Convention and the rights regulated in it only have
force of law, it is to that law - the Convention - that the Constitution defers when establishing the censorship
system. Also, it is a law, subsequent
to Decree Law No. 679 of 1974, which establishes the obligation of the Cinematographic
Censorship Council “to reject films for [numerous] reasons.”
As
for the role of the Chilean courts in regard to freedom of expression, there
have been various decisions on cinematographic censorship. The Supreme Court’s arguments establishing
censorship relate to a possible conflict of rights, because, in case of doubt,
when distinguishing between apparent or possible conflict between the right
to privacy or honor and the right to freedom of expression, it tends to favor
restriction over freedom. Furthermore,
although it is of a permanent nature, the protection of honor by a precautionary
measure is not considered a measure of censorship. The judgment of the Court of Appeal of Santiago
of January 20, 1997, established that precautionary protection is not censorship,
even when it is indefinitely extended.
Regarding
the grounds for the Supreme Court of Chile’s decision in this case, he believed
that it used legal remedies and norms of substantive law improperly, for purposes
for which they were not created. When
establishing that the honor of the person of Jesus Christ has been violated
by a specific artistic or philosophical interpretation and that this affects
dignity and freedom of self-determination, according to a person’s beliefs
and values, it is confusing the issues, and this signifies that it is not
regulating the possible conflict of rights appropriately. Although many people find the film shocking,
others find it illustrative and instructive, and it should not be classified
as blasphemy. He considers that the Supreme Court decided to suppress declarations
made in the film as blasphemous or at least heretical because, in that Court's
opinion, they were shocking. However,
as it was unable to suppress those declarations, the Supreme Court found an
indirect way of doing this, which runs counter to the rational sense of conflict
of laws and juridical reasoning. Blasphemy,
which is different from heresy, supposes insulting or ridiculing religious
figures or beliefs, with no intention of making an artistic reflection or
contributing to a debate.
With
regard to freedom of conscience, in this case we are speaking of freedom of
belief, conscience and religion in two ways: one that coincides with freedom
of expression and another that implies the freedom to seek and receive information.
The freedom to form an opinion or a religious belief and to change
it exists; consequently, the ability to receive and seek information is necessary;
to the contrary, a person would not have access to all the currents of information
and, therefore, could not use them to maintain a belief, to change it, to
contest it, or to discuss it with others.
In this restricted meaning, he believes that it may be said that the
Supreme Court’s judgment violates Article 12 of the Convention.
As
regards the reform of constitutional legislation, the good faith of the State
of Chile is evident. It is also evident
that Chilean justice disregards international law, owing to several factors;
domestic law and its alleged supremacy, and an excess of work and the resulting
difficulty to study new law. It could
be counterproductive for the domestic legal system if laws are reformed or
a law is enacted every time the Supreme Court disregards the fact that there
has been a tacit derogation, because it would be considered that self-executing
de jure norms are not applicable in this
sphere. The most important reform
would be one which authoritatively reminds the Judiciary that de jure incorporation exists. If
this reform were carried out, together with the reform of article 19(12) of
the Constitution, they would both be more effective.
Regarding
the self-executing character of international laws in domestic law, laws that
establish a mandate to codify and those of a programmatic nature are not self-executing;
however, laws that establish a subjective right, affirming a right and limiting
its restrictions, are self-executing. He indicated that the case
of the law that prohibits imprisonment for debt is an example of the practice
of the Chilean courts concerning the self-execution of norms contained in
human rights treaties ratified by Chile.
Any
of the Powers of the State may engage its international responsibility. Chile complies with the obligation to guarantee
the free and full exercise of the rights embodied in the Convention by incorporating
this treaty de jure into its domestic
law. However, in view of the failure
of the Judiciary to interpret it adequately, it should be understood that
there is an additional obligation for the Legislature to guarantee that interpretation.
This will be achieved by domestic legislation indicating that the international
law should be understood to be incorporated into domestic law. If complied with, this obligation to guarantee
could affect reparation but not legal responsibility. In his opinion, the reform of article 19(12)
of the Chilean Constitution does not help, because it will not produce the
effect of preventing the Judiciary from censoring films, books or other artistic
manifestations, using permanent precautionary measures. Moreover, the proposed reform “includes an
element that distorts the international criteria”; this is the further difficulty
that it is incorporated into the Criminal Code regarding crimes when it is
committed “in contempt of or offending public authorities.”
The
Cinematographic Censorship Council has prohibited many films. In some cases it has revised the classification
and allowed films that it had censored to be shown.
Using
the right to honor as a basis for prohibiting the exhibition of a film is
“an indirect and undue use of legal provisions that have been developed for
other situations, in order to adapt them to the feelings of the Court.” When the judgment states that honor is identified
with the capacity for self-determination, according to a person’s values and
beliefs, it is, at the very least, confusing honor with the freedom to believe,
which is religion.
d. Expert report of Humberto Nogueira Alcalá,
lawyer, constitutional law expert.
The
Chilean Constitution does not establish any norm concerning the rank of international
treaty law and international common law in relation to domestic law; it only
establishes the system of incorporation and applicability of international
treaty law to domestic law. Articles
32(17) and 50(1) of the Constitution indicate that the President of the Republic
negotiates and concludes treaties, Congress adopts or rejects them, but does
not have the authority to introduce amendments and, subsequently, the President
of the Republic ratifies them. The Chilean legal system, applied in good faith
and according to the corresponding hermeneutics criteria, recognized the primacy
of international law over domestic law when it ratified the Vienna Convention
on the Law of Treaties; that took place before the Constitution entered into
effect. Consequently, should there
be normative conflicts between domestic law and international law, Chile is
obliged to ensure that international law prevails.
With
regard to admission of international human rights law into the Chilean legal
system being a limitation to sovereignty, the text of article 5(1) of the
1980 Constitution established that sovereignty was inherent in the Nation
and was exercised by the people and by the authorities established in accordance
with the constitutional system. Article
5(2) established the essential rights emanating from human nature as the limit
to sovereignty. In the process of
transition from the authoritarian regime to democracy, 54 constitutional reforms
were made and one of them was to article 5(2), by adding a phrase which stated
“that the organs of the State must respect and promote the rights contained
in the Constitution, and also in the international treaties that Chile has
ratified and that are in force.” This
phrase consolidated the notion that the essential human rights constitute
a system with a dual source in the Chilean legal system: one of a domestic
nature - the Constitution - and the other of an international nature, which
incorporates into Chilean laws, at the very least, those rights contained
in the treaties that the State has ratified freely, voluntarily and spontaneously.
This implies that the constitutional bloc is made up of the rights
contained in the treaties and the rights embodied in the Constitution itself.
With
regard to pre-trial detention, Chilean superior courts have accepted that,
in accordance with the American Convention, no one may be imprisoned for debt.
They have also indicated that interrogations may not be conducted using
torture, invoking the provisions of the Convention.
However, this is exceptional, as there are matters on which the Chilean
courts and the Supreme Court disregard international human rights law and
when two rights such as the right to freedom of expression and the right to
honor are in conflict they favor the right to honor. This is a systematic
policy.
The
source of the right to freedom of expression is article 19(12) of the Constitution,
which must be complemented by Article 13 of the Convention; this implies that
in Chile this freedom includes freedom of expression and information.
Furthermore, freedom of expression prohibits any type of censorship
and only allows subsequent restrictions, except in the case of public entertainments,
where an exception is established for the moral protection of children and
adolescents. A second exception could be in states of emergency,
because Article 27 of the Convention allows the exercise of freedom of expression
to be suspended on a temporary basis.
The
final sub-paragraph of article 19(12) of the Constitution establishes a system
of cinematographic censorship; this resulted in a norm of legal rank establishing
a Cinematographic Classification Council that could refuse to allow the exhibition
of cinematographic works for adults. There are also provisions in the Internal State
Security Act, the Criminal Code, and the Code of Military Justice that allow
the preventive “requisition” of the complete edition of certain types of works
and prevention of their circulation and dissemination. It is not only a normative problem, the jurisprudential
criteria of the Chilean superior courts is fundamental and this gives the
right to honor predominance over freedom of expression, in clear and evident
violation of Article 13(2) of the Convention.
The
principle which states that the norm that is most favorable to the exercise
of human rights should be used, should apply even with regard to freedom of
expression. The Supreme Court of Justice
and the Court of Appeal of Santiago do not need article 19(12) of the Constitution
to be amended in order to give primacy to Article 13(2) of the American Convention
over the provisions of domestic law, but should apply Article 27 of the Vienna
Convention on the Law of Treaties directly, that is “the hermeneutic principle
of the law which best favors the exercise of the right and also the criteria
of the delimitation of the right.”
e. Expert report of Juan Agustín Figueroa
Yávar, lawyer, expert in procedural law.
According
to the American Convention, judgments delivered by the Inter-American Court
are binding. Based on Article 62(1)
and 62(2) of the Convention, States Parties may recognize the jurisdiction
of the Court unconditionally or may establish reservations. Chile deposited the document of ratification on August 21, 1990,
and indicated that it recognized as obligatory, de jure, the jurisdiction of the Inter-American Court in cases relating
to the interpretation and application of the American Convention, pursuant
to the provisions of Article 62 of this treaty. The expression “de jure”, signifies that commitment to the respective decision is
not conditioned in any way.
The
Supreme Court of Chile has stated that international law has precedence over
domestic law. With regard to the ranking
of international law, a significant action occurred in 1989 with the constitutional
amendment of article 5 of the Constitution; this established that the fundamental
rights are not only indicated and recognized in the Constitution itself, but
also by international human rights treaties.
No
provision in domestic legislation may have pre-eminence or in any way obstruct
real and effective compliance with the decisions of the Inter-American Court.
International treaties are understood to be incorporated into the law
and most doctrine considers that they are incorporated with at least the same
rank as constitutional laws. That is, treaties may expand the sphere of
constitutional law and, furthermore, it should be understood that international
laws have pre-eminence over domestic laws.
In
strictly legal matters, Chilean jurisprudence has recognized the pre-eminence
of the Convention over domestic laws. For
example, regarding fraudulent emission of cheques “it has understood that
domestic laws, which conditioned release on bail to the prior deposit of the
amount of the respective document, were invalidated by the provisions [of
the Pact] San José”; moreover, it granted release on bail to persons who wished
to be extradited, invoking the Chilean constitutional law and the Convention.
This has not been the criterion with regard to prior censorship, because
the Convention was violated by applying the constitutional norm, which allowed
the exhibition of films to be censored.
Chile
has said that it has complied by submitting a draft constitutional reform. However, this is unnecessary because, since
international laws are incorporated with a constitutional rank, they produce
the tacit annulment of norms such as the one that allows prior censorship,
and counterproductive because, by submitting the draft reform, it is implicitly
declaring that, in order to admit international norms, a prior internal process
is required. The draft reform is also
belated because the international responsibility of the State originated in
1990 with the ratification of the Convention, while the constitutional reform
was introduced in 1997, and reactive because it was sent when the judgment
in first instance had been delivered by the Court of Appeal of Santiago.
Chileans
had a right to see the film from the time the Pact of San José was ratified.
If the constitutional reform is an explanatory or interpretive law,
it will contribute to legal certainty.
f. Expert report of José Luis Cea Egaña,
lawyer, expert in freedom of expression.
He
is aware of the draft constitutional reform submitted to the Chamber of Deputies
by President Eduardo Frei Ruiz-Tagle on April 16, 1997, which has already
been adopted by that Chamber. The
draft reform establishes two modifications to the first and final paragraphs
of article 19 of the Constitution. In
the first paragraph, the reform establishes the freedom to emit opinions and
to inform without prior censorship, which is extended to expressions of an
artistic or cultural nature. The final
paragraph of the draft replaces prior censorship by a classification system
in which the client of cinematographic exhibitions chooses whether he wishes
to view this type of spectacle, in accordance with the principle of self-regulation
and freedom. This constitutional reform
may be accompanied by complementary reforms to the legislation.
Once
the constitutional reform has been adopted, Chileans and all the country's
inhabitants will be constitutionally and legally able to attend freely the
exhibition of the film that was censored.
Under the principle of the supremacy of the Constitution, once the
constitutional reform has been adopted, its provisions become mandatory immediately
and directly, and the provisions currently in force, together with the judicial
decisions that are contrary to the reform are annulled.
With
regard to freedom of conscience and religion, he considered that Article 12
of the Convention should be respected; this refers to freedom to profess a
religion, to manifest one’s religious beliefs, not to be persecuted for one’s
religion and to change religions. Freedom
of conscience is closely related to freedom of expression. In this case, none of these conducts is codified
or constituted, and therefore the above-mentioned article was not violated.
The
State’s proposal for a friendly settlement was based on three basic elements:
facilitating the exhibition of the film, creating a fund designed to promote
freedom of expression in Ibero-America and an invitation to the Special Rapporteur
on Freedom of Expression of the Organization of American States (OAS).
The latter has already occurred; the remaining points are subject to
the fact that Chile is a democratic State of law governed by the principle
of the separation of powers, and the competence of each Power cannot be disregarded. The State cannot facilitate the exhibition of the film without previously
reforming the Constitution. The State
authorities must carry out their obligations within the existing constitutional
and democratic context. To the contrary, the President of the Republic could immediately
be accused of committing the crime of desacato
(contempt for public authorities) and could be politically indicted before
the Chamber of Deputies for disregarding the Chilean legal system.
Prior
censorship is any unlawful impediment to the exercise of freedom of expression
in its generic or extensive meaning. However,
not all impediments to the exercise of freedom of expression may be qualified
as censorship. Any unlawful impediment
of freedom of expression is contrary to the rule of law, democracy and human
rights. When, as a precautionary measure,
the Judiciary prohibits the circulation of a book or the exhibition of a film
because they damage the honor of specific persons, it incurs in a flagrant
act of censorship. An opinion that
harms the honor of a person does not constitute an unlawful exercise of freedom
of expression. Exercising a “precautionary
order” does not constitute a legal impediment to the publication of pamphlets,
leaflets or works that may irreversibly or permanently harm the honor of an
individual. In many cases, the Chilean courts of justice
are unaware of the latest advances in international human rights law.
Article
5(2) of the Constitution was reformed through the will of the constituent
power in a 1989 plebiscite, in the sense that the fundamental rights recognized
in the Convention and other international treaties ratified by Chile and in
force in the country and the procedural guarantees and remedies designed to
make the protection of those rights effective, constitute provisions of law
and guarantees with constitutional ranking.
The preamble to the Convention states that international protection
should be understood in terms of reinforcing or complementing; the same words
are used in Chilean constitutional and juridical laws.
Consequently, a subsidiarity exists, by virtue of which, once domestic
jurisdiction has been exhausted, recourse may be had to the Inter-American
Court.
In
a pluralist society, such as that of Chile, the courts are independent and
there are sectors of the magistrature whose concept of the legal system leads
them to maintain that prohibitions may be ordered by invoking other constitutional
guarantees, such as those in article 19(4) of the Constitution on honor and
intimacy. The Chilean magistrature
is extremely legalistic.
Chile
has not violated Articles 12, 13, 1(1) and 2 of the Convention, because the
fact that judges have delivered judgments contrary to those articles is not
sufficient grounds for maintaining that the State violated the Convention. The Convention should be interpreted and applied
pursuant to its Article 30, because it is not sufficient that an act may theoretically
or doctrinally be codified as or constitute a violation of a rule or law,
but rather the context must be taken into consideration – which is that of
a pluralist, democratic system with separation of powers - and the intention
of the provision.
The
principle of international law according to which the State is responsible
for the acts of the organs of the Executive, the Legislature and the Judiciary,
is a non-conventional principle, which is contained in and should be complied
with by virtue of jus cogens. Article
27 of the Vienna Convention on the Law of Treaties recognizes that a State
party may not invoke the provisions of its internal law as justification for
its failure to perform international treaties.
In the instant case, Chile is not alleging its internal law in order
to fail to perform the provisions of the American Convention. Formal legal texts include international norms,
but, unfortunately, there are sectors of the profession and the magistrature
in Chile that have not been receptive to this situation.
g. Expert report of Francisco Cumplido, lawyer,
expert in constitutional law and political law.
He
has advised the Government of Chile and the National Congress on constitutional
reform from 1963 to 1973 and from 1990 to date. The President of the Republic,
the Chamber of Deputies and the Senate take part in the constitutional reform
procedure, as a derivative constituent power, and it is governed by the Legislature’s
normal rules for processing reforms.
The
1980 Constitution, reformed in 1989, simplified the constitutional reform
procedure; however, this still requires majorities in the Chamber of Deputies
and the Senate for specific matters. In
general, three-fifths of the current Deputies and Senators are required to
adopt a constitutional reform, although two-thirds are required in some cases. When the chambers are not in agreement, there
is a third procedure and if disagreement persists, the procedure may be transferred
to a joint commission. Some reforms
have taken two years, others seven. Some
have required extensive negotiations. Negotiations and agreements have been necessary for most constitutional
reforms, owing to the integration of the political majorities.
The
draft constitutional reform to suppress cinematographic censorship was sent
to the National Congress by President Eduardo Frei Ruiz-Tagle on April 15,
1997, and has already been adopted in the first constitutional procedure by
the Chamber of Deputies. This period
of less than 3 years is completely normal.
The Senate will probably introduce amendments to the draft reform to
adapt it to the provisions of the American Convention concerning the protection
of children and to adapt the Constitution to international treaties ratified
and in force in Chile.
Up
until 1980, there was a precedent of not declaring the urgency of draft reforms.
As of 1980, in view of the number of draft constitutional and legal
reforms that were required by the transition to democracy and its consolidation,
the Government had to use declarations of urgency.
There are three types of urgency: “simple urgency”, which implies than
each branch must process a draft reform within 30 days; “great urgency”, where
the period is 10 days, and “immediate discussion” when a draft reform must
be processed in three days in each branch.
The Government of President Eduardo Frei Ruiz-Tagle declared the urgency
of the draft constitutional reform of Article 19(12) as that of “immediate
discussion”, so that it should be dealt with by the Senate in three days. This urgency was declared as soon as it was
certain that the adoption of the constitutional reform could be achieved. However, if the Senate introduces amendments,
the reform is returned to the Chamber of Deputies with the urgency of “immediate
discussion” and that Chamber will have to take a decision under the third
procedure in three days. If there is no agreement, then there is no constitutional
reform and if there is agreement, there is constitutional reform and it goes
to the President of the Republic for him to sanction or veto it, and if there
is a veto, the Chamber and the Senate can insist on their position, in which
case, the President may call the citizens to a plebiscite.
Moreover, the draft laws required to make this reform applicable with
regard to the decree-law on cinematographic censorship and the law on television
must be submitted.
It
became evident that a constitutional reform was necessary when the Court of
Appeal admitted a remedy for protection prohibiting the exhibition of the
film “The Last Temptation of Christ.” The
intention was to resolve the problem of the interpretation by the Court of
Appeal and the Supreme Court and also to be able to comply with the American
Convention and the Convention on the Rights of the Child, concerning the protection
of children. Since the Governments
of President Patricio Aylwin and President Eduardo Frei Ruiz-Tagle did not
agree with the grounds for the decisions of the Chilean courts, they had to
resolve the situation within the framework of the Constitution, and the only
way to do this was by submitting a draft constitutional reform, since, once
this had been approved, it would give legal certainty and could be required
of all the organs of the State.
Once
the constitutional reform has been approved, all Chileans who have attained
their majority will obviously be able to see the film “The Last Temptation
of Christ.”
The
remedy for protection produces relative res
judicata so that an action could have been brought against the State under
internal law and recourse could have been had to “inapplicability due to unconstitutionality”,
if it was felt that the decree-law on cinematographic censorship was unconstitutional
because it infringed article 19(12) of the Constitution or the American Convention.
The
difficulty that arose with the Supreme Court was due to a problem of interpretation,
inasmuch as that Court gave preference to applying the right to honor over
freedom of opinion, following the trend of some foreign courts and doctrine
that makes a distinction between human rights that correspond to the dignity
of the individual such as the right to life, to honor and to intimacy, and
human rights concerning means, such as freedom of opinion and information.
The
1989 constitutional reform chose not to submit modifications to all the articles
of the 1980 Constitution to expand the human rights embodied in it; what was
done was to establish a binding norm for all the organs of the State (article
5(2)) requiring them to guarantee and protect all the human rights guaranteed
in the Constitution and in the human rights treaties ratified and in force
in Chile. With the exception of the
modification concerning artistic entertainment that goes beyond the American
Convention, the position was adopted that the human rights embodied in the
international treaties ratified by Chile and in force should be incorporated
into the Constitution. Cinematographic
censorship was left in force and the possibility of establishing norms on
the public expression of other artistic activities was eliminated.
It was argued that, should there be a contradiction between a right
established in the Constitution and a right established in an international
treaty, the courts would resolve it. At that time, it was thought that the courts
would apply the generally admitted principles of international law. He did not agree with the interpretation of
the Supreme Court, but it had the legal right to make that interpretation.
The
amendment of the Constitution with regard to the fundamental rights included
in article 19(12) would occur automatically by virtue of article 5(2), unless
there was a law or constitutional amendment that was indispensable in order
to comply with the treaty. This position
is not uniformly accepted.
The
administrative channel is exhausted after all the organs of the State have
intervened and not with the judgment of the Supreme Court alone. Domestic remedies were not exhausted inasmuch
as the President of the Republic submitted a draft constitutional reform to
ensure that the interpretation of the Legislature and the Executive on the
issue is complied with and, even though the draft reform is not a judicial
remedy, it is a remedy within the State. The foregoing is based on the principle of subsidiarity, in application
of which, if the President of the Republic has used the remedy of constitutional
reform, international justice is not yet in order.
The
State must comply with the judgment of the Inter-American Court, in accordance
with the Constitution and the law. If
the President of the Republic should order that the film “The Last Temptation
of Christ”, which was prohibited, should be exhibited without a constitutional
reform, he would be violating article 73 of the Constitution, which prohibits
the President of the Republic and the National Congress from taking over pending
cases, reviving closed cases and giving an opinion on the merits of judgments.
In other words, he could be accused of violating the Constitution of
Chile.
VI
EVIDENCE ASSESSMENT
46. In order to proceed to evaluate the evidence
provided in this case, it is first necessary to confirm that it was submitted
at the appropriate procedural opportunity. In this respect, Article 43 of the Rules of Procedure indicates:
Items of evidence
tendered by the parties shall be admissible only if previous notification
thereof is contained in the application and in the reply thereto [.]
Should any of the parties allege force majeure, serious impediment
or the emergence of supervening events as grounds for producing an item of
evidence, the Court may, in that particular instance, admit such evidence
at a time other than those indicated above, provided that the opposing party
is guaranteed the right of defense.
47. In this case, the Commission provided the
evidence with the application, which was presented in due time. The State did not contribute any evidence,
because its brief answering the application was rejected by the Court because
it was submitted after the statutory time limit had expired (supra para. 24, 30 and 43).
48. Before examining the evidence in the case
file, the Court must define the criteria that it will use.
49. In the first place, it must take into consideration
the context of the proceeding before an international court of human rights,
which is more flexible and less formal than the proceeding under domestic
law.
50. The Court has indicated that the criteria
for evaluating the evidence before an international human rights court is
broader, because determination of the international responsibility of a State
due to the violation of human rights allows the court a greater flexibility
in the evaluation of the evidence provided to it on the pertinent facts, in
accordance with the rules of logic and based on experience.[4]
51. Mere formalities cannot affect the justice
that an individual hopes to obtain by resorting to a procedural system; although
attention must always be given to legal certainty and the procedural balance
of the parties.
52. It is worth emphasizing that, in this case,
the State did not submit any type of evidence in answer to the application
at the procedural opportunities indicated in Article 43 of the Rules of Procedure.
During the public hearing on the merits of the case, Chile concentrated
its defense on the argument that it had submitted a draft reform to article
19(12) of the Constitution in order to modify the norm of internal law that
engaged its international responsibilities through its competent organs, and
on the fact that everything that the Commission had sought in its application
would be covered by the adoption of the constitutional reform, except with
regard to reparations.
53. In this respect, the Court considers, as
it has in other case, that when the State does not specifically answer the
application, the facts about which it keeps silent are assumed to be true,
provided that conclusions consistent with this can be inferred from the evidence.[5]
54. The Court will now evaluate the documents,
testimonies and expert reports that comprise the pool of evidence in the instant
case, according to the rule of sound critical examination that will allow
it to ascertain the truth of the alleged facts.
55. With regard to the documentary evidence
contributed by the Commission (supra
para. 42), the Court considers that the documents submitted are valid, as
they were not contested or challenged, nor was their authenticity put in doubt.
56. As to the testimonies given in the instant
case, which were not contradicted or contested, the Court admits them and
grants them full probative value.
57. In the case of the expert reports, the Court
admits them, inasmuch as they relate to the experts’ knowledge of national
or comparative law and its application to the facts of the case.
58. The 1980 Constitution of Chile is considered
useful to make a decision in this case, and it is therefore added to the pool
of evidence, in application of the provisions of Article 44(1) of the Rules
of Procedure.[6]
59. The annexes submitted by the Commission
in its brief of January 8, 2001 (supra
para. 44), on the expenses incurred are considered useful to make a decision
in this case, and the Court incorporates them into the pool of evidence, based
on the provisions of Article 44(1) of the Rules of Procedure.
VII
PROVEN FACTS
60. After examining the documents, the statements
of the witnesses and expert witnesses and the declarations of the State and
the Commission during the proceeding, the Court considers that the following
facts have been proved:
a. Article
19(12) of the 1980 Constitution of Chile establishes a “system of censorship
for the exhibition and publicity of cinematographic productions.”[7]
b. Decree Law No. 679 of October 1, 1974,
authorizes the Cinematographic Classification Council to supervise cinematographic
exhibition in Chile and classify films. The Regulation to this law is contained in
the Supreme Decree on Education No. 376 of April 30, 1975. The Cinematographic Classification Council
is part of the Ministry of Education.[8]
c. On
November 29, 1988, the Cinematographic Classification Council refused to allow
the exhibition of the film “The Last Temptation of Christ”, following a petition
submitted by United International Pictures Ltd. The company appealed the Council's decision,
but it was confirmed by a court of appeal, in a judgment of March 14,1989.[9]
d. On
November 11, 1996, following a further petition by United International Pictures
Ltd., the Cinematographic Classification Council reviewed the prohibition
to exhibit the film “The Last Temptation of Christ” and, in session No. 244,
by a majority of votes authorized its exhibition for an audience of 18 years
of age or more.[10]
e. Following
a remedy for protection filed by Sergio García Valdés, Vicente Torres Irarrázabal,
Francisco Javier Donoso Barriga, Matías Pérez Cruz, Jorge Reyes Zapata, Cristian
Heerwagen Guzmán and Joel González Castillo, for and in the name of Jesus
Christ, the Catholic Church and themselves, on January 20, 1997, the Court
of Appeal of Santiago admitted the remedy for protection and annulled the
administrative decision adopted by the Cinematographic Classification Council
in session No. 244, on November 11, 1996.[11]
f. After
an appeal of the judgment of the Court of Appeal of Santiago, of January 20,
1997, filed by Claudio Márquez Vidal, Alex Muñoz Wilson, Matías Insunza Tagle
and Hernán Aguirre Fuentes, the Supreme Court of Justice of Chile confirmed
the decision appealed against on June 17, 1997.[12]
g. On April 14, 1997, the President of the
Republic, Eduardo Frei Ruiz-Tagle, addressed a message to the Chamber of Deputies
in which he submitted a draft constitutional reform to article 19(12) of the
Constitution that intended to eliminate cinematographic censorship and substitute
it by a system of classification that embodied the right to free artistic
creation.[13]
h. On November 17, 1999, the Chamber of Deputies
adopted the draft constitutional reform that intended to eliminate prior censorship
of the exhibition and publicity of cinematographic production by 86 votes
in favor, no votes against and six abstentions.[14]
i. Up
until February 5, 2001, the date on which this judgment was delivered, the
steps for the adoption of the draft constitutional reform had not been completed.
j. As
a result of the facts of this case, the victims and their representatives
submitted elements to justify the expenses incurred while processing the different
domestic and international procedures, and the Court reserves the authority
to evaluate these.[15]
VIII
ARTICLE 13
FREEDOM OF THOUGHT AND EXPRESSION
The Commission's arguments
61. With regard to Article 13 of the Convention,
the Commission alleged that:
a. Article
19(12) of the Constitution of Chile permitted censorship of the exhibition
of cinematographic productions and their publicity. Moreover, on numerous occasions, the Executive Power, through the
Cinematographic Classification Council, has censored the exhibition of films.
In this respect, the Judiciary has favored the right to honor over
freedom of expression;
b. The
prohibition of the exhibition of the film “The Last Temptation of Christ”
by the Court of Appeal of Santiago, ratified by the Supreme Court of Justice,
violates Article 13 of the Convention, because this article indicates that
the exercise of freedom of thought and expression shall not be subject to
prior censorship. Also, the aim of
this provision is to protect and encourage access to information, ideas and
artistic expressions of all types and to strengthen pluralist democracy;
c. The
obligation not to interfere in the enjoyment of the right of access to information
of all types extends to the “circulation of information and the exhibition
of artistic works that may not be approved personally by those who represent
the authority of the State at a certain moment”;
d. There
are three alternative mechanisms by which restrictions to the exercise of
freedom of expression may be imposed: subsequent liability, regulation of
the access of minors to public entertainment, and the obligation to prevent
the justification of religious hatred. These
restrictions may not exceed the provisions of Article 13 of the Convention
and may only be applied in accordance with laws enacted for reasons of general
interest and in accordance with the purpose for which such restrictions were
established, as stipulated in Article 30 of the Convention;
e. Subsequent
liability is regulated in Article 13(2) of the Convention and is only admissible
in a restricted way, when necessary to ensure respect for the rights or reputation
of others. This restriction of the
possibility of establishing subsequent liability is set out as a “guarantee
of freedom of thought, so that certain people, groups, ideas or mediums of
expression are not excluded, a priori,
from public debate”. This type of
restriction was not used in the instant case, but the cinematographic work
was censored before it was exhibited;
f. Public
entertainment may be subject by law to classification in order to regulate
the access of minors, as indicated in Article 13(4) of the Convention. In this case, the Cinematographic Classification
Council allowed access to the film to those over 18 years of age.
However, following this classification, the domestic courts proceeded
to prohibit its exhibition totally;
g. Article
13(5) of the Convention establishes the positive obligation of the State to
avoid the dissemination of information that could generate illegal actions.
This case does not fall within this assumption, since the Martin Scorsese
film has been defined as a work of art with a religious content that does
not attempt to disseminate propaganda. Moreover,
during the actions before the local courts and the procedure before the Commission,
the exception established in this article was never invoked. Also, Article 13(5) should be understood within
the principle established in Article 13(1); that is to say, that “those who
justify religious hatred should be subject to subsequent liability in accordance
with the law”;
h. The
prior censorship imposed on the film “The Last Temptation of Christ” did not
occur in the context of the restrictions or causes established in the Convention.
Rejection of the exhibition of the film was based on the fact that
it would allegedly be offensive to the figure of Jesus Christ and therefore
affected those who filed a petition with the judicial system, believers, and
“other persons who considered him a model for their way of life”.
The prohibition to project the film was based on the alleged defense
of the right to honor and reputation of Jesus Christ;
i. The
honor of the individual should be protected without prejudicing the exercise
of freedom of expression and the right to receive information. Also, Article 14 of the Convention establishes
that any person injured by inaccurate or offensive statements has the right
to reply or make a correction using the same communications outlet;
j. There
is no dispute with regard to the violation of this rule, because Chile stated
that the judgment of the Court of Appeal of Santiago, ratified by the Supreme
Court of Justice, is a violation of freedom of expression;
k. The
experts’ statements to the Court demonstrated the existence of a repeated
conduct whereby, in cases of conflict between freedom of expression and the
right to honor of certain individuals, the Chilean courts prefer to restrict
freedom of expression, which violates the principle of the indivisibility
of human rights;
l. The
State is responsible for the acts of the Judiciary, even in cases in which
the actions of the latter exceed its authority, whatsoever the position of
its other organs. Although, internally,
the Executive, the Legislature and the Judiciary are distinct and independent,
they comprise an indivisible unity and, therefore, the State must assume international
responsibility for the acts of the organs of public authority that violate
international commitments;
m. The
legal system in force in Chile has incorporated the rights and freedoms embodied
in the Convention, de jure, in article
5(2) of the Constitution. That is
to say, there is an obligation to respect human rights, without any need to
amend the Constitution or the laws. Also, the Chilean courts have applied the Convention, in relation
to the rights embodied in it, without the need for any legal or constitutional
amendment; for example, preference has been given to personal freedom over
domestic legislation that regulates pre-trial detention for the crime of fraudulent
emission of cheques; and
n. An
eventual reform of the Constitution concerning freedom of expression will
not make the violations of the alleged victims’ human rights in which the
State has incurred in this case disappear with retroactive effect.
The State’s arguments
62. The State alleged that:
a. It has no substantive discrepancies with
the Commission; it does not dispute the facts, although this does not mean
that it accepts responsibility with regard to the facts;
b. In a message to the Congress, President
Eduardo Frei Ruiz-Tagle has indicated the Chilean Government’s position against
prior censorship and recognized that the free expression of ideas and artistic
creation is part of the essence of a society of free individuals, ready to
seek the truth through dialogue and discussion and not by imposing censorship. Prior censorship cannot exist in a democracy,
because a democratic system supposes an open society with free exchange of
opinions, arguments and information;
c. The Government does not share the jurisprudence
of the Supreme Court of Chile that gives preference to the right to honor
over freedom of expression;
d. The draft constitutional reform has already
been approved by the Chamber of Deputies. This project embodies the freedom to create and disseminate the
arts without prior censorship as a constitution guarantee; without detriment
to the need to respond for any crimes and abuses that are committed in the
exercise of that freedom; it replaces censorship of the exhibition of cinematographic
production with a system of classification of this production; and it eliminates
censorship of film publicity. This reform will provide sufficient legal certainty and give the
judicial authorities the legal instruments to decide any ensuing conflicts
in accordance with domestic and international legislation;
e. An act of the Judiciary that is contrary
to international law may engage the State’s international responsibility,
provided that the State as a whole assumes the criteria issued by the Judiciary.
In particular, the acquiescence of the organ responsible for international
relations, which is the Executive Power, is required, and this has not occurred
in the instant case;
f. Chile has not invoked domestic law to
disengage itself from an obligation arising from an international treaty;
and
g. It
requested the Court to declare that Chile is in the process of adopting the
necessary measures to eliminate cinematographic censorship in accordance with
Article 2 of the Convention and its own constitutional procedures, and thereby
allow the exhibition of the film “The Last Temptation of Christ”.
*
* *
Considerations of the Court
63. Article 13 of the American Convention establishes
that:
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:
a.
Respect
for the rights or reputation of others;
b.
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 nay any other means tending to
impede the communication and circulation of ideas and opinions.
4. Notwithstanding the provisions of
paragraph 2 above, public entertainments 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.
5. Any propaganda for war and any advocacy
of national, racial or religious hatred that constitute incitements to lawless
violence or to any other similar illegal 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.
64. With regard to the content of the right
to freedom of thought and expression, those who are protected by the Convention
not only have the right and the freedom to express their own thoughts, but
also the right and freedom to seek, receive and impart information and ideas
of all kinds. Consequently, freedom
of expression has an individual and a social dimension:
It requires,
on the one hand, that no one be arbitrarily limited or impeded in expressing
his own thoughts. In that sense, it
is a right that belongs to each individual. Its second aspect, on the other hand, implies a collective right
to receive any information whatsoever and to have access to the thoughts expressed
by others.[16]
65. With regard to the first dimension of the
right embodied in the said article, the individual one, freedom of expression
is not exhausted in the theoretical recognition of the right to speak or write,
but also includes, inseparably, the right to use any appropriate method to
disseminate thought and allow it to reach the greatest number of persons. In this respect, the expression and dissemination
of thought and information are indivisible, so that a restriction of the possibilities
of dissemination represents directly, and to the same extent, a limit to the
right to free expression.
66. Regarding the second dimension of the right
embodied in Article 13 of the Convention, the social element, it is necessary
to indicate that freedom of expression is a way of exchanging ideas and information
between persons; it includes the right to try and communicate one’s point
of view to others, but it also implies everyone’s right to know opinions,
reports and news. For the ordinary
citizen, the knowledge of other people’s opinions and information is as important
as the right to impart their own.
67. The Court considers that both dimensions
are of equal importance and should be guaranteed simultaneously in order to
give total effect to the right to freedom of thought and expression in the
terms of Article 13 of the Convention.
68. As the cornerstone of a democratic society,
freedom of expression is an essential condition for society to be sufficiently
informed.
69. The European Court of Human Rights has indicated
that:
[The] supervisory function [of the
Court] signifies that [it°] must pay great attention to the principles inherent
in a ‘democratic society’. Freedom
of expression constitutes one of the essential bases of such a society, one
of the primordial conditions for its progress and for the development of man.
Article 10(2) [of the European Convention on Human Rights][17] is valid not only for the information
or ideas that are favorably received or considered inoffensive or indifferent,
but also for those that shock, concern or offend the State or any sector of
the population. Such are the requirements
of pluralism, tolerance and the spirit of openness, without which no ‘democratic
society’ can exist. This means that
any formality, condition, restriction or sanction imposed in that respect,
should be proportionate to the legitimate end sought.
Also, those who exercise their freedom
of expression assume ‘obligations and responsibilities’, the scope of which
depends on the context and the technical procedure used.[18]
70. It is important to mention that Article
13(4) of the Convention establishes an exception to prior censorship, since
it allows it in the case of public entertainment, but only in order to regulate
access for the moral protection of children and adolescents. In all other cases, any preventive measure
implies the impairment of freedom of thought and expression.
71. In the instant case, it has been proved
that, in Chile, there is a system of prior censorship for the exhibition and
publicity of cinematographic films and that, in principle, the Cinematographic
Classification Council prohibited exhibition of the film “The Last Temptation
of Christ” and, reclassifying it, permitted it to be exhibited to persons
over 18 years of age (supra para.
60 a, c and d). Subsequently, the
Court of Appeal of Santiago decided to annul the November 1996 decision of
the Cinematographic Classification Council, owing to a remedy for protection
filed by Sergio García Valdés, Vicente Torres Irarrázabal, Francisco Javier
Donoso Barriga, Matías Pérez Cruz, Jorge Reyes Zapata, Cristian Heerwagen
Guzmán and Joel González Castillo, “for and in the name of [°] Jesus Christ, the Catholic Church and themselves”; a decision that
was confirmed by the Supreme Court of Justice of Chile. Therefore, this Court considers that the prohibition
of the exhibition of the film “The Last Temptation of Christ” constitutes
prior censorship in violation of Article 13 of the Convention.
72. This Court understands that the international
responsibility of the State may be engaged by acts or omissions of any power
or organ of the State, whatsoever its rank, that violate the American Convention.
That is, any act or omission that may be attributed to the State, in
violation of the norms of international human rights law engages the international
responsibility of the State. In this
case, it was engaged because article 19(12) of the Constitution establishes
prior censorship of cinematographic films and, therefore, determines the acts
of the Executive, the Legislature and the Judiciary.
73. In the light of the foregoing considerations,
the Court declares that the State violated the right to freedom of thought
and expression embodied in Article 13 of the American Convention, to the detriment
of Juan Pablo Olmedo Bustos, Ciro Colombara López, Claudio Márquez Vidal,
Alex Muñoz Wilson, Matías Insunza Tagle and Hernán Aguirre Fuentes.
IX
ARTICLE 12
FREEDOM OF
CONSCIENCE AND RELIGION
The Commission’s arguments
74. With regard to Article 12 of the Convention,
the Commission alleges that:
a. “The prohibition of access to this work
of art with a religious content is based on a series of considerations that
interfere improperly with the freedom of conscience and religion of the [alleged]
victims” and of the rest of the inhabitants of Chile, which violates Article
12 of the Convention;
b. Recognition of freedom of conscience is
based on recognition of the human being as a rational and autonomous being.
The protection of the right to this freedom is the basis of the pluralism
necessary for harmonious coexistence in a democratic society, which, as any
kind of society, is made up of individuals of different convictions and beliefs;
c. According to Article 12 of the Convention,
“the State must take and provide the necessary measures so that those who
publicly profess their beliefs, may conduct their rites and proselytize within
the limits that may reasonably be imposed in a democratic society”.
This norm requires that the State abstain from interfering in any way
in the adoption, maintenance or change in their personal convictions of a
religious or other nature. The State may not use its authority to protect
the conscience of certain individuals;
d. In this case, state interference does
not refer to the exercise of the right to manifest and practice religious
beliefs, but to access to the classified exhibition – subject to age restrictions
and the payment of an entrance fee – of the audiovisual version of an artistic
work with a religious content;
e. The state interference affected those
who have beliefs related to the religious content of the film “The Last Temptation
of Christ”, because they are prevented from exercising the right to freedom
of conscience by not being able to see the film and form their own opinion
about the ideas expressed in it. Moreover,
it affects those who belong to other creeds or who do not have religious convictions,
because one creed is privileged in prejudice to the free access to information
of other persons, who have the right to have access to and form their own
opinion about the work;
f. The organs of the Judiciary prohibited
the exhibition of the film “The Last Temptation of Christ”, on the grounds
that the “perception of the characters presented in this artistic work does
not adjust to standards that, in their opinion, should have been taken into
account to describe them”. This constitutes
an unlawful interference in the right to maintain or change one’s own convictions
or beliefs and affects, per se,
the right to freedom of conscience of the people who it is alleged were wronged
by the prohibition;
g. The Convention not only establishes the
right of the individual to maintain or change his religious beliefs, but also
to maintain or change any type of belief; and
h. Since the decision of the Supreme Court
deprived the alleged victims and society as a whole of access to information
that could have allowed them to maintain, change or modify their beliefs,
there has been a violation of Article 12 of the Convention in the instant
case. The statements of the witnesses, Ciro Colombara
and Matías Insunza, provide evidence of this, when they indicate how the censorship
affected their freedom of conscience.
The State’s arguments
75. The State argued that:
a. The rights embodied in Articles 12 and
13 of the Convention are absolutely autonomous in nature;
b. The conduct that freedom of conscience
and freedom of religion recognize is that of maintaining one’s religion, changing
it, professing it and disseminating it. None of these behaviors is endangered when a person is prohibited
from seeing a film;
c. There is complete religious freedom in
Chile; and
d. It requested the Court to declare that
Chile has not violated the freedom of conscience and religion embodied in
Article 12 of the Convention.
*
*
*
Considerations of the Court
76. Article 12 of the American Convention establishes
that:
1. Everyone has the right to freedom of conscience and of
religion. This right includes freedom
to maintain or to change one’s religion or beliefs, and freedom to profess
or disseminate one’s religion or beliefs, either individually or together
with others, in pubic or in private.
2. No one shall be subject to restrictions
that might impair his freedom to maintain or to change his religion or beliefs.
3. Freedom to manifest one’s religious
and beliefs may be subject only to the limitations prescribed by law that
are necessary to protect public safety, order, health, or morals, or the rights
or freedoms of others.
4. Parents or guardians, as the case
may be, have the right to provide for religious and moral education of their
children or wards that is in accord with their own convictions.
77. In the instant case, the Commission believes
that prohibiting the exhibition of the film “The Last Temptation of Christ”,
which, in their opinion, is a work of art with religious content, violated
Article 12 of the Convention. This
prohibition was based on a series of consideration that interfere improperly
with freedom of conscience and religion. The State believes that the right embodied in this article was not
affected, since it considers that the right of individuals to maintain, change,
profess and disseminate their religions or beliefs was not violated by prohibiting
the exhibition of the film. The Court
must determine whether Article 12 of the Convention was violated by prohibiting
the exhibition of this film.
78. The judgment of the Court of Appeal of Santiago
of January 20, 1997, confirmed by the Supreme Court of Justice of Chile on
June 17, 1997, indicated that:
In the film, the image of Christ
is deformed and diminished, to the utmost.
In this way, the problem is posed of whether it is possible, in the
name of freedom of expression, to destroy the sincere beliefs of a great many
people. The Constitution seeks to
protect the individual, his institutions and his beliefs, because these are
the most central elements for the individual to participate and coexist harmoniously
in a pluralist world. Pluralism does
not mean denigrating and destroying the beliefs of others, whether they are
a majority or a minority, but assuming them as a contribution to the interaction
of society, which is based on respect for the essence and context of the ideas
of others.
No one doubts that the greatness of a nation can be measured by the
attention it gives to the values that allowed it to exist and grow. If these are neglected [or] abused, as the
image of Christ is deformed and abused, the nation is endangered, because
the values on which it is based are disregarded.
Attending to the need for information or expression is closely related
to the truth of the facts and, consequently, the historical distortion of
a fact or a person ceases to be information or expression. Accordingly, the judges believe that the right
to emit an opinion is the right to describe a reality but never to deform
it, reinventing it.[19]
It was based on these
considerations that this Court of Appeal, in a judgment confirmed by the Supreme
Court of Justice, prohibited the exhibition of the film “The Last Temptation
of Christ”.
79. According to Article 12 of the Convention,
the right to freedom of conscience and religion allows everyone to maintain,
change, profess and disseminate his religion or beliefs. This right is one
of the foundations of democratic society. In its religious dimension, it constitutes a far-reaching element
in the protection of the convictions of those who profess a religion and in
their way of life. In this case, however,
there is no evidence to prove that any of the freedoms embodied in Article
12 of the Convention have been violated. Indeed, the Court understands that the prohibition of the exhibition
of the film “The Last Temptation of Christ” did not impair or deprive anyone
of their right to maintain, change, profess or disseminate their religion
or beliefs with total freedom.
80. In view of the foregoing, the Court concludes
that the State did not violate the right to freedom of conscience and religion
embodied in Article 12 of the American Convention.
X
NON-COMPLIANCE OF ARTICLES 1(1) AND 2
OBLIGATION TO RESPET RIGHTS
AND DOMESTIC LEGAL EFFECTS
The Commissions’s arguments
81. With regard to Articles 1(1) and 2 of the
Convention, the Commission alleged that:
a. Chile has not adopted “the necessary legislative
measures to guarantee and make effective the rights and freedoms established
in the Convention with regard [to] freedom of expression”;
b. The final paragraph of article 19(12)
of the Constitution of Chile and Decree Law No. 679 are not adjusted to the
standards of Article 13 of the Convention, because the former permits prior
censorship of the exhibition and publicity of cinematographic production and
the latter authorizes the Cinematographic Classification Council to “reject”
films. For this reason, the State
violated Article 2 of the Convention;
c. Chile should have taken the necessary
measures to enact the pertinent constitutional and legal norms in order to
revoke the system of prior censorship of cinematographic productions and their
publicity and thus adapt its domestic legislation to the Convention;
d. The State submitted a draft reform of
the final paragraph of article 19(12) of the Constitution in order to eliminate
cinematographic censorship, substituting it by a system of cinematographic
classification. However, since the
National Congress has still not adopted this draft reform, Chile continues
to be in violation of Article 2 of the Convention;
e. The decisions of the courts of justice
engage the international responsibility of the State. In this case, the courts did not take into consideration the provisions
of the Convention with regard to freedom of expression and conscience, even
though article 5(2) of the Constitution recognizes that sovereignty is limited
by respect for the fundamental rights arising from the international treaties
that Chile has ratified. Therefore, in prohibiting the exhibition of the film, the final
judgment of the Supreme Court failed to observe the obligation to adopt “measures
as may be necessary” to make effective the rights and freedoms embodied in
the Convention;
f. Although the State has expressed its
intention of complying with international law, the failure to annul a norm
that is incompatible with the Convention, and to adjust domestic laws and
the conduct of the Legislature and Judiciary to make such norms effective
signifies that the State is violating the Convention;
g. Chile is responsible for violating the
rights protected in Articles 12, 13 and 2 of the Convention in relation to
its Article 1(1); and
h. States must respect and ensure all the
rights and freedoms recognized in the Convention to the persons subject to
their jurisdiction, and also change or adapt their legislation to make effective
the enjoyment and exercise of those rights and freedoms. In this case, Chile has not fulfilled its obligation
to respect and ensure the freedoms embodied in Articles 12 and 13 of the Convention.
The State’s arguments
82. The State alleged that:
a. International human rights law forms part
of Chilean law;
b. In its report, the Commission indicated
that it evaluated positively the initiatives taken by the State to ensure
that, subject to the constitutional and legal procedures in force, the competent
organs adopt the legislative or other measures necessary to make effective
the right to freedom of expression. Consequently,
Chile does not understand why the Commission hastened to submit the application,
particularly, in view of the complementary role of the inter-American human
rights organs;
c. The State has the obligation to remedy
the problem using the means it has available.
On January 20, 1997, the Court of Appeal of Santiago delivered its
judgment in this case and the Government, which did not agree with the decision
adopted, submitted a draft constitutional reform to Congress on April 14,
1997. When errors or abuses are committed
by one State authority and the competent authorities are in the process of
remedying them, an application should not be filed before an international
court, denaturalizing the essential function of the international system;
d. Chile has assumed a responsible attitude
by trying to remedy the problem through a draft constitutional reform that
replaces prior censorship of cinematographic production with a system of classification
of this production;
e. An act of the Judiciary, which is contrary
to international law, may engage the international responsibility of the State,
provided that the State as a whole assumes the Judiciary’s criteria.
In particular, the acquiescence of the organ responsible for international
relations is required, which is the Executive, and this is not the situation
in the instant case;
f. Chile has not invoked domestic law to
disengage itself from an obligation arising from an international treaty;
and
g. Finally, it requested the Court to declare
that, pursuant to Article 2 of the Convention, Chile was in the process of
adopting the necessary measures to eliminate cinematographic censorship and
thus permit the exhibition of the film “The
Last Temptation of Christ”.
*
*
*
Considerations of the Court
83. Article 1(1) of the American Convention
establishes that:
The States Parties to this Convention undertake to respect the rights
and freedoms recognized herein and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms, without
any discrimination for reasons of race, color, sex, language, religion, political
or other opinion, national or social origin, economic status, birth, or any
other social condition.
84. While Article 2 of the Convention establishes
that:
Where the exercise of any of the rights or freedoms referred to in
Article 1 is not already ensured by legislative or other provisions, the States
Parties undertake to adopt, in accordance with their constitutional processes
and the provisions of this Convention, such legislative or other measures
as may be necessary to give effect to those rights or freedoms.
85. The Court has indicated that the general
obligations of the State, established in Article 2 of the Convention, include
the adoption of measures to suppress laws and practices of any kind that imply
a violation of the guarantees established in the Convention, and also the
adoption of laws and the implementation of practices leading to the effective
observance of the said guarantees.[20]
86. The Court observes that, in accordance with
the findings of this judgment, the State violated Article 13 of the American
Convention to the detriment of Juan Pablo Olmedo Bustos, Ciro Colombara López,
Claudio Márquez Vidal, Alex Muñoz Wilson, Matías Insunza Tagle and Hernán
Aguirre Fuentes, because it has failed to comply with the general obligation
to respect the rights and freedoms recognized in the Convention and to guarantee
their free and full exercise, as established in its Article 1(1).
87. In international law, customary law establishes
that a State which has ratified a human rights treaty must introduce the necessary
modifications to its domestic law to ensure the proper compliance with the
obligations it has assumed. This law is universally accepted, and is supported by jurisprudence.[21] The American Convention establishes the general
obligation of each State Party to adapt its domestic law to the provisions
of this Convention, in order to guarantee the rights that it embodies.
This general obligation of the State Party implies that the measures
of domestic law must be effective (the principle of effet
utile). This means that the State must adopt all measures
so that the provisions of the Convention are effectively fulfilled in its
domestic legal system, as Article 2 of the Convention requires. Such measures are only effective when the State
adjusts its actions to the Convention’s rules on protection.
88. In this case, by maintaining cinematographic
censorship in the Chilean legal system (article 19(12) of the Constitution
and Decree Law 679), the State is failing to comply with the obligation to
adapt its domestic law to the Convention in order to make effective the rights
embodied in it, as established in Articles 2 and 1(1) of the Convention.
89. This Court recalls that on January 20, 1997,
the Court of Appeal of Santiago delivered a judgment in this case, which was
confirmed by the Supreme Court of Justice of Chile on April 19, 1997. Because it did not agree with the grounds for
these judgments, the Government of Chile submitted a draft constitutional
reform to eliminate cinematographic censorship to Congress on April 14, 1997.
The Court evaluates and underlines the importance of the Government’s
initiative in proposing the said constitutional reform, because it may lead
to adapting domestic laws to the content of the American Convention with regard
to freedom of thought and expression. However,
the Court observes that, despite the time that has elapsed since the draft
reform was submitted to Congress, the necessary measures have still not been
adopted to eliminate cinematographic censorship, as established in Article
2 of the Convention, and thus allow exhibition of the film “The Last Temptation
of Christ.”
90. Consequently, the Court concludes that the
State has failed to comply with the general obligations to respect and guarantee
the rights protected by the Convention and to adapt its domestic laws to its
provisions, as established in Articles 1(1) and 2 of the American Convention
on Human Rights.
XI
APPLICATION OF ARTICLE 63(1)
91. The Commission requested the Court to order
that, as a result of the violation of Articles 12, 13, 2 and 1(1) of the Convention,
the State should:
1. Authorize the normal
cinematographic exhibition and publicity of the film “The Last Temptation
of Christ.”
2. Adapt its constitutional
and legal norms to the standards of freedom of expression embodied in the
American Convention, in order to eliminate prior censorship of cinematographic
productions and their publicity.
3. Ensure that the
Government’s organs and its authorities and officials exercise their various
powers so as to make effective the rights and freedoms of expression, conscience
and religion recognized in the American Convention and, consequently, abstain
from imposing prior censorship on cinematographic productions.
4. Make reparations
to the victims in this case for the damage suffered.
5. Pay the costs and
reimburse the expenses incurred by the victims in order to litigate [the]
case, both in the domestic sphere and before the Commission and Court, as
well as reasonable fees for their representatives.
92. Following a request from the Court (supra para. 37), of January 8, 2001, the
Commission submitted a brief, with the evidentiary documents that, in their
opinion, justify the request for payment of costs and expenses that had been
presented in the petitionary clauses of their application, and also the corresponding
arguments. In this brief, the Commission
requested the Court that the Asociación de Abogados por las Libertades Públicas
A.G. should be paid an amount of US$4,290 (four thousand two hundred and ninety
United States dollars), representing expenses before the inter-American system,
for the appearance of a representative at a hearing of the Inter-American
Commission and the presence of legal representatives, witnesses and expert
witnesses at the public hearing on merits held at the seat of the Court.
Juan Pablo Olmedo Bustos and Ciro Colombara López, and also the Center
for Justice and International Law (CEJIL) waived reimbursement of any expenses
incurred. With regard to costs, the Commission informed
the Court that the representatives of the victims and the Center for Justice
and International Law (CEJIL) had waived claiming costs for professional fees.
The State’s arguments
93. As mentioned above (supra paras. 62.g and 82.g), the State indicated that, pursuant to
Article 2 of the Convention and its constitutional procedures, it was in the
process of adopting the necessary measures in order to eliminate cinematographic
censorship and thus allow exhibition of the film “The Last Temptation of Christ”.
94. On January 31, 2001, the State submitted
its observations on the Commission’s brief on expenses (supra para. 41), indicating that:
a) there was no documentary, accounting or
financial evidence to indicate that the cost of the airfare for a lawyer of
the Asociación de Abogados por las Libertades Públicas A.G. to travel to Washington,
D.C., to take part in a hearing before the Inter-American Commission during
its 98th session, was in fact paid by that organization;
b) invoice No. 4526 does not comply with
the requirement of referring to necessary and essential expenses incurred
by the parties to the litigation, as it is not in the name of any of the parties;
and
c) invoices
Nos. 4540, 4541 and 4542 were issued for hotel accommodation and food corresponding
to November 16 to 19, 1999; however, the public hearing on merits held at
the seat of the Court was only on November 18, 1999. Those expenses cannot be attributed to attending
the hearing, and this argument applied to the airfares also.
*
*
*
The considerations of the Court
95. Article 63(1) of the American Convention
establishes that:
If the Court finds that there has been a violation of a right or freedom
protected by this Convention, the Court shall rule that the injured party
be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the
measure or situation that constituted the breach of such right or freedom
be remedied and that fair compensation be paid to the injured party.
96. In the instant case, the Court has established
that the State violated Article 13 of the Convention and failed to comply
with its Articles 1(1) and 2.
97. With regard to Article 13 of the Convention,
the Court considers that the State must modify its legal system in order to
eliminate prior censorship and allow the cinematographic exhibition and publicity
of the film “The Last Temptation of Christ”, because it is obliged to respect
the right to freedom of expression and to guarantee its free and full exercise
to all persons subject to its jurisdiction.
98. With regard to Articles 1(1) and 2 of the
Convention, the norms of Chilean domestic legislation that govern the exhibition
and publicity of cinematographic production have still not been adapted to
the provision of the American Convention that prior censorship is prohibited.
Therefore, the State continues to fail to comply with the general obligations
referred to in those provisions of the Convention. Consequently, Chile must adopt the appropriate
measures to reform its domestic laws, as set out in the previous paragraph,
in order to ensure the respect and enjoyment of the right to freedom of thought
and expression embodied in the Convention.
99. With regard to other forms of reparation,
the Court believes that this judgment constitutes, per se, a form of reparation and moral satisfaction of significance
and importance for the victims.[22]
100. Regarding reimbursement of expenses, this
Court must prudently evaluate what they cover; this includes expenses for
the steps taken by the victims before the authorities in the domestic jurisdiction,
and also those arising in the course of the proceeding before the inter-American
protection system. This evaluation
may be carried out based on the principle of fairness.[23]
101. To this end, based on fairness, the Court
calculates those expenses in a total amount of US$ 4.290 (four thousand two
hundred and ninety United States dollars), and this should be paid to the
appropriate party, through the Inter-American Commission on Human Rights.
102. In accordance with its usual practice, the
Court reserves the authority to monitor the integral fulfillment of this judgment.
The case will be closed once the State has faithfully complied with
the provisions of this decision.
XII
Operative
paragraphs
103. Therefore,
the court
unanimously:
1. Finds that the State violated the right
to freedom of thought and expression embodied in Article 13 of the American
Convention on Human Rights, to the detriment of Juan Pablo Olmedo Bustos,
Ciro Colombara López, Claudio Márquez Vidal, Alex Muñoz Wilson, Matías Insunza
Tagle and Hernán Aguirre Fuentes.
2. Finds that the State did not violate the
right to freedom of conscience and religion embodied in Article 12 of the
American Convention on Human Rights, to the detriment of Juan Pablo Olmedo
Bustos, Ciro Colombara López, Claudio Márquez Vidal, Alex Muñoz Wilson, Matías
Insunza Tagle and Hernán Aguirre Fuentes.
3. Finds that the State failed to comply
with the general obligations of Article 1(1) and 2 of the American Convention
on Human Rights in relation to the violation of the right to freedom of thought
and expression indicated in decision 1 of this judgment.
4. Finds that the State must amend its domestic
law, within a reasonable period, in order to eliminate prior censorship to
allow exhibition of the film “The
Last Temptation of Christ”, and must provide a report on the measures taken
in that respect to the Inter-American Court of Human Rights, with six months
of the notification of this judgment.
5. Finds that, in fairness, the State must
pay the amount of US$ 4.290 (four thousand two hundred and ninety United States
dollars), as reimbursement of the expenses arising from the steps taken by
the victims and their representatives in the domestic proceedings and in the
international proceeding before the inter-American protection system. This amount to be paid through the Inter-American
Commission on Human Rights.
6. Finds that it will monitor that this judgment
is complied with and only then will it close the case.
Judge
Cançado Trindade informed the Court of his Concurring Opinion and Judge De
Roux Rengifo of his Separate Opinion, which accompany this Judgment.
Done,
at San José, Costa Rica, on February 5, 2001 in the Spanish and English languages,
the Spanish text being authentic.
Antônio A. Cançado Trindade
President
Máximo Pacheco-Gómez Hernán
Salgado-Pesantes
Oliver
Jackman
Alirio Abreu-Burelli
Sergio García-Ramírez Carlos Vicente
de Roux-Rengifo
Manuel E. Ventura-Robles
Secretary
So
ordered,
Antônio A. Cançado Trindade
President
Manuel E. Ventura-Robles
Secretary