CHAPTER V

FREEDOM OF EXPRESSION AND DISSEMINATION OF IDEAS1

A. Constitutional Provisions

The first paragraph of Article 71 of the Constitution states in general that:

No one can be molested nor persecuted for the expression of his opinions nor for any act which is not against the law.

Article 72, first, and second paragraphs, specifically guarantees freedom of the press, establishing that:

Every person may communicate his thoughts orally or in writing, and publish them without prior censorship; but he shall be responsible for the abuses committed in the exercise of this right, in the cases and in the manner determined by law.

B. Exercise of these freedoms in practice

It is necessary to stress again that, due to its nature, this special report does not attempt to make an exhaustive analysis of these freedoms. Rather its purpose is to look at recent situations, in particular those which the Special Commission noted during its on site observation, during which it verified developments in the best known means of communication, specifically in the case of the written press, radio, and television in the country.

It is worth specifying from the outset the existence of two juridical situations: the period immediately prior to September 13, 1978, during which there was supposedly freedom of the press, and the period between September 13 and October 9, 1978, during which there was complete censorship of the press.

During the first period, these freedoms or rights were seriously restricted in practice, insofar as radio and television were concerned, by the effect of the so-called “Code for Radio and Television�? (Decree N° 523, decreed by Congress on August 10, 1960, and published in The Gazette (La Gaceta), N° 188 of August 18, 1960), and particularly by the application of its Article 47, which reads:

Article 47: It is prohibited to transmit:

a) News messages or propaganda of any sort which may be against the peace and security of the State, or public order, or the good name of the country;

b) False news which might disturb public order or cause damage to third parties;

c) Attacks against international harmony, or the private life, honor, or interests of individuals;

d) Marxist propaganda concerning the abolition of private property, or concerning militant atheism as well as political slogans dictated by international communism.

e) Incitement against the observance of the Constitution or the laws of the State or subversive attacks against the democratic and republican regime;

f) Incitement to disregard the authorities or to demand the removal of some official, or the freedom of some prisoner, the punishment of a delinquent or other similar things;

g) Apologies for violence or crime, or with regard to pornographic programs or those contrary to the public moral;

h) Unfounded reports of disasters;

i) Incitement to commit whatever crime, especially those contemplated in Title II of the Penal Code;

j) Propaganda which in any form encourages strikes with political intentions or illegal strikes, or incites disorder;

k) News or commentaries which act against the international or the economic policy of the State, or which are capable of causing panic in business affairs.

Because of the prohibitions, especially clauses a), f), i), j), and k), the so-called “news broadcasts�? or news spots, and the editorial sections or “commentaries�? of a political nature on both radio and television have been seriously limited in practice, to the point that in many cases a type of “self-censorship�? has been adopted out of fear of incurring greater official reprisals.

Given the generality or vagueness with which various terms of Article 47 are stated, the prohibition against transmitting any class of news which could be interpreted by the authorities as being “against the peace and security of the State�?, or as disturbing to public order or, as “inciting�? the commission of offenses or disorder, keeps the editors and the editorialists of these areas from transmitting the great majority of information and commentary on the armed encounters between the guerrillas and the National Guard, or on the arrests of political or trade union leaders, the disappearance of peasants, demonstrations or statements by opposition political figures, and in general, whatever type of information or declaration which might be understood to be critical or against any official or governmental authority, or in which one is asking for the “removal�? or the simple “punishment�? of corrupt governmental figures.

During its visits to the country the Special Commission received numerous and documented complaints alleging that excesses had been committed by the pertinent authorities (the National Board for Radio and the local Directors or Police Judges) in the imposition of heavy fines, suspension and revocation of licenses previously authorized.

With respect to the written press, primarily made up of three newspapers—Novedades, of obviously governmental orientation; El Centroamericano, the oldest newspaper, independent and published in León; and La Prensa, an opposition newspaper belonging to the family of the late journalist, Pedro Joaquín Chamorro—it ought to be pointed out that during the period immediately prior to September 13, 1978 these newspapers enjoyed freedom of the press, at least in regard to being able to publish their editions without major restrictions, although often this freedom involved serious risks, as shown by various machine-gunnings against the building of La Prensa, and the threats and attacks perpetrated against the editors, journalists, and correspondents.

During the period from September 13 to October 9, 1978 the situation of the freedom of the press can be described in the following manner:

With respect to radio and television, there existed, in full force, a total governmental censorship of news broadcasts and programs of information, to the extreme that even though the censorship of the written press had been formally lifted during the second week of the Special Commission's visit to the country, the government declared that censorship would continue in effect for radio and television. It should be added that the installations of the radio stations “Mi Preferida�? and “Radio Amor�?, were destroyed September 30, 1978.

With regard to the written press, the Special Commission verified the strict censorship applied to the articles of El Centroamericano, even with regard to the publication of news of activities of the Special Commission itself in Nicaragua.

With regard to La Prensa, its production manager was arrested and jailed, without any charges on September 9, 1978, although he was later released. Sra. Roario Mora, reporter in Boaco and Bernardino Rodríguez and Jaime Zamora, reporters in the city of Estelí were jailed, the latter two were mistreated. The most serious case was that of Pedro José Vindell Matus, reporter of Jinotega who, it was reported, had been tortured after his arrest to a degree that he was transferred to Victoria Hospital.

It should also be added that during the first week of the visit the Special Commission verified that La Prensa suffered not only from the official censorship but that it was not even published. However, in the beginning of the second week it began to appear regularly without being subject to censorship, until the Special Commission left the country.

As a result of the aforementioned situation regarding the freedom of expression and dissemination of ideas, the Commission wants to state that the practice of journalism is seriously affected. In this regard, it is worthwhile to recall the judgment of the Inter American Press Association in their annual meeting celebrated this past month of October in Miami in which it was stated that:

freedom of press has not existed in Nicaragua and its future is uncertain and the free exercise of journalism implies a serious threat against one's life.

Notes__________________

1 Article IV of the American Declaration of the Rights and Duties of Man states: “Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.�?