CHAPTER VI

FREEDOM OF THOUGHT AND EXPRESSION [1]/

A. General Considerations

1. Freedom of though and expression is protected both by the Fundamental Statutes and by the Statute on Rights and Guarantees of Nicaraguans.

Article 8 of the Fundamental Statute provides that:

Freedom of conscience and religion is hereby recognized based on the broadest spirit of tolerance and unrestricted freedom of oral and written thought, freedom of trade-union and political organization, the only limitations being those deriving from the Statute on the Rights and Guarantees of Nicaragua.

2. Nonetheless, freedom of the press is brought seriously into question by the pertinent provisions of the Statute on Rights and Guarantees of the Provisional Law on the Communications media and Decrees Nos. 511 and 512. The limitations imposed by the Statute of Rights and Guarantees are of a national security nature, as established in Article 21 of the Statute.

Every person has the right to freedom ox expression; this right includes the freedom to seek, receive, and impart information and ideas, either orally, in writing, in print, in the form of art or through any other medium of one’s choice. Exercise of these freedoms entails duties and responsibilities, and as a result, can be subject to certain formalities, conditions and restrictions governed by law and that may be necessary in the interest of:

a. National security and integrity, public safety and the national economy;

b. Protection or order and prevention of crime;

c. Protection of health or morals, the dignity of the individual and the reputation and rights of others;

d. To prevent the dissemination of confidential information and to guarantee the authority and impartiality of the Judiciary.

Article 22 restricts freedom of expression when it manifests itself as “propaganda against peace and any apology for national, racial or religious hatred�?, in which case it is prohibited.

3. The above-listed restrictions are not incompatible with the terms of Article 13 of the American Convention. Problems arise, however with regard to the restrictions imposed by subsequent regulation of the press.

B. Laws restricting the freedom of the press

1. The Provisional Law on the Communications Media was issued one month after the change of government, on August 26, 1979. According to this law, freedom of information may no longer be in the private domain of any particular economic group, but is to serve society as a whole. The guarantee that journalists would serve the public interest was established in Article 9, which mandated that all journalists must become members of the Journalists Union of Nicaragua [UPN] and the Radio Journalists Union of Managua. [2]/

The law prohibits the media from serving unpopular interests, and the nine subparagraphs of Article 3 define what actions are expressly prohibited. For example, any writing, drawing or photograph that “may incite the people to incite or that violates human dignity are prohibited, as is the use of women as sexual or commercial objects or even advertisements to sell alcoholic beverages or cigarettes are prohibited. [3]/

2. As its Annual Assembly in Toronto in October 1979, the Inter-American Press Society (SIP) requested the Nicaraguan Government to revoke this “Provisional Law on the Communications Media,�? on the grounds that it would it “severely limit the exercise of independent journalism in this country.�?

In reply, the Nicaraguan Minister of Culture, said:

The freedom of the people to inform and be informed is guaranteed by means of three newspapers published in this city: La Prensa, independent; El Pueblo, leftist, and Barricada, which speaks for the FSLN; in addition there are 38 radio stations and more than eight international news agencies. Newsmen from all over the world have access to primary sources of information in Nicaragua. This guarantees the pluralist nature of our revolution.

3. On August 27, 1980, the Junta announced three new decrees, the most important of which postponed the electoral process until January 1984, which would culminate with general elections to be held in 1985. Two other decrees, No. 511 and 5112, openly imposed prior censorship of the press in the interests of national security.

Decree No. 511 prohibits the press from publishing information regarding food shortages, because such reports were leading to speculation. Any information that might damage the economic stability of Nicaragua would have to be verified with the Government Junta or with the Minister of Domestic Trade before publication.

The text of Decree No. 511 reads as follows:

“Decree 511

THE JUNTA OF THE GOVERNMENT OF NATIONAL RECONSTRUCTION

OF THE REPUBLIC OF NICARAGUA

CONSIDERING:

That access to basic consumer goods has been gained by the Sandinista Revolution, which must be defended from negative interest that are still prevailing in some circles in the new Nicaragua, frustrating proper access to these goods by circulating tendentious reports.

THEREFORE:

In exercise of its authority:

DECREES

The following:

LAW TO REGULATE ECONOMIC INFORMATION ON

Article 1. Communications media in the Republic, regardless of their nature, may not report news or information on matters related to the shortage of goods, for popular consumption that might give rise to speculation in the price of such products. Or that might in any way damage or compromise the nation’s economic stability, without previously confirming the truth of such information or news with the Junta of the Government of national Reconstruction or with the Ministry of Internal trade.

Article 2. The Coordinator General of the Communications Media shall be responsible for making a report on cases of violation of the foregoing article, and in cases that so warrant, he may order publication of the correction, the cost being borne by the medium committing the violation, if the deems it necessary. The correction shall have the same characteristics and be of the same lengths as the original publication.

Article 3. The Coordinator shall immediately send a copy of the said report to the Ministry of Justice to determine the criminal liabilities under the Law on maintenance of Public Order and Public Security and other criminal laws of the Republic.

Article 4. The present Decree shall enter into force at the time of its publication in any mass communications media, its subsequent publication in “La Gaceta�?, the official Gazette, notwithstanding.

4. Decree No. 512 prohibits the press from broadcasting information related to national defense or security. Such as reports on confrontations, attacks on government officials and other similar cases; such information must be verified with the Government Junta or with the Ministries of Defense or the Interior before they can be published. The text of Decree No. 512 reads as follows:

Decree 512

THE JUNTA OF THE GOVERNMENT OF NATIONAL RECONSTRUCTION

OF THE REPUBLIC OF NICARAGUA

CONSIDERING:

That freedom of the press is a victory for the people of Nicaragua and hence all communications media, certain of their information, must work for national unity, for the defense of the nation and the consolidation of the Revolution.

THEREFORE:

In exercise of its authority:

DECREES

The following:

LAW TO REGULATE INFORMATION ON DOMESTIC

SECURITY AND NATIONAL DEFENSE

Article 1. The Communications Media of the Republic, regardless of their nature, shall not circulate news or information regarding matters related to the country’s domestic security. Or that compromise or harm national defense, without previously verifying the truth of such information or news with the Junta of the Government of National Reconstruction or with the Ministries of the Interior or Defense.

This type of publication includes communicating information or news such as armed confrontations, attacks on government employees and other similar cases.

Article 2. The Coordinator General of the Comminations Media shall be responsible for making a report on cases where the foregoing article has been violated. And in cases that so warrant, he may order publication of the correction, the cost of which shall be borne by the medium committing the violation, if he deems it necessary. The correction shall have the same characteristics and be of the same length as the original publication.

Article 3. The Coordinator General shall immediately send a copy of the said report to the Ministry of Justice for determination of the criminal liabilities under the law on Maintenance of Public Order and Security and other criminal laws of the Republic.

Article 4. The present Decree shall enter into force at the time of this publication in any mass communications media, its subsequent publication in “La Gaceta�?, the official Gazette, notwithstanding.

5. Decree No. 708, which went into effect on April 30, 1981, added paragraph k and l to Article 3 of the General Law on the Communications Media. These paragraphs read as follows:

k) That compromise or damage the country’s domestic security or national defense;

l) That damages or compromises the economic stability of the nation and of its people.

Communication or publication of information or news such as armed conflicts, attacks on government officials and other similar news referred to in subparagraph k) must be previously verified with the Junta of the Government of National Reconstruction or with the Ministries of Defense and the Interior, to ascertain their truth. Similarly, the information or news described in subparagraph 1), must be verified prior to publication or communication with the Junta of the Government of National Reconstruction or with the Ministries of Domestic Trade.

As will be seen, the Decree in reference incorporates the contents of Decrees 511 and 512 into the General Law on the Communications Media. However, it does not do away with prior censorship, and it is not sufficiently precise to establish specifically which activities are prohibited or subject to censorship.

6. In the Commission’s view, a limitation of freedom of the press is justified only when order and the security of the State are truly compromised. Such a limitation may be in effect only for a limited period of time and under certain specific circumstances. The legislation currently in effect may give rise to serious abuses, because of its great ambiguity and breadth. When freedom of the press is at stake, any restrictions must be clearly established so that everyone may know precisely what activities are prohibited or must be subject to censorship. Expressions such as: “or that in any way damage or compromise the economic stability of the nation�? or “harm the national defense�? or “other similar cases�?. That found in Decrees No. 511 and 512 and currently incorporated into Decree No. 708 amending the Law on the Communications media, give the Governmental authorities such discretion as to represent a risk to the freedom of expression set forth in Article 13 of the American Convention on Human Rights.

7. The Nicaraguan Penal Code, which was not suspended by the new government, continues in force; its Article 260 provides sanctions for the actions which Decrees No. 511 and 512 are designed to prevent.

Article 260. Freedom of expression means the right of citizens to be informed about everything that makes up national and international life, and affects them in any way. And publicly to state their criticism and opinions in terms that will not will not offend morals and good conduct or incite to violation of the law. As a result, the following are in violation of the freedom of expression and thought:

a) Authorities, employees or private individuals who by word or deed prevent, , by coercion, violence, threats or bribery the legal operation of publications enterprises or organs, or the circulation or publication of news, photographs, written materials or statements that are not contrary to the law, to good morals or behavior;

b) Those committing the crimes of slander and libel;

c) Owners of newspapers, radio stations, loudspeaker systems and television corporations, journalists, newsreaders, lectures and artists who, in the exercise of their profession:

1. Openly and directly provoke the people to commit the crimes of treason, rebellion, sedition, riot or disturbance.

2. Use obscene words or phrases, or publish or stage obscene scandalous stories.

3. Propagate doctrines that are manifestly contrary to good morals, to the democratic basis of the State and to public order.

4. Maliciously invent or distort news, events or ideas, if they cause moral or material damage to the nation, a community or an individual person or persons.

C. Some cases concerning the observance of freedom of expression noted by the IACHR during its on-site observation

1. During its on-site observation, the Commission met with the editors and executives of the three newspapers in Nicaragua: La Prensa, El Nuevo Diario and Barricada, all of which are in Managua.

La Prensa was founded in 1926. In 1932, as the result of a number of business transactions, its ownership passed to Dr. Pedro Joaquín Chamorro Zelaya, who was editor from 1930 on. His son, Dr. Pedro Joaquín Chamorro Cardenal, succeeded him as owner and editor. At present, its editors are Mr. Pablo Antonio Cuadra and Mr. Pedro Joaquín Chamorro Barrios. It adopts an independent stand vis-à-vis the Government; it has not been spared certain criticism, which has increased in recent months.

El Nuevo Diario, whose editor is Javier Chamorro Cardenal, was born as a result of an internal dispute within La Prensa which caused some of its executives and most of its workers to leave the newspaper to found El Nuevo Diario. Although an independent newspaper, it’s political position is one of decisive support for the present government.

Barricada, founded shortly after the victory of the revolution, is the official organ of the FSLN and the Government. Its editor is Carlos Fernando Chamorro Barrios.

2. The Commission also had the opportunity to talk with representatives of Radio Corporación, Radio Sandino and Radio Voz de Nicaragua, radio stations and with the former owners of television stations, which have now passed into the procession of the Government.

The Commission also interviewed the President of the Journalists Union and a number of other journalists, both supporters and critics of the Government.

3. During all these interviews, the Commission had the opportunity to exchange views about the status of freedom of expression in Nicaragua, and to discuss some of the problems that have arisen in connection with observance of this right.

In addition to Decrees Nos. 511 and 512 to which reference has already been made in this report, the Commission will comment on three problems that it noted during its stay in Nicaragua: a. the case of the newspaper El Pueblo; b. the censorship imposed on the events at Bluefields, and c. the detention of the journalist Guillermo Treminio.

a. The case of the newspaper El Pueblo

4. The first denunciation received by the IACHR alleging violation by the Government of Nicaragua of freedom of the press, referred to the closing of a leftist newspaper, El Pueblo.

Case 6156: El Pueblo

On January 25, 1980, the IACHR received the following telegram:

WE DENOUNCE THE ARBITRARY CLOSING AND MILITARY OCCUPATION OF THE NEWSPAPER EL PUEBLO AND ILLEGAL DETENTION OF REPORTERS AND EMPLOYEES EVENTS OCCURRED IN MANAGUA WEDNESDAY JANUARY 23 STOP WE ASK YOU TO INTERCEDE WITH THE JUNTA OF THE GOVERNMENT OF NATIONAL RECONSTRUCTION TO SEEK RAPID RELEASE OF PRISONERS AND REOPENING OF THE NEWSPAPER THAT HAS BEEN SHUT DOWN STOP THESE EVENTS VIOLATE NICARAGUAN REVOLUTIONARY LAWS AND PACT OF SAN JOSE RECENTLY SIGNED BY THE GOVERNMENT.

The leftist morning newspaper El Pueblo was described as “counter-revolutionary�? by the Nicaraguan authorities, and was closed down by members of the Sandinista Popular army who seized the machinery, materials and office equipment, and arrested two journalists and an assistant who were in the office at the time.

5. On March 3, 1980, the IACHR transmitted the pertinent parts of the denunciation to the Government of Nicaragua, and asked it to present the corresponding information. On May 2, 1980, the Government of Nicaragua replied as follows:

The newspaper El Pueblo was closed down by the Government authorities, for having attacked our people’s revolutionary process. In articles inciting the people to disorder and non-productivity.

On January 31, 1980, the Assistant Criminal Public Prosecutor, Mario Ruiz Castillo, filed a pleading with the First District Criminal Judge of Managua, accusing: Mrs. Xiomara Centeno Gutíerrez, Juan Alberto Enríquez Oporta, Mirta Espinoza, Ivania del Carmen Nuñez, Carlos Adan Arteaga, Isidro Téllez, Carlos Domingo Cuadra Cuadra, Melvin Wallace Simpson and Alejandro Gutíerrez of circulating written statements intended to harm the interest of the people and to undermine the victories achieved by our people, which crimes were committed by supporting, writing, circulating and maintaining the publication of the newspaper El Pueblo.

After taking the pertinent evidence, the Judge of the First instance passed sentence according to the Law on Maintenance of Public Order and Security and sentenced Melvin Wallace, Carlos Domingo Cuadra, Juan Alberto Enríquez and Isidro Téllez Toruño to two years of public work.

The interested parties appealed this sentence, and the Appeals Court reduced the sentence to 13 months of public work and the loss of the property with which the crime was committed.

I attach hereto a photocopy of the judgment given at 10Ñ30 a.m. on March 13, 1980, by the Honorable Court of Appeals of Masaya, Criminal Bench.

6. The accusation against Melvin Wallace and others filed with the First District Criminal Judge of Managua accused these men of “publishing written statements intended to harm the interests of the people and undermine the victories achieved by our people, which crimes were committed by supporting, writing, circulating and maintaining the publications of the newspaper El Pueblo�?.

Such an accusation was the equivalent of violating article 4(c) of the Law on the Maintenance of Public Order and Security, which provides:

Article 4. Those who commit the following crimes shall be sentenced to from 3 months to 2 years of public work:

c. Making known, either orally or in writing, statements, proclamations or manifestos intended to harm the interest of the people and to undermine the victories it has achieved.

Specifically, Melvin Wallace and Carlos Domingo Cuadra, as Editor and Senior Writer respectively of the newspaper El Pueblo, and Juan Alberto Enríquez and Isidro Téllez, as leaders of the Frente Obrero (Workers’ Front), were charged with having published opinions such as the following:

In its issue No. 159 of 5/1/80, it was stated in the newspaper: “The coffee downslide, a political problem,�? and let it to be understood that coffee had fallen because the workers had taken reprisals against the Sandinista Front, which had not kept its promises to them. The paper says: “The Sandinistas offer land, they did not come through, they told them that power would be with the workers and the peasants, and it is not true�?.

And in issue No. 171 of 19/1/80, the literacy campaign was attacked in the following terms: “the watchword “war on ignorance�? is good, but for the working masses, the watchwords “death to the large estates, death to land ownership�? are even better; the war on ignorance begins with the war on exploitation.�?

7. The Court of Appeals of Masaya found that such opinions had a potentially destabilizing effect on the Government, and declared:

That the publications described do not serve any constructive purpose, but rather are negative criticisms that are injecting confusion and rabble-rousing into the realities of the revolutionary process; such publications have, moreover, caused discontent and difficult situations among the people, just at the time when it is opportune to point out the bloodlines of the war we have just been through; we look with concern at the signs of the violence that might happen in the future should the crimes charges in the present case continue with impunity.

Given the partisan nature of the newspaper, the Court justified closing it and the penalties imposed on the people involved by saying that El Pueblo was not a legal publication, but rather a propaganda organ of the leftist Frente Obrero trade union.

…since the newspaper El Pueblo was simply the information medium used by the Frente Obrero to achieve its purposes and destabilize the achievements of the revolution. The newspaper El Pueblo was the instrument that the Frente Obrero employed to transmit its slogans and communiqués.

According to the Court of Appeals of Masaya, Article 20 of the Statute of Rights and Guarantees of Nicaraguans specifically prohibits press ownership by any particular economic group.

8. During its on-site observation, the Commission was unable to talk with representatives of the former newspaper El Pueblo, or with the Frente Obrero, but it was able to learn of the situation in interviews with government authorities, journalists and political leaders. In the Commission’s view, the closing of the newspaper El Pueblo sets a precedent that may affect freedom of expression in Nicaragua. [4]/

b. The censorship imposed as a result of the events in Bluefields

9. At the end of September, and beginning of October, 1980, there were work stoppages, unrest, strikes and demonstrations against the Government in the Atlantic region, particularly in Bluefields, the capital of the department of Zelaya.

The Press and information Chief of the Government Junta, according to the editors of the newspaper La Prensa, when the issue was being printed, told two of its employees, at home, that they could not report any of the events that had occurred in Bluefields. Since these employees of La Prensa felt that the events were not covered by Decree No. 511, and the newspaper was already at the printers, they chose to continue printing and distributing it and defend themselves later if an attempt were made to impose a penalty, which did not happen. The following day, La Prensa was notified of the prohibition on publication of any news on events in Bluefields.

10. The Junta justified its action restricting press coverage of the events in Bluefields, in a message issued on October 2, 1980, which was published in La Prensa:

Behind these acts, which were intended to challenge authority through vandalism, there is a clear maneuver to attempt to destabilize the Revolutionary Government, to defy the power of the Revolution, and to attempt to mount evidence defaming the country at a time when the visit by the Inter-American Commission on Human Rights, which we ourselves requested, is drawing to a close. We know that there are individuals and groups in the country who in their blind desire to defend their own interests, are resorting to all kinds of lies against the revolution, and are taking advantage of the political backwardness, ignorance and prejudices of some sectors of our population, sectors that were kept in ignorance by the Somoza regime, the better to dominate and deceive them..

We are not establishing a state of exception, nor are we suspending any guarantees; but the revolutionary laws will be applied rigorously and to their full extent against anyone who encourage and incites civil disobedience and defiance of the authorities; they will also be applied against anyone who prevents public employees from carrying out their duties, or any one who takes over public places and offices.

The Junta’s message states further that publication of certain types of information falls within the scope of Decrees No. 511 and 512. As a result, the Government prohibited “the publication of information on counter-revolutionary acts, disorder, attacks on the authorities, uprisings, strikes, interruption of public services, take-overs of land, farms and estates, etc., covered by the provisions of Decrees 511 and 512.�?

11. In the Commission’s view, the Junta’s message included a large number of unspecified actions that could not be reported without prior censorship, as evidenced by the “etc.�?; this may give rise to serious abuses if the authorities judge that any criticism of the Government is prohibited.

c. The case of journalist Guillermo Treminio

12. During the on-site observation, the Commission was presented with the case of Guillermo Treminio, as representative of the restrictions imposed on freedom of the press. Guillermo Treminio, a journalist, was sentenced to 11 months’ imprisonment for having violated the Law on the Maintenance of Public Order and Security. Members of the sandinista Police detained Treminio at midnight on March 15, 1980 by members of the Sandinista Police.

13. The Public Prosecutor’s accusation, filed with the Third District Criminal Judge, accused Guillermo Treminio, editor of the newsletters Hoy and Mundial, of having engaged in the task of slandering and libeling a number of citizens, and specifically that:

Some of the news items transmitted by Mr. Treminio, in violation of the Law on the Maintenance of Public Order and security, included: the resignation of the Ambassador to Washington, Commander Rafael Solís; the participation of Mr. Ernesto Martínez Tiffer as an alleged member of a gang of car-thieves; the statement that Xavier Chamorro Cardenal was the cause of the crisis suffered by Mrs. Margarita Cardenal, the widow of Chamorro; the resignation of José Francisco Cardenal as member of the Council of State; the statement that the police were looking for arms and suspects in the Mercado Oriental; the statement about the alleged hostility of Barricada to freedom of expression; the statement about the boycott of Mr. Robelo’s demonstration in Matiguás; the announcement of alleged boycotts of the Robelo demonstration by taking vehicles and persons, leaving the city for jail; the reference to an armed band of individuals, including an INE official, who were involved in stealing and butchering cattle; the reference to open criticism of the participation by Catholic priests in the country’s political activities; the statement that the inhabitants of the Colombia Residence should be thrown out of their rooms; the statement about the denunciation of Guillermo Palacios, allegedly assaulted in Ciudad Jardín and who, according to Mr. Treminio, was warned in the police station not to file the compliant; the statement about a an alleged volley of bullets fired by a policeman when he was checking vehicles in the Traffic Offices; and a supposed personal sale of coffee allegedly transacted by two Ministers; on the loss of some alleged marijuana, in which Mr. Treminio said “it appears that the accused was a member of the Army�?; on al alleged discrimination by the militiamen (brigadistas) as regards handing over the relevant knapsacks; the statement regarding the disappearance of a patrol of former National Guardsmen allegedly captured near Matagalpa; the statement about the activities of the police in connection with El Espanto case; the supposed death of Commander Walter Ferreti in El Salvador, and the propaganda for a clandestine radio station of counter-revolutionary tinge.

These specific acts, of which he was accused were a violation of Article 4 (c) of the Law on Maintenance of Public Order and Security.

14. The defense attorney challenged the procedure applied to Guillermo Treminio, on the grounds that the General Law on the Communications Media was specifically intended to be applied to acts related to freedom of expression.

Since the defense did not reveal the source of 12 of the 17 news items identified from the interrogatory, nor the truth of the alleged events, the judge ruled that:

… in the opinion of this Court, the accused has violated paragraph c) of Article 4 of the Law on the Maintenance of Public Order and Security, since by circulating the statements in question, he has attempted to defame our Government, both domestically and internationally. With these statements, he has also attempted to damage the interests of the people and the victories achieved through the Revolution. Since the defendant did not deny the statements by the Criminal Prosecutor in the accusation, the crime must be held duly proven and the defendant guilty.

15. Mr. Treminio was sentenced to 11 months’ imprisonment; the sentence was appealed and reduced to 9 months, and he has now been released.

16. In the Commission’s view, application to this case of Article 4 (c) of the Law on Maintenance of Public Order and Security, with the penalty contained in that provision, cannot be justified in terms of the alleged offense committed.

Notes____________________

[1] Article 13 of the American Convention on Human Rights provides: “Freedom of Thought and Expression. 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 reputations on others; or 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 by any other means tending to impede the communication and circulation of ideas and opinions. 4. Notwithstanding the provisions of paragraph 2 above, public entertainment may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. 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.�?

[2] On October 1, 1980, the Council of State abolished Article 9 of the provisional Law on the Communications Media, which had established that journalists had to be members of the UPN in order to practice their profession. This law is also known as the “General Law on the Communications Media.�?

[3] This law was called a “provisional�? law because the intention was for it to remain in effect only until the new Assembly had adopted its own law.

[4] The Government of Nicaragua has informed the IACHR that all the individuals involved in the case of the newspaper El Pueblo are currently free.