CHAPTER VI

FREEDOM OF EXPRESSION, THOUGHT AND INFORMATION

American Declaration, Article IV – Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever[1]

1. Many of the denunciations received by the Commission report serious violations of the right to freedom of expression and of information in Paraguay. By way of example, some of the first communications received by the Commission denouncing violations of these rights are indicated below:

i. A communication dated December 28, 1961 denounced the closing of the radio station “Radioperiódico del Pueblo�? directed by Dr. Víctor G. Simón and od the “Emisora Mariscal López�? directed by Mr. Manuel Chamorro Damus. In a note dated April 28, 1962 the Government of Paraguay reported that “the programs on Radioperiódico del Pueblo had been suspended because of the personal role played by Mr. Simón in the programs;�? as for Radioemisora Mariscal López, the Government reported that it had not been shut down arbitrarily, “but rather had its license revoked for non-compliance with the standards established in the contract of installation and use of the radio frequency.�? On May 30 of that year another claimant reported that Mr. Chamorro Damus and his family had requested asylum in the Embassy of Argentina;

ii. On June 7, 1962 a claimant alleged that the “journalist, Dr. Juan Nery Huerta, a member of the House of Representatives, was persecuted by the police, despite his parliamentary privilege, and forced to request asylum in the Embassy of Venezuela for having published certain pamphlets requesting the lifting of the state of siege and the enforcement of constitutional guarantees. Also denounced was the closing of the following newspaper: La Mañana, El Pueblo, Alón, El Orden, El Heraldo, and the seizure of the premises of the newspaper El Enano, a liberal organ, and the detention of their editors.�? In a note of July 26, 1962, the Commission requested that the Government provide the corresponding information. In note D.P.I. Nº 978, of November 19 of that year, the Government of Paraguay stated the following:

The Government of Paraguay respects all forms of dissemination of ideas, whether oral, written or by radio. As of the date of presentation of this reply, newspapers of the most varied positions are being printed and circulated. In effect: La Patria and El País are in accord with and support the Government’s measures; La Tribuna and La Tarde have neither partisan nor official ties; Tribuna Liberal and La Libertad belong to groups from the Liberal Party, and are clearly in opposition; other opposition newspapers include the week-lies Nande, El Enano, La Voz de Itapúa, El Progreso, El Imparcial, and so on.�? In another part of its note, the Paraguayan government added: “Dr. Julián Nery Huerta, named in the communication, requested political asylum in the Embassy of Venezuela. The National Government denied safe-conduct for two reasons: a) because Dr. Nery, as a National Representative, enjoyed immunity from prosecution that protected him from being either persecuted or pressured; and b) because no one persecuted him. As a consequence Dr. Nery left the Embassy of Venezuela. Later the House of Representatives expelled him from its midst;

iii. News dated August 16, 1963 reported that the Government, the owner of the only electric power plant in Asunción, had on a number of occasions cut off electric service to the weekly newspaper El Enano and that its director, Roberto Acosta Rolón, had been deported from Paraguay three times and jailed on two occasions.[2]

2. New denunciations, concerning the vicissitudes to which the communications media in Paraguay have been subjected have reached the Commission through many sources. The most recent reports demonstrate how little this situation has changed with respect to these rights. The communications report the following events:

i. The detention incommunicado and sentencing in December of 1974 if the director of the newspaper ABC Color, Roberto Thompson, for having published “negative news that disturbs the peace;�?

ii. The temporary closing, at the beginning of 1976, of the newspaper El Radical, an official organ of the Radical Liberal Party;

iii. Five closing of the official weekly of the Partido Revolucionario Febrista El Pueblo and a number of confiscation of its editions, which took place during 1975 and 1976;

iv. The detention and beating of the director of the evening paper Ultima Hora, Isaac Kostianovsky, at the beginning of 1977.

3. Chapter I of this report analyzed Laws 294, on Defense of Democracy,[3] and 209, on Defense of the Public Peace and the Physical Liberty of the individual. However, the following articles of those laws which refer to the freedom of expression and of information, merit emphasis here:

LAW 294

i. Article 2 provides for a penalty of six months to five years imprisonment for those persons who spread “the Communist doctrine or any doctrine or system whose purpose is to destroy or alter through acts of violence the republican democratic structure of the Nation;�?

ii. Article 3 provides that individuals who introduce, print, store, distribute, sell or in any way circulates pamphlets, magazines, illustrations, newspapers, films or any printed matter or propaganda of the doctrines or systems referred to in Article 2 shall be punished by three months to two years imprisonment;

iii. Those who subscribe to the propaganda material referred to in the preceding paragraph shall be punished by one to six months imprisonment (Article 5);

iv. Should and individual display emblems, banners or symbols of the organizations or entities mentioned under Article 2 a penalty of one to six months imprisonment shall be imposed (Article 6);

v. Article 8 provides that if any of the crimes punishable under this law is committed through the press, radio or news or information agencies, the publications, radio station or agency shall be suspended for a period of from one to six months and shut down in the event of repeated offense or reoccurrence, without prejudice to the penalty to which the guilty parties shall be subject; and the books, pamphlets, newspaper, announcements and any other printed matter shall be confiscated;

vi. Article 10 prohibits public institutions, state or municipal services, or companies that provide public services, from employing individuals who are openly or secretly affiliated with the Communist Party of the other organizations referred to in this law, or who have committed any of the offenses named herein;

vii. Article 11 authorizes the Executive Power to close “any private teaching establishment that does not bar from its directing, teaching or administrative staff those individuals who are openly or secretly affiliated with the illegal organizations referred to in this law or who have committed any of the crimes punishable by it;�?

viii. Article 14 establishes that public employees who commit any of the offenses punishable by this law shall be dismissed, and in addition to the corresponding penalties, shall be totally deprived of their right to hold public positions for a period of time that is double the duration of the sentence;

ix. With regard to the crimes provided for under this law, Article 16 stipulates that there shall be no provisional release under bond, nor commutation of the penalty, except by means of deportation ordered by the Executive Power.

Law 209

i. Article 4 punishes the individual who by any means publicly preaches hatred among Paraguayans or the destruction of social classes, with a penalty of one to six years imprisonment;

ii. Article 8 establishes a penalty of one to five years imprisonment for those who introduce, print, store, distribute or sell pamphlets, magazines, illustrations, newspaper, cinematographic or television films of the doctrine or system (Communist or other organization whose purpose is to destroy through the use of violence the democratic republican structure of the Nation).

4. It is obvious that these laws, by their vagueness, have obstructed the free exchange of ideas. On the one hand, Law 294 established a true crime of opinion, through, the mere dissemination of the Communist doctrine. In our first report on Chile, we stated our position in connection with similar cases as follows:[4]

The mere fact of maintaining or disseminating a particular political philosophical doctrine has become a criminal act. The crime extends to any expression of political, sociological, economic historic or philosophical thinking derived from the teaching of Karl Marx and his followers.

…Whatever the consequences of actions based on a particular ideology, in any event, and whatever the value judgment merited by that kind of thinking, it is clear that ideologies cannot be eliminated [the way an epidemic disease or a serious social vice is eliminated], if the basic principles of a representative democratic system of government are to survive.

This deviation from the recognition of freedom of opinion is undoubtedly the result of temporary political circumstances and emotional factors. It is to be hoped that once they have both been overcome, the upholding or disseminating of particular ideas will cease to be punished as a crime. …Undoubtedly we can disagree with that concept, but the only way of eliminating it without paying too high a price is by the appeal to reason and persuasion.

It is inadmissible that, because of the mere fact of upholding and disseminating a certain ideology, a man becomes a kind of ‘untouchable,’ who it is considered legitimate to deprive of the possibility of working, deny him the free expression of his thought, and even send him to jail.

5. On the other hand, Law 209 does not specify the elements which constitute the crime of “preaching hatred,�? leaving it to the discretion of the judge to clarify this nebulous provision. According to trustworthy sources, this situation has led the Paraguayan media to self-censorship out of a well-grounded fear of reprisals.

6. The Commission has also received denunciations that institutions of learning as well as students and professors have been affected on the basis of their ideology. The following are some examples:

i. The intervention and closing of the Instituto Popular Juan XXIII, in November of 1975;

ii. Intervention in the Colegio Secundario Cristo Rey, a Jesuit-administered institution, on January 13, 1976. The Government alleged the existence of “irregular situations,�? consisting of the alleged formation of Marxist groups among the students, leading to the dismissal of 24 professors and the expulsion of eight Spanish Jesuits from the country. Another intervention and unlawful entry into the Colegio Cristo Rey took place on April 8, 1976.

iii. The press conference of August 1977 wherein the Minister of Education, Doctor Raúl Peña, denounced the presence of subversive elements in schools, pointing to the former Spanish Salesian priest, Andrés Pérez Barkin, who had been expelled from the country in July, as one of the individuals most responsible for that situation. Shortly thereafter, according to information received, the principals of the elementary schools were convened and warned to be watchful of professors who may be creating “subversive children�? in the schools themselves.

7. We should point out that although news is occasionally published containing certain criticism of the Government, the communication media in Paraguay have operated in a climate that reveals severe limitations upon freedom of information. In a report of the Committee on Freedom of Press and Information, of the Inter-American Press Association, dated March 1977, an opinion is expressed to the effect that in Paraguay there is no freedom of the press.

8. Finally, we would like to again reiterate the concepts that we set forth in our Annual Report for 1973, as follows:[5]

The existence of a free press –whether oral or written—is one of the soundest guarantees of modern democracy. In accordance with the communications and denunciations received, in some American states daily newspapers and radio or television stations that refuse to apply stringent self-censorship are subjected to censorship by the authorities, who issue instructions regarding what they should publish.

The Commission has learned of the existence of methods for intimidating organs of information, such as governmental exercise of a monopoly over the production and importation of newsprint, thus subjecting the written press to the dictates of governmental authorities, or cancellation of operating licenses of private radio or television stations, or their outright seizure by the state.

Economic and tax pressures are also brought to bear, by applying onerous fiscal charges and taxes to such mass media. Moreover, their volume of advertising may be restricted, or very stringent or precarious operating licenses granted that are subject to revocation as a reprisal for the political nonconformisms of some program.

Nonconformist journalist have been exiled from the national territory without further ado, thus violating not only the basic norms or regular proceedings mentioned previously, but flagrantly attacking freedom of expression.

The Commission recommends stringent application of the principle embodied in Article IV of the American Declaration, thus strengthening full exercise of freedom of expression, of investigation, of access to sources of information, of opinion, and of dissemination of ideas.

Notes________________________

[1] American Convention on Human Rights

Article 13

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 of 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 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.

[2] Information compiled as background information on the situation of human rights in Paraguay. OEA/Ser/L/V/II.19, doc.2, 8 September 1964, pp. 22-25.

[3] As we pointed out in footnote 5 of Chapter I of this Report, Articles 2 and 3 this law were derogated by Law 209. We feel it appropriate to include them in this chapter, in view of the fact that they were in force for 15 years and in order to provide a better understanding of the articles still in force.

[4] Report on the Status of Human Rights in Chile. OEA/Ser.L/V/II.34, Doc.21, 25 October 1974, pp. 154-155.

[5] Annual Report of the Inter-American Commission on Human Rights. OEA/Ser.P/AG/doc.307/73, rev.1, 14 March 1973, p.32.