On April 13, 1999, El Libro Negro de la Justicia Chilena [The Black Book of Chilean
Justice], written by journalist Alejandra Marcela Matus Acuña and
published by the Planeta
Publishing Company of Chile, was released in that country.
On that date also, all copies of the aforementioned book were
confiscated, under judicial proceedings instituted for violation of the
State Security Law of Chile. On
June 16, 1999, Messrs. Bartolo Ortiz and Carlos Orellana, executives at
the Planeta Publishing Company in Chile were arrested as part of these
proceedings. Two days later, they were both released and charges against
them dropped. Journalist
Matus Acuña left the country and has not returned to Chile, since she
thinks that she would be detained in proceedings that violate Chilean law
and the American Convention on Human Rights (“the American
Convention”). As of the
date of this report, the books remain confiscated, and the judicial
proceedings in regard to which the journalist has been declared to be in
contempt of court, remain open.
On April 26, 1999, the Inter-American Commission on Human Rights
(“the IACHR” or “the Inter-American Commission”) received a
request for precautionary measures from the Center for Justice and
International Law, CEJIL, and the Legal Clinic for Public Interest Actions
of the Chilean Diego Portales University (AIP Clinic), on behalf of 30
persons whose right to receive information had been impaired by the
aforementioned restrictive measure. The IACHR subsequently received a petition from the
Association of Attorneys for Public Freedoms in Chile (“AALP”), on
behalf of five attorneys from that country,
contending that the confiscation of El
Libro Negro is an arbitrary and illegal measure and that it violates
Articles 1(1), 2, and 13 of the American Convention.
In this petition, the IACHR is asked to establish the international
liability of the Republic of Chile (“the Chilean State” or “the
State”). CEJIL and the AIP Clinic also filed a petition claiming
violation of the right of Alejandra Marcela Matus Acuña and all members
of the society to freedom of expression as a result of prior censorship of
Negro de la Justicia Chilena, as well as violation of that
journalist’s right to property, since it held that, because of a legal
decision, this individual had been denied the right to revenue to which
she was entitled under the contract signed with the Planeta
3. The Chilean State reports that
the two executives at the Planeta
Publishing Company were released two days after detention and charges
against them dropped, that there is no outstanding warrant for the arrest
of Alejandra Matus, that a draft law has been submitted for amendment of
the State Security Law, under which, according to the State, provisions
that violate freedom of expression will be repealed, and that the
journalist’s intellectual property right to her book is not at issue.
In this report, the IACHR concludes that the case meets the
requirements set forth in Articles 46 and 47 of the American Convention.
Consequently, a decision has been made to declare the case
admissible, to notify the parties of this decision, and to continue
analysis of the merits related to alleged violation of Articles 2, 8, 13,
and 21 of the American Convention.
PROCEEDINGS BEFORE THE COMMISSION
5. The IACHR contacted the Chilean
State on April 28, 1999, and requested information, within 10 days,
regarding the request for precautionary measures submitted by CEJIL and
the AIP Clinic on behalf of the 30 persons listed in footnote one, and all
the residents of Chile.
On April 28, 1999, the AALP submitted a petition on behalf of its
five members, alleging human rights violations resulting from the
confiscation of the copies of the book
El Libro Negro de la Justicia Chilena, cited in the request for
precautionary measures mentioned above.
On May 4, 1999, the Commission assigned the number 12.142 to the
case and requested information from the Chilean State on the pertinent
parts of the AALP report within the 90-day period established for this
On May 7, 1999, the State requested “an extension of the deadline
fixed for providing information related to this case,” due to the fact
that the IACHR communication of April 28, 1999 was not received by the
Permanent Mission of Chile to the Organization of American States until
May 6, 1999.
On June 18, 1999, the Inter-American Commission asked the Chilean
State to adopt precautionary measures on behalf of Messrs. Bartolo Ortiz
and Carlos Orellana, the General Manager and Editor-in-Chief of the Planeta Publishing Company, respectively. Specifically, the IACHR
requested that the arrested warrant issued for both persons be withdrawn,
as well as the decision to institute proceedings against them for
publication of El Libro Negro de la
On June 30, 1999, a request was received for precautionary measures
on behalf of Alejandra Marcela Matus Acuña, who claimed that her security
and personal integrity were threatened as a result of the warrant for her
arrest issued by Judge Rafael Huerta Bustos and by the declaration that
she was in contempt of court in the criminal proceedings instituted
against her. The journalist
charged that her right to freedom of expression and intellectual property,
as the author of El Libro Negro de
la Justicia Chilena, was also impaired, to the extent that the judicial decision prevented the
distribution and sale of this book. In
that communication, Alejandra Marcela Matus Acuña appointed Jean Pierre
Matus Acuña and the Executive Director of Human Rights Watch, Americas
Division (HRW/Americas), José Miguel Vivanco, as her legal
representatives. On July 19,
1999, the IACHR contacted the State with a view to expansion of the
precautionary measures to include journalist Matus Acuña, with respect to
protection of the rights mentioned.
On July 30, 1999, the State indicated that the Chilean authorities
were “analyzing the recent information” furnished by the Commission
with respect to this case, and that it was its understanding that the
60-day time period for the provision of information was to be added to the
90 days mentioned in the communication of May 4, 1999, the date on which
the IACHR opened the case.
Alejandra Marcela Matus Acuña submitted a document on August 11,
1999, in which she asked the IACHR to submit another request to the
Chilean State for precautionary measures or to issue new measures, since
her situation had not changed. On
August 23, 1999, the Inter-American Commission contacted the Chilean State
and submitted another request for precautionary measures on behalf of the
On October 4, 1999, during its 104th session, the
Inter-American Commission held a hearing related to this case, which was
attended by the representatives of the Chilean State, journalist Alejandra
Marcela Matus Acuña, and representatives of Human Rights Watch/Americas,
CEJIL, and the AIP Legal Clinic.
On October 6, 1999, CEJIL and the AIP Legal Clinic sent
correspondence to the IACHR on behalf of 27 Chilean citizens, in which
they claimed violation of the American Convention in the case of the
confiscation of El Libro Negro de la Justicia Chilena. The Inter-American Commission acknowledged receipt of this
correspondence on October 12, 1999, and included it in the file.
In correspondence from Dr. Jean Pierre Matus Acuña dated October
8, 1999, he asserted that the act of declaring the journalist in contempt
of court goes hand in hand with an arrest warrant or the imminent issuance
of such an order. The
Commission forwarded this correspondence to the Chilean State on November
29, 1999 and asked for its comments in that regard.
On December 30, 1999, the Chilean State provided its response to
Case 12.142 and to the various requests for precautionary measures on
behalf of the persons mentioned above.
On March 28, 2000, the IACHR made itself available to the State and
petitioners for the purpose of reaching a friendly settlement of the case.
A time period of 30 days was established for that purpose, which
elapsed with no written response from the parties.
On June 14, 2000, CEJIL and the AIP Legal Clinic reiterated and
expanded their claims related to the case filed by them on October 6,
On June 16, 2000, the Chilean State sent a certificate to the IACHR
issued by the President of the Chilean Supreme Court, stating that Mrs.
Alejandra Marcela Matus Acuña had been declared in contempt of court on
May 14, 1999, in the case against her for violation of Law No. 12.927, but
that no arrest warrant had been issued against her in that case, which was
in the preliminary phase.
The Inter-American Commission contacted the Chilean State on July
11, 2000, in order to provide it with the relevant parts of the June 14,
2000 correspondence of the petitioners and to request its comments. On that date, it informed the petitioners of the certificate
provided by the Chilean State.
The IACHR Special Rapporteur for Freedom of Expression, Dr.
Santiago Canton, presented his commentaries and observations pertaining to
the instant case, in which he concluded that it is admissible.
The Inter-American Commission considered them during its analysis
of the case.
POSITIONS OF THE PARTIES
During the processing of this case, the Inter-American Commission
received various petitions and requests for precautionary measures on
behalf of several persons, including journalist Matus Acuña.
All the documents and requests are linked to the alleged violation
resulting from the court-ordered confiscation of El
Libro Negro de la Justicia Chilena. Later
on, in discussing the position of the petitioners, the IACHR will
summarize the arguments of the representatives of journalist Matus Acuña,
and, where relevant, the other correspondence received with respect to
Alejandra Marcela Matus Acuña reports that on April 13, 1999, the Planeta
Publishing Company made a public announcement that an investigation was
being launched in Chile into her book entitled El
Libro Negro de la Justicia Chilena.
That same day, at the request of the President of the Chilean
Supreme Court, Servando Jordán López, the Santiago Court of Appeal
appointed Rafael Huerta Bustos as the court President to investigate the
alleged violation of Article 6(b) of Law No. 12.927 (State Security Law),
which imposes sanctions on “those who defame, slander, or libel the
President of the Republic, Ministers of State, Senators or Deputies,
members of the superior courts, the Comptroller General of the Republic,
Commanders-in-Chief of the Armed Forces, or the Director General of the
National Police, whether or not this defamation, slander, or libel was
committed by reason of the office of the victim”.
The journalist also claims that on that day, Judge Rafael Huerta
Bustos ordered the confiscation of the entire press run of El Libro
Negro as a “precautionary and preventive measure in defense of the
alleged victim’s honor,” despite the fact that no final ruling had
been handed down. Mrs. Matus
Acuña describes the situation as follows:
thousand one hundred and forty-one copies of the book were confiscated by
the law and order forces on April 14, 1999, from the storeroom of the Planeta
Publishing Company and bookstores in Santiago.
The subsequent reprinting of this book was banned, pursuant to the
provisions of Article 16 of the State Security Law.
From that time to the present, the confiscation order has remained
in effect, and it has already been three months since I have been denied
my right to freedom of expression without prior censorship and my
legitimate right to the intellectual property confiscated, the publication
of which has been banned under the law.
Journalist Alejandra Marcela Matus Acuña contends that the Chilean
State has violated her right to freedom of expression, enshrined in
Article 13 of the American Convention, as well as her right to property
guaranteed under Article 21 of said Convention. In addition, having
reviewed the response of the Chilean State, CEJIL and the AIP Clinic
maintain that the case should be analyzed from the broader standpoint of
the right to freedom of expression and autonomy of all persons.
They therefore question the fact that the State failed to refer to
the request for precautionary measures
filed on behalf of the 30 persons listed in this report.
The representatives of the journalist claim that the submission of
the proposed amendment to Law 12.927 on State Security does not represent
fulfillment by Chile of its international obligation; instead, this action
confirms that this law violates the American Convention.
Since this law is still in effect, the petitioners hold the view
that it constitutes “a flagrant violation of the American Convention”.
They proceed to analyze in detail the amendments to Law 12.927 approved by
the Chilean Chamber of Deputies, which they consider to be “insufficient
to guarantee freedom of expression, since they fail to address and/or
amend Articles 263 et seq. of
the Penal Code.”
In regard to the right to property, the petitioners contend that
the intellectual property right of Alejandra Marcela Matus Acuña to El
Libro Negro de la Justicia Chilena should be considered an asset and,
as such, to be protected under Article 21 of the American Convention.
In that regard, they maintain:
Chilean State] is seeking, unlawfully, to limit the concept of assets to
physical and tangible assets only, such as the books confiscated, and is
overlooking the rights derived from intellectual property ownership of the
work, based on which, as is the customary practice with the publication
and distribution of books, the author of a work receives a percentage of
the revenue generated from the sale of the work.
Journalist Matus Acuña maintains that, pursuant to Article 27(k)
of the State Security Law, the decision of Judge Rafael Huerta ordering
the confiscation of all copies of El
Libro Negro cannot be appealed before a higher court.
However, this law provides for a special review in cases to which
Article 16 is applied, the course of action followed by Judge Huerta.
The journalist refers to the exhaustion of domestic remedies in
the exercise of the action allowed under this remedy, called a
“claim,” on May 13, 1999, my representatives filed the pertinent
complaint with the Santiago Court of Appeal, which was processed under No.
29,063-99. However, on May
27, 1999, the Fourth Division of that Court, with the approval of Judge
Gloria Olivares and Attorney Francisco Merino, rejected the claim filed.
This decision was appealed before the Chilean Supreme Court, and the
Santiago Court of Appeal ruled the appeal inadmissible on June 2.
Proceedings for review of leave to appeal were filed against this
decision under No. 1742-99, and the Chilean Supreme Court decided not to
hear the appeal submitted, arguing that the claim had been settled by a
collegiate court. Consequently,
all domestic remedies related to this case have been exhausted.
With regard to the alleged violation of the right of the victims to
receive information under the American Convention, CEJIL and the AIP Legal
Clinic filed a separate remedy of protection on April 19, 1999, under the
No. 1628-99 with the Court of Appeal in Santiago, with a view to the
lifting of the legal ban imposed on El
Libro Negro de la Justicia Chilena.
To that end, they cited
Article 19(12) of the Constitution of Chile and Article 13 of the American
Convention. On the same date
that the remedy of protection was filed, the first division of the
Santiago Court of Appeal declared it inadmissible due to the fact that
“the complaint filed was a matter that was already being heard by a
legally constituted court that was acting within the scope of the
authority that the proceeding, initiated by the lawmaker, had conferred on
it,” and that the actions and appeals provided for in that proceedings
fully protected the rights for which protection was being sought by means
of the remedy of protection. The
representatives of the claimants appealed that judicial decision on April
22, 1999 by means of an appeal for reconsideration of judgment “due to
the fact that the judicial decisions reflected confusion of the rights of
the author of the book, who did indeed have proceedings pending, with the
rights of the petitioners, who were claiming violation of the right to
have access to information.” They therefore maintain that domestic remedies have been
exhausted in Chile, pursuant to Article 46 of the American Convention.
Furthermore, the Association of Attorneys for Public Freedoms [AALP]
submitted a remedy of protection of constitutional guarantees with the
Santiago Court of Appeal, since it viewed the confiscation of El
Libro Negro as prior censorship,
which is prohibited under Article 19 of the Constitution of Chile and
Article 13 of the American Convention.
The AALP maintains that the decision of Examining Judge Jordán López
is not based on the State Security Law, the Law on the Advertising Abuses,
or on any other Chilean legal provision.
It further maintains that the laws enforced in Chile are laws
related to contempt, and that their mere existence constitutes an
additional violation of Article 2 of the American Convention.
With regard to the exhaustion of domestic remedies, it maintains
that the constitutional proceedings instituted by the AALP and Messrs.
Bofill, Correa, López, Moraga, Ovalle, and Ruiz Tagle “are specifically
aimed at protection of their right to information, to the extent that it
protects the recipients of these opinions and this information,” and
that the remedy of protection sought is a suitable and effective method of
dealing with the violation reported.
29. In its response of December 30, 1999, the
Chilean State provides an account of the requests for precautionary
measures and petitions filed with the IACHR in the case under review.
In that regard, it offers a response under the heading entitled
“Actions taken by the Chilean State,” which is provided in its
On April 20, 1999, the Government forwarded a draft law to the
Chamber of Deputies amending State Security Law 12.927, with a view to
defining law and order offenses and the authorities of the courts to
confiscate books or documents that are prejudicial to State security.
June 21, the President of the Republic pointed to the urgent need to
settle the matter, qualified as “simple.”
On June 22, the President of the Republic submitted a replacement
note pertaining to the draft law, for consideration during the discussion
of this matter. This note
specifically replaces Article 6(b) of Law 12.927.
the moment, constitutional steps are being taken with a view to approval
of the draft law. On October
6, the Chamber of Deputies approved amendment of Article 6(b), the first
step required under the Constitution. The draft law is being reviewed by the pertinent Senate
committee, the second step under the Constitution. The draft law approved by the Chamber of Deputies amends
Articles 4 and 6, repeals Articles 16-20 and 30, and replaces Article 21
of Law 12.927. Furthermore,
it replaces Article 29 of Law No. 16,643 on Advertising Abuses. It also amends Article 429 of the Penal Code on the offense
Messrs. Bartolo Ortiz and Carlos Orellana were involved in
proceedings as accomplices to the offense described in Article 6(b) of Law
12,927. On June 16, they were
detained by the investigative police and that same day, the Examining
Judge released them on bail. On
June 18, they were freed following review of the decision by the Santiago
Court of Appeal. Later on, on
July 29, the Santiago Court of Appeal decided to overturn the decision of
the Examining Judge who ordered the indictment of Messrs. Ortiz and
Orellana, and declared that charges against them would be dropped.
Mrs. Alejandra Matus Acuña was summoned by the Examining Judge to
appear in court as the defendant in the May 6, 1999 case (the summons was
served on April 13, 1999), and, noting that she was out of the country, it
was ordered that a summons be served by means of an announcement in El Mercurio newspaper, under penalty of being declared in contempt
of court if she failed to appear before the Examining Judge.
To date, NO [sic] indictment or warrant has been issued for the
arrest of Alejandra Matus, as stated in the Santiago Court of Appeal
certificate, at the request of the Supreme Court.
Messrs. Ortiz and Orellana were indicted and the charges were later
dropped, as indicated above.
Based on the foregoing information, the Chilean State is asking the
Commission to consider the precautionary measures sought on behalf of
Messrs. Bartolo Ortiz and Carlos Orellana granted.
Furthermore, it asks the IACHR to declare the obligation to bring
its domestic legislation in line with the American Convention as having
been “fully discharged, within the framework that can be provided by a
democratic state that observes the rule of law and the separation of
powers, such as Chile.”
With regard to the status of Alejandra Marcela Matus Acuña, the
State maintains that “the adoption of special measures would not be
appropriate,” since it holds the view that this protection is not
jeopardized, and that the request for precautionary measures with respect
to the right to intellectual property of that journalist “exceeds the
scope of the protection granted under the American Convention on Human
Rights.” In that regard,
the State maintains that:
this specific case, the copies seized or confiscated are not the property
of the author of the literary work---Alejandra Matus Acuña---but of the
publishing company (Planeta), which is marketing the work. In fact, the books were seized from the warehouse of the
publishing company. Second,
the seizure or confiscation of goods is a measure adopted within the
framework of legal proceedings and in accordance with current laws. Consequently, it is not an arbitrary or abusive procedure;
but rather one that is legitimate under the law.
Third, confiscation is a measure that does not affect property;
rather, it is a precautionary measure involving temporary removal from the
market of legal assets that are the object of a dispute, serve as
evidence, or provide a basis for legal action, based on the public
interest, as determined by a judicial decision.
the right of Alejandra Matus to the intellectual property in the form of a
literary work has never been questioned or threatened.
No one, let alone a state agent, has ever sought to disavow her
authorship of the work. As a
result, it does not seem appropriate for the Government to adopt special
protective measures to guarantee the intellectual property right of
Alejandra Matus Acuña to her work.
personae, ratione materiae, ratione temporis, and ratione loci competence
of the Commission
The arguments in this case describe actions that certainly violate
several rights that are recognized and enshrined in the American
Convention, which took place in the territorial jurisdiction of Chile,
during the time that Chile had an obligation to respect and guarantee all
the rights set forth in that instrument. Consequently, the IACHR has ratione
personae, ratione materiae, ratione temporis, and ratione loci competence to examine the merits of the complaint.
Other admissibility requirements of the petition
Exhaustion of domestic remedies
33. The Inter-American Court of Human Rights has
established the following with respect to the rule of prior exhaustion of
Parties have an obligation to provide effective judicial remedies to
victims of human rights violations (Art. 25), remedies that must be
substantiated in accordance with the rules of due process of law (Art.
8(1)), all in keeping with the general obligation of such States to
guarantee the free and full exercise of the rights recognized by the
Convention to all persons subject to their jurisdiction (Art. 1).
information submitted by the petitioners and summarized in this report
describes in detail the domestic remedies that were sought and exhausted
in Chile to address the alleged human rights violations reported to the
Inter-American Commission in this case, which the Chilean State did not
mention in its correspondence to the Inter-American Commission.
The Inter-American Court has stated that: “if an objection to the
non-exhaustion of domestic remedies is to be considered timely, it must be
raised during the initial stages of the proceedings, failing which the
interested State can be assumed to have tacitly waived its right to the
In the case under review, the IACHR notes that the State did not
dispute the different claims made by the petitioners with respect to the
exhaustion of domestic remedies in Chile.
In the view of the Inter-American Commission, the Chilean State
tacitly waived its right to raise this objection in this case, and as a
result, considers the requirement set forth in Article 46(1) of the
American Convention to have been fulfilled.
Time-period for submission
The events that led to this case began on April 13, 1999.
The petition of the AALP, on the basis of which the case was
opened, was received on April 29, 1999, well within the six-month time
period provided for in Article 46(1)(b) of the American Convention.
Duplication of procedures and res
The objections provided for in Article 46(1)(d) and Article 47(d)
of the American Convention have not been raised by the Chilean State, and
cannot be found in the information contained in this case file.
Characterization of the claims made
The IACHR holds the view that if the claims made are determined to
be true, they would constitute a violation of the rights guaranteed under
Articles 1(1), 2, 8, 13, and 21 of the American Convention.
The Inter-American Commission concludes that it is competent to
hear this case and that the petition is admissible pursuant to Articles 46
and 47 of the American Convention.
Based on the aforementioned arguments of fact and law and without
prejudice to the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN
Declare the admissibility of this case with respect to the alleged
violation of the rights protected under Articles 2, 8, 13, and 21 of the
Notify the parties of this decision.
Continue the analysis of the merits of the case.
Publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed by the Inter-American Commission on Human Rights in Washington, D.C., on October 2, 2000. (Signed): Hélio Bicudo, Chairman; Juan E. Méndez, Second Vice- Chairman; Members: Marta Altolaguirre, Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
Commissioner Claudio Grossman, a national of Chile, did not review or
vote on this case, pursuant to Article 19(2) of the regulations of the
The group of 30 persons on whose behalf precautionary measures were
sought is the same group that had appealed the judicial order to
confiscate El Libro Negro in
Chile, and is composed of the following writers and students: Miguel
Arteche Salinas, Pía Barros Bravo, Alejandra Basualto Pearcy, Carlos
Bolton García, Teresa Calderón González, Alfonso Calderón
Squadritto, Rodrigo Eduardo Codoceo Hernández, Jorge Contesse Singh,
Marjorie Charlotte Cooper Lapierre, José Angel Cuevas Estivil, Carlos
Franz Thorud, Jaime Hales Dib, Thomas Harris Espinosa, Miguel Kottow
Lang, Camilo Marks Alonso, Jorge Montealegre Iturra, Esteban Navarro,
Nain Nómez Díaz, Ximena del Pilar Palma Corrales, Carolina Pardo Sas,
Floridor Pérez Lavin, Daniel Rapiman Asserella, Grinor Rojo de la
Rosa, Federico Schopf Ebensperger, Antonio Skarmeta Vranicic,
Guillermo Trejo Maturana, Virginia Vidal Vidal, Luis Weinstein
Crenovich, Faride Zerán Chelech, and Verónica Zondek Darmstadter.
The attorneys who signed the complaint as victims are Jorge Bofill
Gensch, Juan Ignacio Correa, Julián López Masle, Claudio Moraga
Klenner, Javier Ovalle Andrade, and Pablo Ruiz Tagle Vial, the
President of the AIP.
The names of the 27 persons appear in footnote 1 on page 1 (above),
with the exception of José Angel Cuevas Estivil, Carlos Franz Thorud,
and Nain Nómez Díaz.
Correspondence of July 21, 1991 (page 1)
from journalist Matus Acuña.
Correspondence of June 14, 2000 (page 14) from CEJIL and the AIP
Correspondence of July 21, 1999 (pages 2 and 3) from journalist
Alejandra Marcela Matus Acuña.
petitioners explained that “a remedy of protection in Chile is
equivalent, mutatis mutandis, to action for the protection of a right guaranteed
by the Constitution in other Latin American countries.” In that
regard, they cite Article 20 of the Chilean Constitution, which states
that persons whose legitimate right to the exercise of various rights
and guarantees is deprived, disturbed, or threatened may refer the
matter, on their own or through a representative, to the appropriate
court of appeal, with a view to the immediate adoption of the measures
deemed necessary for reinstatement of the right and ensuring due
protection of the person affected, without prejudice to the other
rights that may be asserted before the appropriate authorities or
courts….” Communication from CEJIL and the AIP Clinic of October
6, 1999, pages 3 and 4.
the correspondence cited above, the petitioners describe the remedy of
protection as “a regular appeal provided for in Article 181 of the
Chilean Code of Civil Procedure, which is aimed at obtaining from the
court that handed down a ruling or decision an amendment thereto or
Chile ratified the American Convention on August 21, 1990.
Court, Velásquez Rodríguez case, Ruling of June 26, 1987, para. 91.
Idem, para. 88.