REPORT Nº 14/02
CAMPBELL HARRIS LLOYD
On September 23, 1999, Mr. Bruce Campbell Harris Lloyd, the
Regional Director of Casa Alianza, the Center for Justice and
International Law (CEJIL), and the Office of the Archdiocese for Human
Rights in Guatemala (hereinafter “the petitioners”) submitted a
petition to the Inter-American Commission on Human Rights (hereinafter
“the Commission” or the “IACHR”). The complaint alleges
violation by the State of Guatemala of Articles 13 (Freedom of Thought
and Expression) and 24 (the Right to Equal Protection) in relation to
the overall obligations enshrined in Articles 1(1) (Obligation to
Respect Rights) and 2 (Domestic Legal Effects) of the Inter-American
Convention on Human Rights (hereinafter "the Convention") to
the detriment of Mr. Bruce Harris Campbell.
The petitioners allege that the State of Guatemala violated the
right to Freedom of Expression, Article 13 of the Convention, when the
Supreme Court of Justice of Guatemala decided in a final judgment to
institute criminal proceedings against Mr. Harris for public statements
to the media on the subject of anomalies in international adoptions,
specifically naming a notary purportedly involved in illegal adoptions.
The petitioners allege that Mr. Harris had the right to be tried
by a press tribunal pursuant to Article 35 of the Guatemalan
The State of Guatemala argues that domestic remedies will be
exhausted only upon final judgment in the criminal proceedings.
After reviewing the positions of the parties in the light of the
admissibility requirements set out in the Convention, the Commission
decided to declare the petition admissible as it relates to the alleged
violations of Articles 8, 13 and 24 of the American Convention.
PROCESSING BY THE COMMISSION
On December 18, 2000 the Commission opened the case and
transmitted the pertinent portions of the petition to the State,
granting it 90 days to submit its observations.
On March 7, 2001 the State requested a 90-day extension, to
enable it to obtain the data necessary to comply with the Commission’s
On June 8, 2001, the State submitted its reply, arguing that the
petition should be deemed inadmissible because domestic remedies had
still not been exhausted, and would not be until the criminal
proceedings came to conclusion.
On August 27, 2001, the petitioners submitted their observations
on the State’s reply regarding the facts and the admissibility of the
POSITIONS OF THE PARTIES
A. Position of the petitioners
On the facts
In 1994, Casa Alianza concluded an agreement with the
Prosecutor General’s Office (Procuraduría General) of
Guatemala for the purpose of carrying out investigations on issues
affecting children, especially the illegal traffic in children.
On several occasions Mr. Harris stated to various branches of the
media that over the previous three years there had been a
disproportionate increase in the number of adoptions of Guatemalan
children abroad without any legal check of the possibility that these
adoptions amounted to illegal traffic.
On September 11, 1997 Casa Alianza, through its
representative Bruce Harris, reported on the results of the
investigation to a press conference in the branch of the Office of the
Prosecutor (Procuraduría) in the Thirteenth District (Zona 13)
of Guatemala City. On that
occasion he expressed his concern at the involvement of lawyers in
international adoption processes, and specifically singled out the
notary Susana María Luarco Saracho de Umaňa, as having abused her
status as spouse of the President of the Supreme Court of Justice to
speed up adoption processes.
The investigations had purportedly revealed that many children
had been bought or stolen, and that in several cases their parents had
been manipulated or forced into giving up their children for adoption.
11. On September 24, 1997 Mrs. Umaňa brought a criminal suit for defamation against Mr. Harris, for his statements at the press conference. On 22 April she brought three more defamation charges against him for statements made, on the subject of the investigations, in the magazine El Proceso, El Periódico, and an e-mail message he had sent out via an alert network.
Mr. Harris filed several motions to have the criminal charges
against him declared inadmissible, without success. As soon as the
criminal investigation was initiated, Bruce Harris entered, on October
1, 1997, a declinatory plea in the Fourth Court (Tribunal
Cuarto), claiming that the statements in question were made in the
exercise of the right of free expression, and asked for the matter to be
heard by the press tribunal set up by the Freedom of Expression Act
under Article 35 of the Constitution.
It should be noted that on March 25, 1998, after the Fourth Court
requested a recusation and the Fifth Criminal Court for Narcotics and
Environmental Offenses (Tribunal Quinto de Sentencia Penal de
Narcoactividad y Delito Contra el Ambiente) was designated as the
competent court to hear the case, Bruce Harris once more filed a motion
to dismiss the case, on grounds of the substance of the case.
March 31, 1998 the Fifth Court denied the motion on grounds of
incompetence, arguing that Bruce Harris was a private individual who
used the media to express his opinions on the issue in question, and
that since he was not a member of the press he could not invoke the
illegality of the suit brought against him.
The petitioners stated that that court had concluded that as a
private individual, Bruce Harris could not invoke protection under the
Freedom of Expression Act. They
further stated that on July 28, 1998 the Fifth Court had declared
inadmissible Bruce Harris’ request to repeal the earlier decision.
petitioners’ statements show that on May 19, 1998 Bruce Harris filed
an application for protection (writ of amparo) in the Tenth
Chamber of the Court of Appeal (Sala Décima de la Corte de Apelación)
against the Fifth Court’s decision to institute criminal proceedings
against him as an individual, although the charges against him did not
constitute a criminal offense. On
May 19, 1998 the Tenth Chamber of the Court of Appeal accepted the
application. On May
22,1998, the Fifth Court submitted its report to the Tenth Chamber of
the Court of Appeal, stating that it had based its decision on Mr.
Harris’ status as a private individual, who had made use of the media,
and that since he was not a member of the press his actions were not
protected under Article 35 of the Constitution or by the Freedom of
On July 10, 1998, the Tenth Chamber of the Court of Appeal turned
down the motion for amparo,
arguing that Bruce Harris was not a member of the press that was subject
to the special jurisdiction arising out of the Freedom of Expression
Act. The Court considered
that Bruce Harris had failed in his obligation to prove that the
slanderous statements referred to acts performed as part of the
functions of a public official, that is to say, a notary public.
The petitioners state that on July 31, 1998 Bruce Harris had
appealed the decision of the Tenth Chamber of the Court of Appeal before
the Constitutional Court. After exhausting the legal procedures, that
Constitutional Court upheld the decision appealed in a ruling on 19
January 1999. The Constitutional Court decided that in this case competence
lay with the criminal courts, since Bruce Harris had not proved that
Notary Umaña had acted in her capacity as a public official.
Despite the foregoing, the petitioners claimed that on 26 March
1999 the Twelfth Court, to which the case had been forwarded, issued, in
accordance with the law, - an order to summon a panel of jurors
(Press Tribunal), pursuant to Article 46 of the Freedom of
Expression Act. According
to the report, this Tribunal concluded that the Freedom of Expression
Act applied not only to journalists but to everyone, since what was at
issue was a constitutional right. Consequently,
crimes by virtue of an abuse of freedom of expression must be heard
exclusively by a jury.
On March 27,1999 Notary Susana de Umaña filed a motion with the
Court of Appeal challenging the earlier decision based on the decision
of the Constitutional Court of January 19, 1999.
In a ruling on April 30, 1999, the Twelfth Court granted the
motion for appeal in response to which Bruce Harris filed an appeal for
a reversal of this decision and, alternatively (en
subsidio), appeal, on 4 May 1999, which was found to be out of
order. On 11 May 1999 the Court of Appeal decided that the case must
be heard in a criminal court. Pursuant
to this judgment and that of the Tenth Chamber of the Court of Appeal,
on 8 June 1999 the Twelfth Court opened public and oral criminal
proceedings against Bruce Harris for defamation.
On 18 June 1999 Bruce Harris lodged an application for protection
(writ of amparo) with the Supreme Court, alleging the
inadmissibility of the appeal to the Tenth Chamber of the Court of
Appeal, on the grounds that the application for revocation predated it.
The Supreme Court of Justice, in a decision (proveído)
of 25 June 1999, ruled the application inadmissible, stating that “the
circumstances make it inadvisable”.
the legal issues
The petitioners allege that their statements are not criminal
because the information disseminated was of extreme public interest and
that Mrs. Umaña acted in her capacity of public official, in terms of
Article 35 of the Political Constitution of the Republic of Guatemala,
which states that “Publications containing accusations, criticisms or
imputations against public officials and employees for acts done in the
performance of their duties shall not constitute faults or offences.
Public officials or employees may request that a court of honor,
composed as may be determined by law, declare the publication affecting
them to be based on inaccuracies or that the charges against them are
The petitioners allege that the fact that Mr. Harris is now being
prosecuted for defamation on the basis of public statements he is said
to have made on Guatemalan adoptions, imputing to a public official the
responsibility for concrete facts, constitutes an arbitrary and
unjustified limitation or restriction of his right to freedom of
expression, and that the State of Guatemala is therefore in breach of
Article 13 of the Convention.
The petitioners argue that Mrs. Umaña can be classified as a
notary public by virtue of her professional activities in the adoption
of Guatemalan children, in terms of Article 1, General Provisions, of
Volume Three of the Penal Code: “For
penal purposes, by public official is meant a person who, after popular
election or due appointment, exercises an official function or
authority, jurisdiction or representation, as determined by law.
Notaries shall be considered public officials in relation to
offences they may commit in the course or as a result of acts performed
in the exercise of their profession”.
petitioners argue that the right of freedom of expression enshrined in
Article 35 of the Constitution applies to all persons and not solely to
journalists. Therefore, the
petitioners allege that the decision of the Constitutional Court and
then of the Tenth Chamber of the Court of Appeal denying Bruce Harris
trial by a jury “constitutes discrimination as between
‘journalists’ and the rest of society”, and as such violates the
right to equality before the law enshrined in Article 24 of the American
petitioners allege that the suit for defamation brought by Mrs. Umaña
against Bruce Harris should be heard by a Press Tribunal in accordance
with Article 35 of the Constitution, since the statements made by Harris
naming the notary were based on her professional and public acts, she
being classifiable as a public official.
The petitioners argue that the decision to prosecute Bruce Harris
before a criminal court and not a press tribunal constitutes a violation
of Article 13 of the Convention guaranteeing freedom of thought and
the petitioners maintain that domestic remedies were exhausted in this
case when the Supreme Court rejected Mr. Harris’ protection
application, invoking his constitutional right to be tried by a press
tribunal for public statements protected by the Freedom of Expression
Act. It also confirmed the
previous judgment by ordering criminal proceedings to be initiated
against Mr. Harris.
B. Position of the State
The State admits that Mr. Harris’ statements to the media were
made in a context of concern to bring to public attention a national
problem, to wit, the matter of international adoptions, and that in them
Mr. Harris “emphasized the need to amend and modernize present laws
and strengthen the means of controlling and ensuring compliance with the
law.” It further admits
that, in the setting of the press conference and in his concern to
illustrate the present working of the adoption system, Mr. Harris
alluded to Notary Umaña, whom he described as putting pressure on the
responsible officials of government agencies and using her power to
speed up the adoption cases she was handling.
The State argues that the Freedom of Expression Act provides for
a procedure applicable exclusively to journalists in the exercise of
their profession, which does not mean that other persons, who are not
journalists, are deprived of the same right.
As a result, the State does not consider Bruce Harris a
journalist protected by this statute, but rather as a private
individual. The only
restriction on freedom of expression is the possibility of damage to the
interests of persons who believe themselves to be injured in their
honor, prestige or reputation. Such
persons may seek remedy through criminal proceedings intended to prevent
abuse of freedom of expression by false imputation to them of criminal
The State affirms that Mrs. Umaña is not nor has ever been a
public official, and that the State has conferred public authority on
notaries for the sole purpose of endowing their acts with legal
validity. The State further
alleges that Bruce Harris did not show that Notary Umaña was
classifiable as a public official when he invoked the protection of
Article 35 of the Constitution.
The State considers that the petitioners’ complaint is a
dispute between private individuals, and that as such it does not fall
within the purview of the inter-American system of protection of human
Finally, the State holds that domestic remedies have not been
exhausted until there is a final judgment in the criminal proceedings,
that the case exhibits none of the exceptions to this rule, and that the
petition should therefore be ruled inadmissible.
ANALYSIS OF THE ISSUE OF ADMISSIBILITY
Competence of the Commission
petitioners have locus standi
to submit petitions to the ICHR, in accordance with Article 44 of the
Convention. The petitions
identify as purported victims individual persons, whose rights under the
Convention Guatemala is committed to respect and ensure.
The Commission notes that Guatemala is a State party to the
American Convention, having ratified it on 25 May 1978.
The Commission therefore has competence ratione personae to study the petition.
Commission has competence ratione
loci to take cognizance of this petition since it alleges violations
of rights guaranteed by the American Convention that purportedly
occurred in the territory of a State party.
Commission has competence ratione
temporis, since the events alleged in the petition took place at a
time when the duty to respect and ensure the rights enshrined in the
Convention was in force for the State.
the Commission has competence ratione
materiae, since the petition alleges violations of human rights
protected by the American Convention.
B. Exhaustion of domestic remedies
Article 46(1)(a) of the American Convention states:
Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements:
the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law.
Commission has repeatedly insisted on its “reinforcing and
complementary” status within the inter-American system of protection
of human rights. This
status is reflected in Article 46(1)(a) of the Convention, which permits
States parties to decide cases within their own legal framework, before
there is need for recourse to an international proceeding.
38. In the instant case, the petitioners allege
that to find remedy for the purported violations of constitutional
rights they have taken adequate action before the courts of domestic
jurisdiction provided by Guatemalan law.
They state, nevertheless, that these actions have not been
sufficient to ensure the rights purportedly violated by the State.
petitioners allege that domestic remedies were exhausted by the Supreme
Court’s decision rejecting the protection application lodged by Bruce
Harris, in which he asked for his case to be heard by a Press Tribunal
under Article 35 of the Constitution of Guatemala.
The final judgment of the Supreme Court set in motion the oral
and public criminal proceedings against Bruce Harris for defamation.
its part, the State of Guatemala contests the facts alleged by the
petitioners with regard to the exhaustion of domestic remedies. The State alleges that to comply with the requirement of
exhaustion of domestic remedies, the petitioners must await final
judgment in the criminal proceedings against Bruce Harris.
On the subject of prior exhaustion of domestic remedies, the
Inter-American Court of Human Rights has ruled as follows:
Therefore, in order for a duty to exhaust domestic procedures to
exist, these procedures must possess characteristics enabling them to be
considered an adequate and effective remedy for the purported violation.
Article 46 of the Convention stipulates that domestic remedies
must be exhausted “in accordance
with generally recognized principles of international law” and that
they should also be adequate and effective.
Consequently, Article 25 of the Convention imposes on States a
duty to provide all persons within their jurisdiction with effective
judicial recourse against acts in violation of their fundamental rights,
so that such recourse may be really capable of remedying the violation.
the instant case, the petitioners, by bringing the case before the Press
Tribunal, which according to them is the competent judicial authority in
the matter, invoked all the domestic remedies prescribed by the relevant
Guatemalan law for the protection of the rights they allege to have been
violated. The Commission
considers that the petitioners took adequate legal steps pursuant to the
procedural rules laid down in the Guatemalan Code of Criminal Procedure
in order to contest the decision that located competence to hear the
Bruce Harris case in the ordinary criminal justice system.
without prejudice to the merits of the case, the Commission considers
that the requirements of Article 47(b) and (c) of the Convention have
for submission of the petition to the ICHR
46(1)(b) of the American Convention stipulates that admission of a
petition requires “that the
petition or communication is lodged within a period of six months from
the date on which the party alleging violation of his rights was
notified of the final judgment”.
instant petition was lodged with the IACHR on 23 September 1999, three
months after the Supreme Court of Justice’s decision rejecting the
protection application filed by the petitioner on 25 June 1999. At no time during the processing of the case before the
Commission did the State allege failure to comply with the timeliness
requirements with regard to the exhaustion of domestic remedies.
D. Duplication of proceedings
Article 46(1)(c) of the Convention provides that admissibility of
a petition by the Commission requires that the subject of the petition
or communication is not pending in another international proceeding for
settlement. Article 47(d)
of the Convention also stipulates that the Commission shall declare
inadmissible any petition that is
substantially the same as one previously studied by the Commission or by
another international organization.
From the statements of the parties and the documents in the file,
it does not appear that the petition is pending in any other
international proceeding or forum, or that it is substantially the same as
any previously studied by the Commission or by another international
Commission therefore considers that in the instant case the requirements
for admissibility in Articles 46(1)(c) and 47(d) of the Convention have
Nature of the facts alleged
regard to the facts alleged concerning the competent legal forum for
hearing the suit brought by Notary Susana de Umaña against Mr. Bruce
Harris, the Commission considers that the decision to submit the case to
an ordinary criminal court rather than to the Press Tribunal as provided
by Article 35 of the Guatemalan Constitution, could constitute a
violation of Article 8(1) of the American Convention. Although the petitioners allege that this action by the
Guatemalan legal authorities gave rise to a violation of Article 13 of
the American Convention, the Commission, by virtue of the principle of iura
curia novit, considers that the facts alleged fall within the scope
of protection of the right to a
legal hearing with due guarantees.
In fact, Article 8(1) of the Convention provides, inter
alia, that every person has the right
to a hearing, with due guarantees, by a competent tribunal.
The petitioners allege that Mr. Bruce Harris was deprived of the
right to trial by a jury as provided by Article 35 of the Guatemalan
Constitution in regard to faults or offences connected with expression
With regard to the facts alleged concerning the discrimination of
which the Guatemalan legal authorities were purportedly guilty in
excluding Bruce Harris from the effects of Article 35 of the
Constitution of Guatemala on the grounds that he was not a journalist,
the Commission considers that this could constitute a violation of the
right to equality before the law enshrined in Article 24 of the American
Finally, the petitioners argue that the mere existence of laws
that establish defamation as a crime, as well as criminal proceedings
against persons under such laws, constitute per
se a violation of Article 13 of the American Convention, regardless
of whether or not the proceedings have reached final judgment. The
Commission considers that these arguments must be studied in the phase
of examination of the merits of the case, in order to determine whether
the facts alleged constitute a violation of Article 13 of the American
Therefore, without prejudice to the merits of the case, the
Commission considers that the requirements of Article 47(b) and (c) of
the above-mentioned international instrument have been met.
The Commission considers that it has competence to take
cognizance of this petition and that it is admissible as regards the
requirements for admissibility contained in Articles 46 and 47 of the
American Convention on Human Rights, and as regards the alleged
violations of Articles 8, 13 and 24 of the American Convention.
On the basis of the aforementioned arguments as to facts and law,
and without prejudice to the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare the instant case admissible as regards the presumed violations of rights protected by Articles 8, 13 and 24 of the American Convention.
To notify the parties of this decision.
To continue with the examination of the case; and
To make public this decision and to include it in its Annual
Report to the General Assembly of the OAS.
Done and signed at the headquarters of the Inter-American Commission on Human Rights in the city of Washington, D.C., on the 28th day of the month of February, 2002. (Signed): Juan E. Méndez, President; José Zalaquett, Second Vice-President; Robert K. Goldman, Julio Prado Vallejo, Clare K. Roberts, and Susana Villarán, Commissioners.
Commissioner Marta Altolaguirre, of Guatemalan nationality, did not
take part in the discussion and voting on the present report,
pursuant to Article 17(2)(a) of the new Rules of Procedure of the
Commission, which came into force on May 1,
At a press conference he gave in 1997, Bruce Harris stated that the
fact that Susana de Umaňa was the wife of the President of the
Supreme Court of Justice inhibited members of the Judiciary and,
generally speaking, facilitated the processing of adoptions because
o the pressure exerted on officers in various government agencies to
speed up cases as much as possible.
Judgment of the Court in the Velásquez Rodríguez case, 29 July
1988, para. 64.
See also judgment of Court in the Godínez Cruz case, 20
January 1989, para. 67, and judgment in the Fairén Garbi and Solís
Corrales case, 15 March 1989, Para. 88.
Inter-American Court of Human Rights, Advisory Opinion
OC-9/87 of 6 October 1987 (Articles 27.2, 25,8, para. 24)