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RESOLUTION Nº 17/84 Case
Nº 9178 COSTA
RICA October 3, 1984 BACKGROUND:
1. Mr. Stephen
Schmidt, an adult, journalist, United States citizen, and resident of
the State of Wisconsin, United States of America, citing as legal basis
articles 1, 2, 13, 29 and 33, paragraphs a) and b); 41, 44, 46, 48, 50,
51 and 61, paragraphs 1 and 2; and 62, 63, 67, 68 and 69; and concordant
articles of the American Convention on Human Rights, signed at the City
of San Jose, Republic of Costa Rica, on November 22, 1969, articles 1
and 2 paragraph a); 16, 17 and 18 paragraphs a), b), c) and d); 19 and
23 of the STATUTE OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS; and
2, 22, 23, 24, 25 and 28 and concordant articles of the STATUTE of the
INTER-AMERICAN COURT OF HUMAN RIGHTS, approved through Resolutions 447
and 448 adopted by the OAS General Assembly in La Paz (Bolivia) at its
Ninth Regular Session; and articles 1, 8, 10, 23, 24, 26, 27, 28, 29, 31
and 32 and concordant articles of the Regulations approved by the
Commission at its 660th Meeting, 49th session, held on April 8, 1980,
filed a formal petition asking that "the competent organization
declare that restoration shall be made to me of the human right of
freedom of expression and thought, established and protected--without
any restraints or restrictions--by Article 13 of the American Convention
on Human Rights, which was disregarded in the criminal case brought
against me before the Second Criminal Court of the aforementioned city
of San Jose for the nonexistent crime of illegal exercise of a
profession, and which was not applied in the final decision handed down
by the THIRD SECTION OF THE SUPREME COURT OF JUSTICE of the Republic of
Costa Rica at 4:30 p.m. on June 3, 1983, which sentenced me to three
months in prison and ordered my inclusion in that country's JUDICAL
REGISTRY OF OFFENDERS." As
causa petendi I state the following facts: a)
After ten years of residence in Costa Rica, duly authorized by
that country's public agencies, he worked on The Tico Times, an English
language weekly, as technical advisor, translator, and copy editor, and
he also wrote on various national and international subjects. b)
He studied at the Universidad Autónoma de Centroámerica at the
suggestion of the Association of Journalists, and received a Bachelor's
Degree in Journalism with honors, which was approved by the Ministry of
Education. c)
In April 1980, the Association of Journalists reported him
to the Costa Rican Attorney General for the crime of illegal exercise
of a profession. He was penalized and punished under article 313 of
the Penal Code, because according to Articles 22, 23, 24, 25, and 27 of
the Charter of the Association of Journalists, the exercise of
journalism is limited to persons members of that association who have
been issued a journalist licence. d)
After three years of proceedings, on January 14, 1983, at 5:15
p.m., the Second Criminal Court handed down a sentence finding him
innocent and clearing him of all guilt and responsibility, on the
grounds that under Article 13 of the American Convention on Human
Rights, he was merely exercising freedom of thought and expression,
which is not subject to restriction by national law, and e)
The Attorney General appealed the decision to the Supreme Court
of Justice, and the Third Court, in a judgment on June 3, 1983, at 4:30
p.m. decided to hear the appeal reverse the acquittal, and declare him
"guilty of the crime of illegal exercise of the profession of
journalism to the detriment of public order. and therefore sentenced him
to three months in prison, with credit for any previous time in
detention, to be served in the penitentiary indicated by the pertinent
regulations. This judgment is to be entered in the Judicial Registry of
Offenders. The sentence is suspended for three-year's probation, and the
accused is warned not to repeat the offense, under the legal admonitions
that will be made known to him in due course. Hugo Porter M., President;
Ulysses Valverde S.; Rafael Benavides; Emilio Villalobos V.; Armando
Saborso V.; Gerardo Rojas Solano, Secretary. 2. Through
Resolution Nº 26 approved by the Commission at its 61th
session, held on October 4, 1983, the petition filed by Mr. Stephen
Schmidt was declared admissible because it meets the requirements
established in the Inter-American Convention on Human Rights. It was
directed that this resolution be conveyed to the Government of Costa
Rica and to the petitioner. 3. In his response
to Mr. Schmidt's petition, Dr. Carlos José Gutiérrez, Minister of
Justice and Representative of the Costa Rican Government, raised
previous issue the failure to exhaust all remedies under domestic
jurisdiction. He stated that Mr. Schmidt could have exercised the remedy
of amparo, appeal against decisions of government offices, and
unconstitutionality, provided for in Articles 48, 49, and 10 of the
Costa Rican Constitution. He
also made the following basic assertions: a) That in the
Costa Rican juridical system, "according to the doctrine deriving
from case law, in both the penal and the constitutional areas, the
guarantee of freedom of thought and expression established in Article 13
of the American Convention on Human Rights and in article 29 of the
Constitution of the Republic protects all inhabitants of the country,
including foreigners, without reservation. Nevertheless, this does not
mean revocation of any requirements may establish common law that may be
established under to safeguard public order with regard to exercise of
the various professions, and the profession of reporter-journalist
cannot be regarded as being excluded." b) That "Mr.
Schmidt's claim as set forth constitutes a real disrespect for our
country's sovereignty and a clear attempt at intervention in affairs
that are essentially under the domestic jurisdiction of states. This is
prohibited according to the doctrine derived from article 2, paragraph
7, of the United Nations Charter. The agencies for protecting human
rights provided for in the American Convention are not competent to
decide whether a ruling by a court of one of the states parties is or is
not lawful, and they are even less competent to revoke or reverse a
sentence of those courts," and. c) That Mr.
Schmidt's petition is not current, because he is not now residing in
Costa Rica. In
his rejoinder, the petitioner's attorney, Dr. FERNANDO GUIER ESQUIVEL,
held that remedies under domestic jurisdiction had been exhausted
because, when the claim was admitted this aspect had already been
analyzed; and furthermore, to foster the remedy of amparo
"so that the claimant would be ordered to join the Association
of Journalists would means to give up the struggle, to turn one's
back on the American Convention, and to disregard the unquestionable
fact that the Pact of San Jose, Costa Rica, guarantees unrestricted
freedom of expression through indirect channels or media and with the
understanding that no provision of the aforementioned Convention can be
interpreted or applied to allow the states parties, groups or
individuals to suppress or restrict enjoyment and exercise of recognized
rights and freedoms." He took the same position with regard to
appeal against a decision of a government office, pointing out that Mr.
Schmidt's conviction of the crime of illegal exercise of the profession
of journalism was final. With regard to the remedy of
unconstitutionality, he states that, in several cases, the court had
already upheld the constitutionality of obligatory membership in an
association. With regard to the merits of the case, he argued that
Article 13 of the American Convention on Human Rights protects the
freedom to seek, receive, and impart information and ideas, and it was
not "legal to curtail this freedom by shackling it with the
requirement prior authorization or permission". 4. As provided in
article 48.f of the American Convention on Human Rights, the Commission
placed itself at the disposal of the parties concerned in order to see
if it was possible to reach a friendly settlement. For this purpose, a
hearing was ordered, which was held during the Commission's 62nd
session. At that hearing, the petitioner's attorney contended that the
law governing journalism in Costa Rica violates Article 13 of the
American Convention on Human Rights, since that provision protects all
persons, whether or not they are members of an association. He stated
that obligatory membership is different in journalism because in that
profession what is protected is the freedom to gather and publish
information, while in other professions, a membership requirement is
imposed because of the risks involved in exercising the profession. The
Government of Costa Rica, through its representative, Dr. Manuel Freer
Jimenez, held that the Charter of the Association of Journalists is in
keeping with the American Convention on Human Rights. He explained that
a non-member journalist can express his opinion as a columnist, since
the only thing from which he is barred is being a director or reporter,
for which purpose he must be a member, and that the complainant had been
found guilty of illegal exercise of the profession and not of exercising
freedom of expression. At the hearing, both parties stated that they
were not interested in a friendly settlement and reaffirmed their views.
5. The Commission
appointed Dr. MARCO GERARDO MONROY CABRA, a member of the Commission, as
rapporteur to prepare the report on the facts and conclusions it reached
in this case. OBSERVATIONS
OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS 1. The
Inter-American Commission on Human Rights is competent to hear and
decide upon Mr. Stephen Schmidt's petition, under article 112 of the
Charter of the Organization of American States and article 44 of the
American Convention on Human Rights signed and ratified by Costa Rica,
which state deposited the instrument of ratification on April 8, 1970,
following approval by the Legislative Assembly through Decree Law Nº
4534 of February 23, 1970. Costa Rica also deposited with the General
Secretariat of the Organization of American States the instrument
recognizing the competence of the Inter-American Commission on Human
Rights and the Inter-American Court of Human Rights, under articles 45
and 62 of the American Convention on Human Rights. 2. Mr. Stephen
Schmidt has exhausted all remedies under the domestic jurisdiction of
Costa Rica. In fact, a final judgment has been handed down by the Third
Section of the Supreme Court of Justice of the Republic of Costa Rica on
June 3, 1983, sentencing Mr. Schmidt to three months in prison and
ordering his inclusion in the Judicial Registry of Offenders. The remedy
of amparo established in article 48 of the Constitution, and
implemented by Legislative Decree Nº 1161 of June 2, 1950, is not
pertinent because article 3, subparagraph b, of that provision states
the following: "The remedy of amparo does not apply... b)
against rulings and proceedings of the Supreme Court of Justice and the
other tribunals and judicial officers in matters of their
competence..." Likewise,
the complainant could not now join the Costa Rican Association of
Journalists because the regulations under the Charter of the Costa Rican
Association of Journalists, issued through Decree Nº 4312-C of November
7, 1974, prohibits the membership of persons with penal records who are
included in the Judicial Registry of Offenders. Article 6, subparagraph
e), states the following: "Foreigners who wish to avail themselves
of the provisions of subparagraph a) of Article 2 of the Charter must
first meet the requirements of the migratory and labor laws and
treaties. Compliance with these requirements shall be essential before
requesting confirmation of the professional degree received from the
University of Costa Rica. In order to join the Costa Rican Association
of Journalists, they must meet the following requirements: ...e)
Certification from the Judicial Registry of Offenders that they do not
have a criminal record;..." An
appeal against a decision of a government office is not juridically
feasible, precisely because Mr. Schmidt does not seek membership in the
Costa Rican Association of Journalists, because he believes that, in
keeping with Article 13 of the American Convention on Human Rights
ratified by Costa Rica, this requirement cannot be demanded and
therefore there is no administrative act that can be contested through
such a procedure. Neither
was the remedy of unconstitutionality feasible, because the Supreme
Court of Costa Rica has repeatedly ruled that obligatory membership is
consistent with the Constitution's provisions (Full Court, ruling handed
down at 1:00 p.m. on August 22, 1980, constitutional jurisprudence
1979-1982, pages 139 to 141); and it was reasonable to expect that this
decision would be repeated, in which case, as international legal
doctrine has held, there is no need to exhaust domestic remedies.
Neither could he have argued that the Charter of the Association of
Journalists was unconstitutional due to an alleged violation of article
13 of the American Convention on Human Rights, because the Supreme Court
of Costa Rica accepts only this remedy under article 10 of the
Constitution only if "the provisions of the legislative branch or
the executive branch run contrary to the Constitution." The
foregoing leads to the conclusion that in this case all remedies under
domestic jurisdiction of the Republic of Costa Rica have been exhausted,
for which reason the previous issues raised by the government of the
state in reference are inadmissible. 3. The Costa Rican
Government argues that the petition "is not current because Mr.
Schmidt is not now a resident in the Republic, as his brief shows."
The Commission does not agree with this assessment, but believes on the
contrary that Mr. Schmidt has a very serious, legitimate and current
interest. This is because, when the alleged violation he claims occurred
he had been living in Costa Rica for ten years and because, although he
does not now reside in that country, it is due precisely to the fact
that he could not exercise the profession of journalism fully because he
was not a member of the Association. Moreover, the American Convention
on Human Rights does not require that an individual alleging a violation
by a state be in that country; and in the case in reference, it is
obvious that Mr. Schmidt has an interest in exercising the profession of
journalism in Costa Rica, as he stated in the hearings, because although
he left that country, he did so precisely because of the criminal action
brought against him there for not being a member of a professional
association; and if he does not return, it will be for the same reason. 4. The Costa Rican
Government is not correct in stating that Mr. Schmidt's claim
constitutes a lack of respect for its sovereignty and an intervention in
its domestic jurisdiction and that the Commission cannot annul or
reverse a judgment by a court of that country. In
fact, respect for human rights is an international obligation of Costa
Rica because it has signed and ratified the American Convention on Human
Rights, for which reason it cannot allege intervention in its internal
affairs. Moreover, the Commission can verify whether a Costa Rican law
or judgment violates the human rights that country undertook to respect
in the American Convention on Human Rights. This is precisely the
situation in this case, since Mr. Schmidt feels that Law 4420 and the
judgment of the Supreme Court of Costa Rica against him violates Article
13 of the aforementioned Convention. Of course the Commission cannot
reverse or set aside a judgment of a Costa Rican Court, but there is no
doubt that the Commission can state that a rule of its domestic law or a
court judgment in that country violate a human right which it undertook
to respect in a treaty to which it is internationally bound. 5. Law Nº 4420 of
September 22, 1969, is the Charter of the Costa Rican Association of
Journalists. Article Nº 1 established the Costa Rican Association of
Journalists, based in San José, "as a corporation consisting of
professional journalists authorized to exercise their profession in the
country." The purposes assigned to the association in this article
are the following: a. To support and
foster the mass communication sciences; b. To protect the
interests of its members individually and collectively; c. To support,
foster and encourage culture and all activities aimed at the betterment
of the Costa Rican people; d. To arrange for
and agree upon, when possible, the pertinent assistance or medical and
social assistance to protect its members when they are in difficult
situations due to illness, old age, or death of close relatives; or when
their family members, due to one of these events, are in
difficulties--family members being understood for the purposes of this
law to be wife, children and parents; e. To cooperate
with all public cultural institutions, whenever possible, if they so
request or the law so orders; f. To maintain and
encourage the spirit of union among professional journalists. g. To help improve
the republican and democratic system and protect national sovereignty
and the nation's institutions; and h. To state
positions on public problems when it so deems advisable. According
to Article 2, the membership of the Association is as follows: a. Those holding
master's and bachelor's degrees in journalism from the University of
Costa Rica or from equivalent universities or institutions abroad and
who have joined the Association in keeping with laws and treaties in
force; b. In the event of
a shortage of professional journalists, the association may authorize
individuals with a journalistic calling to exercise the profession,
after an assessment of merits, technical knowledge and moral character. Article
22 provides that: "Only
members of the Association may work as journalists." Article
23 defines journalists as
"those whose main, regular or paid occupation is exercise of his
profession on a daily or periodical publication or on a radio or
television news show, or in a news agency, and who receive therefrom the
main resources for their subsistence." Article
24 provides that persons not
belonging to the Association may be directors, managers or
administrators of newspapers or of other information media, but they
must comply with the professional, ethical and moral duties established
by Law 4420. Article
25 states that "permanent
and occasional columnists and commentators in all the communication
media, whether paid or not, may perform their duties freely without
having to belong to the Association, but they must confine their
activities to those jobs and may not work as reporters, whether
specialized or not." The
above provisions lead to the conclusion that to perform the duties of
journalist in Costa Rica one must be a member of the Association of
Journalists, but that even persons not belonging to the Association may
work as newspaper directors, managers and administrators and as
permanent or occasional columnists and commentators in all
communications media, whether paid or not. 6.
Article 13 of the American Convention on Human Rights, to which
Costa Rica is a state party, provides as follows: 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 international borders, 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 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
children and adolescents. 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, are prohibited by law. Freedom
of thought and expression has been recognized by the following
international declarations and agreements: article 19 of the Universal
Declaration of Human Rights of December 10, 1948; article 4 of the
American Declaration of the Rights and Duties of Man; article 10 of the
European Convention for the Protection of Human Rights and Fundamental
Freedom; article 19 of the International Covenant on Civil and Political
Rights; and article 13 of the American Convention on Human Rights. The
above provisions and, of course, the American Convention on Human
Rights, govern what is currently called the right to information, which
consists essentially in seeking, receiving and distributing information
and ideas. This right comprises the freedom of access to information
sources, equality for all in the free use of transmission facilities,
freedom of transmission and dispatch of news without prior censorship of
any kind, the right to transmit the truth to others, and the right to be
informed and to seek all information desired according to each one's
understanding. It
must be observed that this right is not absolute, since Article 32 of
the Convention provides that "the rights of each person are limited
by the rights of others, by the security of all, and by the just demands
of the general welfare, in a democratic society." Moreover, Article
13 quoted above, establishes responsibility in keeping with domestic
laws in order to guarantee "a. respect for the rights or
reputations of others; or b. the protection of national security, public
order or public health or morals." This implies that the press is
free, but responsible under the laws in the cases mentioned. It
must be pointed out that the exercise and regulation of freedom of
thought is not restricted as long as there is no prior censorship or
official direct or indirect control mechanisms aimed at hindering the
free circulation of information or at manipulating it with a specific
political purpose. The
Commission believes that obligatory membership of journalists or the
requirement of a professional card does not restrict the freedom of
thought and expression established in Article 13 of the American
Convention on Human Rights as long as the associations protect the
freedom to seek, receive and distribute information and ideas of every
kind without imposing conditions leading to the restriction or
curtailment of that right, do not impose controls on information or
prior censorship thereof, and are not limited to government official's,
but are actually participated in by journalists. The associations of
journalists originate in exercise of the right of association, which may
serve as advisory agencies of the government, have control over
journalists' ethics and over standards for qualifying degrees, and seek
social and professional improvement of their members. There is nothing
against having the exercise of professions monitored and controlled
either directly by official agencies or indirectly through authorization
or delegation by the pertinent statute to a professional organization or
association under the state's supervision and control, because it must
always be subject to the law in carrying out its mission. Membership in
an association or requirement of a card to exercise the profession of
journalist does not restrict anyone's freedom of thought or expression
but is rather a regulation incumbent on the Executive Branch of the
suitability of degrees, as well as supervision of the exercise of these
freedoms as a requirement for social security and a guarantee of the
best protection of human rights. Professional
associations grow out of professional groups that are recorded in the
Registry, which, according to legal doctrine, constitute institutions in
the juridical-technical sense. Sociologically speaking, such an
institution has the features of a necessary community whose members have
common interests to pursue and safeguard through the efforts of all,
since the efforts of one would not be enough to attain that end. Such
interests, although they are sectorial in nature, are also relevant to
the state due to its recognition of the social function of specific
professions like journalism, which it has regulated through special
provisions. The members of the group are interconnected through an
organizational link that provides them with incentives and compels them
to conform to certain patterns of behavior, such as faithfulness,
loyalty, comradeship, mutual confidence and solidarity, which can be
considered common interests in the overall concept of membership in an
association. This
means that associations perform a social function, have disciplinary
power for breaches of ethics, and seek improvement of the profession as
well as the social security of their members. Compulsory membership does
not restrict, but rather regulates, freedom of thought and expression,
but it must be kept in mind that the Convention's intention was "to
consolidate in this hemisphere, within the framework of democratic
institutions, a system of personal liberty and social justice based on
respect for the essential rights of man." This means that
membership in an association cannot be an instrument to control
information officially. Rather it enables those practicing the
profession of journalism to exercise it freely and responsibly within
the bounds of ethics and its social functions. 7. Applying these
concepts to the case in reference, the Commission finds that Law Nº
4420, the Charter of the Costa Rican Association of Journalists and
Decree Nº 43120 of November 7, 1974, do not involve any restriction on
the freedom of thought and expression established in Article 13 of the
American Convention on Human Rights. In fact, the purposes of the Costa
Rican Association of Journalists are in keeping with the exercise of
freedom of information. Membership is required only of persons engaged
in journalism and excludes permanent or occasional columnists and
commentators in the communications media of every kind, as well as
directors, managers and administrators of newspapers and other
information media. Prior censorship is not established and there is no
control over the transmission of information. This means that the
Government of Costa Rica has not violated Article 13 of the American
Convention on Human Rights by issuing rules to regulate the exercise of
the profession of journalism, nor has the Costa Rican Supreme Court of
Justice done so by handing down a judgment imposing a penalty on Mr.
Schmidt for illegal exercise of the profession. For
the foregoing reasons, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES: 1. TO DECLARE that
Law 4420 of September 18, 1969, the Charter of the Costa Rican
Association of Journalists, as well as the provisions that govern it and
the judgment handed down by the Third Section of the Costa Rican Supreme
Court of Justice on June 3, 1983, whereby Mr. STEPHEN SCHMIDT was
sentenced to THREE MONTHS IN PRISON for illegal exercise of the
profession of journalism, as well as the other facts established in the
petition, are not a violation of Article 13 of the American Convention
on Human Rights. 2. That this
decision is to be transmitted to the petitioner and to the Costa Rican
Government. 3. To publish this
resolution in the Annual Report of the Inter-American Commission on
Human Rights. Approved
by: Dr. César Sepúlveda Dr.
Luis Adolfo Siles Dr.
Gilda Russomano Dr.
Andrés Aguilar Dr.
Marco Gerardo Monroy Cabra Dissenting
vote by Dr. Bruce McColm, the text of which is included as an appendix. Dr.
Luis Demetrio Tinoco Castro disqualified himself in this case. THE
DISSENT OF DR. BRUCE MCCOLM ON
CASE 9178 (Costa Rica) For
over three hundred years, a struggle has been fought in this hemisphere
for the fundamental right of people to speak, write, print and now
broadcast information, ideas and opinions freely, uncensored,
unfettered, unlicensed and unafraid. Although we live with revolutionary
new technologies and a growing awareness of our interdependency, this
struggle still confronts age-old adversaries. The democratic project of
our hemisphere, which shows steady success in the growing number of
representative governments, is still marred in some countries by the
unrestrained harassment, intimidation and control of the media. Where
the victory of free expression has been won, there are new thinly
disguised threats which challenge the preservation of this rights. To
not defend an imperilled right is to forfeit it. On
June 3, 1983 at 4:30 p.m., the Third Chamber of the Supreme Court of the
Republic of Costa Rica reversed the decision of the Second Penal Court
and found Mr. Stephen Schmidt "guilty of the criminal offense of
the Illegal Exercise of the Profession of Journalism, endangering the
Public Order." For this alleged crime, Mr. Schmidt was sentenced to
three months in prison to be served immediately upon the completion of
the provisional detention. Although the Court found him a man of
impeccable character and suspended the prison sentence, he was entered
into the Judicial Criminal Register, thereby branding him with a
criminal record for the rest of his life. As a consequence, Mr. Schmidt
is permanently prohibited from practicing his journalistic craft in
Costa Rica, a country where he did so with great distinction for 11
years. Furthermore, the national courts have taken steps to prevent him
from pursuing his profession in Costa Rica on threat that he would be
judged a habitual convict and thus be declared a dangerous person. Technically,
Mr. Schmidt should never have been tried. According to Article 23 of Law
Nº 4420, known as the Organic Law of the College of Journalists of
Costa Rica, a journalist is "one whose main, regular or salaried
occupation is the exercise of his profession for a daily or periodical
publication, or in the televised or radio broadcast news media, or for a
news agency, from which he earns the major portion of his living."
(Emphasis added) While
residing in Costa Rica, he worked for the English-language weekly The
Tico Times as "technical consultant, translator and style
editor" and occasionally wrote articles on various national and
international topics for The Tico Times and La Nacion,
both of which are based in San Jose. During the trial before the Second
Penal Court of San Jose, it was established that Mr. Schmidt earned his
primary living as a commodities analyst. Under cross-examination, both
the personnel manager of La Nacion, Alvaro Mora and Saul Arias, The
Tico Times accountant, testified that Schmidt did not earn a salary
at either newspaper as a reporter. Presiding
Judge Jeanette Sanchez, while calling Mr.Schmidt "a born
journalist", said: "In a legal sense, if we base ourselves on
the Colegio de Periodista law, Mr. Schmidt is not a journalist, because
he does not fulfill the formal requisite of making this activity his
principal means of livelihood." However,
despite the manifest deficiencies in the legal definition of a
journalist, to which I will return, there exist a group of activities
which both experience and common sense tell us are journalistic in
nature. Whether Stephen Schmidt is a good, bad or indifferent journalist
is irrelevant in ascertaining whether Law Nº 4420 is in conflict with
Article 13 of the American Convention of Human Rights. However, it is
important background for considering the Colegio's claim that one of its
primary tasks, according to its former President Carlos Morales,
"is to protect society from the harm that unlicensed journalists
can do." By
all and any reasonable criteria, Mr. Stephen Schmidt has demonstrated
his ample ability and qualifications to practice journalism. The
collection of his writings submitted to the Commission demonstrate a
wide-range of subjects and issues of public importance on which Mr.
Schmidt brought his unusual sensitivity, specialist's knowledge in
economics and respect for his adopted country. In
1977, the judge, who ruled against the government of Costa Rica in its
law suit against Mr. Schmidt for his series of articles on land reform,
praised not only his ability but also his public service in bringing
critical issues before the attention of the citizenry. At no time,
during the proceedings before the Commission, were the talents and
qualifications of Mr. Schmidt doubted. In fact, the representatives of
the government of Costa Rica said that Mr. Schmidt's writings in no way
threatened the public order, the rights or reputation of others,
national security or public health and morale. At
the suggestion of the Colegio de Periodistas, Mr. Schmidt enrolled in
the Autonomous University of Central America and under the Director of
the newspaper La Nacion, Lic. Guido Fernandez, earned a graduate
degree with honors in interpretative journalism. During this time,
Alvador Madrigal, an officer of the Colegio, signed a letter authorizing
Schmidt to continue his journalism work as a student and invited him to
join the Colegio upon graduation. His licencia was authenticated
by both the Ministry of Education and the Colegio de Periodistas. However,
Mr. Schmidt's graduating class was not allowed to join the Colegio since
the organization refused to recognize degrees from the Autonomous
University. This occurred despite legislation ordering professional
associations to revise their statutes to admit graduates of private
universities. On
January 14, 1983, the Second Penal Court of San Jose handed down a
sentence declaring Mr. Schmidt innocent and absolving him of all guilt
and responsibility. Judge Jeanette Sanchez' decision was the first time
the Universal Declaration of Human Rights and the American Convention of
Human Rights have been used as a basis for a court decision in our
hemisphere. As the first country to ratify the American Convention on
Human Rights, known as the San Jose Pact, the court acknowledged that
its treaty obligations took precedence over domestic legislation. In
so ruling, Lcda. Jeannette Sanchez made a distinction between the
journalist profession as a discipline that inherently involves a
fundamental human right and other professions regulated by colegios.
Since journalism involves exercising the fundamental right of
expression, the governing covenants, statutes or treaties in this case
are the American Convention of Human Rights, the Costa Rican Magna Carta
and the constitutional guarantees of basic liberties. Consequently,
Judge Sanchez argued: There
is no doubt that in journalistic activity there exists an essential
difference from the other professions. It is the only one among them in
which the practice and discipline directly affects a basic rights of
human beings: freedom of opinion and expression, which of necessity
requires the possibility to exercise that freedom. Our country
subscribed to, and later promoted to a law higher than other laws, the
Universal Declaration of Human Rights, as provided for in Article 7 of
the Political Constitution. Article 19 of Law 4229, dated December 11,
1968, states: 'Every individual has the right to freedom of opinion and
expression: this right includes that of not being harassed because of
one's opinions, of investigating and receiving information and opinions
and disseminating them, without limitation by frontiers, through any
medium of expression." In
the same manner, the American Convention on Human Rights was signed,
being integrated into our legal principles through Law Nº 4534, dated
February 13, 1970. Article 13, Section 1), states: 'every individual has
the right to freedom of thought and of receiving and disseminating
information and ideas of any kind, without consideration of frontiers,
whether orally, in writing or in printed or artistic form, or through
any other procedure of his choosing"; and paragraph 3) adds: 'The
right of expression must not be restricted by indirect methods or means,
such as the abuse of official or private control of paper for
newspapers, radio frequencies, or of equipment and apparatus used in the
diffusion of information or through any other means designed to obstruct
the communication and circulation of ideas and opinions." Our
Magna Carta, in Article 7, stipulates, in Paragraph 2: "Public
treaties, international agreements and concords duly approved by the
Legislative Assembly, shall from time of their acceptance have authority
higher than of the laws." Applying
the above to the concrete case, we see that Stephen Schmidt "was
seeking out, receiving or disseminating information...in written
form." His conduct therefore corresponds with the exercise of what
may be called that higher right, which is freedom of expression, as
stated, must not be restricted by any indirect means. The foregoing
demonstrations that the legal nature of a College of Journalists cannot
be the same as is essential to other professional colleges, since in the
former activity use is made of one of the most precious public freedoms
of human beings, that is, to express their thoughts. The accused, then,
acted in the legitimate exercise of these rights..." In
June 3, 1983 the Supreme Court reversed the judgment of the Second Penal
Court and annulled the acquittal. The Court's Judgment was based on a
perceived threat that upholding the decision would undermine the various
laws of the different professional Colleges, since membership in each of
these corporations would not be indispensable. The justices argued: The
Organic Laws of the various Professional Colleges establish absolute
prohibitions for the exercise of the profession to persons who do not
have the pertinent title; and fundamentally, 'if it is true that the
Colleges were established and organized for the protection of their
members, there is another fact of special importance in such cases,
which is the public interest involved in the general exercise of the
professions, which interest serves as a legitimate reason for the
protectionist intervention of the State in view of the necessity for
such activities to be performed by highly qualified persons, that is,
those with abilities derived from university studies and the
professional titles obtained in the manner stipulated in the law or
regulations... (Jurisprudencia Constitucional 1979-82, pp. 139
ff.). It
is a sociological fact of life professional associations perform a vital
role in the maintenance of ethical and professional standards in this
hemisphere. These associations, as my esteemed colleague Dr. Monroy
Cabra points out, stem from the exercise of the right of free
association and the safeguarding through collective effort the integrity
and standards of one's vocation. To the degree they fulfill these
functions, professional associations serve to enhance the well-being of
their members and, as a consequence, that of their fellow citizens. The
public interest, as a priority of the associations, is embodied in the
strict observance of the standards of professional ethics, both because
of the importance of the activity itself and because of the confidence
that the community must have in those who exercise this activity. It is
naturally in the interest of the State to see that the exercise of the
professions is efficaciously performed as a guarantee for the entire
community. For that reason, the State delegates to the association in
our societies the authority to ensure the proper exercise of the
profession. In principle, these professional associations are
non-governmental public interest institutions. Generally, the public
interest is served in this regard and there is no undermining of the
freedom of association. However,
by that very nature professional associations lack a certain public
interest insofar as there exists a certain degree of dominance by
private interests, whether individuals or groups. While these
associations may act in the interest of their members, that is no
guarantee that such actions are in the interest of the society at large.
By no means can the public interest be invested in any one of these
groups or any other private organization. It
is natural then for both the Supreme Court of Costa Rica and the
Commission to rule that there is no direct conflict between Article 13
of the American Convention and the Organic Law of the College of
Journalists. In most freedom of expression cases in this hemisphere
there exists a presumption of constitutionality of government action.
Normally, the Court as in this case, starts with the presumption that a
legislative action is constitutional. If there is a reasonable argument
that the law serves a purpose within the legislature's mandate, it is
rare for any court to challenge it. The Court will generally avoid any
ruling on a challenged piece of legislation by adopting, as is the case
here, an alternative interpretation of the case. This inevitably leads
to the Court deciding a case on the narrowest of grounds. In
this case, it is unfortunate because the two court decisions and
argumentations are so diametrically opposed to one another's that there
exists no well-defined legislative or legal standards to adjudicate
between the right of the Colegio de Periodistas to exist and
perform its social functions and the claims by an individual to exercise
his most fundamental rights. In
Schneider v. Irvington, American Supreme Court Justice Owen
Roberts in 1939 admonished the lower courts in the United States to
follow the following principle: "Where
legislative abridgment of the rights is asserted, the courts should be
astute to examine the effect of the challenged legislation. Mere
legislative preferences...may well support regulation directed at other
personal activities, but be insufficient to justify such as diminishes
the exercise of rights so vital to the maintenance of democratic
institutions." This
case deserves a more definitive resolution and an establishment of legal
standards to say where the individual's freedom ends and the State's or
a designated agency of the state's power begins. Since the Commission
accepted Stephen Schmidt's petition on October 4, 1983, litigation has
begun in Bolivia and the Dominican Republic challenging those countries'
licensing laws. Controls in these countries as well as Costa Rica now
parallel similar laws in Brazil, Colombia, Ecuador, Haiti, Panama, Peru
and Venezuela. These laws are unusual in the wide array of press
controls in this hemisphere because they are supported in many instances
by reporters and broadcasters in the country. This happens to be the
case here. The hemispheric debate over media control has heated up and
will continue to be acrimonious until the inter-American system
established clear guidelines on where and when fundamental human rights
are being trampled on and when and how professional standards are being
upheld. Crucial
to this debate is whether Judge Jeanette Sanchez' distinction between
journalism and other professions is valid. If journalism is a profession
which inherently involves the exercise of a fundamental human right,
then no government or government-approved agency is entitled to prevent
an individual from being a journalist. Conversely, do journalists become
a special class of persons, not subject to the full exercise of their
rights, when they receive monetary compensation for their work? And, if
journalists can be subjected to the same obligatory membership or
authorization by a government-approved and mandate professional
organizations as practitioners of other professions, what constitutes a
journalist? These
may seem trivial questions to the laymen and lawyer alike. After all, as
pointed out above, common sense and experience allow us to make a
judgment about what constitutes a journalistic activity. However,
attempts such as the Organic Law of the College of Journalists to codify
such definitions into law are inevitably doomed to fail. As indicated
during the trial before the Second Penal Court, those not subject to the
authorization of the Colegio were specifically spelled
out--columnists and free-lance journalists, for example. Those subjected
to the authority of the Colegio were defined purely in terms of
their socio-economic position in the business of journalism and not
according to the performance of any concrete activities, which one could
properly call journalism. In
a telling exchange during the trial, Attorney Ricardo Harbottle,
representing the Colegio, attempted to establish that Mr. Schmidt
was practicing journalism in his writings. Questioning Schmidt's
professor, Lic. Guido Fernandez, about the nature of an article about a
trip down the Reventazon River, Attorney Harbottle maintained the
article was "reportaje" and therefore Schmidt was a
journalist. Lic. Fernandez maintained that the story was a
"chronica" and therefore could be classified as commentary,
which would be outside the jurisdiction of the Colegio. On other
occasions during the trial, the prosecution tried to establish that the
act of taking notes at a press conference qualified as a journalistic
activity, regardless of what one did with those notes, and that
interviewing public figures was also a journalistic act. What was
unclear in all this was whether an individual could commit a
"journalistic act" without being considered a journalist. At a
meeting at the UNESCO headquarters in Paris in 1980, both the
International Federation of Journalists and the International
Organization of Journalists adopted, in a protocol approved by both
organizations, the following definition: This
profession of journalism consists in seeking out, receiving or
communicating information and opinions destined for daily publications,
press agencies, information services, etc." Article
19 of Universal Declaration of Human Rights (December 10, 1948), Article
4 of the American Declaration on the Rights and Duties of Man, Article
19 of the International Pact on Civil and Political Rights and Article
l3 of the American Human Rights Convention all regulate what we have
come to call the right to information, which includes seeking out,
receiving and disseminating information and ideas with no prior
censorship in any media. This right is also affirmed in Article 29 of
the Political Constitution of Costa Rica, which declares: "Every
individual may communicate his thoughts in oral or written form and
publish them without prior censorship; but they will be responsible for
any abuses that they commit in exercising this right, in such cases and
in such manner as established by law." Therefore,
as Judge Jeanette Sanchez rightly ruled, the substance and nature proper
to the exercise of the profession of journalism coincides totally and
absolutely with the spirit and letter of Article 13 of the American
Human Rights Convention with regard to the expression and communication
of thought. The proper exercise of the fundamental freedoms expressed in
Article 13 reinforces the security of individuals and the just
requirements of the general good as expressed in Article 32 of the
American Convention in such a way as to consolidate democratic
institutions by preventing the shackling of freedoms by the government
or any other agency within the society. A
free and unimpeded press contributes handily to the ideals of the
American Convention to "consolidate on this continent, within the
framework of the democratic institutions, a format of personal freedom
and social justice based on respect for the essential rights of
man." American Supreme Court Justice Powell, dissenting in Saxbe
v. Washington Post (417 U.S. 843) (1974), eloquently
described the fundamental role the press plays in a democratic society: An
informed public depends on accurate and effective reporting by the news
media. No individual can obtain for himself the information needed for
the intelligent discharge of his political responsibilities. For most
citizens the prospect of personal familiarity with newsworthy events is
hopelessly unrealistic. In seeking out the news the press therefore acts
as an agent of the public at large. It is the means by which people
secure that free flow of information and ideas essential to the
intelligent self-government. By enabling the public to assert meaningful
control over the political process, the press performs a crucial
function in effecting the social purpose of the First Amendment (of the
Constitution of the United States.)" Because
the practice of journalism is so intertwined with the exercise of the
freedom of expression as guaranteed by the conventions mentioned above,
it is fundamentally different in nature from the legal or medical
professions. In the professional exercise of medicine or law, for
example, official control exists due to the risks created by an
uninformed practitioner, who might eventually harm a third party. In the
case of journalism, the risk is of an opposite kind. When a journalist
or press organ is bound by prior permission or license by a
government-approved or santioned body, there brings with such
regulations a serious and dangerous limitation of a right that is
inalienable. As
James Madison warned: "A
Popular Government, without popular information, or the means of
acquiring it, is but a Prologue to a Farce or Tragedy; or, perhaps both.
Knowledge will forever govern ignorance. And a people who mean to be
their own governors, must arms themselves with the power which
gives." (To W.T. Baray, August 4, 1822). The
necessary distinction between journalism and other professions was made
by Lic. Guido Fernandez in La Nacion (October 27, 1979), when he
wrote: "The
preparation of journalists, their competence as communicators and their
independence of thought in regard to their employers, does not
necessarily depend on the existence of professional guilds, and even
less on permits issued by the government or by syndical associations.
The university centers should be responsible for their solid background
of knowledge, and the publications themselves for the broadness and
maturity of their experience. If the universities are bad, then not even
the most closed and medieval guild will be able to make journalists more
dependable or more efficient or more independent. The
lawyer, the doctor, the chemist or the engineer do not exercise
professions which involve a basic human right such as freedom of
expression or of information. Public faith, public health and public
safety are individual or social values which demand guardianship, but
the tasks of informing and expressing opinions are activities so
intimately associated with all human beings that any restriction or
limitation could endanger (if not destroy) that which is the essence of
democracy: the right to dissent." This
does not mean that a journalist is judged in a superior or special
category of citizenship. The criteria for the maintenance and regulation
of the professional standards and integrity of journalism come not from
the laws of a professional organization but are derived from a series of
wide-ranging legislation in our countries governing the media as a
whole. This body of legislation in each of our countries is more than
adequate to prevent any abuse of the journalist profession. Dr.
Monroy Cabra argues that Article 13 of the American Convention of Human
Rights which establishes the internal responsibility for guaranteeing:
a) respect for the rights and reputation of others, and b) protection of
national security, public order and public health and morals implies
that while the press is free, it must conform with the law in these
cases. This is correct as far as it goes. Since
Article 13 deals with a public exercise of a fundamental right and
journalists are the habitual practitioners of that right, journalism is
therefore already regulated by laws governing the public exercise of the
freedom of expression. There exists, in fact, an alternative legal
mechanism in our republics to control unprofessional conduct of
journalists without limiting the freedom of the press and ultimately
hurting the public more. In the case of Costa Rica, the basic laws
affecting the media are the Constitution of 1949; the Press Law of 1902;
the Radio Law of 1954, which was later amended for television, and the
law presently being discussed. The Constitution contains a series of
exceptions to freedom of expression such as the aforementioned
restrictions contained in Article 13. The
Press Law provides for prison sentences of up to six months for the
defamation of character. An offense to someone's honor may call for a
retraction in the press. It also makes punishable the intentional
subversion of friendly relations with another nation. A related law
establishes a censorship board through the Ministry of Interior, which
requires the screening of all printed and graphic material consisting of
"obscene or pornographic texts...the dissemination of antisocial
customs, and the presentation of scenes which may lead to vice,
criminality, sexual aberrations, and the use of drugs or which are
contrary to the country's social values." The laws governing the
electronic media are similar in scope, governing many of the
prohibitions against libel and defamation of character. As
made clear in the preamble to the American Convention, these essential
rights of man "are not derived from one's being a national of a
certain state, but are based upon attributes of the human personality
and that they therefore justify international protection" and,
therefore, every individual...with no discrimination for reasons
of...political opinion or any other kind..."is entitled to the free
and full exercise of these rights, which include freedom of expression.
It is clear that the freedom of expression is guaranteed to all human
beings, without exception, and can not be the exclusive reserve of any
single group of individuals, state-approved organization and/or public
agency of the government. It is a right that belongs to everyone. The
Organic Law of the College of Journalists as presently constituted and
applied represents an attempt to define a "right to
communicate". This would qualify and limit the aforementioned
international covenants that guarantee the freedom of expression. To
specify who should have this right and under what conditions is itself a
restriction of what is universally entitled to everyone. Therefore, the
limitation created by denying the right to practice journalism to those
who do not enjoy the approval of the Colegio de Periodistas since
they are not members, or to deny them in advance the right to
disseminate information or ideas without permission or prior
authorization, is a violation of Article l3 of the American Convention.
The fact that an individual exercises his freedom of expression gratis
or for a salary is irrelevant to the discussion. In
a communication to the Commission dated May 15, 1984, the Government of
Costa Rica maintained that Mr. Stephen Schmidt was convicted
"...not for expressing his thoughts or for publishing information
or ideas but because the Court found him to be guilty of illegally
exercising the profession of journalism and putting the order at
risk..." As has been made clear, Mr. Stephen Schmidt at no time
violated those laws regulating the press that covered the conventional
limitations on the freedom of expression. Nor, did he ever challenge the
public order. The substance of Mr. Schmidt's alleged crime is that he
published information and ideas in a printed form without prior
authorization or permission of the Board of Directors of a public
corporation. Members of this public corporation, the Colegio de
Periodistas, have through legislative approval been given the
exclusive monopoly to practice journalism in Costa Rica. This monopoly
constitutes a form of prior restraint on the journalists. Proponents
of the New World Information Order have argued that the licensing of
journalists would elevate the standards of reporting and also would be a
means to protect correspondents in dangerous situations. The decision by
the Supreme Court of Costa Rica to convict Stephen Schmidt was seen by
the local Colegio as formally recognizing the licensing of
journalists and a recognition that the profession was "of limited
access." However,
UNESCO's International Commission for the Study of Communication
Problems concluded in 1980 that such licensing would open the door to
restrictive governmental regulation. The Commission concluded:
"Although problems concerning the protection of journalists are
real and preoccupying, we share the anxiety aroused by the prospect of
licensing and consider that it contains dangers to freedom of
information." Such
an anxiety has been at the root of the nearly three and a half centuries
of legal history that lies behind Article 13's discussion of "prior
censorship". John Milton's classic defense of free speech, the Areopagita,
was itself a pamphlet printed in 1644 to protest a number of licensing
acts passed in Great Britain. Such acts by the Crown required printers
to have a license before publishing. In the days of hand-presses, more
often than not the printer was also the journalist or pamphleteer. This
strategy of press repression, along with taxes on newsprint and
newspapers, was explicitly rejected in the American Constitution by the
First Amendment, which states: "Congress shall make no
law...abridging freedom of speech or of the press." The
unconstitutionality of such licensing, which the American courts
referred to as "previous" or "prior restraint" was
decided upon as early as 1825. Shortly
after Costa Rican independence from Spain, the new government insisted
on the creation of a vigorous and critical press. In the early l830, the
Government of Costa Rica passed a law that became tradition in that
country and paralleled American prohibitions on "prior
restraint". It stipulated: "Liberty
of thought and expression is so absolute that no prior censorship, no
regulation, no special or common tribunal shall restrict it. Neither the
very overthrow of the constitutional order, armed rebellion nor civil
war shall be a motive to repress it." As
this case is the first in which the American Convention has been invoked
as domestic law, it is necessary to determine whether and how the
provisions of the Convention or the San Jose Pact have become part of
the State's own domestic law. In other words, are the obligations
undertaken by the Republic of Costa Rica on an international plane
transformed into obligations owed those individuals within its own legal
system? While
there exists a long-standing debate over the superiority of
international law over domestic statutes, in the case of Costa Rica,
this problem is easily answered. Some states provide in their
constitutions certain provisions of international law, which become
self-executing and are immediately enforceable by domestic courts. Costa
Rica has gone even further by not only making international law
self-executing, but assigning it to a rank superior to all prior and
subsequent legislation. Its Magna Carta in Article 7, Paragraph 1
stipulates: "Public treaties, international agreements and concords
duly approved by the Legislative Assembly, shall from the time of their
acceptance have authority higher than that of the laws." This is
again affirmed by virtue of a constitutional amendment approved by Law Nº
4123 on May 30, 1968. Specifically
regarding the American Human Rights Convention, Costa Rica accepted and
ratified it in its entirety and without reserve, as approved by its
Legislative Assembly under Law Nº 4534 dated February 23, 1970. The law
held that thereafter the Convention would be the Law of the Republic
"...upon whose observance the National Honor depends." Therefore,
Judge Jeanette Sanchez of the Second Penal Court of San Jose was quite
proper in arguing that there was a direct conflict between Article 13 of
the Convention and Articles 22, 23, 24 and 25 of the Organic Law of the Colegio
de Periodistas and that the Convention was of superior weight to the
act by the Legislative Assembly. The Inter-American Commission,
likewise, is competent to decide if a law passed by the Legislative
Assembly and a sentence handed down by the Third Chamber of the Supreme
Court of Justice are or are not incompatible with a fully ratified
ruling of international Law. Although
the licensing of journalists by an exclusive corporation is in direct
conflict with Article 13 of the Convention, that does not mean that a
ruling to this effect would jeopardize the existence of all professional
associations in Costa Rica or even the Colegio de Periodistas.
Making the distinction between journalism and other professions, the
challenge to the present law comes where there are unwarranted
restrictions on the freedom of expression. In the case of other
professional associations, this is not a realistic concern. Since
other countries are facing similar litigation over the licensing issue
and obligatory membership to press colegios, there exist basic
guidelines that would ensure no conflict with international covenants
protecting the freedom of expression. In May, 1981, leaders of
independent news organizations from 21 countries met in France and
issued the Declaration of Talloires, which provides a summary of
proposals that are immediately applicable to this hemisphere. The
purpose of these basic principles is to uphold individual rights and
deepened the commitment of journalist associations to the consolidation
of democratic institutions. The right of freedom of expression as
contained in Article 13 of the American Human Rights Convention cannot
be qualified by an attempt to develop a counter right to communicate.
This would severely limit access to persons desiring to be journalists.
Neither state-approved bodies nor private agencies should have the legal
power to restrict access, by the people and press, to all sources of
information, both official and unofficial. Journalist associations must
make sure that censorship and other forms of arbitrary control of
information and opinion be avoided. Codes of journalistic ethics should
be formulated by the press itself and should be voluntary in its
application. They cannot be formulated, imposed or monitored by
government or governments' agencies without becoming instruments of
press control. There
should be no restriction on any person's freedom to practice journalism.
Press freedom is a basic human right. As in the case of Mr. Stephen
Schmidt, fine journalists often come from other disciplines. Journalists
should be free to form organizations to protect their professional
interests. But these associations should be inclusive, not exclusive and
should not discriminate against graduates of various educational
institutions within a country or abroad. Licensing
of journalists by any national bodies should not be sanctioned, nor
should special requirements be demanded of journalists in lieu of
licensing them. In addition, to legislate or otherwise mandate
responsibilities for the media is to destroy its independence. The
ultimate guarantor of journalistic responsibility is the unfettered,
free exchange of ideas. Consequently, members of the media should enjoy
the full protection of national and international law without seeking
special protection or any special status. As
the late Alexander Meiklejohn wrote in "The First Amendment is an
Absolute" (1961 Sup. Ct. Reev. 245)," Public discussions,
together with the spreading of information and opinion bearing on those
issues, must have a freedom unabridged by our agents. Though they govern
us, in a deeper sense, govern them. Over our governing, they have no
power. Over their governing, we have sovereign power." In
the final analysis, the litmus test of whether Law Nº 4420, the Organic
Law of the Colegio de Periodistas as well as Decree 43120, dated
November 7, 1974 of Costa Rica, "constitute no restriction of
freedom of thought or expression", as my colleagues have found,
rests with the behavior of the Colegio in applying those
statutes. At issue is whether Law Nº 4420 empowers the Colegio to
regulate only its membership or the entire free flow of information in
the country. Does the Colegio view its role as controlling all
aspects of Costa Rican society that are somehow information-related? Prior
to the trial and conviction of Mr. Schmidt, Mr. Joe Phillips, an
American with a journalism degree from the University of Texas, was sued
by the Colegio, convicted under Law Nº 4420 and given a
suspended sentence in 1978. Considered one of the finest practicing
journalists in Costa Rica, Mr. Phillips founded the San Jose News,
an English-language weekly in 1973 and eventually was forced to suspend
publication in 1979 after he was convicted of the same alleged crime as
Mr. Schmidt. Since
Mr. Schmidt's conviction, according to the English-language newspaper The
Tico Times (February 17, 1984), the Board of Directors of the Colegio
established a permanent commission to investigate persons, who without
prior approval and authorization by the Board, are exercising activities
which constitute "full journalistic activities." A
direct consequence of this new vigilantism was the protest by the
National Union of Journalists and the Board of Directors of the Colegio
of the publication of an interview with President Don Luis Alberto Monge
by Lic. Enrique Benavides, whose La Columna in La Nacion
is considered a national institution. In their letter to Lic. Don
Eduardo Ulibarri, the Director of La Nacion, they complained: Both
the National Union of Journalists and the College of Journalists of
Costa Rica have taken note of this evident violation of Law 4420, which,
in consideration, of your status as a Colegio member and citizen
respectful of the law, we are sure you will make certain it does not
occur again. (Emphasis added) After
the Spring 1984 meeting of the Commission, the Colegio
established new restrictions on the media in Costa Rica. Declaring
itself "the only entity charged by the Government and by law to
watch over the practice of journalism by Costa Rica", the Colegio
enlarged its mandate to license not only journalists but also five new
categories of media personnel. Among these are public relations agents,
graphics reporters, journalism students, foreign correspondents and
communicologists, the latter being a profession, which as yet remains
undefined. In issuing these new decrees in July 1984, Jimen Chan, the
President of the Colegio, announced the organization's monopoly
on issuing press credentials and identifications for press vehicles.
While presumably autonomous from government control, the Colegio
interprets its legal status to mean it has law enforcement powers. For
example, it summarily announced: "Police authorities will proceed
to confiscate unauthorized credentials and report the incident to the Colegio
within 24 hours." This
claim to expanded authority stimulated a blue ribbon group of 23 Costa
Rican leaders to petition the Commission this past August. In this group
were Jose Trejos Fernandez, former President of the Republic, Rodrigo
Odio, the President of the Bar Association, and Maximo Acosta Soto,
former Supreme Court magistrate. They urged the Commission to find for
Mr. Schmidt because the rights of free expression, thought and
information "cannot and should not be monopolized in benefit of a
specific group nor limited to a few persons." They
presented the following request: As
Costa Ricans who have exercised various public functions, we wish to
express our profound concern about the above-mentioned limitation of a
fundamental and inalienable right to individuals, and we request that
you declare the conflict in Costa Rica legislation that denies any human
being freedom of information, limiting it to an obligatory College
authorization subject to a public agency. We consider this extremely
dangerous to the democratic system which fortunately prevails in Costa
Rica, and we strongly believe it to be a harmful example to the rest of
the continent, threatening to weaken freedom of expression... The
Colegio's recent actions go far beyond the original intent of Law
Nº 4420 to stimulate a more professional press in Costa Rica. Instead,
they demonstrate a clear and present danger to the exercise of freedom
of expression in Costa Rica. The Colegio's present regulations
now govern any person--foreign or Costa Rican citizen-- who claims they
are "attending press conferences, covering public spectacles,
participating in interviews or reporting on accidents, ceremonies or
other activities of 'public interest or any other journalistic activity
whatsoever..." This is a clear restraint on the freedom of access
to information. Even
those individuals, who are journalists but are not engaging in their
professional duties in Costa Rica, are subject to control. For example,
journalist Mr. Paul Ellman of The Guardian of London was told by
immigration officials to register with the Colegio within 24
hours after his arrival in July for a vacation. In another case, Ms.
Suzanne Bilello, the Mexico City Bureau Chief and Central American
correspondent for the Dallas Morning News, was ordered by
immigration to report to the Colegio, where she was subjected to
an interrogation by a non-journalist about the duration of her stay in
Costa Rica and the nature of her stories. She was warned by Colegio
personnel not to seek appointments at the Foreign Ministry "unless
you have proper credentials from the Colegio." In
all the cases mentioned, there is clearly a deliberate policy by the Colegio
to control the access and dissemination of information in Costa Rica. As
Alexis de Tocqueville wrote, "It would see that if despotism were
to be established among the democratic nations of our days...It would be
more extensive and more mild; it would degrade men (and women) without
tormenting them." So, it would seem that the Colegio acting
as a monopoly or closed shop which can authorize a human being to seek
out, receive and disseminate information or ideas poses a serious and
dangerous limitation to an inalienable right. The
Commission's decision is more than a narrow upholding of the rights of colegios
to exist at the expense of the livelihood and profession of one
individual. Rather, it is a clear signal that a class of individuals
whose profession is so closely identified with the exercise of the
freedom of expression must fear the onslaught by government and private
agencies to regulate, control and eventually suppress them. It
is also a clear signal that the public's right to know is being eroded.
The record in this case is replete with weighty affidavits from
responsible news organizations and distinguished Costa Ricans from all
professions urging the Commission to recognize how important the ability
of journalists to practice their trade is to the very survival and
strengthening of the democratic project in this hemisphere. As Justice
William Douglas wrote in Branzburg v. Hays (408 U.S. 665) (1972),
"...effective self-government cannot succeed unless the people are
immersed in a steady robust, unimpeded, and uncensored flow of opinion
and reporting which are continuously subjected to critique, rebuttal,
and re-examination." The
people and Government of Costa Rica recognized the fundamental role the
free flow of ideas and information plays in preserving a democratic
system when through Decree Nº 14,803-G, dated September 13, 1983, they
established "Freedom of Expression Day". They said: Information
and communication are fundamental elements of our system of life in
liberty; from the dawn of our republican life, freedom of opinion,
freedom of press and freedom of expression have been exercised with
vigor, and it is valuable to call upon the public to ponder, at least
during one day each year, the value of freedom of expression... Article
13 of the American Convention on Human Rights must be understood within
the greater framework of the "intention to consolidate in this
hemisphere, within the framework of democratic institutions, a system of
personal liberty and social justice based on respect for the essential
rights of man." Freedom of expression, as defined by the
Convention, is explicitly an activity pursued in a social, rather than
private context. In this manner, to attempt, as the Supreme Court of
Costa Rica has done, to separate the regulation of the journalistic
profession as an issue from the freedom of expression is to ignore the
real meaning of Article 13 and its applicability to this case. Freedom
of expression is not an abstract idea to be achieved when the suitable
political and economic structure for a country is actualized or social
conditions are tranquil and prosperous. It is a concrete, living right
that is the basis and core of a democratic society. It presumes an
equality of citizens and their right to participate in the shaping of
their own society as an everyday phenomenon and a continual process. The
underlying issue in this case is whether a professional elite has an
inherent right to dictate the direction of a society above and against
the fundamental rights of the average citizen to inform and be informed
by fellow citizens. That this case involves a country which uniquely
enjoys the moral shield of being the vanguard of democratic change in
this hemisphere is, indeed, unfortunate and unexpected. As
the first nation to ratify the Pact of San Jose and the first nation to
accept the jurisdiction of the Inter-American Court of Human Rights,
Costa Rica could perform another service for the inter-American system
by asking the Court for an advisory opinion on this matter. The 1969 law
authorizing the Colegio de Periodistas to regulate the profession
of journalism is sufficiently in conflict with Article 13 of the
American Convention of Human Rights as to warrant its re-examination by
both the Supreme Court of Costa Rica and the National Assembly. Such a
reconsideration, contrary to various parties' assertions, does not mean
that all professional associations are jeopardized or even that of the
journalists. Rather, the concrete application of this law, since the
Schmidt conviction, in the example given above, should warrant concern
about its present and future abuse. As
the representatives of the Government of Costa Rica testified before the
Commission, Mr. Stephen Schmidt is a man of impeccable character, a fine
journalist, and never in his 12 years in Costa Rica posed a threat to
the public order or showed anything but a high regard for the Costa
Rican people and government. His conviction and sentence for the illegal
exercise of the Profession of Journalism should be reserved, pending
reform of the Colegio Law, and he should be allowed, if he so
desires, to return to Costa Rica and again practice his profession
without prejudice, criminal record or harassment. |