Report No. 11 (1996) IACHR. Case No. 11.230 (Chile)

• Case Number: 11.230
• Year: 1996
• Report Number: 11
• Case Type: Merits
• Court: Inter-American Comission of Human Rights
• Respondent State: Chile
• Alleged Victim: Francisco Martorell

REPORT Nº 11/96 (*) CASE 11.230 CHILE May 3, 1996 I. FACTS 1. On April 21, 1993, Mr. Francisco Martorell and the publishing house Editorial Planeta, published a book in Argentina titled "Impunidad diplomática" [Diplomatic Impunity] concerning the circumstances leading up to the departure of the former ambassador of Argentina in Chile, Oscar Spinosa Melo. The book was scheduled to go on sale in Chile the following day. 2. On April 21, 1993, however, Mr. Andrónico Luksic Craig, a Chilean businessman, petitioned the Seventh Chamber of the Santiago Court of Appeals seeking an injunction on the grounds that the book violated his right to privacy and requesting that it be banned. The Santiago Appeals Court issued an interlocutory injunction ["orden de no innovar"] that put a temporary stop to the book's entry, distribution and circulation in Chile pending a final ruling on the case. 3. Subsequently, a number of criminal actions were brought against Mr. Martorell in the Chilean courts by persons alleging that the contents of the book "Impunidad diplomática" were slanderous and defamatory. Those cases are still before Chile's domestic courts. Litigation in the Chilean courts 4. On May 31, 1993, the Santiago Court of Appeals, in a two-to-one decision, granted the petition and issued an injunction (orden de no innovar) which prohibited the entry and sale of the book in Chile. 5. Through a "recurso extraordinario" [extraordinary remedy], an appeal was filed with the Supreme Court of Chile invoking the constitutional guarantees of freedom of the press. In a unanimous decision handed down on June 15, 1993, the Supreme Court denied the appeal and banned circulation of the book. 6. On June 28, 1993, the Court of Appeals officially notified Mr. Martorell of its final decision granting the injunction. II. PROCEEDINGS IN THE COMMISSION 7. On December 23, 1993, the Commission received a petition filed by Human Rights Watch/Americas and the Center for Justice and International Law (CEJIL) in connection with this case. The petition alleged that the ban on the entry, distribution, and circulation of the book "Impunidad diplomática" in Chile was in violation of Article 13(2) of the American Convention on Human Rights which protects freedom of thought and expression and specifically provides that: "The exercise of the right.... shall not be subject to prior censorship but shall be subject to subsequent imposition of liability..." 8. On February 16, 1994, the Commission forwarded the relevant parts of the petition to the Government, requesting information on the facts or other pertinent information within 90 days. 9. On March 30, 1994, the Commission received additional information from the petitioners which was transmitted to the Government on April 15, 1994. 10. On June, 8, 1994, the Commission received a note from the Government requesting a 60-day extension for its response to the complaint. The requested extension was granted. 11. On September 7, 1994, the Government requested another extension, this time for 30 days. Again, its request was granted. 12. The Commission received the Government's response on October 13, 1994, and forwarded it to the petitioners on October 28, 1994. 13. On November 16, 1994, the Commission received a communication from CEJIL and from Human Rights Watch/Americas wherein they explained the terms of their participation in the case. 14. On December 5, 1994, the Commission received the petitioners' observations to the Government's rejoinder, the relevant parts of which were transmitted to the Government on December 19, 1994. 15. On February 1, 1995, a hearing was held on this case, with the petitioners and representatives of the Chilean State present. 16. On February 6, 1995, the Commission sent letters to the parties putting itself at their disposal for a friendly settlement of the matter. The petitioners replied that they would accept the Commission's proposal provided Chile first lifted the ban on Mr. Martorell's book "Impunidad diplomática", thus allowing the book to enter Chile and circulate freely therein. 17. On March 6, 1995, the Government sent the Commission a note containing its reply to the petitioners' proposal, which was that a friendly settlement would be out of the question as long as Mr. Martorell refused to answer to the Chilean courts. This note was forwarded to the petitioners on March 9, 1995. 18. On July 5, 1995, the Government of Chile presented its comments on the petitioners' observations. It ratified, in all their parts, the petitions that the Government filed in its original rejoinder to the complaint. The petitioners were sent a copy of the Government's comments on July 18, 1995. 19. On September 8, 1995, a hearing was held on this case, with the petitioners and representatives of the Chilean State present. 20. On September 14, 1995, pursuant to Article 50 of the American Convention, the Commission approved Report 20/95 on the instant case and forwarded it to the Chilean Government on October 6, 1995. The Government, for its part, responded to the report on February 8, 1996. 21. On March 19, 1996, the Commission forwarded Report 11/96 to the Government of Chile. In its letter of transmittal the Commission informed the Government that it had given final approval to the report and ordered its publication. 22. On April 2, 1996, the Commission wrote to the Chilean Government to advise that the Commission had decided to postpone publication of Report 11/96, in view of information that the petitioners had sent to the Commission on March 27 and 29, 1996, reporting new facts. 23. On April 22, 1996, the Permanent Representative of Chile to the Organization sent a letter to the Commission to convey his Government's views on the Commission's decision to postpone publication of Report 11/96. 24. On May 2, 1996, a hearing requested by the petitioners was held in which they and the representatives of the Chilean Government participated. III. ADMISSIBILITY 25. The Commission is competent to entertain the instant case, inasmuch as it alleges acts that constitute violations of the rights enshrined in Article 13 of the Convention. 26. The petition is not pending before any other international procedure for settlement and does not substantially duplicate a petition already examined by the Commission. 27. The friendly settlement procedure established under Article 48.1(f) of the Convention and Article 45 of the Commission's Regulations was proposed by the Commission but no agreement could be reached. 28. As the record shows, the petitioners have exhausted the remedies established under Chilean law. The Government, however, contends that the petition was presented after the six-month time limit established by Article 46.1(b) of the Convention and Article 38 of the Commission's Regulations. A. POSITION OF THE PARTIES ON THE ADMISSIBILITY OF THE CASE 1. GOVERNMENT 29. The Government asserts that the final decision on the instant case was the Chilean Supreme Court ruling of June 15, 1993. According to the Government, the petitioners confused the date of the Appeals Court's notification of the Supreme Court's ruling with the actual date of the Court's final decision. Before issuing a notification, which is just one part of the execution of a judgment, the Court must first establish that no appeals are pending. 30. The Government maintains that the complaint was presented to the Commission based on the date of the Appeal Court's notification, and was thus outside of the six-month time limit established in Article 46.1.b of the Convention and Articles 35.b and 38.1 of the Commission's Regulations. Based on this argument, the Government requested that the Commission declare the petition inadmissible. 2. PETITIONERS 31. The petitioners allege that the Commission should consider June 28, 1993 as the date from which the six-month period established in Article 46.1(b) of the Convention should be calculated. The date of June 28, 1993 corresponds to the date of the personal notification by the Court of Appeals, informing the petitioner that the Supreme Court had confirmed the decision prohibiting the entry and distribution of the book "Impunidad diplomática" in Chile. 32. The petitioners further argued that because the complete ban on the entry, distribution, and circulation of the book in Chile constituted a continuous violation, the six-month time limit did not apply in the instant case. B. THE COMMISSION'S ANALYSIS ON ADMISSIBILITY 33. The six-month time limit established by Article 46.1 (b) of the Convention has a twofold purpose: to ensure legal certainty and to provide the person concerned with sufficient time to consider his position. 34. Contrary to what the Chilean Government argues in the instant case, the six-month time limit should not begin as of the date on which the Supreme Court handed down the final ruling; rather, it should begin as of "the date on which the party alleging violation of his rights was notified of the final judgment", as the American Convention stipulates. 35. The Commission, therefore, considers that the complaint filed by the petitioners in the instant case was presented within the time period stipulated in Article 46.1(b) of the American Convention and Article 38 of the Commission's Regulations and so finds that said petition is admissible. 36. The Commission further considers that the interpretation of the provision cited in the preceding paragraph should not be overly formalistic and thus compromise the...