CHAPTER II EVALUATION OF THE STATE OF FREEDOM OF EXPRESSION IN THE HEMISPHERE A. Introduction and methodology 1. This chapter describes some of the most important aspects of freedom of expression in the hemisphere during 2011. Its objective is to begin a constructive dialogue with the Member States of the OAS, calling attention to the reported advances as well as the problems and challenges that have required action during this period. The Office of the Special Rapporteur has confidence in the will of the OAS Member States to promote decisively the right to freedom of expression and, to that end, to publicize their best practices, report some serious problems observed, and formulate viable and practical recommendations based on the Declaration of Principles. 2. As in previous annual reports, this chapter exposes the aspects of the right to freedom of expression that merit greater attention and that have been reported to the Office of the Special Rapporteur during the year. Following the methodology of previous annual reports, this chapter is developed from the information received by the Office of the Special Rapporteur from various State, intergovernmental and non-governmental sources. The information provided by States, presented during the hearings held by the IACHR, submitted by non-governmental organizations in the region, and contained in alerts sent by media and communicators is of particular importance to the Office of the Special Rapporteur. In all cases, the information is contrasted and verified so that the only information that is published is that which will serve to assist the States to identify particularly problems or tendencies that must be addressed before they could eventually cause irreparable effects. 3. The selected information is ordered and systematized in a manner so as to present the advances, setbacks, and challenges in various aspects of the exercise of the right to freedom of expression, including progress made in legal or legislative matters, as well as the most serious problems that arose throughout the year, such as murders, threats and attacks against journalists related to the exercise of their profession; disproportionate impositions of liability; the progress and challenges in the right to access to information, among others. 4. The cases selected in each topic serve as examples that reflect the situation in each country in relation to the respect and exercise of freedom of expression. Sources are cited in all cases. It is pertinent to clarify that the omissi on of analysis of the situation of some cases or States is due to the fact that the Office of the Special Rapporteur has not received sufficient information. As such, these omissions should be interpreted only in this sense. In the majority of cases, the Office of the Special Rapporteur provides the direct source, citing the electronic address of the corresponding Web site. When the information is not published directly, the report cites the date the information was received in the electronic mailbox of the Office of the Special Rapporteur. This report does not include information that has been submitted to the Office of the Special Rapporteur through requests for precautionary measures which have not yet been made public. 5. In preparing this chapter of its 2011 Annual Report, the Office of the Special Rapporteur generally took into account information received until November, 2011. Information regarding incidents that occurred after the date the 2011 Annual Report went to press is available in the press release section of the websites of the Office of the Special Rapporteur (http://www.cidh.org/relatoria) and the IACHR (http://www.cidh.org). 6. Finally, the Office of the Special Rapporteur acknowledges the collaboration of the OAS Member States and the civil society organizations that contributed information about the 24 situation of the exercise of freedom of expression in the hemisphere. The Office of the Special Rapporteur encourages the continuation of this practice, as it is fundamental for the enrichment of future reports. B. Evaluation of the state of freedom of expression in the Member States 1. Argentina A. Progress 7. The Office of the Special Rapporteur expresses its satisfaction at the conviction of former soldiers responsible for the disappearance and murder of journalist Rodolfo Walsh, who was disappeared on March 25, 1977. According to the information received, on October 26, 2011, the Oral Criminal Federal Tribunal No. 5 of the Autonomous City of Buenos Aires convicted 16 former soldiers accused of crimes against humanity in the so-called “ESMA Megatrial,” handing down sentences ranging from 18 years to life in prison for the kidnapping, disappearance, torture and murder of 86 people. Walsh, a well-known writer, investigative journalist and activist against the dictatorship, was among the disappeared journalists.1 8. The Office of the Special Rapporteur learned of the arrest and charging of an individual suspected of murdering journalist and community organizer Adams Ledezma Valenzuela. His death took place on September 4, 2010, in a poor neighborhood in Buenos Aires. According to the information received, on May 4 the authorities arrested Cristian David Espínola Cristaldo, alias Pichu, and charged him with committing the crime of homicide. According to the information, the crime took place because Ledezma had prevented the suspect from selling drugs to minors. Argentine journalism organizations asked the authorities to investigate fully the motives behind the murder and its possible relationship with the statement Ledezma made months before dying that he would reveal the identities of well-known persons who came to the neighborhood to buy drugs. Ledezma was a correspondent with the newspaper Mundo Villa and was working on the launch of television channel Mundo TV Villa, which was going to be carried into community homes via cable. In statements given to an Argentine newspaper in June of 2010, Ledezma announced the launch of the television channel and said he intended to do investigative journalism. The Office of the Special Rapporteur has learned that the community work Ledezma did was closely linked to his journalistic work.2 9. The Office of the Special Rapporteur takes note with satisfaction of the ruling of the Third Court of the National Criminal Cassation Chamber annulling the conviction for slander issued in 1999 against Eduardo Kimel. The criminal ruling sentenced Kimel to one year in prison, suspended, and the payment of an indemnity of 20,000 Argentine pesos to the benefit of judge Guillermo Rivarola in connection with a publication in which the journalist criticized the actions of the judge with jurisdiction to hear the case of a massacre of three priests and two seminarians in 1976. The ruling is a result of a significant decision of the Argentine State, which in 2009, following a judgment from the Inter-American Court of Human Rights, moved through law 26.551 1 Judicial Branch of the Nation. Oral Criminal Federal Tribunal No. 5 of the Autonomous City of Buenos Aires. Judgment of October 26, 2011. Available at: http://www.elargentino.com/gallery/158195.pdf 2 Argentine Journalism Forum (FOPEA in its Spanish acronym). June 3, 2011. Nine months after the murder of Adams Ledezma Valenzuela. Available at: http://www.fopea.org/Inicio/A_nueve_meses_del_asesinato_de_Adams_Ledezma_Valenzuela; Página 12. May 5, 2011. The crime against the journalist from the 31. http://www.pagina12.com.ar/diario/sociedad/3-167575-2011-05-05.html; IACHR. Annual Report 2010. OEA/SER.L/V/II. Doc. 5. March 7, 2011. Volume II: Annual Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter II (Evaluation of the State of Freedom of Expression in the Hemisphere). Para. 18. Available at: http://www.cidh.oas.org/annualrep/2010eng/RELATORIA_2010_ENG.pdf 25 to decriminalize crimes of slander and defamation for expression that is in the public interest. Once the law was passed, the Center for Legal and Social Studies (CELS) filed a writ of review over the ruling against Eduardo Kimel before the National Chamber of Criminal Cassation and received the aforementioned ruling to acquit. The ruling ratifies the decriminalization of expression related to matters of public interest and sets an important precedent regarding the admissibility of these kinds of complaints in Argentina.3 10. The Office of the Special Rapporteur observed with satisfaction the ruling of the Supreme Court of Justice dated March 2, 2011, reiterating the State’s obligation to adopt a government advertising policy with objective and nondiscriminatory standards. The judgment upheld a 2009 ruling of the National Chamber of Administrative Contentious Federal Appeals and as a result ordered the National State “to order government advertising to be distributed among the different publications” of Editorial Perfil and Diario Perfil, which had brought the amparo action against the Media Secretariat of the Leadership of the Cabinet of Ministers.4 The Supreme Court ruling cited the September 5, 2007, judgment in the case of Editorial Río Negro, S.A. against the government of the province of Neuquén according to which “the withdrawing of government advertising was an indirect restriction on the freedom of the press, as it was not based on reasonable and justified standards.”5 The Office of the Special Rapporteur takes note of the concern in Argentina over the placement of official advertising in the media and highlights the importance of what the Office of the Special Rapporteur ordered in the aforementioned case. 11. The Office of the Special Rapporteur takes note of the August 19, 2011, ruling of the Supreme Court of Justice of the Nation modifying the Rules of the General Archive of the Judicial Branch of the Nation to “provide journalists with free access to federal court judicial cases on subjects of public interest that are found in the General Archive.” Currently, journalists must access those documents by following a long proceeding, making their work of informing the public more difficult.6 12.