13
and the other of an international nature, which incorporates into Chilean laws, at the
very least, those rights contained in the treaties that the State has ratified freely,
voluntarily and spontaneously. This implies that the constitutional bloc is made up of
the rights contained in the treaties and the rights embodied in the Constitution itself.
With regard to pre-trial detention, Chilean superior courts have accepted that, in
accordance with the American Convention, no one may be imprisoned for debt. They
have also indicated that interrogations may not be conducted using torture, invoking
the provisions of the Convention. However, this is exceptional, as there are matters
on which the Chilean courts and the Supreme Court disregard international human
rights law and when two rights such as the right to freedom of expression and the
right to honor are in conflict they favor the right to honor. This is a systematic policy.
The source of the right to freedom of expression is article 19(12) of the Constitution,
which must be complemented by Article 13 of the Convention; this implies that in
Chile this freedom includes freedom of expression and information. Furthermore,
freedom of expression prohibits any type of censorship and only allows subsequent
restrictions, except in the case of public entertainments, where an exception is
established for the moral protection of children and adolescents. A second exception
could be in states of emergency, because Article 27 of the Convention allows the
exercise of freedom of expression to be suspended on a temporary basis.
The final sub-paragraph of article 19(12) of the Constitution establishes a system of
cinematographic censorship; this resulted in a norm of legal rank establishing a
Cinematographic Classification Council that could refuse to allow the exhibition of
cinematographic works for adults. There are also provisions in the Internal State
Security Act, the Criminal Code, and the Code of Military Justice that allow the
preventive “requisition” of the complete edition of certain types of works and
prevention of their circulation and dissemination. It is not only a normative problem,
the jurisprudential criteria of the Chilean superior courts is fundamental and this
gives the right to honor predominance over freedom of expression, in clear and
evident violation of Article 13(2) of the Convention.
The principle which states that the norm that is most favorable to the exercise of
human rights should be used, should apply even with regard to freedom of
expression. The Supreme Court of Justice and the Court of Appeal of Santiago do
not need article 19(12) of the Constitution to be amended in order to give primacy to
Article 13(2) of the American Convention over the provisions of domestic law, but
should apply Article 27 of the Vienna Convention on the Law of Treaties directly, that
is “the hermeneutic principle of the law which best favors the exercise of the right
and also the criteria of the delimitation of the right.”
e.
Expert report of Juan Agustín Figueroa Yávar, lawyer, expert in
procedural law.
According to the American Convention, judgments delivered by the Inter-American
Court are binding. Based on Article 62(1) and 62(2) of the Convention, States
Parties may recognize the jurisdiction of the Court unconditionally or may establish
reservations. Chile deposited the document of ratification on August 21, 1990, and
indicated that it recognized as obligatory, de jure, the jurisdiction of the InterAmerican Court in cases relating to the interpretation and application of the
American Convention, pursuant to the provisions of Article 62 of this treaty. The