10
One was personal, and was that, by filing a remedy of protection, a group of lawyers
attempted to impede access to information. The second reason was that he had
been a student representative, since the University he attended was public and
tolerant, open to different ideas and expressions, and this prompted him to become
part of a remedy for protection to prevent censorship of the exhibition of the film.
The judgment that prohibited the exhibition of the film caused him a moral prejudice
and impaired his intellectual development, because, owing to the censorship that
was imposed, he was prevented from having access to information that was
fundamental in order to be able to form an opinion based on solid arguments and not
on prejudices. Owing to his education and because he was a law student, he needed
to have an opinion based on legal arguments and on “civic arguments.” His
possibility of intellectual development in order to take part in the public discussion
that was generated was restricted.
His freedom of conscience was affected by the impossibility of having access to
information, and also of thinking in a specific way and establishing, maintaining or
changing his own ideas and convictions on a subject. He was deprived of the
possibility of growing and developing intellectually.
c.
Expert report of José Zalaquett Daher, lawyer, specializing in
human rights.
The protection of freedom of expression in Chile, in accordance with international
law, has two stages. The first was prior to the State of Chile’s ratification of the
American Convention, when the legislation had serious defects in relation to
international standards. The second stage began when the American Convention
was ratified, which is when the standards established in that treaty were
incorporated into domestic law.
Freedom of expression may be subject to restrictions, but these must respect certain
limits.
Article 19(12) of the Constitution of Chile stipulates that the law will establish a
system of censorship for the exhibition and publicity of cinematographic productions,
while article 60 says that only those issues that the Constitution expressly indicates
are a matter of law. If the provisions of the Convention and the rights that it
regulates are considered to be of constitutional rank, the Convention would have
modified article 19(12) of the Chilean Constitution, in the sense that the censorship
system could only relate to classifying public entertainments in order to protect
children and adolescents. Even if we believe that the Convention and the rights
regulated in it only have force of law, it is to that law - the Convention - that the
Constitution defers when establishing the censorship system. Also, it is a law,
subsequent to Decree Law No. 679 of 1974, which establishes the obligation of the
Cinematographic Censorship Council “to reject films for [numerous] reasons.”
As for the role of the Chilean courts in regard to freedom of expression, there have
been various decisions on cinematographic censorship.
The Supreme Court’s
arguments establishing censorship relate to a possible conflict of rights, because, in
case of doubt, when distinguishing between apparent or possible conflict between
the right to privacy or honor and the right to freedom of expression, it tends to favor
restriction over freedom. Furthermore, although it is of a permanent nature, the
protection of honor by a precautionary measure is not considered a measure of