-3964.
The Court has established that the general obligation contained in Article 2 of the
Convention entails the elimination of any type of norm or practice that results in a
violation of the guarantees established in the Convention, as well as the issue of norms
and the implementation of practices leading to the effective observance of these
guarantees.71
65.
In light of the proven facts in this case, the Court must determine whether the
failure to hand over part of the information requested from the Foreign Investment
Committee in 1998 constituted a violation of the right to freedom of thought and
expression of Marcel Claude Reyes, Sebastián Cox Urrejola and Arturo Longton Guerrero
and, consequently, a violation of Article 13 of the American Convention.
66.
With regard to the specific issues in this case, it has been proved that a request
was made for information held by the Foreign Investment Committee, and that this
Committee is a public-law juridical person (supra para. 57(2) and 57(13) to 57(16)).
Also, that the requested information related to a foreign investment contract signed
originally between the State and two foreign companies and a Chilean company (which
would receive the investment), in order to develop a forestry exploitation project that
caused considerable public debate owing to its potential environmental impact (supra
para. 57(7)).
67.
Before examining whether the restriction of access to information in this case led
to the alleged violation of Article 13 of the American Convention, the Court will determine
who should be considered alleged victims, and also define the subject of the dispute
concerning the failure to disclose information.
68.
In relation to determining who requested the information that, in the instant case,
it is alleged was not provided, both the Commission and the representative stated that
the alleged victims were Marcel Claude Reyes, Arturo Longton Guerrero and Sebastián
Cox Urrejola. They also indicated that the State violated their right of access to public
information because it refused to provide them with the requested information and failed
to offer a valid justification. In this respect, Mr. Cox Urrejola affirmed in his written
statement “that together with Marcel Claude and Arturo Longton, [he] presented the
request for information to the Foreign Investment Committee [in] May 1998” (supra
para. 48). While, Arturo Longton, in his written statement, indicated that, during the
meeting held on May 19, 1998, he requested “several elements of information regarding
the foreign investor involved […] and, in particular, the background information that
demonstrated his suitability and soundness” (supra para. 48).
69.
In the instant case, in which violation of the right to accede to State-held
information is alleged, in order to determine the alleged victims, the Court must examine
their requests for information and those that were refused
70.
From examining the evidence, it is clear that Marcel Claude Reyes, as Executive
Director of the Terram Foundation, requested information from the Foreign Investment
Committee (supra para. 57(13), 57(14) and 57(16)), and also that Arturo Longton
Guerrero participated in the meeting held with the Vice President of this Committee
(supra para. 57(14)) when information was requested, part of which has not been
71
Cf. Case of Ximenes Lopes, supra note 2, para. 83; . Case of Gómez Palomino. Judgment of November
22, 2005. Series C No. 136, para. 91; . Case of the “Mapiripán Massacre”. Judgment of September 15, 2005.
Series C No. 134, para. 109; and Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion
OC-18/03 of September 17, 2003. Series A No. 18, para. 78.