Commission must determine to what extent the right to "seek and receive" information
imposes a positive obligation on the government to provide information to members of
the public. While this is a question that must be resolved in the merits phase of the
case, the Commission considers that the arguments made by both parties show that
the petition is not "manifestly groundless," nor is it "obviously out of order." The
Commission considers that, prima facie, the petitioners have met the tests stipulated
in Article 47(b) and (c) with respect to Article 13.
60. The petitioners allege a violation of Article 25 of the Convention based on the fact
that the Santiago Appeals Court declared their recurso de protección inadmissible for
lack of foundation. Under Article 25 of the American Convention, the Chilean State has
the obligation to provide an effective judicial remedy against violations of the
fundamental rights contained in the Convention. The Inter-American Court of Human
Rights refers to this article when it finds: "Those principles refer not only to the formal
existence of such remedies, but also to their adequacy and effectiveness." 11[11] The
petitioners' allegation that the dismissal of the recurso de protección for lack of
foundation amounts to a failure to provide an effective judicial remedy for the denial of
a fundamental right protected by the Convention, namely the right to access to public
information, calls for an examination on the merits.
61. With respect to the alleged violation of Article 23, the petitioners argue that the
information requested, regarding the approval by the Chilean Committee on Foreign
Investment of a deforestation project to be carried out by a private corporation,
related to activities of such fundamental public interest as to require direct citizen
participation in their oversight. Article 23 refers to the right to participate in
government either directly, or through freely elected representatives. Therefore, in
order to find a violation, the Commission would have to find not only that citizens were
unable to participate directly in government, but also that, in the alternative, they
were unable to elect their representatives freely. While access to public information
about the conduct of individuals who run for public office may impede the ability of
citizens to elect representatives in a manner that can truly be considered "free," the
Commission finds that in the instant case, the petitioners have not made a prima facie
showing that they have been impeded from freely electing their representatives. As a
result, the Commission considers that the facts alleged do not tend to characterize a
violation of Article 23.
62. Therefore, without prejudice to the merits of the case, the Commission considers
that the requirements of Article 47(b) and (c) of the American Convention have been
met with respect to Articles 13 and 25 of the Convention in relation to the general
obligations enshrined in Articles 1 and 2.
V.
CONCLUSIONS
63. The Commission considers that it has competence to take cognizance of this
petition and that it is admissible as regards the requirements for admissibility
contained in Articles 46 and 47 of the American Convention on Human Rights, and as
regards the alleged violations of Articles 13 and 25 of the American Convention in
relation to the general obligations enshrined in Articles 1 and 2.
11 [11] Inter-American
Commission on Human Rights. Report Nº 63/01, Case 11.710, Carlos Manuel Prada
González and Evelio Antonio Bolaño Castro, April 6, 2001, para. 37; Inter-Am. Ct. H.R., Bámaca Velásquez
Case, Judgment of November 25, 2000 para. 191.