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CAPSULE REPORT: State grossly ineffective in protecting freedom of expression, reveals report by CENCOS and ARTICLE 19

(ARTICLE 19/CENCOS/IFEX) - The following is an abridged version of an 18 July 2007 joint report by CENCOS and ARTICLE 19:

Indications of the Mexican State's Failure to Fulfill its Obligations Concerning Freedom of Expression

In the public hearings of the 128th period of sessions of the Inter-American Commission on Human Rights (IACHR), CENCOS and ARTICLE 19-Mexico Section presented their report "Indications of the Mexican State's Failure to Fulfil its Obligations Concerning Freedom of Expression" to draw the IACHR's attention to the lack of guarantees that the right to inform and be informed can be safely exercised in our country.

Mexico is a member of the Organisation of American States, and therefore subject to the provisions of the American Convention on Human Rights since 3 April 1982, thereby accepting the mandatory jurisdiction of the Inter-American Court of Human Rights

Mexico is also a signatory to the other instruments of the Inter-American System for Protection of Human rights. As well, Article 6 of the Mexican Constitution stipulates "the expression of ideas will not be subject to any judicial or administrative inquiry," and that "the right to information will be protected by the state." Article 7 stipulates "the right to write and publish writings on any topic is inviolable. Neither a law nor an authority can impose prior censorship, nor demand surety of the authors or publishers, nor restrict press freedom, which is limited only by the obligation to respect one's private life and public morality and peace. In no case can the press be confiscated as an instrument of crime."

Despite the above, freedom of expression in Mexico is clearly at a low point and the state has a responsibility to deal with this, given that this situation hinders the strengthening of democracy.

The country is the second most risky for journalists. In 2006, there were 131 acts of aggression against journalists - a record high - including 10 murders, which made the last year of Vicente Fox Quesada's period in office the most fatal for journalists in the last 15 years. Regrettably, this trend is continuing during Felipe Calderón Hinojosa's administration.

Despite the official position on press freedom, those responsible for ensuring citizens' safety lead the list of those persecuting information professionals, accounting for 42 percent of the acts of aggression registered, disaggregated by perpetrator as follows: police, 24 percent; public employees, 12 percent; public security institutions, 3 percent; and government institutions, 3 percent.

The government bodies have responded by going into "damage control" mode, to deal with the attacks on the media and, in particular, the murder of journalists.

The Programme on Offences to Journalists and Civil Society Human Rights Defenders (Programa de Agravios a Periodistas y Defensores Civiles de Derechos Humanos) established under the recently-created Fifth General Inspection Unit (Visitaduría) of the National Human Rights Commission (Quinta Visitaduría General de la Comisión Nacional de Derechos Humanos, CNDH), as well as the Office of the Special Prosecutor for Crimes Against Journalists (Fiscalía Especial para la Atención de Delitos cometidos contra Periodistas, FEADP) and the Chamber of Deputies' Special Monitoring Commission (Comisión Especial de Seguimiento de la Cámara de Diputados), were only created after the clamour from the civil society, not earlier, as they ought to have been in response to the notable increase in murders, threats and acts of aggression against journalists and media, which had been reported repeatedly since 2000.

The Fifth General Inspection Unit of the CNDH has issued 39 recommendations, four of them since 2000. Only one of them, of a very general nature, dealt with the protection of journalists' sources.

Although recommendations on the subject perform the useful function of making the problem more visible, the due not ascribe responsibilities for offences, nor do they punish them.

Although both the CNDH and the FEADP are mandated to collaborate with each other, the degree to which they do so is subject to the government's political will.

In 2007, during which 30 complaints were filed, 12 have been handled by the Prosecutor's Office of the Attorney-General's Office (fiscalía de la PGR), only one has been dealt with directly by the FEADP, while nine were heard by a state-level attorney-general's office, which, in quantitative terms, leaves much to be desired.

According to a 7 June 2007 press release, the FEADP has heard 168 cases. However, upon close inspection of the data contained in the body of the press release, the FEADP has only dealt with 56 cases directly, with the remainder being dealt with by various other bodies. Therefore, the FEADP's scope of action has been very limited. Its role remains that of a privileged observer without any direct impact on the legal proceedings, similar to the Programme on Offences to Journalists - part of the ombudsman-type system that has no legal authority, in operation for the last 17 years.

On 21 December 2006, the 60th legislature of the Chamber of Deputies set up the Special Commission to Monitor Acts of Aggression Against Journalists and Media Outlets (Comisión Especial para dar Seguimiento a las Agresiones a Periodistas y Medios de Comunicación), based on articles 6 and 7 of the Constitution, which guarantee the rights to freedom of expression and information.

The Commission, composed of seven legislators from the various political groupings in the Congress, proposed in its work plan to create in the first quarter of 2007 a website on which cases involving acts of aggression against media workers would be reported. This has not yet been done. The promised half-yearly report has not been issued and the visits to the different states, in order to create a data base on the status of the different cases being handled by the various states, have not taken place.

The failure to carry out the work plan is unacceptable, given the legislative commission's potential ability to attend to the attacks on journalists and media outlets. It is disturbing that during the recent appearance of Prosecutor Octavio Orellana Wiarco before the commission, these issues concerning the work plan were not discussed. The time spent before the commission was consumed by the Prosecutor's recitation of figures that were already public knowledge, with the exception of two new cases, which raised the total cited to the media from 168 to 170. This reflects the lack of knowledge on the part of the National Action Party (Partido Acción Nacional, PAN) deputies present at that meeting, while the unjustified absence of deputies from the other parties called into question the viability of the "strong action" argued for in some of the declarations emanating from the commission.

The commission of the current legislature has not had any significant role in the issue, being reduced to being pleasant with the Prosecutor, as demonstrated during his last appearance before the commission on 12 July.

General recommendations to the IACHR:

1. It is urgent that the Mexican state invite the IACHR to carry out an in situ visit, in order to collect information so that the IACHR can prepare a report on the freedom of expression situation in Mexico.

2. Given the intention expressed by the Special Rapporteur for Freedom of Expression to make an official visit to Mexico, and given the laudable openness the state has demonstrated to the initiation of international scrutiny by its encouragement of visits by other Special Rapporteurs, it is vitally important that a) under the auspices of the authorities, the Rapporteur be informed of, in detail, those visits arranged for by the FEADP. In particular, it would be particularly useful for the agenda for the visit to include meetings with the last two Prosecutors.

3. To hold regional consultations and fora with civil society organisations, journalists and media outlets, in order to be informed of the different kinds of aggression of which journalists and media outlets are victims across the country.

4. To begin, under the auspices of the state, the debate and consultation of the relevant actors on the possibility of having all cases involving attacks on journalists be handled at the federal level, rather than by state-level authorities.

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