Violence Against Speakers / Impunity, National Security, Political Expression
Vietnam v. Ta Phong Tan (The Case of Blogger Ta Phong Tan)
Closed Contracts Expression
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The Inter-American Court of Human Rights declared the Dominican State responsible for the forced disappearance of Mr. González Medina and the resulting violations of the rights to personal liberty, personal integrity, life and juridical personality to his detriment. The Court also declared a violation of the rights to a fair trail, judicial protection and personal integrity to the detriment of his family. The lawyer, professor and journalist González Medina was forcibly disappeared only days after publishing an opinion piece and giving a speech at the Universidad Autónoma de Santo Domingo where he denounced corruption and electoral fraud in the elections in which the then President Joaquín Balaguer was re-elected. The Court emphasized that when the purpose of the violation of the rights to life, and to personal liberty or integrity is to impede the exercise of another right such as freedom of expression, this constitutes an autonomous violation of those rights. However, in the case in question, the Court declared itself incompetent ratione temporis to hear the alleged violation of freedom of expression as an autonomous violation since the beginning of the disappearance was prior to the acceptance of the Court’s jurisdiction by the Dominican Republic.
The lawyer, university professor and journalist Narciso González Medina was a renowned activist and critic of the Trujillo dictatorship and of then President Joaquín Balaguer. González Medina was a prominent columnist, scriptwriter, poet, humorist and cultural facilitator for labor unions and grass-roots groups. During the period from 1966 to 1978, also known as “the Twelve Years of Balaguer”, González Medina was on the board of the Dominican Students Federation. Although at the time of his disappearance he was not a member of any political party, González Medina had himself acknowledged that his articles, columns and scripts were “humorous political and social essays written to denounce problems in the Dominican Republic under the different governments” [p. 94].
Days before the May 1994 elections, González Medina published an article titled “10 Reasons why Balaguer is the most Perverse Figure in the Americas” in the magazine “La Muralla”. On May 16, 1994, presidential elections were held in the Dominican Republic, and Joaquín Balaguer was re-elected President of the Republic. The elections took place in a highly polarized climate, which, together with the close result of the vote (approximately 1%), raised serious doubts over his legitimacy. On May 25, 1994, González Medina gave a speech at the Universidad Autónoma de Santo Domingo urging the university community to condemn what had happened in the elections in order to avoid a situation such as the one that allowed the Trujillo dictatorship to become established. González Medina also insinuated that the heads of the Police, the Army and the Armed Forces had supported the alleged electoral fraud because the President had given them the opportunity to obtain 25 million pesos in contracts, without being engineers. This video was recorded and several deponents before the Court suggested that the video ended up in the hands of the State’s security forces.
On May 26, 1994, González Medina disappeared from his usual activities and his whereabouts are still unknown. On May 27, his daughter realized that her father had not slept at home and informed her mother, who was away from home visiting her own mother. On the same day, González Medina’s wife, Luz Altagracia Ramirez, went to the National Police to see if her husband’s name was on any of the police records. On May 28, Luz Altagracia Ramirez, family members and friends of Medina González reported his disappearance to the Missing Persons Office of the Homicide Investigation Department of the National Police. In the days following his disappearance, the family received calls, anonymous letters and visits from people, giving different versions of what had happened to Medina González, specifying when and where, some indicating that he was being detained by military or police authorities.
Luz Altagracia Ramirez met with various authorities of the Dominican State, including the Secretary of the Armed Forces and later with the President of the Republic, Joaquin Balaguer, but these meetings were in vain. In October 1994, the family, friends, colleagues and acquaintances of González Medina formed an organization called the “Truth Commission” in order to establish a civic body to demand clarification of the case. Some of the friends who assisted the search, and family members, were followed and subjected to surveillance and threats by State agents. During the following years, various bodies investigated the whereabouts of González Medina, including a “Police Board”, a “Joint Board” of the Armed Forces and the National Police, the National District Seventh Investigating Court and the Public Prosecutor’s Office, all of which were unsuccessful.
On July 1, 1994, the initial application was submitted to the Inter-American Commission on Human Rights. The Dominican Republic ratified the American Convention in 1978 but it was not until March 25, 1999 that it accepted the binding jurisdiction of the Inter-American Court.
In this case, since González Medina’s writings were the reasons for his disappearance, the Court needed to determine whether the alleged violation of freedom of expression constituted a violation that had been prolonged continuously over time in such a way that the Court had competence ratione temporis over the Dominican Republic.
The Court noted that the beginning of the forced disappearance was prior to the acceptance of the Court’s jurisdiction by the Dominican Republic. The Court considered that, “[c]ontrary to other cases of forced disappearance in which the Court has declared a violation of the right whose limitation motivated the disappearance” [p. 192], in this case “the Dominican Republic has not acquiesced to the facts or acknowledged the violations alleged” [p. 192].
The Court noted that when a State acquiesces to facts that preceded its acceptance of the Court’s compulsory jurisdiction, it accepts its competence to examine the facts and waives any temporal limitation to the exercise of that jurisdiction. However, this was not the case here. Although the Court recognized that when the purpose of the forced disappearance of a person is to impede the exercise of another right protected by the Convention, this constitutes an autonomous violation of that right. But, in this case, the Court determined that it lacked jurisdiction to hear the alleged violation of Narciso González Medina’s freedom of expression as an autonomous violation. In the words of the Court, “The facts on which the said violations are based refer to supposed acts and omissions carried out instantaneously and do not form part of the elements that constitute the supposed forced disappearance of Mr. González Medina” [p. 58].
The Court further considered that the circumstance that a disappearance was perpetrated in order to impede the exercise of a right does not mean that the consequent violation of that right is of a permanent nature. The Court also held that the fact that a person is currently unable to exercise the right that was intended to be impeded, does not mean that the violation had been prolonged continuously over time as a single and constant violation. Likewise, it stated that motive is not one of the elements that constitute forced disappearance and does not therefore acquire the latter’s permanent nature. Therefore, the Court declared that it lacked jurisdiction to rule on the alleged violation of Article 13 of the American Convention.
Finally, the Court considered that the proven facts in relation to the allegations of lack of access to information had occurred prior to the Dominican Republic’s acceptance of the Court’s jurisdiction. In addition, “the alleged facts about a possible loss and alteration of documents do not involve requests to State authorities for information by the family” [p. 266]. Therefore, the Court decided not to examine those facts to determine whether they constituted an autonomous violation of Article 13.
However, the Court did find violations by the Dominican Republic of the right to personal liberty, right to humane treatment, right to life, right to juridical personality, right to fair trial and right to judicial protection enshrined in Articles 7, 5(1), 5(2), 4(1), 3, 8(1) and 25(1) respectively, in relation to Articles 1(1) (Obligation to Respect Rights) and (2) (Domestic Legal Effects) of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Inter-American Court of Human Rights reaffirmed that when the purpose of the forced disappearance of a person is to impede the exercise of another right protected by the Convention, this constitutes an autonomous violation of that right. However, by dismissing the Commission’s argument regarding the continuous nature of the alleged violation of the right to freedom of expression as a motive for the forced disappearance and subsequently declaring that it was incompetent ratione temporis, the Court rejects the opportunity to refer to the intimidatory or dissuasive impact of these disappearances which seek to impede the exercise of freedom of expression. This impact is particularly serious when, as in this case, the writings concerned matters of considerable public interest and were the work of a journalist and activist. It should be noted that, in a later decision, the Court gave similar reasons regarding its competence ratione temporis to hear allegations of violation of freedom of association as a motive for forced disappearance concerning events that occurred prior to the acceptance of the Court’s jurisdiction. However, unlike in this case, in Diario Militar v. Guatemala, the Court concludes that the State’s acknowledgment of responsibility in that particular case includes its “waiver of the temporal limitation to the exercise of its competence” [p. 32, Diario Militar v. Guatemala] and therefore declared that it was competent to hear the aforementioned facts.
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