Table of Contents: 1. Introduction. 1.1. The Curtailment of Freedom of Expression in Brazil Over the Years. 2. International Instruments. 2.1. Universal Declaration of Human Rights. 2.2. Freedom of Expression under the European Convention on Human Rights. 2.3. American Convention on Human Rights: Pact of San José, Costa Rica. 2.3.1. The Inter-American Commission on Human Rights. 2.3.2 The Inter-American Court of Human Rights. 2.3.3. Case Gomes Lund and Others. 2.4. International Covenant on Civil and Political Rights. 2.4.1. Article 19 of ICCPR Incorporate Into Brazilian law. 3. Domestic Legislation and Brazilian Legal System. 3.1. What was censorship in Brazil during the Military Dictatorship? 3.2. Brazilian Legal System. 3.3. Constitution of the Federative Republic of Brazil 193. 3.1. The Constitutional Protection of Freedom of Expression. 3.4. Brazilian organizations for the protection of journalists. 3.5. Freedom of the Press Law. 4. Freedom of Expression and Democracy in the Brazil. 4.1. The media's influence in the 2016 impeachment procedure. 4.2. Since the turn of the century, has the right to freedom of expression been crucial to ensuring democracy? 5. Recommendation and Conclusion. References.
1. Introduction
1.1. The Curtailment of Freedom of Expression in Brazil Over the Years
The media, often seen as a fourth estate, have the potential to influence public opinion and disseminate knowledge that enables the populace avoid authoritarian regimes. Between the years 1937 and 1945 during the first authoritarian era in Brazil, under the leadership of Getúlio Vargas, a regime known as “The New State” was established,1 as well as from 1964 to 1985 the subsequent authoritarian rule, which was led by the military, is often referred to as a Coup d'état. This term is used due to the removal of the democratically elected President by the General of the Army.2 In such manner, Brazil had two periods of authoritarian rule characterised by the suspension of political rights, notably the freedom of expression. During this particular time, the prevalence of censorship inside the State gave rise to several worries about the future prospects of the press, media, and particularly journalists, who faced severe repercussions in the event of expressing disagreement. The concept of Democracy was once envisioned, and its realisation occurred years later. Presently, this form of governance encounters the lingering remnants of its historical period, as it contends with the persistent spectre of censorship. Consequently, the prevailing quiet perpetuates an environment conducive to authoritarianism.
During the second regime in 1964, an enactment known as Law No. 5.250, often referred to as the Press Law, was created. The revocation of this measure occurred in 2009 by the Supreme Federal Court due to its perceived non-conformity with the prevailing Federal Constitution. The ministers of the Supreme Federal Court deemed the measure to be in violation of fundamental rights, including freedom of expression and the right to freely express thoughts, which can be exercised by any individual or means of communication. Additionally, they found the measure to be incompatible with democratic principles and a hindrance to the full freedom of journalistic information, which is synonymous with freedom of the press. The primary factor contributing to this situation can be primarily ascribed to the incorporation of various articles that possessed the capacity to curtail the freedom of expression within the nation. Notably, the classification of "covert publications" as prohibited entities, along with the prohibition of any viewpoints deemed contrary to societal morals and customs, and also the restrictions on international media outlets and press organisations desiring to establish or affiliate with existing offices in Brazil.3 Following the abolition of the press law, no further legislation pertaining to the regulation of the press law was enacted, resulting in a legal void in this domain within the legislative framework.4
Following a prolonged period of autocratic rule spanning over two decades, Brazil eventually transitioned into a phase commonly referred to as its "The New Republic” that began in 1988 with the enactment of the Federal Constitution.5 During this period, the Constituent Assembly undertook the task of formulating the new Federal Constitution of Brazil, which aimed to embody progressive and democratic principles. The primary objective of this constitutional endeavour was to establish the safeguarding of fundamental rights and liberties that had hitherto been absent. Among the many rights, two notable examples are freedom of expression and the absolute prohibition of torture which can be found in article 5, items III and IV of the Federal Constitution.6
In contrast to previous circumstances seen during the dictatorship, the 1988 Constitution explicitly delineated the freedom of the press as an assured entitlement, devoid of any potential for limitation or erosion of this entitlement. Similarly, the principles of freedom of thought and the right to information, sometimes referred to as freedom of expression, have their basis in article 5, items IV and XXXIII, as well as article 220, of the Federal Constitution.7
In light of Brazil's transition towards democracy, the country shifted its attention to international treaties and conventions pertaining to human rights, aiming to rectify historical errors and establish a sustainable democratic system. In 1995, Brazil accepted the American Convention on Human Rights, also known as the Pact of São José da Costa Rica.8 This ratification signified Brazil's commitment to upholding human rights and aligning its domestic law with the standards outlined in the American Convention. During the same year, Brazil signed the International Covenant on Civil and Political Rights, therefore integrating it into its national legislation and aligning local laws with the rights outlined in the Covenant as well.9
Given the presence of democracy and the comprehensive safeguards enshrined in the Federal Constitution, it is conceivable that after three decades, despite the relative youth of the democratic system, circumstances may evolve, potentially leading to a situation where the fundamental rights, such as freedom of expression, previously safeguarded by the Constitution, could be infringed upon or disregarded. In this regard, the objective of this study is to examine the impact of media censorship and limited freedom of expression on the erosion of democracy in Brazil.
The research was structured into five distinct parts, with the first chapter providing a concise historical overview of Brazil. This section delved into the topic of freedom of expression and its limitations that were imposed throughout periods of authoritarian rule. The second chapter of this study focuses on International Instruments, specifically examining prominent international documents pertaining to human rights in Europe and Latin America. It highlights Brazil's status as a signatory to these instruments and explores how they have been incorporated into Brazilian legislation, as well as their significance for Brazil.
Chapter three of the study focused on domestic law and the legal system in Brazil, highlighting the significance of effective communication and the fundamental rights pertaining to information and freedom of expression. The origins of rights pertaining to information and freedom of expression, regarded as fundamental rights, were elucidated. Subsequently, a comprehensive examination is conducted on the Press Law, which was formulated and ratified in the year 1967. This is followed by scrutiny of the verdict rendered by the Federal Supreme Court in the case of ADPF 130, which transpired in 2009.1011
Chapter four of the study focused on the intricate relationship between freedom of expression and democracy in the context of Brazil. The chapter delved into the issue of significant event of the 2016 impeachment, the a priori cause of this situation can be attributed to fiscal irregularities. However, it was widely portrayed by a significant portion of the media as poor economic management. Critics argued that the failure of the then President, Dilma Rousseff, stemmed from her lack of communication with the Legislative branch, which provided her opponents with ammunition to denigrate her image.12
Moreover, this study delved into the fundamental elements that have played a role in the deterioration of democratic ideals, namely over the last decade after the election of Jair Bolsonaro as the President of Brazil. The irrefutable decline of democratic institutions under President Bolsonaro's administration is evident, since these bodies have faced several challenges, including attacks on the credibility of the Federal Supreme Court by the previous President on multiple occasions.13 During the tenure of President Bolsonaro, the press and media, along with journalists, experienced a similar pattern of behaviour. This was evidenced by the National Federation of Journalists (Fenaj), which documented instances of direct and public attacks on journalists and the media being censored or having their freedom of expression curtailed. Notably, there was a significant increase in the number of such attacks, primarily perpetrated by politicians, judges, and a cohort of supporters, in addition to the President himself.14
2. International Instruments
This chapter's objective is to investigate some of the international instruments, such as the Universal Declaration of Human Rights, Freedom of Expression under the European Convention on Human Rights, International Covenant on Civil and Political Rights, and American Convention on Human Rights: Pact of San José, Costa Rica, which guide and protect the right to freedom of expression as an acquired fundamental right, as well as the manner in which the international law system has developed over time. In addition this chapter is to investigate the legal foundation for freedom of expression within the framework of international law, with a particular emphasis on human rights, the fundamental principles that underlie freedom of expression and how Brazil integrate these responsibilities into its internal system.
2.1 Universal Declaration of Human Rights
First, it is essential to emphasise the significance of the Universal Declaration of Human Rights15 for all nations. The formulation of the Universal Declaration of Human Rights was bolstered by the recognition that the individual should no longer be regarded as a mere object, but rather as a rights-bearing person, particularly in the international context. This realisation was particularly heightened in the aftermath of the devastating events of World War II, which left a grim legacy of bloodshed and violence. The process of restoring Human Rights is outlined in the 1945 UN Charter16, which sought to define human rights and fundamental freedoms, and was subsequently supplemented by the Universal Declaration of Human Rights.
With the emergence of the UDHR and all of the rights and liberties it enumerates, it has become apparent that there are international rights and values inherent to the human person that transcend any type of state or organisation.17 In this view, the goal of include a list of basic human rights in an international declaration was to create a duty for states to work together to ensure that everyone has the chance to live a life of dignity. This conclusion can be drawn as a result of the United Nations Assembly's decision to adopt the UDHR as a resolution rather than having it become law,18 with the goal of achieving the universal recognition of human rights and individual freedoms as outlined in article 1, paragraph 3 of the United Nations Charter.19
Thus, in addition to international force, with participation in the jurisprudence of international courts and in human rights organisations, the UDHR also had its projection in the internal law of states, allowing its influence to be observed in several national constitutions of several countries.20 Brazil, like to other countries, incorporated many provisions from the UDHR into numerous sections of its Federal Constitution of 1988. According to Article 5, Item I, says for example that men and women have equal rights and duties under the terms of this Constitution, which was predicated on article 1 of the UDHR and a number of other provisions of the Brazilian Constitution, as stated.21 22
As the UDHR is a global and guiding document, it addresses one of the most significant issues that this research investigates, namely freedom of expression with is found in article 19 as can be analysed bellow.
“Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
The freedom of expression is regarded as a fundamental human right, as it is protected by the majority of the world's constitutional declarations. In addition to being one of the criteria for democracy, it is considered crucial for human development and the pursuit of truth.23 Therefore, in order for a democracy to exist, freedom of expression is necessary; in this manner, it is possible to ensure that a government is transparent, to debate the actions of this government, and for individuals to express their opinions without censorship including the media.24
In this context, freedom of expression refers not only to the right to communicate or express ideas, but also to the right to seek and receive information, which can come from other individuals or even public bodies. This serves not only for citizens to contribute their ideas and opinions, but also for them to have access to different information chains and points of view, an essential condition of the law that serves as the foundation for various concepts of freedom of expression, including media diversity and the right of access to government information.25
Lastly, the majority of states acknowledged not only the significance of the Universal Declaration of Human Rights, but also the significance of freedom of expression for the maintenance of democracy. However, it is also known that the majority of these states have laws or practises that violate the provisions of the UDHR, failing to comply with international human rights standards, as was the case in Brazil during the military dictatorship.26 In addition, it is essential to emphasise that it is the State's responsibility to evaluate its legal structures and actions within the judiciary to ensure compliance with international and constitutional law standards, so that the democratisation process is not impeded.27
2.2 Freedom of Expression under the European Convention on Human Rights Article 10
Firstly, it is essential to mention that the establishment and operation of the European Court of Human Rights, governed by the European Convention on Human Rights, marked the beginning of the Regional Systems for the Protection of Human Rights, as it served as a model for the creation of the Inter-American Court, with the American Convention on Human Rights (to which Brazil is a signatory), and then the African Court, with the African Convention. Even when governed by distinct international conventions, these Courts have become the primary mechanism for the protection and promotion of human rights in Europe, America, and Africa.
The Right to freedom of expression has always been a topic of discussion throughout history, and these discussions have aided the advancement of Human Rights in contemporary civil societies. It is essential to note that freedom of expression incorporates not only speaking but also thought, the transmission of ideas, writing, and artistic expression28 but not just those, the domestic legislation may cover even more categories.29
Because of this factor, the right to freedom of expression has expanded significantly inside democracies all over the globe. Because it may be utilised in some activities (like journalism) to spread information that might be damaging to a group of people or an individual, and in this context, more directly to public interests (government), freedom of expression plays an essential role in democracies.
In the context of a group of individuals, this term refers to political parties or governmental bodies; in the context of a person, this term may refer to the head of state or another someone who is directly connected to the government.30
Therefore, we will discuss article 10 of the European Convention on Human Rights (ECHR) and emphasise its international applicability and relevance.
“Article 10 ECHR: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontier. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”31.
Article 10 refers to the rights and freedoms section of the Convention of the ECHR and, as stated previously, outlines a variety of freedom of expression-related rights.
Well, it is essential to note that the European Human Rights Court, particularly in the United Kingdom in the case Sunday Times v. UK,32 have interpreted the first paragraph of article 10 of the ECHR as a broader right, recognising that practically everything is expression; when this refers to everything, it is understood that article 10, paragraph 1, is expansive, guaranteeing freedom of expression not only in spoken form, but also in the search for information, requiring greater transparency from public authorities.33 The exceptions can be found in article 10, paragraph 2, as well as in the rigid interpretation of the European Court of Human Rights, which excludes hate speech, justifications for war, and also Nazism from the definition of freedom of expression.34
In this sense, it is possible to demonstrate that article 10 (1) does not delimit the meaning of expression, nor does it state that the facts referred to as freedom of expression are limited exclusively to true information; thus, opinions, ideologies, and beliefs35 can be included in this category.36
An further relevant matter pertains to the content discussed in paragraph 1 of article 10, which emphasises the authority of the State to persist in overseeing the regulation of licencing matters, including both financial and technical aspects. In relation to the licencing of a financial nature, the subject pertains to the authorisation granted to a television station to conduct operations inside a foreign jurisdiction. A recent example of this is the case of CNN, which successfully got approval from the Brazilian government to operate and broadcast throughout the State.37 In relation to its technical aspect, the subject matter pertains to technology, specifically focusing on firms who possess more sophisticated technological capabilities and are able to get licences to operate inside a certain nation, hence providing assistance to certain broadcasters.38
This was the case since there was a relatively restricted number of frequencies available at the time that the ECHR went into effect, and the majority of European states maintained a monopoly on television and radio transmission. Over the course of many decades, as broadcasting and technology continued to evolve, it became clear that there was a need for growth in order to offer other communication channels. In this sense, with a higher number of channels and especially with the entrance of cable television, the States realised a new reason for the licencing of media firms, not only financial but also assuring freedom and diversity of information, which had not existed up until that point.39
As a result of this, the Court came to the conclusion in Autronic AG v. Switzerland40 that state monopolies of audio visual media were incompatible with variety and plurality since there was a dearth of information and there was no diversity of sources. Since the monopoly is unneeded for democracy, it is impossible to justify it as a common interest, especially considering how crucial it is for contemporary democratic countries to have access to a diverse range of information.41
In other words, the Convention permits the States to continue legislating within the limits established by the Convention, i.e., as mentioned previously, the State can legislate regarding the licencing of radio broadcasting, television, and even cinema, and not just for financial reasons,42 but primarily for technical ones.43 The prevalence of radio and television monopolies in most European nations has historically resulted in a restricted allocation of frequencies. However, due to advancements in radio broadcasting technology, this situation has undergone reconsideration.44
On the other hand, article 10 number 2 outlines the potential penalties, restrictions, and sanctions related to freedom of expression, effectively limiting a substantial portion of what article 10 number 1 guarantees. As can be seen by analysing the article below:45
“Article 10 (2): The exercise of these freedom, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights oh the others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
As one might expect, the article 10 (2) contains one of the most extensive lists of exceptions to the restriction of the right to freedom of expression, but it also contains two requirements that must be verified and demonstrated for the article to be fully effective and applicable, the first being the need for a legal provision and the second being its necessity in a democratic society.
Therefore, it is conceivable to construe that, with regard to what is prescribed by law, it is a parliamentary act and not a decision or unilateral imposition by the head of state.46
Nonetheless, in the context of a democratic society, it can be understood as an act related to freedom of expression and all informational channels associated with an open, democratically organised society.47
Despite the perception that article 10 (2) contains a lengthy list of exceptions to article 10 (1), the European Court of Human Rights ruled nearly four decades ago in the case from 1986 Lingens v. Austria48 that a politician must accept a greater degree of criticism than a common person due to their direct action within the State, and therefore cannot silence a journalist on the grounds of protecting their reputation.49 On the basis of this fact, the European Court of Human Rights reaffirmed that, condemning a journalist for criticising politicians is a violation of rights, and in this instance, freedom of expression. 50
Peter, an Austrian journalist, accused the then-Austrian president of harbouring favourable feelings towards former Nazis who continue to participate in politics. As stated previously, in this way, the Court recognised that public servants and politicians with direct ties to the government must be able to sustain a higher level of criticism due to the position they hold within a democratic society. Moreover, in the aforementioned case, the court recognised the significance of the journalist's topic, allowing other journalists to write about the topic and bring the discussion to the general public, thereby making the topic extremely pertinent. Furthermore, the Court understood that it was inappropriate to censor the correspondent because, as stated, the topic was of public importance, i.e. of extreme interest to the Austrian population.51
The significance of the jurisprudence in this particular case is noteworthy, as it pertains to the categorization of certain material as being of public interest, particularly in cases involving individuals associated with the government. The applicable defamation laws must be observed, striking a balance between criticisms levelled against the holder of position of authority and media freedom52. Thus adhering to the proportionality principle.53
Concerning proportionality, it is pertinent to include the case of Éditions Plon v. France in 2004, in which the European Court of Human Rights, complemented the violation of article 10 of the ECHR by France, when the domestic courts of this country decided to prohibit Le Grand Secret, a book published by Éditions Plon, indefinitely. The president's Francois Mitterrand private physician at the time, contributed to the book, in which he provided a comprehensive report on the president's illness and subsequent treatment. Even though the book was published after the president's death, the French courts have decided to ban it indefinitely on the grounds that it violates medical confidentiality. This decision was made at the request of the president's successors. The ECHR determined that the indefinite prohibition on the book was disproportionate and unnecessary in a democratic society, especially despite the fact that freedom of expression is one of the fundamental pillars of democracy, making the violation of Article 10 crystal clear and emphasising the principle of proportionality.54
To elucidate the distinction between the two paragraphs of Article 10, it is feasible to state that paragraph 1 defines and protects the right to freedom of expression. The second, the exception, restricts that right.
In light of the fact that the European Court and the Inter-American Court are developing jurisprudence pertaining to human rights, state obligations, and procedural safeguards, a comparison of the content and scope of their judgements reveals similarities and uniformity of criteria and interpretations, indicating a dialogue between the two courts.
2.3 American Convention on Human Rights: Pact of San José, Costa Rica
As previously explained, Human Rights arose a priori in order for all nations to adopt a minimum level of protection for fundamental rights. As a universal protection system, it would be conceivable to guarantee human rights in this manner. Recognising that each region of the world has a unique socio-political reality, customs, and culture, it was necessary to develop a system capable of ensuring the right to legal protection. It is well-known that the first system for protecting human rights emerged in Europe, with the aforementioned ECHR, which led to the establishment of the ECtHR.55
In this manner, forty years after the emergence of Human Rights in Europe, the Inter-American System for the Protection of Human Rights56 was established in the America. The system was established under the 1992 Inter-American Convention on Human Rights, popularly known in the Americas as the Pact of San José da Costa Rica, to which Brazil has been a signatory since the convention's inception and which is one of the most significant conventions to which Brazil is a signatory57.
This is due to the fact that the celebration of the Convention coincided with the democratization of Latin American countries, following the tremendous tide of violence left by the military dictatorship and the Cold War. Although the Convention addressed fundamental human rights, some countries had already incorporated them into their constitutions, so it did not directly affect the laws of these nations.58
It is important to point out that as a result of the events that transpired in the years after the end of World War II, the Organisation of American States (OAS)59 was established in Latin America in the year 1948.60 It is noteworthy that the establishment of the Organisation of American States (OAS) occurred with the purpose of addressing matters pertaining to the enhancement of trade exchange and the facilitation of direct communication among member nations. Additionally, the OAS sought to promote mutually beneficial trade relations and expand markets for the respective products of each member country.61 In the same year, the American Declaration of the Rights and Duties of Man was ratified,62 being the foundation of normative protection for the American system even before the conclusion of the Interamerican Convention, and still being used by non-signatory states.63
Thus, upon receipt of the two significant documents, a process was initiated for the development of means to protect human rights within the inter-American system, resulting in the emergence of a specialised body that could work with the dissemination of human rights in order to protect them within the OAS region. In 1959, the Inter-American Commission on Human Rights was created. Initially, the American Commission would serve in an interim capacity until the inter-American convention was established, which occurred as described above.64
With the emergence of the American Convention, the internal laws of the states were strengthened, but this does not alter the states' fundamental competence or their authority to legislate regarding the rights of the people under their jurisdiction. However, if there is no support or if the protection in question is insufficient, the inter-American system can intervene to protect a particular right that the State was unable to provide when it had a duty to do so.65
Nonetheless, it is possible to make a comparison between the first part of the Convention and the International Covenant on Civil and Political Rights (which has already been mentioned in this research and of which Brazil is also a signatory) due to the similarity in the order of civil and political rights between the two documents. The right to freedom of thought and expression, which is found in Chapter I of the Convention, is the most pertinent to this study. Consequently, it is acceptable to declare that Chapter I of the Convention addresses the fundamental rights that must be respected and that Chapter II of the Convention establishes the ways to accomplish the protection of the rights enumerated in Chapter I.66
It is necessary to discuss in detail two organisations in charge of safeguarding and monitoring the rights protected by the Convention, namely the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, in order for us to advance and address cases pertinent to this research decided by the Inter-American Court.
2.3.1 The Inter-American Commission on Human Rights
In order to enhance comprehension, it is necessary to acknowledge the existence of the Organisation of American States (OAS), which encompasses all Latin American nations without any exclusions. The Inter-American Commission on Human Rights is a constituent body of the OAS (it means that the Inter-American Commission has the authority to generate reports addressing any problem that has been requested, directed towards both signatory and non-signatory States). Subsequently, the establishment of the Inter-American Court of Human Rights ensued, in response to the existence of the American Convention. It is essential to note, however, that the American Convention system is superior to the OAS system. The rights enshrined in the American Convention are much broader than those enshrined in the OAS Charter and the American Declaration. Furthermore, the sentences handed down by the inter-American Court are mandatory, meaning that the States Parties have a responsibility to comply, as they are signatories of the Convention and must abide by it67.
As stated previously, the Inter-American Commission on Human Rights existed prior to the entry into force of the Inter-American Convention. Thus, it is not a treaty but rather a resolution from a 1959 international meeting of Consultation of Ministers of Foreign Affairs in Chile. A year after its establishment, it began to function as a resolution with the purpose of advancing the OAS charter and Declaration of the Rights and Duties of Man objectives.68
In addition to the growth and understanding of what human rights are among peoples in America, the Commission can also make recommendations to the governments of the member states when it deems it necessary69, in order for them to adopt certain measures in favour of human rights, which must be implemented in domestic law, and the Commission also has the power to investigate and prosecute violations of human rights. It is important to emphasise that the Commission represents all of the Member States of the OAS, and that the protection of human rights is its primary function70.
Even though there is a formality that must be observed, in urgent and serious cases, only a petition or a communication with robust documentation that proves all formal admissibility requirements can be presented to the Commission, and from this, it can initiate an investigation with the prior consent of the State and the location where the alleged violation has occurred. In addition, nothing precludes an amicable resolution from occurring during the process; if this occurs, the Commission will be able to prepare a report, which will then be requested by the States parties to the convention and sent to the Secretary General for publication by the OAS.71
Nonetheless, if there is no agreement between the parties, the Commission will be liable for submitting a report within the timeframe specified by it regulation, detailing the facts and conclusions. The report must present, in whole or in part, the unanimity of the commission members, and each member may append a separate opinion. The Commission may then disseminate the report to the parties and make agreement and recommendation suggestions. Keeping in mind that the States parties cannot disseminate the report, and if the made recommendations are not accepted by the State and the petitioner agrees (the party that was harmed), the case must be submitted to the Inter-American Court via the commission.72
Following the procedure described above, if within three months of the commission's report being sent to the diligent states, the matter has not been resolved or has not been referred to the Court by the Commission or the interested State, and the jurisdiction has been accepted, the commission (which will be preparing a second report) will be able to issue its own opinion with the vote of an absolute majority of its members.73
Having provided recommendations and guidelines to the State Party, the commission will then set a deadline for the State Party to implement measures to address the analysed issue. After the deadline, the commission has the authority to determine, by an absolute majority vote, if the State has taken effective measures to address the discussed issues and if its report should be made public.74
Also, as mentioned previously, some states chose not to ratify the American Convention (the Convention has garnered the support of over 25 nations, while notable non-signatories include Canada and the United States of America); however, this does not exempt them from complying with the OAS Charter75 and the Declaration of the Rights and Duties of Man. These States will also be able to appeal to the America Commission, which will be able to make recommendations regarding the violations of human rights to the States that request them. Due to the fact that the Inter-American Commission is not only an organ of the American Convention, but also an OAS organ, all states participating in the OAS receive assistance from the Inter-American Commission.76 In the event of noncompliance with what was established by the Commission, sanctions could be levied against the disrespectful state, with the matter being brought before the OAS General Assembly.77
Article 54 of the OAS Charter, which gives the General Assembly its responsibilities, does not contain an express legal provision for sanctions against the State for international violations of human rights.78 However, it is understood that because the OAS is a political body, it must protect and guarantee compliance with the provisions of the OAS Charter, particularly when it comes to violations of human rights79.
2.3.2 The Inter-American Court of Human Rights
The Inter-American Court of Human Rights consists of seven judges who are selected by the States Parties to the Convention during a session of the OAS General Assembly.80 In this manner, the Inter-American Court is competent to hear contentious cases when the respondent State has made a unilateral declaration of recognition of its jurisdiction, which is not a prerequisite for ratification of the American Convention until then.81 Article 62 of the American Convention, however, emphasises that a State signatory to the Convention must expressly acknowledge the mandatory jurisdiction of the court through a specific declaration.82
There is a reason for this, which is that by acting in this manner, the American Convention encourages States to ratify it with the assurance that they will not be prosecuted immediately.83 Notable is the 1998 adoption of the Court's jurisdiction by Brazil through a Legislative Decree84. The Decree stipulates that Brazil may only be prosecuted before the Court of Human Rights for human rights violations that occurred after the Decree's publication.85
Likewise, the acceptance of the contentious jurisdiction by Brazil did not generate any change within the Brazilian legal system, since the Decree only authorised the competence of the Executive with regard to its acceptance, thus dispensing with the promulgation of a new presidential decree.86 Due to the fact that the adoption of the Inter-American Court's competence did not alter any internal law of the country, revision or sanction by decree by the President of the Republic was not required by the Brazilian legal system.
Article 61 of the American Convention states that private law institutions and individuals are unable to directly enter the Inter-American Court, and here we can make a direct comparison with the European Court of Human Rights, since, contrary to the Inter-American Court, private institutions can directly enter the European Court of Human Rights.87
In the exercise of its jurisdiction, unlike the Inter-American Commission, the Court does not issue opinions or recommendations, but rather judgements, which are mandatory under the American Convention.88 Consequently, it is necessary to note that the Court's judgements are only binding on the states that have recognised their jurisdiction in this process.89 Consequently, after the judgement and the acknowledgment that any right protected by the American Convention has been violated, it is imperative that the condemned State make immediate reparation for the damage, and if the Court deems it necessary, material reparation must also be made to compensate the injured party.90 In the event that reparation is required, the prevailing party may execute the sentence in the state where the harm occurred, in accordance with that nation's internal procedures.91
Consequently, a new procedure commences in the executing state as soon as the Court's sentence becomes enforceable. However, it is pertinent to note that the inter-American system is significantly less complex than its environs.92 Because of this, we will analyse the Brazilian legal system,93 and it is necessary to state beforehand that it is endowed with its own rules and principles, with the Federal Constitution serving as its primary source, as the majority, if not all, of the principles and rules of the internal system can be found there.94 Thus, for a norm or decision to take effect in Brazil, the system specifies its allowable content and the procedure it must adhere to in order to enter the system.
Therefore, only foreign decisions have a regulation regarding their effects in Brazil, which are submitted to the approval process by the Superior Court of Justice, in accordance with article 105 of the Federal Constitution,95 and are also checked to ensure that the requirements are in accordance with the Resolution of the Superior Court of Justice.96 Thus, it is observable that the Brazilian legal order governs the manner in which these foreign decisions will be accepted by the law and delimits their content and accomplishments in the system, allowing the foreign decisions that had previously surrounded them to enter the system effectively.97
It turns out that the decisions of the Inter-American Court of Human Rights are international rather than foreign.98 In this manner, Brazil acknowledged the mandatory and binding jurisdiction, so that a published sentence makes the State party internationally liable for the facts contained therein. It is essential to note that, according to the majority of jurists, a court's decision is self-executing and, therefore, does not require revalidation in the internal legal system, thereby bolstering the court's decisions.99
Lastly, the importance of the Inter-American Commission in the promotion and preservation of Human Rights should be emphasised, as States are viewed as violators of rights enshrined in international documents that they themselves have signed when the Commission issues Reports. Thus, they begin to experience "pressures" for the adjustment of their respective legislation and the development and/or adoption of domestic policies in favour of the inalienable rights of the human person, as was the case in the analysed cases involving the Brazilian State.100
In this manner, we will analyse the case Gomes Lund and others that led to Brazil's condemnation by the Inter-American Court of Human Rights related to freedom of expression.
2.3.3 Case Gomes Lund and Others101
Among the numerous human rights violations cited in the Inter-American Commission's petition is the violation of Article 13 of the American Convention,102 which deals with unwarranted restrictions on the right of access to information, also known as freedom of expression, as mentioned previously. Article 5, item XXXIII of the Federal Constitution outlines the same privilege within Brazil's internal legal system.103
This case concerns the disappearance of individuals in the Guerrilla do Araguaia and the right to free expression in the context of information seeking. Mrs. Julia Gomes Lund, the mother of one of the missing (Guilherme Gomes Lund, missing since 1973), was responsible for initiating the lawsuit. She, along with other families of the missing individuals, attempted to get information from the Brazilian government but were unsuccessful in their efforts. In response to a dearth of information, relatives of individuals affiliated with the Guerrilla do Araguaia who were reported missing initiated legal proceedings against the State in the Federal Court of the Federal District in 1982. The objective of this lawsuit was to elucidate the circumstances surrounding the enforced disappearances, ascertain the whereabouts of the deceased, and obtain official documentation pertaining to military activities conducted in the area.
The determination of the internal demand was postponed until 2003, at which point the Federal court issued a decision affirming the demand and ordering the revelation of all relevant information about the military actions of the Guerrilla do Araguaia, including the location of the burial place of the deceased individuals, along with other associated measures. The final verdict was rendered on October 9, 2007, and the matter was then sent back to the Federal Court in May 2008 to start the implementation process. The issuance of the punishment was solely commanded on March 12, 2009.104
It is noteworthy to emphasise that the Federal Court did not provide any rationale for the delay in examining the case. However, based on the deliberations inside the Superior Court of Justice and the Federal Supreme Court, the primary issue plaguing the justice system is identified as the significant delay in the administration of justice. The Federal Constitution of 1988 marked a significant turning point, as it not only ensured access to justice but also broadened the scope of basic rights. Consequently, this pivotal legislation set in motion a surge of legal actions aimed at addressing diverse social needs. The aforementioned event led to a significant rise in the quantity of processes and, as a result, an increase in the congestion rate. The congestion rate is a metric that considers the total number of new cases received, cases resolved, and the remaining backlog at the conclusion of the preceding period before the reference period.105
Following a sequence of time extension appeals made by both sides (Gomes Family and Brazilian Court), the Inter-American Commission generated a report in October 2008, whereby it determined Brazil's accountability for a range of human rights transgressions, specifically affecting those affiliated with the Guerrilla do Araguaia and their respective families. The study presented a set of recommendations to the Brazilian government, which subsequently provided incomplete compliance reports. However, the IACHR deemed the execution of the measures as unsatisfactory and therefore submitted the issue to the Inter-American Court in March 2009.106
The Attorney General's Office presented documents on the guerrillas in 2009, along with a report titled "Information on the Araguaia Guerrilla" prepared by the Ministry of Defence and containing more than 21,000 pages from the archives of the former National Information Service. Notable is the fact that these documents belonged to a national archive under the control of the Brazilian Armed Forces.107
Even with the intervention of the General Advocacy of the Union, the case continued in the Inter-American Court, not only because of the delay in the evaluation of the internal Court of the State, but also because of the numerous violations of human rights observed by both the Commission and the Court; Consequently, Brazil was sentenced and condemned in 2010. Due to the fact that Brazil did not recognise the contentious jurisdiction of the Inter-American Court until 1998, the Court did not have the authority to judge the facts prior to that year. On the other hand, based on facts verified after 1998, the Court determined that there was in fact a restriction on freedom of expression, with regard to the restriction on access to information, as the documents requested by the family were crucial to understanding what had happened to the missing persons.108
The Court made reference to the American Convention by enshrining the right to freedom of expression in its aspect to the right to search for information in the article 13, which grants the general public the right to request information that is under the control of the state and cannot be accessed. The Court also stated that the provision of information by the State to a particular individual is extremely important insofar as it allows such information to circulate in society, especially in a case such as this one where individuals were persecuted, arrested, and tortured due to their political beliefs. Regarding the regime of restrictions on freedom of expression, the State is obligated to disclose the information unless any of the exception hypotheses outlined in the Convention itself are observed.109 In this instance, in the event of a refusal, the State must justify its reasoning.110
In concluding the condemnation of Brazil, it was determined that the state did not guarantee the right to freedom of expression and that information about the disappeared in the Guerrilla do Araguaia should have been provided, as the relatives of the victims had the right to know what actually occurred and, when the victims' deaths were confirmed, the place of burial or the location of the bodies. Thus, the Court concluded that the State's efforts to ensure that all information was gathered and the search for the truth was not successful, and despite the refusal to provide said information, the State was responsible for grave violations of human rights during the military regime.111
It is noteworthy that the Court's ruling occurred in 2011, coinciding with the enactment of the Law on Access to Public Information in Brazil. This development is referenced in the Pact on Civil and Political Rights, which pertains to Brazil's legal framework concerning Human Rights within the context of international legislation. As a signatory to these documents, the State is obligated to adhere to their provisions and persist in its endeavours to align domestic legislation with the principles of international law.112
2.4 International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is among the constituent texts of the International Charter of Human Rights, alongside the Universal Declaration of Human Rights and the International Covenant on Economic, Social, and Cultural Rights.113
Consequently, it is essential to emphasise the significance of this document not only in the global context, but also in the legislation of Brazil, one of the signatories and a participant in the present research.114
In this manner, the author of the research will analyse Article 19 of the Covenant, how it was incorporated into Brazilian law, and its effect on Brazilian system.
Therefore, article 19, paragraph 1, requires the protection of the right to express one's opinion without interference, and unlike other Covenant provisions:
“Article 19 (1): Everyone shall have the right to hold opinions without interference”.
Nonetheless, according to this document, no one's rights can be diminished, regardless of their actual or presumed opinion. Making it plain, therefore, that all forms of opinion are protected (political, historical, religious, moral, etc.) and that any form of discrimination, harassment, including arrest or detention for the opinion that any person express constitutes a direct violation of article 19 paragraph 1.115
In addition to what is already provided in the first paragraph, paragraph 2 of article 19 includes, as a form of the right to freedom of expression, the right to search, receive, and transmit information regardless of borders as it is possible to see below.116
“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.
Considering that article 19 was clarified in regards to freedom of expression, it is necessary to comprehend how it affects the media.
Then, it is true that a free and uncensored press or media is necessary to ensure a free society that cherishes freedom of expression and opinion, as well as other rights guaranteed by the Covenant.
According to General Comment Number 34 of the Human Rights Committee117, citizens, candidates, and elected representatives should debate the unfettered communication of information and ideas regarding both public and political issues. To keep the entire population informed, it is necessary to have a free press, as well as a variety of other communication channels, so that journalists can freely express their views on a variety of topics, primarily politics and other public issues, without restriction or censorship. From the same perspective, the public must receive access to information in the same manner, as their access rights and freedom of expression are fundamentally guaranteed, with an emphasis on media production.
In this regard, States must guarantee that services in the public broadcasting sector operate independently. This means that there cannot be any form of State control over editorial freedom or its overall independence, even if there is some form of public funding (funding must not compromise the independence of the publishing sector broadcast).118
On the other hand, paragraph 3 of article 19 places two more restrictions on the right to freedom of expression, which were first introduced in paragraph 2 of the same article. The first limitation has to do with showing respect for the rights and reputation of other people119, while the second limitation has to do with ensuring the safety of the country and maintaining public order. In addition to being subject to stringent necessity and proportionality standards, it is essential to keep in mind that such limits could only be imposed under very particular conditions and must be provided for by law (internal legislation of the state). In the event that they are enforced, the limits have to be rigorously imposed for the reasons for which they were prescribed, and they have to be precisely proportionate to the basic need.120
In a similar vein, the Human Rights Committee revealed in its general comment number 10121 that the state should not have monopoly control over the media and should instead promote media freedom. Therefore, the Committee believes that it is the responsibility of the States Parties, in accordance with the Covenant, to take the necessary measures to prevent the dominance or even the undue concentration of media controlled by private (monopolised) entities, so that there are no losses and that there is a diversity of sources and opinions.122
The treatment of the media, particularly editors and journalists, is a crucial subject that requires attention123. None of these media outlets should be penalised in any way for their criticism of the social political order or the government. It cannot be justified to limit freedom of expression by prohibiting criticism of the government.
After analysing the most significant and germane aspects of article 19 of the ICCPR for the purposes of this author's research, the reception of this Covenant in Brazilian law and the modifications that were implemented will be examined.
2.4.1 Article 19 of ICCPR Incorporate Into Brazilian law
As a signatory to the ICCPR, Brazil was required to create/modify its laws124 to conform to the Covenant. Thus, in 2011, the Access to Information Law125 was passed, putting an end to eternal secrecy for government documents and limiting this possibility to no more than 50 years.126 The same law stipulates that, in the case of human rights violations, no documents pertaining to this matter may be kept confidential or covert, as the information pertaining to this matter is of public interest and must be disclosed promptly.
In this manner, with regard to the agreement and taking into consideration article 19, Brazil framed its legislation with the expectation of supplying rights that, as was stated earlier, did not previously exist. These rights include freedom of expression in the sense of having access to documents, as well as transparency on the part of the government.
Similarly, the Brazilian government disclosed that it has implemented a number of measures to promote diversity, plurality, and competition among media and communication agents.127
Such actions would be included in the multiannual plan for 2016-2019, which included stimulus policies aimed at extending the population's access to information sources through the expansion of public, community, and educational broadcasting coverage.128
Plans to extend transparency services and social participation in communication policies were presented, along with plans for new broadcasting authorizations.129 In the third periodic report sent by Brazil, the Human Rights Committee was informed that, with regard to freedom of expression, a Bill on fake news was drafted, a proposal that was approved and sent to the Chamber of Deputies as an urgent matter, but it was rejected and the legislative process continued as usual. The measure has not yet been placed up for a vote in the plenary.130 This topic will be revisited in the next chapter since the vote in the Chamber of Deputies on the bill concerning fake news has not yet taken place, and because a greater variety of facts is required for its consideration.
Additionally, in the most recent update of reports from Brazil, which was provided in September 2022 to the General Assembly of the United Nations, there was nothing mentioned concerning the advancements regarding freedom of expression or legislative advancements on the voting process about false news.131 On the other hand, the Office of the United Nations High Commissioner for Human Rights prepared a Compilation of Information132 based on the report that was presented by Brazil and informed that data presented by UNESCO point to the murder of 47 journalists between the years of 2006 and 2022133, with only 9 of these cases being resolved in court. This information was based on the report that was presented by Brazil. The fact that the National Council of the Public Prosecution submitted a report on the progression of investigations was something that UNESCO took notice of134.
Additionally, the UNESCO suggested to Brazil that they voluntarily monitor the investigations of murder cases carefully and report on the issue135. Both rapporteurs responsible for the promotion of freedom of expression at the Inter-American Court affirm that all journalists responsible for investigating corruption or acts deemed inappropriate by public authorities should not be subjected to any form of harassment, whether legal or otherwise, as reprisal for carrying out their work in society.136 It was also suggested that the authorities should abstain from prosecuting journalists on the basis of solely general or even excessive allegations that are intended to criminalise the transmission of information that is of high public interest. This is due to the fact that the transmission of an idea, opinion, or thought is a fundamental human right, as was stated previously.137
With the reports Brazil presented to the Human Rights Committee, it was finally possible to corroborate that the state had analysed the compatibility and incompatibility of its domestic laws. In this respect, the published reports are the result of an internal analysis of the Federal Government's policies, programmes, projects, and actions pertaining to human rights. Nevertheless, according to the Federal Government, the principles that guide the preparation of the report are based on the recognition of the dignity of the human person not only as a cornerstone of the Federative Republic of Brazil and of International Human Rights Law, but also as a guide for the analysis of the report. The second principle is intertwined with the first because it follows from the recognition that human rights belong to everyone and the guarantee that no person or group is left behind.138
The method for analysing the articles consisted of comparing them to Brazilian constitutional provisions and ordinary law. This comparison resulted in the adoption of measures or considerations to advance the observance of Human Rights in Brazil.
Chapter Concluding Remarks
By analysing the aforementioned international instruments, it was possible to determine the precise evolution of the international human rights regime at the end of the 20th century, where it was possible to determine the global efforts concentrated primarily in the United Nations Organisation and the subsequent emergence of protection systems for a subset of countries. It was necessary to compare the similarities between territories in order to codify individual rights in a broader and more inclusive manner, resulting in systems like the European and American systems.139
Thus, it was conceivable to comprehend the significance of the European Court's jurisprudential influence on the American Court, which was established almost forty years later. In addition to the observance of both in the function of developing fundamental rights and in addition to decrying the State parties in the event of noncompliance with the Convention or its violation.
The issue of this study pertains to freedom of expression, which is ensured in the aforementioned documents as well as within the legal framework of Brazil, particularly within the basic protections outlined in the Federal Constitution of Brazil. Within the inter-American system, the protection of freedom of expression is extensively ensured. This is evident in the jurisprudence of the Court, which endeavours to establish the crucial connection between freedom of expression and democracy. Such a connection is indeed essential, given the democratic underpinnings of freedom of expression.
Upon examining the aforementioned cases as presented by the Inter-American Court, it becomes evident that the significance of freedom of expression is apparent in contexts where democracy is in the process of solidifying, as well as in contexts where democracy has already reached a state of complete consolidation. This underscores the crucial role played by democratic oversight, exercised by the media, public opinion, and access to information facilitated by the State. Hence, it is feasible to evaluate the progress made by the Inter-American Court in addressing the aforementioned issue, as evidenced by the case Gomes Lund v. Brazil. In these instances, the Court adeptly recognised instances of infringements and transgressions against freedom of expression and human rights, while also highlighting Brazil's failure to promptly provide a resolution. Additionally, it is plausible to comprehend Brazil's inadequacy in effectively implementing domestic legal provisions pertaining to freedom of expression and ensuring the protection of individuals exercising this right.
