Court/Judicial body: Inter-American Court of Human Rights
Citation: Series C No. 73
Date: 5 February 2001
Instrument(s) cited: American Convention on Human Rights, Article 12: Freedom of conscience and religion American Convention on Human Rights, Article 13: Freedom of thought and expression.
Background: The case was submitted to the court by the Inter-American Commission on Human Rights (the Commission). The Commission claimed that Chile had breached Articles 12 and 13 of the American Convention on Human Rights (the Convention) by censoring the cinematographic exhibition of the film “The Last Temptation of Christ”, confirmed by the Supreme Court of Chile on 17 June 1997. The Commission requested the Court to order the State to authorise the normal cinematographic exhibition and publicity of the film and to adapt its constitutional and legal norms to the standards of freedom of expression embodied in the Convention, in order to eliminate prior censorship of cinematographic productions and their publicity.
Issue and resolution: Freedom of expression. Whether Chile’s ban of the film constituted a violation of the American Convention on Human Rights. The Court held that Chile had violated the right to expression in Article 13 of the Convention, but not the right to freedom of religion Article 12. The Court noted that the only exception to the Article 13 freedom is censorship in order to protect children and adolescents.
Court reasoning: The Court clarified that those who are protected by the Convention not only have the right and the freedom to express their own thoughts, but also the right and freedom to seek, receive and impart information and ideas of all kinds. Consequently, freedom of expression has an individual and a social dimension. With regard to the first dimension, freedom of expression is not exhausted in the theoretical recognition of the right to speak or write, but also includes, inseparably, the right to use any appropriate method to disseminate thought and allow it to reach the greatest number of persons. In this respect, the expression and dissemination of thought and information are indivisible, so that a restriction of the possibilities of dissemination represents directly, and to the same extent, a limit to the right to free expression. Regarding the second dimension of the right, it is necessary to indicate that freedom of expression is a way of exchanging ideas and information between persons; it includes the right to try and communicate one’s point of view to others, but it also implies everyone’s right to know opinions, reports and news. For the ordinary citizen, the knowledge of other people’s opinions and information is as important as the right to impart their own. As the cornerstone of a democratic society, freedom of expression is an essential condition for society to be sufficiently informed. Article 13(4) of the Convention provides that the only exception to prior censorship can be on the grounds of moral protection of children and adolescents. Censorship on any other ground will violate the Convention. The Court decided that the film in the current case was censored on the grounds that it was blasphemous, which is not allowed by the Convention, and is therefore in breach of the the right to freedom of expression embodied in Article 13 of the Convention. Regarding the right to freedom of conscience and religion, Article 12 of the Convention allows everyone to maintain, change, profess and disseminate his religion or beliefs. This right constitutes a far-reaching element in the protection of the convictions of those who profess a religion and in their way of life. In this case, however, there is no evidence to prove that any of the freedoms embodied in Article 12 of the Convention have been violated. Indeed, the Court understands that the prohibition of the exhibition of the film did not impair or deprive anyone of their right to maintain, change, profess or disseminate their religion or beliefs with total freedom. In view of the foregoing, the Court concludes that the State did not violate the right to freedom of conscience and religion embodied in Article 12 of the Convention. Impact: The court in its monitoring report of 28 November 2003 declared that Chile had fully complied with the judgment of the Court and therefore closed the file. The compliance was also communicated to the General Assembly of the Organization of American States through the Court’s 2003 Annual Report. However, it does not appear that Chile has taken any steps to incorporate the revisions proposed by the expert witnesses to amend Article 19(12) of the Constitution to create an exception to the freedom of expression on the basis of protecting children and adolescents.
Link to full judgement: http://corteidh.or.cr/docs/casos/articulos/seriec_73_ing.pdf