August 18, 2009

Lic. Amílcar Velázquez Zárate

Fiscal General de la República y Jefe del Ministerio Público
15 calle y 15 avenida zona 1
Edificio Gerona
Guatemala, Guatemala
Fax: +502 2411 9100/ 9124/9326

Your Excellency,

On behalf of the 3,300 members of PEN American Center, an international organization of writers dedicated to protecting freedom of expression wherever it is threatened, we are writing to protest the one-year prison sentence and fine handed down to publisher Raúl Figueroa Sarti.

According to our information, on August 6, 2009, a court in Guatemala City sentenced Raúl Figueroa Sarti, head of the publishing house F&G Editores, to one year in prison and ordered him to pay a 50,000 quetzales fine (approx. US$6,080) for allegedly publishing a photograph on the cover of a 2006 novel without the permission of the photographer, Mardo Arturo Escobar. Figueroa denies the charges and the prosecution appears groundless given that, since filing the case, Escobar has reportedly twice admitted that he did in fact give permission for the photo in question to be used. The prison sentence is reportedly commutable to a daily fine plus litigation costs, but Figueroa is currently under house arrest and is unable to return to the United States, where he lives with his family.

According to Figueroa, Escobar, who works for a court of law, approached him in 2006 with some of his photographs and asked F&G Editores to publish them. Figueroa explained that he did not publish photos but agreed to use one of Escobar’s images on the front cover of a forthcoming title (Rafael Menjívar Ochoa’s novel Cualquier forma de morir), and in return would provide Escobar with a credit on the back cover and some copies of the book. This arrangement reportedly went ahead as planned.

In August 2007, nine months after the novel was published, Escobar filed a complaint against Figueroa with the Public Prosecutor’s office for copyright infringement, claiming that he had only found out about the use of the photo when he saw the book in a shop window. At an initial hearing in early 2008, Escobar reportedly acknowledged that he had given verbal permission for the photo to be used but as there was no written contract, he was asking for “compensation” of 72,000 quetzales (approx. US$8,752) in lieu of unpaid copyright fees. Despite this, the court ruled in November 2008 that Figueroa could be criminally prosecuted and banned him from leaving the country without the court’s permission. At another hearing in July 2009, Escobar again admitted that he had authorized the use of a photo but said he had not specified which one. The case went ahead regardless.

Figueroa remains under house arrest in Guatemala City. Under Guatemalan law, he should be permitted to leave the country while awaiting the outcome of his appeal. However, given the nature of the case, there are fears that he may be prevented from returning to the United States and therefore from seeing his family. His wife and four-year-old daughter live in New York and are unable to travel to Guatemala due to threats issued against his wife there in 2007.

PEN American Center is seriously concerned that the sentence handed down to publisher Raúl Figueroa Sarti is based on spurious charges, and that the case against him has been brought in retaliation for his publication of books on human rights abuses in Guatemala. We therefore respectfully call on authorities to immediately reverse the conviction against Figueroa, and to allow him to return to his family in the United States, where he is a resident.

Thank you for your attention in this urgent matter.

Hannah Pakula
Chair, Freedom to Write Committee       

Larry Siems
Director, Freedom to Write and International Programs

CC: General Secretary of Attorney General
Lic. Gloria Porras
Secretaria General
Leandro Despouy
US Special Rapporteur on the Independence of Judges and Lawyers
United Nations Human Rights Council
Fax: +41 22 917 9006

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