Costa Rica

Press freedom has been affected by a series of judicial decisions concerning confidentiality, the right of reply, defamation trials and freedom of information. On April 30, the Constitutional Court upheld the concept of confidentiality for journalists, which is not specifically defined in legislation. But it left open the possibility that this right can be removed in certain cases when a criminal judge decides to do so. Using the right of reply, former president Miguel Ángel Rodríguez published an article criticizing news published by La Nación about alleged bribes paid by a telecommunications company. At the end of the article, the newspaper added a note saying that all the published articles were duly documented. The ex-president took advantage of that sentence to ask for all the documents and reports in the newspaper’s files concerning the case. La Nación refused and Rodríguez filed an appeal alleging that he had the right to “information self-determination.” The Constitutional Court denied the appeal saying the following: “The appellant cannot ask that the newspaper provide public or private documents that the company’s journalists have gathered to publish information to society about the alleged facts and activities he is accused of. It is necessary to add that the freedom of information self-determination can be exercised when public or private entities hold confidential or sensitive personal information about the person in their databases, files or registries that should be suppressed or when the personal information does not have these characteristics but should be clarified, made more specific or modified because it is incorrect or inexact. In the case in dispute it is clear that the editorial company that is the subject of the appeal, in exercising its freedom to gather and disseminate information, does not fit the requirements that would make this right applicable.” In its ruling on journalists’ confidentiality, the court added: “The recognition of this fundamental right for journalists, that is, those who provide information on a regular basis, is not an unjustified right, but, as has been indicated, a sine qua non condition for guaranteeing freedom of information and, therefore, the development of free public opinion and democratic pluralism.” However, the ruling has one paragraph that is cause for concern: “The majority of the members of this Constitutional Court deems that in the criminal jurisdiction, sometimes and with certain assumptions, the confidentiality of sources should give way, in the name of uncovering crimes and guaranteeing certain fundamental rights. There is no absolute limitation in the face of the confidentiality of a reporter’s source. The priority of other rights and constitutional values may require a balanced solution between respect for confidential sources and need for efficient administration of justice. The circumstances and situations that permit confidentiality to be suppressed because of the necessities of a criminal investigation shall be defined on a case by case basis by this Constitutional Court.” On August 19 an appeals court upheld the 35-year sentence against businessman Omar Chaves Mora as the mastermind of the homicide of journalist Parmenio Medina. It also upheld the acquittal of the priest Minor Calvo Aguilar on the charge of homicide and his sentence to 15 years for defrauding the listeners of Radio María. Parmenio Medina had reported on the station’s financial operations shortly before being killed. Omar Chaves was also held responsible for the fraud and was sentenced to 12 years in prison for that crime. On August 27, a criminal court in San José dismissed the case against two journalists and two prosecutors accused by former president Rafael Ángel Calderón Fournier of revealing secrets and not respecting the confidentiality of legal documents in the criminal embezzlement case against Calderón. The newspaper had published details of the indictment of the former president by the Public Ministry. The judge could not find the source of the leak, and therefore he found that the prosecutors could not be held responsible. As for the journalists, the judge indicated that they are not responsible for keeping the secret because they are not public officials. He mentioned that the country is bound by international agreements concerning press freedom and in the light of those it is not possible to assert that the journalists committed “any illicit activity in their reporting.” It is worrisome, however, that the judge reflected a line of thinking that is critical of the so-called media trials, confusing information about judicial subjects disseminated in the press with the trial itself. Those who believe this, allege that those involved in corruption cases reported in the press and, in many cases, uncovered by the press, are “victims” of a trial in the press. The logical consequence of this line of thinking is to demand controls on the press in the name of due process. On August 29, the newspaper La Nación decided to take a complaint about the conviction of two of its journalists to the Inter-American Commission on Human Rights. The reporters were acquitted of defamation, but required to pay civil restitution to a policeman, who, according to statements by the Public Safety Ministry, was under investigation for extortion. The minister confirmed to journalists that the assistant police chief of a region in the south of the country was told to take a vacation while being investigated for alleged extortion in connection with the illegal transport of liquor. In the trial, the minister admitted that he was the source of the news. It was also shown that the police official in the area faced trial for extortion. However, the debate established an inaccuracy in the information the minister said he had provided: allegedly the extortion did not have to do with the illegal transport of liquor but the stopping of a car with no license plates. The lower court ruling said that the journalists did not commit a crime, because the minister was the source of the published report. However, the judges insisted that the police officer’s reputation had been harmed because of erroneous information, and, according to the Civil Code, anyone who harms someone has the obligation to make him whole. The minister was convicted along with the journalists. The verdict is a unique threat to press freedom in the country, because it opens the way to apply civil sanctions to journalists in trials in which there are few defense opportunities. In criminal cases, the conviction must be based on malice. In civil cases, it is enough to demonstrate any level of guilt and harm to the plaintiff. On September 5, the Constitutional Court once again affirmed freedom of information in a very important verdict requiring that the government give journalists of the daily La Nación details of negotiations over the purchase of Costa Rican bonds by China, in connection with the establishment of diplomatic relations. China agreed to buy $300 million in Costa Rican bonds on condition that the details of the negotiations be secret. According to Costa Rican authorities, the Chinese did not want to make public the favorable conditions granted to Costa Rica so that other countries would not ask for them. In response to an appeal by La Nación, the Treasury Ministry referred to the confidentiality of the stock market and of foreign relations. La Nación took the position that the country should not take on debts in secret, no matter what advantages that might entail. In this case, when the judges ordered the government to release the information it was learned that the 15-year bonds had a 2% interest rate. The government of President Óscar Arias attacked La Nación, accusing it of putting at risk the second disbursement of the money in January 2009. This disbursement would be the second and last installment. The news had wide repercussions throughout the world because it raised the issue of the transparency of China’s negotiations with other countries.