Report to the Midyear Meeting

Bridgetown, Barbados

April 4 – 7, 2014

In the most significant violation of press freedom during this period, the newspaper Diario Extra reported that the Office of the Special Prosecutor for Organized Crime (FECO) had ordered a trace on all incoming and outgoing phone calls of journalist Manuel Rodríguez Estrada, known as Manuel Estrada, as well as the calls of other journalists and staff members for the newspaper.

The Judicial Police and FECO ordered the tracings to identify the public officials who were providing information to the journalist, who, on the basis of this information, revealed matters of great public interest. Using the results of the tracings, criminologists and analysts at the Narcotics Section of the Judicial Police identified some 20 judicial employees with whom the journalist had communicated by phone, and police intelligence agents identified them as the "source" for news items written and disseminated by the journalist.

For this act of "espionage," a judicial employee was detained and charged with revealing secrets and revealing confidential information. Her arrest had a chilling effect on many other informants who, for fear of reprisal, were reluctant to provide information of public interest.

On January 21, the editors and directors for Grupo Extra at La Prensa Libre and Channel 42, for Grupo Nación (La Nación, Al Día, and La Teja), at Telenoticias Canal 7, and at the Repretel television news show on Channel 6, as well as the president of the Association of Journalists petitioned the Constitutional Court for an injunction against the Office of the Attorney General and the Judicial Police for violating press freedom, freedom of information, and the right to maintain the confidentiality of one's sources, as set forth in Principle 8 of the Declaration of Principles on Freedom of Expression of the Inter-American Commission on Human Rights.

On March 21 the justices of the Constitutional Court heard the petition and ruled that the Office of the Attorney General and the Judicial Police had violated the journalist's right to privacy and his right to keep his sources confidential. The court ordered as follows: (1) that all tracings of incoming and outgoing calls made by or associated with Manuel Rodríguez Estrada be discontinued; (2) that the authorities named in the petition, in accordance with Article 50 of the Law on Constitutional Jurisdiction, be barred from further engaging in the acts or omissions that were the basis for this petition. This should be noted in light of the fact that Article 71 of the Law on Constitutional Jurisdiction calls for three months to two years in prison, or a fine equivalent to 20 to 60 times the daily minimum wage, for anyone who, after receiving an order that he or she must obey or enforce in accordance with a petition for judicial relief, then fails to obey or enforce the order, provided that the offense is not otherwise more severely punished; and (3) the government is ordered to pay the costs and damages incurred as a result of the events that served as the basis for this petition.

The court's ruling noted as follows: "Justices Armijo, Rueda, Castillo, and Hernández are commenting separately. Justice Jinesta Lobo partially grants the petition for different reasons, which are essentially as follows: To trace the phone calls of journalists or of those who habitually or regularly inform the public is always a violation of the fundamental right to maintain the confidentiality of one's sources, a right recognized by this Constitutional Court in Ruling 7548-2008. I also believe that tracing the phone calls of journalists or those who habitually devote themselves to informing the public is utterly, absolutely, and flagrantly unconstitutional inasmuch as this reveals sources of information, and therefore the tracing cannot even be ordered by a judge. With respect to the judicial employee who was the journalist's source of information, the tracings must also be discontinued; thus, I cannot accept the tracing of phone calls of those who are a journalists' sources of information or of those who habitually or regularly devote themselves to informing the public."

The Constitutional Court's ruling was hailed by journalists who, in various media outlets, had expressed their concern over the actions of the Attorney General's Office and the Judicial Police.

The full ruling was released on March 27. Carlos Serrano, the lead attorney in the petition for injunction, stated: "Although the ruling was in our favor in this particular case, the truth is that I'm not personally satisfied with it. I'm not satisfied with it because it leaves us all in a state of uncertainty because it does not define the limits on the right to keep one's sources confidential. In that sense, I think it goes against the principle of legal certainty and the principle known as reserva de ley (that certain matters are the exclusive domain of the law), as established in the case law and legal doctrine of the inter-American system for the protection of human rights."

Serrano continued: "The ruling does not say that the limits of the law should be established in a specific law that meets the requirements of the case law of the Inter-American Court (compliance with Article 13.2 of the Inter-American Convention on Human Rights and necessity in a democratic society). What it says is that those limits are determined at the arbitrary discretion of the justices of the Constitutional Court."

Justice Castillo Víquez said that this right has restrictions but that such restrictions should be subject to a reasonability test, and he stated as follows: "When the right to keep one's sources confidential is associated with the commission of a criminal offense, the right to keep the source confidential should prevail if the crime has already been carried out or if the informant makes illegal acts or acts of corruption public knowledge. In my opinion, this understanding is in line with the doctrine set forth in the Johannesburg principles, but it must be formalized in law."

He continued: "Justice Hernández López, meanwhile, held that the right to keep one's sources confidential is subject to exceptions only in highly compelling circumstances that can pass the reasonability test, which is only possible with a court order."

Serrano, the attorney, says that the limits on this right should not vary from case to case, but rather should be defined by clear, precise rules because otherwise press freedom is undermined. "To define it casuistically—as provided by the Costa Rican Constitutional Court—goes against the principle of legality and against the right to legal certainty, because journalists and those of us in the system have the right to know the rules of the game in advance."