(Periodistas/IFEX) – Periodistas has made available the following review of Argentina’s most prominent legal rulings and legislative initiatives dealing with freedom of the press within the last month: 29 September 1998: The Senate’s Commission for Criminal Matters approved a 25 August report suggesting a draft law which calls for harsh penalties of up to three […]
(Periodistas/IFEX) – Periodistas has made available the following review of
Argentina’s most prominent legal rulings and legislative initiatives dealing
with freedom of the press within the last month:
29 September 1998: The Senate’s Commission for Criminal Matters approved a
25 August report suggesting a draft law which calls for harsh penalties of
up to three years’ imprisonment for journalists and media who use hidden
cameras or tape recorders, or who publish information obtained from a third
party who has used these methods or telephone tapping. The issue was not
submitted for analysis to the Senate’s Freedom of Expression Commission, nor
were any consultations held with organizations working in this area, in
spite of the severe penalties which are contemplated in the draft law.
While Senator José Genoud’s bill (preceding this one) was aimed only at
punishing illegal tapping, some legislators introduced modifications into it
which would limit the work of the press. The attempt to punish
investigations into corruption is obvious in the levels of penalties the
bill provides: disseminating such information attracts a punishment twice as
severe as obtaining it; and the penalties quadruple (with firm prison terms)
in cases where the offence is committed by security or intelligence agents,
or staff of any company providing postal or telegraphic services or “other
types of communications.” The vague wording could be extended to any
newspaper, magazine or television station, since they are communications
companies.
The text of the draft law contains three main points:
or intercepts a private telephone call. This includes anyone who secretly
records a conversation in which sh/e her/himself participates.
ninety
thousand pesos (approximately US$90,000) for anyone who wrongfully divulges
or makes public these conversations. With this wording, it will not be
possible to use hidden cameras or tape recorders — techniques which have
helped uncover many cases of corruption — and the penalties will fall
directly on journalists and media outlets.
investigations into such offences as unlawful enrichment, threats, bribery
and misappropriation of funds. It does so by allowing telephone tapping to
be used legally only in investigations of offences carrying a minimum
sentence of three years’ imprisonment, whereas the above-mentioned offences
carry only a six-month minimum prison term.
29 September 1998: The Supreme Court sentenced actress Gabriela Acher,
scriptwriter Maitena Burundarena and the Channel 13 television network to
pay reparations in the amount of 30,000 pesos (approximately US$30,000) to a
judge in connection with a sketch about justice which aired in 1991 on the
programme “Hagamos el Humor” (“Let’s Create Humour”). The judgment, signed
by judges Julio Nazareno, Eduardo Moliné, Guillermo Lopez, Adolfo Vázquez
and Antonio Boggiano, maintains that the naming of Judge Omar Jesús Cancela
in the sketch, which “tried to criticize the supposed lack of protection of
women in our legislation and the administration of justice in general,” did
not constitute “a justifiable means of criticising institution. Rather, on
the contrary, it is an imprudent, unscrupulous act which violates the
principle of alterum non leadere,” which is to say, the principle of not
inflicting harm on others.
The original sentence had been handed down by the court of first instance,
and then confirmed on appeal in a split decision of the L Court of the Civil
Chamber. This court rejected the legal doctrine of true malicious intent
(real malicia,) citing that the Judge was not a public figure.
The dissenting opinion of Supreme Court Judges Augusto César Belluscio and
Gustavo Bossert concluded that “when the opinions expressed deal with issues
of public interest or issues of the conduct of those fulfilling public
functions (…) the question should be decided on the principle that a
greater sacrifice is demanded of those who manage public affairs.” For his
part, Judge Enrique Petracchi (who also voted against) added that, if the
sentence were confirmed, “it would place an undue restriction on one of the
fundamental freedoms (which form the basis) of a democratic system:” in such
a system, opinions can be expressed freely — something which would not
happen if there were different priorities for dealing with the demands of
certain sensitive individuals.
20 October 1998: In a split ruling, the Supreme Court handed down a
one-month suspended prison sentence to journalist Tomás Sanz, former editor
of the magazine “Humor”, for an “insult” (injurias) complaint which had been
brought by then-Senator Eduardo Menem following an article published in July
1991. The article, entitled “Two Years of Corruption”, clearly citing its
source, reprinted an excerpt of a March 1990 investigative piece published
in the Uruguay weekly “Brecha”. The piece indicated that Menem held deposits
of over US$1,000,000 in his name out of the country and it published what
was alleged to be a receipt for one of the deposits. In carrying the excerpt
of the piece, “Humor” made it clear that the allegations had been publicly
denied by Menem, who stated at the time that the receipt was “false.”
An extraordinary appeal of a lower court decision against the magazine was
submitted by defence counsel for “Humor”, thereby activating the Supreme
Court. Three of the Supreme Court judges ruled against Sanz and three ruled
in his favour. The three remaining judges (Nazareno, Moliné O’Connor and
Belluscio) declined to take part for various reasons. On account of the
split decision, the Supreme Court had to resort to three alternate judges
(Mario Osvaldo Boldu, Alejandro Uslenghi and Jorge Víctor Miguel,) who were
chosen by lottery from among all the federal judges in the country. The
three alternate judges agreed with the ruling against the magazine. With
respect to the fact that “Humor” had reproduced a news item published in
another media outlet, the judges who formed the majority held that “those
responsible for the article are judged to have had knowledge that Eduardo
Menem had publicly denied the episode,” and this should have caused the
journalists to question the truth of the information and investigate its
accuracy. According to their substantiating arguments, although the doctrine
of true malicious intent (real malicia) safeguards the right to criticise
persons and issues in the political sphere in order to ensure free,
democratic debate, it does not apply to “deliberately false or malicious
declarations.”
In this decision, the judges deliberately ignored their own
precedent-setting “Campillay” decision which says that “one only has to
believe in the truthfulness of a third party’s statements and does not have
to prove the truth of their contents.” The Court is now saying that this
principle “cannot be the object of generalisations or simplifications” when
“the reproduction of what is published by someone else is accompanied by
additional comments.”
Fayt, Petracci and Bossert, the judges who voted against confirming the
lower court decision, said that “the information was attributed to a clear
source and its reprinting did not amount to injury of the plaintiff.”
28 October 1998: A ruling by the Supreme Court, which was made in relation
to an “insult” (injuria) suit brought by Minister of the Interior Carlos
Corach against journalist Horacio Verbitsky, rendered inoperative the
statute of limitations on the criminal case and reopened the five-year old
trial. The Court based the reopening of the trial on the successive editions
of Verbitsky’s book, “Robo para la Corona” (“I Steal for the Crown”), and
maintained that an earlier court ruling failed to “consider why, since
re-editions of the book must rely on the approval of the author, the
presumption of the intent to insult (Corach) would be present only for the
first edition of the book.” In accordance with this interpretation, each new
edition of “Robo para la Corona” creates a new offence. Verbitsky said, “If
this were the case, then Corach would have to file new charges every time
and follow the Code of Procedures — meaning that it would be a public
hearing with oral evidence. This is what they do not want. Their aim is not
to look at the evidence and keep a sword of Damocles hanging over me.”
Corach originally filed charges against the journalist because he felt
maligned by what Verbisky related in the book. Verbitsky told how Corach put
pressure on the San Martín federal court so it would postpone summoning
Santiago Riveros, ex chief of the Campo de Mayo detention camp, to give a
statement. The journalist pointed out that what he was relating in “Robo
para la Corona” is true, and that “Judge Herrera will confirm it.” Corach
filed charges, but never brought forth evidence. So, at the end of two
years, Judge Carlos Daniel Liporaci decided a limitation period would apply
to the case. Corach appealed and the Criminal and Correctional Court upheld
Liporaci’s decision, saying that “the limitation period was not a ruse on
the part of the defendant,” but was in place because the complainant never
brought any evidence forward.
Later, with the two-year statute of limitations expired (indictment and
disclosure were on 3 and 6 May 1994,) Court II of the National Federal
Criminal and Correctional Appeals Chamber declared the case closed. Corach
then entered an extraordinary appeal of that decision, and the Supreme Court
has now ruled in his favour by six votes to three. According to the Supreme
Court, in order to establish the limitation period, the lower court had only
taken into account the original date of publication of “Robo para la
Corona”, when it should have noted the subsequent editions of the book.
“The ministers [ie. judges] are operating as defence lawyers for Corach.
Moreover, it seems that they invented the theory of perpetual motion,”
Verbitsky stated sarcastically.
