High Court upholds sentence against newspaper

(PERIODISTAS/IFEX) – On 4 October 2001, the High Court (Superior Tribunal de Justicia) upheld a sentence against the weekly “O Debate”, ordering it to pay a fine that is beyond its capacity and would force the newspaper to close. The newspaper is published in Santa Cruz do Rio Pardo (375 kilometres west of Sao Paulo). […]

(PERIODISTAS/IFEX) – On 4 October 2001, the High Court (Superior Tribunal de Justicia) upheld a sentence against the weekly “O Debate”, ordering it to pay a fine that is beyond its capacity and would force the newspaper to close. The newspaper is published in Santa Cruz do Rio Pardo (375 kilometres west of Sao Paulo). It is facing a complaint for “moral damages” filed in 1975 by a local judge who was offended by a number of articles criticising his conduct.

In 1991, “O Debate” reported that Judge Antônio José Magdalena, of the Civil Courts, lived in a luxurious home paid for by public funds while the judiciary’s official residence went unoccupied. The newspaper later revealed that Magdalena installed a public telephone line for his personal use, at a time when the government was going through a critical economic situation and had refused the Fire Department a telephone line.

One year later, the newspaper criticised the judge’s conduct and his sentence against another newspaper that, according to Magdalena, had violated the press law. “O Debate” director Sérgio Fleury Moraes assured PERIODISTAS that “all the information is based on authentic documentation.” Nevertheless, the judge accused the newspaper of invading his privacy and endangering his family by publishing a photo of his home and the number of the telephone line in question, and demanded a payment of 300,000 reales in damages.

In first instance the weekly was sentenced to pay an amount equivalent to 1,800 minimum salaries (at that time equivalent to US$100,000). The local judge presiding was Osny Bueno de Camargo, a Civil Courts magistrate who worked in the office adjacent to Magdalena’s. The Sao Paulo State Tribunal upheld the sentence but reduced the fine to 1,000 salaries. Moraes appealed the decision before the STJ and the Third Chamber judge admitted the appeal, bringing it forward to the entire Chamber for its consideration.

On 4 October, this tribunal decided that the weekly should pay the fine. Of the Chamber’s five judges, only three voted and they were unanimous. The fine currently stands at about 180,000 reales (more than US$64,000) but Moraes estimates that the total could reach 400,000 reales (more than US$140,000) including legal costs. This amount is much greater than the newspaper’s assets which, according to the director, add up to approximately 110,000 reales (approx. US$40,000).

The defense argued that the first instance court’s ruling was invalid, because in contrast to what the court stated, “an examination into the allegedly offensive content against the judge’s honour was necessary.” The defense also noted that the Brazilian Press Law (# 5250) stipulates a maximum fine of 200 minimum salaries.

The Third Chamber rejected these arguments and decided that “the only proof needed is the presentation of the issues in which the offensive articles appear – the articles that, according to the judge [Magdalena], impacted on his honour, reputation, privacy and private life.” As regards the amount of the fine, the judges supported the opinion of reporting Judge Ari Pargendler. In his report, Pargendler had noted that “there are few media companies, based out of cities in the country’s interior, that have a head office similar to that of ‘O Debate'”. Finally, the Third Chamber judges concluded that it befalls the Federal Supreme Court, and not the STJ, to establish if Press Law 5250 is still valid or if it was revoked by the 1988 Constitution.

Moraes informed PERIODISTAS that he still has the option of appealing the decision before the Sao Paolo State STJ, and if that does not work he could approach the Federal Supreme Court, Brazil’s highest legal authority.

Background Information

The journalist stated that the judge and the public prosecutor had lodged a number of complaints against him. While Magdalena was electoral judge, there was one case that resulted in Moraes being imprisoned for seven months in 1996, for having published an article in the Sao Paulo newspaper “A Folha” on the questionable background of one of the candidates. “Judge Magdalena ordered that the Municipal Lodge, which had been used for years as a kennel, be reopened specifically so that I could be detained there, whereas other prisoners in my situation were put under house arrest,” Moraes noted. “We protested to the state’s Electoral Tribunal that Magdalena had lodged a complaint against me and therefore he was not fit to try my case. However, our appeal entered a slow process and only after journalist Clovis Rossi condemned the situation in his column in ‘A Folha’ was I permitted to serve my sentence under house arrest,” Moraes concluded.

When the case was brought before the STJ, PERIODISTAS and Reporters sans frontières
(RSF) sent letters of protest to the judges in charge of deciding the weekly’s fate. In May, the reporting judge signed a document stating that the appeal filed by “O Debate”‘s defence had been accepted and the Sao Paulo STJ would review the ruling. At that time, the newspaper’s director stated that as far as he understood, “the letters sent by PERIODISTAS and Reporters sans frontières to the STJ judges had played an important role.”

Recommended Action

Send appeals to the Sao Paulo STJ:
– reminding them of the freedom of expression principles established by international agreements (such as the American Convention on Human Rights and the Organization of American States’ Declaration of Principles, approved in October 2000) and the guarantees provided for under the “real malice” doctrine
– noting that setting such a large fine, of a previously unheard-of amount in Brazil, will have a censoring effect by forcing the closure of a publication

Appeals To

President Paulo Costa Leite
High Court
SAFS – Quadra 06 – Lote 01 – Trecho III
CEP 70095-900
Brasília – DF
Tel: +61 319 8000
Fax: +61 319 8193 / 319 8194 / 319 8195
E-mail: webmaster@stj.gov.br / presidencia@stj.gov.br / Gab.Costa.Leite@stj.gov.br

Please copy appeals to the source if possible.