Updated Monday, 10:30 a.m.
On Friday afternoon, the Constitutional Chamber of the Supreme Court ruled that the Prosecutor’s Office and the Judicial Investigation Police (OIJ) broke the law when they traced a journalist’s phone calls. The decision served as a strong rebuke to law enforcement and reinforced Costa Rica’s long history of respect for press freedom.
The chamber, known as Sala IV, posted a statement on its Facebook page that stated the OIJ violated the privacy of Diario Extra journalist Manuel Estrada, the target of the intercepted phone records. The note also said police violated the principle of proportionality governing the collecting of phone records. Sala IV ordered law enforcement to destroy the phone records and annulled any evidence collected as a result of them.
The Constitutional Chamber, however, said that there was no evidence that other journalists at Diario Extra or management at its parent company, Grupo Extra, were victims of the spying, as originally alleged by the newspaper.
Judge Nancy Hernández said that confidential sources hold a a special place in the exercise of freedom of expression and democracy, and that any review of a journalist’s phone records would required a judicial order.
Judge Ernesto Jinesta, however, argued that judges could not order phone taps or record collection with the intention of identifying a confidential source. Jinesta wrote in his decision that any collection of phone records from journalists or others who “regularly contribute information or opinion to the public” is always a violation the fundamental right to protect the identity of a confidential source.
Diario Extra held a press conference on Jan. 20 when it accused the OIJ and the Prosecutor’s Office of spying on Estrada and several members of Grupo Extra’s management, including its president, Iary Gómez.
Media called the spying “unprecedented” and a violation of national and international law, comparing the eavesdropping to revelations in 2013 of U.S. government intercepts of the phone calls of Associated Press reporters. Diario Extra filed a constitutional complaint against the OIJ and the Sala IV agreed to hear the case on Jan 24.
OIJ and the Prosecutor’s Office have said that they snooped on Estrada’s phone records to identify a whistleblower inside the OIJ who reportedly leaked the journalist information about faulty bulletproof vests bought by the investigative police. Chief Public Prosecutor Jorge Chavarría acknowledged the interception of phone records but said that law enforcement did not listen to the calls.
Press coordinator for the Prosecutor’s Office, Tatiana Vargas, told The Tico Times in an email Monday that Chavarría had not yet been issued the full ruling and could not comment until so, but offered some initial thoughts based on Friday’s press release:
In regards to the annulment of the phone records collected from the journalist, the Prosecutor’s Office understands it as an exception to the use of this means to collect evidence, privileging the right to information and confidentiality of sources, and as a limitation on the investigative powers of the state that will have to be taken into consideration in the future.
Vargas wrote that she did not believe the decision placed any limitations on other cases that use or have used phone record tracing, noting that the investigative tool was especially important when investigating organized crime.
She added that OIJ and the Prosecutor’s Office intend to continue their investigation into the leak, regardless of the Sala IV’s decision to strike the evidence from the phone records.
News of the snooping shocked Costa Ricans, who have long celebrated their country’s history of strong respect for freedom of expression. Costa Rica is sometimes referred to as a Switzerland of Central America, a reference to its relatively high standard of living and respect for freedom of expression. The country hosted the United Nations 2013 World Press Freedom Day last May.
Press freedom groups, including the International Press Institute and Reporters Without Borders, denounced the spying.