Access to Public Information
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The Supreme Court of Justice of El Salvador granted a request for access to information of the petitioners, who solicited access to a judicial file regarding alleged corruption pertaining to former president Francisco Guillermo Flores Pérez. The First Instance Court ordered to preserve the confidentiality of the information and thus denied the petitioners access. Upon review of the decision, the Supreme Court revoked the measure since it found that it was contrary to the right to access public information linked to the right to the truth.
The plaintiffs requested access to the case file investigating alleged corruption involving Francisco Guillermo Flores Pérez, former president of El Salvador. They sought access to the file based on a provision from the Criminal Procedural Code of El Salvador, which allows citizens to request information regarding crimes committed by public officials and state agents that constitute a serious and direct attack on human rights, crimes committed against the exercise of suffrage, or crimes affecting society or marginalized groups.
On May 23, 2014, the First Instance judge ordered to preserve the confidentiality of the information related to the criminal proceeding on the grounds that judicial independence could be impacted by the “unscrupulous” opinion disseminated in the media that could not only harm the proceeding, but also create anticipated public conclusions damaging the perception of the judicial authorities. Additionally, the Court held that publishing information before the proceedings could confuse the population, misinforming them about the case and generating pressure to satisfy their “punitive ambitions against the accused”. For the First Instance Court, the public scrutiny of the matter in question could produce adverse effects, jeopardizing the potential extradition and eventual arrest of the accused and ultimately hindering the investigation’s success.
Furthermore, this Court clarified that while the general public would not get access to the information regarding the investigation, that did not diminish the public nature of the process since the legally accredited parties knew about the proceedings.
Dissatisfied with the decision, the plaintiffs appealed the ruling. Notably, they considered that preserving the confidentiality of the information infringed their right to access information and the right to truth. They also argued that the judge’s judgment did not pass the proportionality test, thus violating their right to access information without a reasonable cause.
The Supreme Court of Justice of El Salvador had to examine whether the order to preserve the confidentiality of the records of the criminal investigation against a former president should be considered as such or if, on the contrary, they should be in the public domain and open access.
The Supreme Court began its analysis by recalling the significance of the right to access public information as a fundamental right, entrenched in the constitutionally recognized right to freedom of expression and in the democratic principle of the rule of law. The Court noted that it is not an absolute right and can be restricted in specific situations prescribed by law and when the measure regards the principles of maximum publicity, availability, promptness, integrity, equality, simplicity, gratuity, and accountability. Particularly, the Court underscored the importance of the principle of maximum publicity specified in Article 5 of the Law on Access to Public Information.
Furthermore, the Court highlighted the strong relationship between the right of access to public information and corruption by remarking that access to information permits individuals to assume an active role in government by allowing the formation of individual and collective opinion on public affairs, enabling deliberative political participation to flourish and generating conscious scrutiny of the authorities functions. Moreover, the Court remarked that through citizen oversight, state agents are encouraged to use government resources effectively for the collective good and dissuade them from corruption.
After reviewing the national and supranational norms on which these rights are based, the Court recalled that in a 1997 decision, it had held that the right to freedom of expression is not limited to the externalization of thoughts and opinions but rather extends to what is classically called freedom of the press, which constitutes the right to information.
Moreover, the Court noted that the right to access information is intertwined with the right to truth and allows unrestricted access to objective information regarding situations in which human rights have been violated. The Court remarked that these rights permit the possibility to investigate, pursue and receive reliable information that leads to the impartiality and clarification of the facts.
Regarding the evolution of the penal system in El Salvador, the Court underlined how it had matured from an inquisitorial model to a mixed model with clear accusatory tendencies introducing the principle of publicity in criminal proceedings. In the same vein, the Court emphasized how the Code of Criminal Procedure establishes as a general rule criminal proceedings shall be public yet exceptionally allows judges to order partial or total confidentiality when public morals, privacy, national security, and public order are at play or when provided by law. Turning to the case at issue, the Court noted that this provision would constitute the exception to access to information that should have been invoked in this case. Nevertheless, the Court recalled that for a judge to employ such an exception, they are obliged to state the particular reasons that justify in a specific case to order confidentiality of the information.
The Court established that the presumption of publicity implies a guarantee for both the victims and society. Notably, it held that publicizing the facts constitutes a means of reparation for the victims and their relatives. As for the collective dimension, the Court noted that society has a legitimate right to know the truth about events that have seriously violated human rights.
Consequently, the Court considered that the first instance judge had failed to sufficiently justify the order to preserve the confidentiality of the information. Thus, the Court issued a precautionary measure granting the plaintiffs access to the case file and to all with a legitimate interest in learning the case.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands the right of access to information by restricting the possibility of invoking generic and unreasoned exceptions to the principle of publicity of ongoing criminal investigations into publicly actionable crimes related to corruption.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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