Access to Public Information
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Costa Rica’s Constitutional Chamber of the Supreme Court deemed unconstitutional a law that permitted the Legislative Assembly to impose secrecy on its debates over lifting immunity (desafuero) from the President, Vice President, members of the Executive or Judiciary, Legislators, or Ambassadors.
Article 191 of the Rules of the Legislative Assembly of Costa Rica imposes secrecy on the Assembly’s debates over requests to lift immunity of the President, Vice President, members of the Executive or Judiciary, Legislators, or Ambassadors. The Article reads:
“Article 191. The committee’s report and the relevant documents shall be read at a secret session in the presence of the accused, who shall be invited for this purpose. After the documents are read, if the accused is in attendance, he or she shall be given the floor to present, if the accused so desires, whatever he or she deems useful to his or her defense. Immediately thereafter, the accused shall leave the floor and the Assembly, after deliberation shall declare by a vote of two thirds of all its members whether or not there are grounds for prosecution of the official. In the event of an affirmative vote, the Assembly shall refer the case to the Supreme Court so that the accused may be tried in accordance with the law, whereupon he or she shall be suspended from the exercise of his or her functions.”
The President of the Journalists Association challenged the Article on the grounds that it violated freedom of expression and the right to access of information.
He based the challenge on:
The President of the Legislative Assembly defended the constitutionality of the norm on the grounds that confidentiality has been established by the positions, immunities, and privileges held by senior officials, as well as their right to privacy. He further argued that the rule safeguarded the right of members of the respective Legislative Assembly committee to cast a secret ballot. Lastly, he stressed that the Assembly had the right to independently set its rules and establish exceptions to the general rule of public access to these sessions.
The Court had to determine whether the secrecy of the debates over stripping senior officials of immunity violated the right of access to information or rather it constituted a legitimate protection of the officials’ right to privacy. The Constitutional Chamber held that as a general rule imposing secrecy on such debates constituted a violation of the principles of transparency and disclosure that should govern legislative action, especially in matters involving the exercise of political functions. Therefore, it ruled as unconstitutional the word “secret” in Article 191 of the Rules of the Legislative Assembly.
The Constitutional Chamber began by noting that legislators are responsible for deciding certain matters because they have been delegated to do so by the people. Therefore, the people have the “full and unquestionable right” to information regarding “all matters which are discussed and decided in parliament,” as well as the justifications for the decisions made. Thus, “the people, citizens, public opinion, and the media” have the right “to scrutinize and supervise” all of the legislators’ actions in making laws, especially when political oversight is being exercised. (par. IV)
The Court emphasized that Article 117 of the Constitution provides that all sessions conducted by the Legislative Assembly were to be public, except in those exceptional cases in which the legislature established that the sessions were secret, for very well justified and widely beneficial reasons. Furthermore, for the Assembly to declare a session secret, two thirds of the legislators in attendance had to vote in support of imposing secrecy on a session. To the Court, this rule implied that exceptions to public access to the sessions were unique. In such cases, the Assembly was required to provide sufficient and reasonable arguments or grounds to substantiate its decision to declare a session secret. Moreover, the Court held that the decision to vote on a matter in a secret session was subject to subsequent constitutional review.
The Court explained that an evaluation of a legal action by the Assembly which called for immunity to be stripped did not include an analysis of the veracity of the facts. The Assembly solely verified the reliability and seriousness of the accusation, to ensure that it was not an attempt of political persecution. The Court thus held that the lifting of immunity held by senior officials was a political and non-judicial function. Given that these sessions were a political function, the citizens had to be informed of the process so that they could scrutinize it to prevent decisions contrary to the Constitutional Rule of Law.
Thus, for the Court it was contrary to the Constitution that the principles of transparency and disclosure were abrogated by a general rule of confidentiality and secrecy. The Court found that this violated the fundamental rights of access to information, freedom of information, and freedom of expression. For these reasons, the Court decided to declare unconstitutional the word “secret” in Article 191 of the rules.
Judges Castillo Víquez and Salazar Alvarado dissented. The Judges argued that lifting the immunity was required in order to prosecute officials, and thus the Assembly’s sessions had to be given as much secrecy as regular criminal proceedings.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision applies the principle of maximum disclosure recognized in the case law of the Inter-American Court of Human Rights to sessions that lift the immunity of the President, Vice President, members of the Executive or Judiciary, Legislators, or Ambassadors.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Supreme Court of Justice is the highest court in Costa Rica and its decisions are binding.
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