Case Summary and Outcome

The Supreme Court of Chile held that the prosecution and detention of former judge Juan Antonio Poblete Méndez (the appellant) was justified because there were serious indications that he had authorized the allegedly illegal wiretapping of investigative journalist Mauricio Weibel Barahona (the petitioner) and other alleged victims. Weibel filed a criminal complaint against those responsible for an illegal spying and wiretapping operation that he allegedly suffered due to his journalistic investigations regarding corruption in the Chilean army. Poblete Méndez argued that he had not been duly notified of the complaint, that he did not commit any crime, that there was no compelling evidence to detain him, and that he was not guilty of the alleged acts because he suffered from serious mental health problems that rendered him immune from any criminal liability. The Supreme Court of Chile held that Poblete Méndez was duly notified of the complaint on account of his own participation in the proceedings, as he made several requests during the criminal proceedings against him. The Court also held that the decision of the Chilean Court of Appeals confirming the continuation of the criminal proceedings and the preventive detention of Poblete Méndez was duly justified. For the Court, there were serious and grave indications regarding the commission of the crimes charged and of the accused party’s involvement in them. Finally, the Court held that the issue regarding Poblete Méndez’s lack of criminal responsibility should be determined further in the proceedings in accordance with Chilean law.

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Facts

Between 2015 and 2019, Chilean journalist Mauricio Weibel Barahona (the petitioner) conducted a journalistic investigation into corruption that allegedly revealed the existence of massive fraud in the purchase of military weapons in his country’s army. During this process, the petitioner was allegedly followed, and his family was threatened. In addition, the magazine where he worked reported that its equipment was stolen twice. Furthermore, the military courts asked Mr. Weibel to reveal his sources of information, but he refused to do so arguing that his journalistic sources were protected by the right to freedom of expression. These events prompted a statement by the Special Rapporteur on Freedom of Expression of the Inter-American Commission on Human Rights, who stated that “the confidentiality of journalistic sources is an essential element of the work of journalists and of the role that society has entrusted to journalists to report on matters of public interest.”[1]

On 15 February 2021, the petitioner, represented by lawyers Karina Fernández Neira and Cristian Cruz Rivera, filed a criminal complaint for the offence of malicious interception of telecommunications —provided for in Article 36 of Chilean Telecommunications Law 18168. The petitioner argued that the Chilean military, in collusion with judicial officials, carried out an illegal spying operation against him in retaliation for his journalistic investigations about corruption in the Chilean army.

The petitioner stated that he was an investigative journalist and that in 2015 he began a journalistic investigation regarding serious cases of corruption in the Chilean army involving its highest ranks, which were revealed in an article he published in the newspaper “The Clinic” on 13 August 2015, entitled “Militarygate: the great theft of the copper fund” (Milicogate: el gran robo del fondo reservado del cobre).[2]  He also explained that since the publication of this article, the Chilean press began to refer to the fraud and corruption cases in the army as “Milicogate” in reference to his article and that the allegations had become a scandal of national public interest.

The petitioner then claimed that after the publication of his investigation into corruption in the army, he was interviewed on several television programs and in newspapers. Furthermore, he stated that in 2016 he published a book entitled “Betrayal to the Nation” (Traición a la Patria), in which he published the results of his investigation regarding corruption in the Chilean army.

The petitioner stated that in 2016 he became aware that he was being watched, as he saw the same people constantly appearing in the places he visited daily. He also stated that he received information from “confidential sources” who confirmed that he was being illegally spied on by the army.

Further, the petitioner mentioned that on 10 August 2019, the newspaper “La Tercera” published a news item entitled “Operation Topographer: Army spies on four whistleblowers” (Operación Topógrafo: El espionaje del Ejército a cuatro denunciantes de irregularidades), which reported that agents of the Chilean Army Intelligence Directorate had illegally spied on, wiretapped and recorded Weibel in an operation called “Operation W”, in reference to the initial of the journalist’s surname.”[3]

Next, the petitioner added that on 12 August 2019, the same media outlet—”La Tercera”—published an article entitled “Operation W: journalist denounces espionage case by the army” (Operación W: periodista denunciará caso de espionaje que apunta al ejercito), in which Weibel detailed that he had been the victim of espionage by the army through wiretapping and surveillance.[4]

The petitioner noted that the military intelligence agents that spied on him “wanted to prevent complaints and to prevent public opinion from being informed about the army’s corruption, to remain unpunished for these crimes.” [page 4 of the petitioner’s criminal complaint] Weibel also stated that the illegal espionage that he suffered could have a chilling effect so that corruption in the Chilean army would not be investigated, thereby undermining the right to freedom of expression and the integrity of journalists.

The petitioner explained in detail that the army gave orders to pursue and carry out illegal espionage against him using methods that were “apparently” legal. In particular, the petitioner stated that at the time of the illegal spying, the Director of the Army’s National Intelligence Directorate was Lázaro Shafik Nazal, a senior Chilean official. He also argued that articles 20 and 23 of Law 19974 on State Intelligence only allow intelligence and espionage to protect “national defense” and “national security”, or to combat “terrorism”, “organized crime” and “drug trafficking”. Furthermore, the petitioner claimed that his journalistic activities could not be subsumed under any of the above-mentioned cases. On the contrary, the petitioner explained that the espionage mechanisms provided for in Law 19974 were being used to intimidate journalists and whistleblowers investigating corruption in the army.

At the same time, the petitioner mentioned that the Chilean army carried out its espionage activities against him in collusion with the judiciary since these activities were authorized by a court. In this regard, the petitioner claimed that public documents had been falsified to obtain formal authorization to spy on him. He also stated that the falsification of documents constituted an offence under Article 193 of the Chilean Penal Code.

The petitioner noted that, as a victim of illegal espionage by the Chilean authorities, his right to gather, receive, and disseminate information as a journalist had been restricted. In particular, the petitioner stated that he had been the victim of violations of his rights to freedom of expression, personal integrity, honor, and privacy—as enshrined in Articles 13, 11 and 5 of the American Convention on Human Rights. In addition, the petitioner argued that the illegal spying to which he was subjected violated Article 19 of the Chilean Constitution, which prohibits home intrusions and interceptions of private communications.

The petitioner argued that the Inter-American Court of Human Rights, in the cases of Tristan Donoso v. Panama and Escher v. Brazil, attributed international responsibility to States where it was established that telephone tappings had been carried out by State agents that remained unpunished. The petitioner also explained that in these cases, the IACtHR held that the interception of communications, as per Inter-American standards, must meet the requirements of strict proportionality and be necessary in a democratic society.

The petitioner concluded that he and his family felt unprotected because, even though the espionage to which he was subjected was public knowledge, Chilean authorities had not taken legal action to punish those responsible. Finally, the petitioner requested the conviction of all military and judicial officials responsible for the alleged espionage —whether they were perpetrators, accomplices, or accessories to the crime provided for in Article 36 of Law 18168.

On 12 July 2012, the Public Prosecutor of the North Central Metropolitan Region, Xavier Armendáriz Salamero, requested that Juan Antonio Pobete Méndez, former judge of the Court of Appeals of Copiapó, be included as an offender in the complaint for the crimes of falsification of a public instrument, under article 193 of the Penal Code, and illegal interception of communications, under article 36 of the Telecommunications Law. Armendáriz also requested that Mr. Poblete Méndez be jailed as a precautionary measure for his criminal participation in the alleged offences.

According to the prosecutor, there was sufficient evidence to order the pre-trial detention of Mr Poblete Méndez and Mr Shalkik Nazal. The prosecutor explained that “in 2017 and 2018, while serving as Director of Army Intelligence, Nazal Lázaro carried out illegal interceptions of mobile phone signals through requests authorized by the Judge of the Court of Appeals of Copiacó, the accused Juan Antonio Poblete Méndez, who was designated to issue judicial authorizations under Article 24 of Law 19,974 on the Intelligence System.” [para. 11 of the decision of the Court of Appeals of Santiago de Chile of 11 September 2023]

The prosecutor added that all these mobile phone tapping operations were carried out outside the law because they were undertaken in cases not provided for in Law 19974 on the State Intelligence System, namely: Counter-intelligence, to protect national security or to combat terrorism, organized crime, and drug trafficking.

The Public Prosecutor stated that Poblete Méndez and Shalkik Nazal used false requests and authorizations to carry out telephone tappings without complying with the legal requirements established by the Law on the State Intelligence System. In particular, the Public Prosecutor stated that the victims of telephone communications interceptions were Mauricio Weibel Barahona, Rafael Humberto Harvey Valdés, Carlos Andrés Jesús Farías Ramírez, Alejandra Astorga Vergara, Juan Pablo Díaz Pino, Sergio Tudesca Ordenes, Juan Pablo Díaz Pino, Sergio Tudesca Ordenes, María Gladys Valenzuela Soto, Luis Zamorano Valenzuela, Hugo Humberto Julio Schweitzer, Miriam Ingles Hueche, Ximena Johanna Simpertigui Pincheira, and Hiram Alberto Padilla Contreras.

For his part, the defendant, Juan Antonio Poblete Méndez, requested that both the complaint and the precautionary measure of preventive detention against him be rejected. The defendant argued that, in his capacity as a judge of the Court of Appeals of Copiacó, he was suffering from a mental illness—severe depression and the onset of Alzheimer’s disease—which prevented him from being held criminally responsible for the alleged facts.

The case was brought before the 7th Court of Guarantees of Santiago de Chile, which ordered the detention of the accused, Juan Antonio Poblete Méndez and Lázaro Shalkik Nazal. The defendants appealed this decision.

On 11 May 2023, the Third Chamber of the Court of Appeals of Santiago de Chile dismissed the appeal and upheld the pre-trial detention imposed in the case by the 7th Court of Guarantees of Santiago de Chile. In so doing, the court found that there was well-founded evidence “that justifies the existence of the crimes” claimed by Mauricio Weibel [para. 1 of the judgment of 11 May 2023]. Furthermore, the court concluded that the accused could have repeatedly committed illegal espionage and falsification of a public document. For these reasons, the court considered that “the release of the two defendants constitutes a danger to the security of society.” [paragraph 1 of the judgment of 11 May 2023]

In light of this, the former judge of the Court of Appeals of Copiacó, Juan Poblete Méndez (hereafter the appellant), appealed to the Supreme Court of Chile.

[1] Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Situation of Freedom of Expression in Chile, Special Country Report 2016, para. 55: https:// https://www.oas.org/es/cidh/expresion/docs/publicaciones/informe_pais_chile.pdf

[2] https://www.theclinic.cl/2015/08/13/milicogate-el-gran-robo-del-fondo-reservado-del-cobre/

[3] https://www.latercera.com/reportajes/noticia/operacion-topografo-espionaje-del-ejercito-cuatro-denunciantes-irregularidades/777342/

[4] https://www.latercera.com/nacional/noticia/operacion-w-periodista-denunciara-caso-espionaje-apunta-al-ejercito/780340/

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Decision Overview

Ministers Leopoldo Andres Llanos and María Teresa de Jesus Letelier delivered the Supreme Court’s decision. The Court had to decide whether the decision to remand Juan Poblete Méndez in preventive prison was justified because, as a judge of the Court of Appeals of Copiacó, he allegedly had authorized the National Intelligence Directorate to wiretap telephone conversations of journalist Mauricio Weibel and other alleged victims.

The appellant, Judge Poblete Méndez,  argued that he had not been properly notified of the complaint against him for alleged illegal espionage. He also claimed that there were insufficient grounds for his detention, as he was not guilty of any crime. On this point, he reiterated that “there is no detailed analysis of the existence of the criminal conduct.” [para. 3] He further argued that he was not guilty of the crimes of illegal espionage because “he suffers from a mental pathology that exonerates him from any criminal responsibility.” [para. 3].

First, the Court had to examine whether Poblete Méndez had been duly notified of the charges against him. The Court noted that Article 55 of the Code of Civil Procedure provided for various types of notification, one of which was “tacit notification”. The Court held that under tacit notification, a person may be deemed to have been notified of a proceeding—even in the absence of formal notification—if that person has participated to some extent in the proceeding and has not raised an annulment or mistrial claim based on the lack of formal notification.

Accordingly, the Court held that Poblete Méndez was tacitly notified of the complaint against him because, although he had not been formally notified, he participated in the criminal proceedings and made several submissions without raising a plea of annulment. For these reasons, the Court concluded that the appellant had been tacitly notified of the complaint and was able to exercise his right to a defense.

Next, the Chilean Supreme Court held that articles 424 and 425 of the Code of Criminal Procedure establish certain requirements for the enforcement of a complaint and precautionary measures—such as pre-trial detention—for crimes committed by judges in the exercise of their functions. The Court confirmed that these requirements are a guarantee in favor of judges so that they are not prosecuted and subjected to precautionary measures based on unfounded accusations.

On this point, according to the Court, to proceed with a complaint and a request for preventive detention for acts committed by a judge of the Nation, there must be “serious and grave indications that the crimes denounced existed and that the accused was involved in them.” [para. 5]

The Court found that Poblete Méndez’s argument, by which the decision of the Court of Appeal of Santiago de Chile—ordering his pre-trial detention—was not properly reasoned, was incorrect. The Court stated that it could not be argued that ordering a precautionary measure, such as a pre-trial detention, needed the same depth and detail as a judgment on the merits. On the contrary, the Court found that there was sufficient evidence at this stage of the proceedings to meet the standard required for precautionary measures.

Finally, the Court had to consider whether the appellant could be charged in criminal proceedings. In this regard, the Court held that Poblete Méndez’s argument regarding lack of criminal responsibility due to his mental health, could not be examined, at this stage, in the context of an appeal to the Supreme Court of Chile. Furthermore, the Court confirmed that the Chilean legal system provides for a special procedure to determine the capacity and mental health of persons subject to criminal proceedings. For these reasons, the Court rejected the appellant’s argument by which he could not be prosecuted and detained because of his mental health.

For all of the above reasons, the Chilean Supreme Court rejected the appellant’s appeal and upheld the decision of the Court of Santiago de Chile to proceed with the criminal trial and remand him in pre-trial detention.

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