Access to Public Information
Bubon v. Russia
Closed Mixed Outcome
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The Inter-American Court decided a case concerning restrictions on access to information, specifically, information collected by the National Commission on Political Imprisonment and Torture involving human rights violations perpetrated during the dictatorship in Chile. The Court considered the restriction placed upon this right was legitimate and fulfilled the requirements of legality, finality, necessity and strict proportionality.
In Chile, in September 1973, a military regime came into power and toppled the Government of president Salvador Allende. The dictatorship exercised widespread repression against the swaths of society it considered as opposition. The repression “was characterized by massive and systematic executions by firing squad, summary executions, torture (including rape, mostly of women), arbitrary deprivation of liberty in facilities beyond the law, forced disappearances, and other human rights violations perpetrated by State agents, sometimes with the assistance of civilians” [par. 21]
In 1990, after the reestablishment of democracy, the Chilean State began implementing different types of measures with the purpose of repairing the dictatorship’s victims, uncovering the truth of what happened and achieving reconciliation. One of these measures was the creation in November 2003 of the National Commission on Political Imprisonment and Torture also known as the “Valech Commission.” The purpose of this commission was to “identify the people that were deprived of their liberty and tortured for political reasons.” The Commission presented its final report in 2004.
Between 1973 and 1975, twelve members of the Chilean Air Force were arrested and court martialed. These individuals were mistreated and tortured with the purpose of extracting confessions. In 2001 and 2002, eight of these individuals brought claims over the torture and cruel and inhuman treatment they had been subjected to.
After several proceedings by the proper authorities, the 9th Criminal Court of Santiago asked the Valech Commission for “background information on several of the individuals who were part of the victims’ list in the final report” [par. 55]. The Executive President of the Valech Commission rejected the request “citing article 15 of Law No. 19,992 of December 17, 2004, that establishes the secrecy of the documents, witness statements and background information provided by the victims to the National Commission on Political Imprisonment and Torture” [par. 55]. Furthermore, The 9th Criminal Court reiterated the article expressly indicated that while this secrecy is in force, “no person, group of persons, authority or the judiciary will have access to the aforementioned […], without prejudice of the personal right of the holders of the documents to disclose or provide them to third parties by their own choice” [par. 55].
The Inter-American Court of Human Rights held the decision of the Valech Commission that denied the right to access the requested information, was legitimate.
The Inter-American Court of Human Rights had to resolve whether one of the truth commissions that were created in Chile during its transition to democracy, had the obligation to provide the information in its files to the judges that investigated the human rights violation that were perpetrated during the dictatorship.
The Court called to mind that, according to its jurisprudence, State authorities may not deny access to information on human rights violations to the authorities that are responsible with investigating and adjudicating these breaches. However, it indicated that this precedent “did not specifically refer to the files of truth commissions, which are responsible for seeking the extrajudicial truth on serious human rights violation” [par. 89]
In this sense, a proportionality test should be applied to determine the legitimacy of restrictions to accessing information that is under State control. First, it is necessary to verify whether the restriction to access is provided for by law; second, whether it seeks a legitimate objective; third, whether this restriction is necessary and appropriate; and, finally, whether the restriction is strictly proportional.
In this case, the Court indicated Law No. 19,992 of 2004 established the restriction to the right of access. Regarding the objective, it indicated the secrecy of the Valech Commission files sought two legitimate objectives: i) protect “the rights to a private and intimate life of the people gave a witness statement” [par. 93]; ii) guarantee that the Valech Commission carry out its duties so society may know the truth of what happened, while at the same time the victims can access reparation.
With regard to the third requirement, the Court indicated the secrecy of the witness statements was necessary to achieve the objectives that were being pursued. Additionally, it considered that the secrecy was proportional “because the sacrifice the restriction implies is not exaggerated or out of proportion with regard to the advantages it provides and the accomplishment of the objective that is being pursued” [par. 99]. The Court stressed that Law 19,992 sets a 50-year time limit on the reserve and provides for the possibility that the holders of the information can freely disclose it. Finally, it highlighted the State’s efforts to review the legal stipulations regarding the secrecy of the Valech Commission files.
In conclusion, the Court stated the restriction placed by the Valech Commission on the right of access to information was legitimate.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
On the one hand, the Court affirmed the standards to determine the legitimacy of measures restricting access to information and applied them to the case, reaching the conclusion that, in this instance, the denial of access was legitimate. However, it did not establish the criteria or exceptions that could allow this information (the information collected by truth commissions) to become publicly accessible under certain circumstances or, perhaps, through the passage of time.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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