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Res. 25167-2022 Sala Constitucional · Sala Constitucional · 21/10/2022
OutcomeResultado
The amparo is granted and the sanitary closure order of Parque Viva is annulled as it constitutes an indirect restriction on freedom of expression and press.Se declara con lugar el amparo y se anula la orden sanitaria de cierre de Parque Viva por constituir una restricción indirecta a la libertad de expresión y prensa.
SummaryResumen
The Constitutional Chamber granted an amparo filed by journalists from Grupo Nación against the Ministry of Health, finding that the sanitary order suspending Parque Viva's operating permit constituted an indirect restriction on freedom of expression and press. The Chamber held the closure was arbitrary, lacked timely technical support, and was motivated by retaliation from the Executive Branch against the media outlet. It ordered the annulment of the sanitary order and the confirmatory communication, reinstating the operating permit.La Sala Constitucional declaró con lugar un recurso de amparo interpuesto por periodistas del Grupo Nación contra el Ministerio de Salud, al considerar que la orden sanitaria que suspendió el permiso de funcionamiento de Parque Viva constituyó una restricción indirecta a la libertad de expresión y prensa. La Sala concluyó que el cierre fue arbitrario, carente de sustento técnico oportuno y motivado por represalias del Poder Ejecutivo contra el medio de comunicación. Se ordenó anular la orden sanitaria y el oficio confirmatorio, restableciendo el permiso de funcionamiento.
Key excerptExtracto clave
X.- ON THE MERITS. After a rigorous analysis of the evidence provided, the Chamber concludes that the sanitary order in question constitutes an indirect restriction on freedom of expression and press, in violation of Articles 28 and 29 of the Political Constitution and 13.3 of the American Convention on Human Rights. (...) The sanitary closure order against Parque Viva lacked support in technical criteria that could serve as a basis at the time of its issuance and, instead, relied on subsequent reports obtained after the fact. (...) The closure of Parque Viva occurred in a context of open hostility from the President of the Republic toward the media outlet, with public expressions of threat and a sequence of acts evidencing an intent to cause economic harm to the company that owns the newspaper. The Chamber finds it proven that the sanitary order constituted an indirect means to restrict freedom of expression.X.- SOBRE EL FONDO DEL ASUNTO. Luego de un riguroso análisis del material probatorio aportado, la Sala llega a la conclusión de que la orden sanitaria cuestionada constituye una restricción indirecta a la libertad de expresión y de prensa, violatoria de los artículos 28 y 29 de la Constitución Política y 13.3 de la Convención Americana sobre Derechos Humanos. (...) La orden sanitaria de cierre contra Parque Viva carece de sustento en criterios técnicos que le sirvieran de fundamento al momento de su emisión y, en cambio, se apoya en informes posteriores obtenidos de manera sobrevenida. (...) El cierre de Parque Viva se produjo en un contexto de abierta hostilidad del Presidente de la República contra el medio de comunicación, con expresiones públicas de amenaza y una secuencia de actos que evidencian una intención de causar un daño económico a la empresa propietaria del diario. La Sala tiene por acreditado que la orden sanitaria constituyó un medio indirecto para restringir la libertad de expresión.
Pull quotesCitas destacadas
"No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones."
"The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions."
Artículo 13.3 de la Convención Americana
"No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones."
Artículo 13.3 de la Convención Americana
"La orden sanitaria de cierre contra Parque Viva carece de sustento en criterios técnicos que le sirvieran de fundamento al momento de su emisión y, en cambio, se apoya en informes posteriores obtenidos de manera sobrevenida."
"The sanitary closure order against Parque Viva lacked support in technical criteria that could serve as a basis at the time of its issuance and, instead, relied on subsequent reports obtained after the fact."
Considerando X
"La orden sanitaria de cierre contra Parque Viva carece de sustento en criterios técnicos que le sirvieran de fundamento al momento de su emisión y, en cambio, se apoya en informes posteriores obtenidos de manera sobrevenida."
Considerando X
"El cierre de Parque Viva se produjo en un contexto de abierta hostilidad del Presidente de la República contra el medio de comunicación, con expresiones públicas de amenaza y una secuencia de actos que evidencian una intención de causar un daño económico a la empresa propietaria del diario."
"The closure of Parque Viva occurred in a context of open hostility from the President of the Republic toward the media outlet, with public expressions of threat and a sequence of acts evidencing an intent to cause economic harm to the company that owns the newspaper."
Considerando X
"El cierre de Parque Viva se produjo en un contexto de abierta hostilidad del Presidente de la República contra el medio de comunicación, con expresiones públicas de amenaza y una secuencia de actos que evidencian una intención de causar un daño económico a la empresa propietaria del diario."
Considerando X
Full documentDocumento completo
I.- PURPOSE OF THE APPEAL. The appellant, in his capacity as Director of the Diario La Nación and other journalists of that media outlet, claims that on July 8, 2022 –as a way of materializing the threats publicly issued by the President of the Republic weeks earlier against said newspaper–, the Ministry of Health ordered the closure of Parque Viva (acquired by Grupo Nación S.A. to diversify the company's revenue sources and thus offset the loss of earnings suffered due to the migration of advertising to internet sites), through an arbitrary act devoid of any support, which, in turn, represents an indirect violation to freedom of expression (libertad de expresión) and, therefore, contravenes the provisions of constitutional article 29 and article 13.3 of the American Convention on Human Rights.
II.- PROVEN FACTS. Of relevance for resolving this amparo appeal, the following are deemed accredited:
A. FACTS RELATED TO THE SANITARY ORDER ISSUED TO PARQUE VIVA:
The foregoing as a complement to the matter discussed at the meeting of the Technical Advisory Committee on Mass Gatherings held on Thursday, July 7, 2022. The foregoing as soon as possible (…)” The provisions of this official communication were made known to the Director of the Alajuela 2 Health Stewardship Area by official communication No. MS-DRRSCN-1858-2022 of July 11, 2022, signed by the Regional Directorate of the Central North Health Stewardship (see evidence).
Additionally, this official communication expressly stated the following: “(…) Once these documents were known and analyzed in accordance with what was indicated in the summons order, it is demonstrated that they point to an evident problem for emergency response (traffic accidents, structural fires, medical cases, among others) by the First Response Entities, both in the surrounding communities and for the attendees of the mass gathering events held at Parque Viva, due to traffic and access problems to the site; therefore, in accordance with the precautionary principle and in order to guarantee compliance with Articles 21 and 50 of the Political Constitution, Articles 11, 152, 153, and 154 of the General Law of Public Administration, and Articles 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357, and 364 of the General Health Law, the Health Order MS-DRRSCN-DARSA2-OS-0386-2022 (sic) is confirmed in all its extremes and scope (…)” (see evidence).
B. OTHER FACTS OF INTEREST:
III.- UNPROVEN FACTS. The following are considered unproven for the purposes of resolving this amparo appeal:
IV.- ON FREEDOM OF EXPRESSION. Freedom of expression is one of the pillars upon which the Rule of Law is founded and comprises both the fundamental and universal guarantee to express one's own thoughts or opinions, and to know those of others. In other words, it refers to the freedom to seek, receive, and impart information and ideas, whether orally or in writing. For this reason, it is said that freedom of expression is characterized as a right with a dual dimension: an individual dimension, consisting of the right of each person to seek information and express their own thoughts, ideas, and information; and a collective or social dimension, consisting of society's right to seek and receive any information, to know the thoughts, ideas, and information of others, and to be well informed. On this dual dimension of the freedom under study, the Inter-American Court of Human Rights (hereinafter I/A Court H.R.), in the case of Herrera Ulloa vs. the State of Costa Rica (judgment of July 2, 2004), held the following:
"(…) 109. In this regard, the Court has indicated that the first dimension of freedom of expression 'is not exhausted in the theoretical recognition of the right to speak or write, but also inseparably comprises the right to use any appropriate means to disseminate thought and allow it to reach the greatest number of recipients.' In this sense, the expression and dissemination of thoughts and ideas are indivisible, so that a restriction on the possibilities for dissemination directly represents, and to the same extent, a limit on the right to express oneself freely.
110. With respect to the second dimension of the right to freedom of expression, that is, the social dimension, it is necessary to point out that freedom of expression is a means for the exchange of ideas and information among persons; it includes their right to try to communicate their points of view to others, but also implies the right of all to know opinions, accounts, and news imparted by third parties. For the common citizen, knowledge of the opinion of others or of the information available to others is as important as the right to disseminate one's own.
111. This Tribunal has affirmed that both dimensions are equally important and must be guaranteed fully and simultaneously to give total effect to the right to freedom of expression under the terms provided by Article 13 of the Convention (…)".
For its part, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (Inter-American Legal Framework on the Right to Freedom of Expression, December 2009), referred to this right in the following terms:
"(…) it is one of the individual rights that most clearly reflects the virtue that accompanies—and characterizes—human beings: the unique and precious virtue of thinking about the world from our own perspective and of communicating with others to build, through a deliberative process, not only the model of life that each person has the right to adopt, but also the model of society in which we want to live. All creative potential in art, science, technology, politics, in short, all our individual and collective creative capacity, fundamentally depends on the respect for and promotion of the right to freedom of expression in all its dimensions. It is therefore an individual right without which the first and most important of our freedoms would be denied: the right to think for oneself and to share our thinking with others (…)".
Our Political Constitution guarantees freedom of expression and thought in Articles 28 and 29, which state the following:
"ARTICLE 28.- No one may be disturbed or persecuted for the expression of their opinions or for any act that does not violate the law.
Private actions that do not harm public morals or order, or that do not harm a third party, are outside the scope of the law.
However, no political propaganda may be carried out in any form by clergy or laypersons invoking religious motives or using religious beliefs as a means." "ARTICLE 29.- All may communicate their thoughts by word or in writing, and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law." In the international sphere, freedom of expression has been enshrined in various instruments. Regarding the inter-American system, the International Covenant on Civil and Political Rights provides in its Article 19 the following:
"1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals." The Universal Declaration of Human Rights in its Article 19 also states:
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." For its part, the American Convention on Human Rights, in its Article 13, states the following:
"1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law and be necessary to ensure:
(a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.
5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to violence or to any other similar illegal action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law." Article IV of the American Declaration of the Rights and Duties of Man states the following:
"Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever." Likewise, international soft law instruments have safeguarded this freedom. Thus, the Declaration of Chapultepec (adopted by the Hemisphere Conference on Freedom of Expression held in Mexico City on March 11, 1994), in its first principle states that:
"1. There are no free persons or societies without freedom of expression and of the press. The exercise of this is not a concession of the authorities; it is an inalienable right of the people." For its part, the Declaration of Principles on Freedom of Expression (approved by the Inter-American Commission on Human Rights in October 2000, at its 108th regular period of sessions), provides the following:
"1. Freedom of expression, in all its forms and manifestations, is a fundamental and inalienable right, inherent to all individuals. It is, furthermore, an indispensable requirement for the very existence of a democratic society." In another context, within the European legal system, the European Convention on Human Rights stands out, which in its Article 10 specifies the universal entitlement to this right, in the following terms:
"Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." Similarly, the Charter of Fundamental Rights of the European Union, in its Article 11, cites the following:
"Article 11 Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The freedom and pluralism of the media shall be respected." The right to freedom of expression has been extensively developed in Costa Rican constitutional jurisprudence. Thus, in Judgment No. 8196-2000 of 3:08 p.m. on September 13, 2000, the Constitutional Tribunal made reference to the different forms in which freedom of expression can manifest itself, in the following terms:
"(…) IV.- On Freedom of Expression. Doctrine characterizes freedom of expression as a prerequisite freedom for the exercise of other freedoms, which operates to legitimize the functioning of the democratic system and the efficacy of its institutions, and which legally adopts a plurality of forms. The clearest link is with freedom of thought, which is the prior and indispensable condition for the existence of freedom of expression. In the exercise of both freedoms, the individual can choose or elaborate the answers they intend to give to all those questions posed to them by the conduct of their life in society, conform their acts to these answers, and communicate to others what they consider to be true, without prior censorship. The scope of action of these freedoms is very broad, as it encompasses the manifestations of individuals on politics, religion, ethics, technology, science, art, economics, etc. Freedom of expression, then, implies the possibility for the subject to transmit their thoughts (ideas, volitions, feelings), and includes the freedom of artistic or literary creation, freedom of speech, free cinematographic expression, and also the manifestations expressed through the written press, radio, and television, insofar as they are means of disseminating ideas. Thus also, the right to give and receive information and the right to communicate for various purposes, whether economic, political, recreational, professional, etc., is inferred from freedom of expression, without imposing restrictive measures that prove unreasonable. Freedom of expression not only protects the isolated individual but also the relationships among members of society, and it is for this reason that it has great transcendence, as it contributes to the formation of public opinion. It is, in turn, a prerequisite for freedom of the press and freedom of information, since freedom of the press (or of periodical writings directed to the general public) and freedom of information, which is what freedom of expression as concretized in the social communication media is called today, derived from freedom of expression in historical succession. Freedom of information, then, encompasses the written, oral, and audiovisual press, and by its nature, it is related to the right of chronicle, of criticism, to the press industry or commerce, and to the phenomenon of advertising. This aspect has acquired great importance in recent decades, because due to the high cost of installing and maintaining mass media, when they are privately owned, they can only subsist through the intensive use of advertising. Likewise, the phenomenon of the social right to information exists, which resides precisely in the community and in each of its members, and which gives them the possibility of adjusting their conduct to the reasons and sentiments suggested by that information, for decision-making, and at the same time it fulfills an integrative function, since it unifies a multitude of particular opinions into a great current of opinion, thus stimulating social integration (…)". (Emphasis is not part of the original).
Likewise, in that same vote, the Constitutional Chamber ruled on the prohibition of prior censorship, as well as on the limits to which the freedom under study is subject:
"(…) V.- One of the main guarantees protecting freedom of expression is the prohibition of prior censorship, meaning that any control must occur a posteriori. This Chamber understands prior censorship as that control, examination, or permission to which a publication, text, or opinion is subjected, prior to its communication to the public, through which it is intended to carry out a preventive control of the manifestations made by a mass communication medium, whether radio, television, or print. This concept is not only embodied in our Political Constitution in Article 29, but was also incorporated into the Pact of San José, whose Article 13, paragraph 2, provides that the exercise of freedom of expression may not be subject to prior censorship but to subsequent liability, which must be expressly established by law and be necessary to ensure either respect for the rights or reputations of others, or the protection of national security, public order, or public health or morals. Article 29 of the Political Constitution enshrines what part of the doctrine qualifies as freedom of the press, while another part designates as freedom of information, and provides:
'All may communicate their thoughts by word or in writing and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law.' The Chamber referred to this topic in judgment No. 1292-90 of __ hours on __________, nineteen ninety, and stated:
'The freedom of expression contained in Article 29 of our Constitution allows the communication of thoughts by word or in writing and their publication without prior censorship, a guarantee reinforced by Article 28 of the same normative body by prohibiting persecution for the exercise of that freedom. However, like any right, that freedom is not absolute, and it has its limit, in such a way that the abuse committed in its exercise will cause its author to incur liability, according to the legislation governing the matter.' (…)
Now, despite the great freedom enjoyed by the individual to form opinions based on personal criteria and, in turn, to communicate them with full breadth, one should not think that the exercise of these freedoms has no limit whatsoever, for freedom of expression, like the rest of public freedoms, is not unrestricted: its limits are given by the Constitutional Order itself, and thus this Chamber considered in judgment No. 3173-93, when indicating that 'II.- The fundamental rights of each person must coexist with each and every one of the fundamental rights of others; therefore, for the sake of coexistence, a curtailment in the exercise of those rights and freedoms is often necessary, even if only to the precise and necessary extent so that other persons may enjoy them under equal conditions. However, the principle of the coexistence of public freedoms—the rights of third parties—is not the only just source for imposing limitations on them; the concepts of 'morals', conceived as the set of fundamental principles and beliefs in force in society, the violation of which gravely offends the generality of its members-, and 'public order', also act as justifying factors for the limitations of fundamental rights. VI- This Chamber does not overlook the difficulty of precisely defining the concept of public order in a univocal manner, nor that this concept can be used both to affirm the rights of the individual vis-à-vis public power and to justify limitations in the name of collective interests to rights. It is not only a matter of maintaining material order in the streets, but also of maintaining a certain legal and moral order, so that it is constituted by a minimum of conditions for a convenient and adequate social life. Its foundation is constituted by the security of persons, of property, public health, and tranquility.' Likewise, in judgment No. 3550-92 of four o'clock p.m. on November twenty-fourth, nineteen ninety-two, this Tribunal developed the topic of legitimate limits to public freedoms and referred to the principle of legal reservation, emphasizing that 'only through a formal law, enacted by the Legislative Power through the procedure provided in the Constitution for the issuance of laws, is it possible to regulate and, where appropriate, restrict fundamental rights and freedoms—all, of course, to the extent that the nature and regime thereof allow it, and within the applicable constitutional limitations (…)'. (Emphasis is not part of the original).
Likewise, more recently, in Vote No. 9512-2020 of 1:02 p.m. on May 22, 2022, this Tribunal provided the following:
"(…) V.- ON FREEDOM OF EXPRESSION AND THE LIMITS THAT MAY BE IMPOSED.- This Tribunal has understood freedom of expression and information as provided in judgment No. 8109-98 of 2:21 p.m. on November 13, 1998, in which the following was stated: '...IV.- The Right to Information is that which allows all persons to receive sufficiently broad information on certain facts and on currents of thought, and from these, to choose and form their own opinions. This is achieved through two different avenues: through the objective presentation of facts and through the pluralism of ideological currents. Likewise, Freedom of Expression and Thought constitutes a fundamental right that allows the individual, within a broad sphere of freedom, to formulate personal criteria on what they consider appropriate or not, to respond to certain situations; while also allowing them to communicate, without prior censorship, the result of their ideological approach. This right has great transcendence, as it contributes to the formation of public opinion, through the intellectual contributions of the individual who exercises established opinions or concepts, or else criticizes them. The sphere of freedom is very broad, as it encompasses all manifestations that individuals make on politics, religion, ethics, technology, science, art, economics, etc., and thus, from the foregoing, it follows that the exercise of Freedom of Expression and Freedom of Thought excludes prior censorship, with the existing control occurring a posteriori and over the excesses subject to the abuse of such freedoms, excluding from said prohibition those considered public spectacles.' In addition to this, the same judgment indicated that: '... Freedom of expression forms part of freedom of information and, in a State of Law, implies an absence of control by public powers and administrative bodies at the moment of exercising that right, which means that no authorization whatsoever is necessary to make publications, and that prior censorship cannot be exercised, except when health, national security, morals, and good customs are at stake, as is the case with public spectacles. The exercise of freedom of expression cannot be unlimited, since, if it were, the media or any legal subject could lend themselves to propagating falsehoods, defaming, or promoting any type of disorder and scandal. It is for this reason that freedom of information implicitly carries a limit, which functions as a kind of self-control for the citizen who exercises that right, in the sense that if they commit an abuse, they will be responsible for it, in the cases and in the manner established by law. Hence, there exist, in our legal system, criminal figures such as slander, libel, or defamation, which can be the consequence of an abuse in the exercise of the right to information. (…)
The Inter-American Court of Human Rights in the case of Mauricio Herrera Ulloa against the State of Costa Rica, in its judgment of July 2, 2004, on freedom of expression, indicated that freedom of expression is a means for the exchange of ideas and information between persons; it includes their right to try to communicate their points of view to others, but it also implies the right of all to know opinions, accounts, and news circulated by third parties. For the common citizen, knowledge of the opinion of others or of the information available to others is as important as the right to disseminate one's own. (…)
Now, freedom of thought and expression in a democratic society is a topic that, as already mentioned supra, has been developed in the American Convention, specifically, in its Article 13.2, which provides for the possibility of establishing restrictions on freedom of expression.
The jurisprudence of the Inter-American Court of Human Rights has indicated that, through the application of subsequent liabilities for the abusive exercise of the right to freedom of thought and expression, the full scope of said rights must in no way be limited beyond what is strictly necessary.
It has been mentioned that the legality of restrictions on freedom of expression founded on Article 13.2 of the American Convention will depend on their being oriented towards satisfying an imperative public interest, and therefore, the one that restricts the protected right to the least degree must be chosen.
Furthermore, for restrictions to be justified, it is necessary to weigh them against the social necessity for the full enjoyment of the right and not to limit the protected right beyond what is strictly necessary. That is, the restriction must be proportionate to the interest that justifies it and closely tailored to achieving that objective, interfering to the least extent possible with the effective exercise of the right to freedom of expression and information (see in this regard Advisory Opinion OC-5/85). (…)'. (Emphasis is not part of the original).
For its part, the I/A Court H.R., in the case of Moya Chacón et al. vs. Costa Rica (judgment of May 23, 2022), indicated the following:
"(…) b.3 Permitted restrictions on freedom of expression and the application of subsequent liabilities in cases affecting honor and dignity in matters of public interest 71. The Tribunal recalls that, as a general rule, the right to freedom of expression cannot be subject to prior censorship but, in any case, to subsequent liabilities in very exceptional cases and subject to the fulfillment of a series of strict requirements. Thus, Article 13.2 of the American Convention establishes that subsequent liabilities for the exercise of freedom of expression must concurrently meet the following requirements: (i) be previously established by law, in the formal and material sense; (ii) respond to an objective permitted by the American Convention; and (iii) be necessary in a democratic society (for which they must meet the requirements of suitability, necessity, and proportionality).
72. Regarding strict legality, the Court has established that restrictions must be previously enshrined in law as a means to ensure they are not left to the discretion of public power. For this, the definition of the conduct must be clear and precise, even more so if it involves criminal convictions and not civil ones. Regarding the permitted or legitimate aims, these are indicated in the aforementioned Article 13.2 and are (a) respect for the rights or reputations of others, or (b) the protection of national security, public order, or public health or morals. Likewise, restrictions on freedom of expression must be suitable, that is, effectively conducive to achieving the legitimately permitted purpose. Regarding the analysis of necessity, the Tribunal has held that, for a restriction on free expression to be compatible with the American Convention, it must be necessary in a democratic society, with 'necessary' understood as the existence of an imperative social need that justifies the restriction. In this sense, the Court must examine the existing alternatives to achieve the legitimate aim pursued and specify the greater or lesser harmfulness thereof.
Finally, regarding the proportionality of the measure, the Court has understood that the restrictions imposed on the right to freedom of expression must be proportional to the interest justifying them and must be closely tailored to the achievement of that objective, interfering as little as possible with the effective enjoyment of the right. In this sense, it is not enough that the measure has a legitimate purpose; rather, the measure in question must respect proportionality when affecting freedom of expression. In other words, “in this final step of the analysis, it is considered whether the restriction is strictly proportional, such that the inherent sacrifice does not appear exaggerated or disproportionate in light of the advantages obtained through such limitation.” The Court recalls that these restrictions are exceptional in nature and must not limit, beyond what is strictly necessary, the full exercise of freedom of expression or become a direct or indirect mechanism of prior censorship.
73. In this sense, the Court has established that such subsequent liabilities may be imposed insofar as the right to honor and reputation may have been affected. Thus, Article 11 of the Convention establishes, in effect, that everyone has the right to the protection of their honor and recognition of their dignity. The Court has indicated that the right to honor “recognizes that every person has the right to respect for their honor, prohibits any unlawful attack on honor or reputation, and imposes on States the duty to provide the protection of the law against such attacks.” In general terms, this Court has indicated that “the right to honor relates to self-esteem and self-worth, while reputation refers to the opinion that others have of a person.” In this sense, this Court has held that “both freedom of expression and the right to honor, both rights protected by the Convention, are of the utmost importance, which is why it is necessary to guarantee both rights so that they coexist harmoniously.” The exercise of each fundamental right must be carried out with respect for and safeguarding of other fundamental rights. Therefore, the Court has indicated that “the resolution of the conflict that arises between both rights requires a weighing of one against the other, for which purpose each case must be examined according to its characteristics and circumstances in order to assess the existence and intensity of the elements on which that judgment rests.” 74. The Court recalls in this respect that, in order to determine the conventionality of a restriction on freedom of expression when it collides with the right to honor, it is of vital importance to analyze whether the statements made are of public interest, given that in such cases the adjudicator must evaluate with special caution the need to limit freedom of expression. In its jurisprudence, the Court has considered to be of public interest those opinions or information on matters in which society has a legitimate interest in staying informed, in knowing what affects the functioning of the State, or that affects general rights or interests or brings important consequences upon it. Determining the above has consequences for the analysis of the conventionality of the restriction on the right to freedom of expression, given that expressions concerning matters of public interest—such as, for example, those concerning a person's suitability for holding public office or acts performed by public officials in the performance of their duties—enjoy greater protection, thus fostering democratic debate.
75. Thus, the Court has indicated that, in a democratic society, those persons who influence matters of public interest are more exposed to public scrutiny and criticism. This different threshold of protection is explained by the fact that their activities leave the domain of the private sphere to enter the sphere of public debate and, therefore, they have voluntarily exposed themselves to this more demanding scrutiny. This does not mean, in any way, that the honor of persons involved in matters of public interest should not be legally protected, but rather that it must be protected in a manner consistent with the principles of democratic pluralism.
76. On the other hand, regarding the necessary nature and the rigorous proportionality analysis that must govern between the limitation on the right to freedom of expression and the protection of the right to honor, the chosen intervention must be the one that, while being the most suitable for restoring damaged reputation, also entails a minimal degree of impact on the scope of freedom of expression. In this regard, within the framework of freedom of information, the Court considers that there is a duty of the journalist to verify in a reasonable, though not necessarily exhaustive, manner the facts they disseminate. Now, this does not imply a strict requirement of truthfulness, at least with reference to matters of public interest, recognizing as a defense that the publication was made in good faith or justifiably and always in accordance with minimum standards of ethics and professionalism in the search for truth. Likewise, the Court warns that, for investigative journalism (periodismo de investigación) to exist in a democratic society, it is necessary to leave journalists “room for error,” since without that margin of error there can be no independent journalism nor the possibility, therefore, of the necessary democratic scrutiny that derives from it.
77. Additionally, the Court also considers that no one shall be subject to subsequent liabilities for the dissemination of information related to a public matter that is based on material accessible to the public or coming from official sources.
78. Finally, it must also be emphasized that, should it be deemed appropriate to grant reparation to a person aggrieved in their honor, the purpose of the reparation must not be to punish the issuer of the information but to restore the affected person. In this regard, States must exercise the utmost caution when imposing reparation, so as not to dissuade the press from participating in the discussion of matters of legitimate public interest (…).” In addition to the above, it should be noted that freedom of expression, as provided for in Article 13.3 of the American Convention on Human Rights, cannot be restricted or curtailed through the use of indirect measures or means. However, this particular aspect will be developed further below.
V.— REGARDING PRESS FREEDOM (LIBERTAD DE PRENSA) AS A MANIFESTATION OF THE RIGHT TO FREEDOM OF EXPRESSION. Press freedom is grounded in freedom of expression and, at the same time, is one of its natural vehicles. It is one of the principal and most important manifestations of freedom of expression. The already cited Declaration of Chapultepec has been emphatic in the protection that press freedom particularly merits, and therefore, in its first principle, provides that “1. There are no free people or societies without freedom of expression and of the press. The exercise of this is not a concession of the authorities; it is an inalienable right of the people.” It is a fundamental right that defends the ability of any person to, on the one hand, access information and, on the other, disseminate it through any means of expression, be it print media (newspaper publications, magazines, pamphlets, etc.), radio, television, and even, more recently, using the internet and digital platforms, among others. Particularly, this Chamber has defined this right as that which is held by members of the public “(…) to seek and disseminate information and ideas to an indeterminate number of people about facts that by their nature are of general interest because they are considered newsworthy (...)” (Judgments No. 5977-2006 of 15:16 hrs. of May 3, 2006 and No. 8396-2018 of 12:40 hrs. of May 25, 2018).
By virtue of the above, this freedom allows persons the possibility of organizing themselves and creating communication media independent of governmental power, in which they have the right to express themselves freely, without censorship. All of this, moreover, without fear of reprisals from the State or other entities or individuals. The purpose of this right is to guarantee that the population receives and disseminates information that is neither manipulated nor in the service of a person, entity, or particular interest.
From its earliest pronouncements, the Inter-American Court of Human Rights (Corte IDH), when resolving Advisory Opinion No. OC-5/85 on the compulsory licensing of journalists through judgment of November 13, 1985, alluded to this freedom in the context of journalistic practice and indicated that:
“(…) 72. (...) The profession of journalist—what journalists do—means precisely seeking, receiving and imparting information. The practice of journalism, therefore, requires that a person become involved in activities that are defined or enclosed in the freedom of expression guaranteed in the Convention (...)
74. (...) The professional practice of journalism cannot be differentiated from freedom of expression; on the contrary, both things are evidently intertwined, for the professional journalist is not, and cannot be, anything other than a person who has decided to exercise freedom of expression continuously, stably, and for remuneration (...)”.
Likewise, in the case of Herrera Ulloa vs. Costa Rica (judgment of July 2, 2004), the Inter-American Court held the following regarding the role of communication media and journalism in relation to freedom of expression:
“(…) 117. The social communication media play an essential role as vehicles for the exercise of the social dimension of freedom of expression in a democratic society, which is why it is indispensable that they gather the most diverse information and opinions. The referred-to media, as essential instruments of freedom of thought and expression, must exercise the social function they perform with responsibility.
118. Within this context, journalism is the primary and principal manifestation of this freedom and, for that reason, it cannot be conceived merely as the provision of a service to the public through the application of knowledge or training acquired at university. On the contrary, journalists, by reason of the activity they exercise, are professionally dedicated to social communication. The practice of journalism, therefore, requires that a person responsibly become involved in activities that are defined or enclosed in the freedom of expression guaranteed in the Convention.
119. In this sense, the Court has indicated that it is fundamental that journalists working in the communication media enjoy the protection and independence necessary to perform their functions fully, since it is they who keep society informed, an indispensable requirement for that society to enjoy full freedom and for public debate to be strengthened. (…)”. (The emphasis does not belong to the original).
More recently, in the case of Moya Chacón et al. vs. Costa Rica (judgment of May 23, 2022), the Inter-American Court reiterated part of the above and held the following on this same topic:
“(…) b.2 Importance of the role of the journalist in a democratic society 66. The Court has emphasized that the professional practice of journalism “cannot be differentiated from freedom of expression; on the contrary, both things are evidently intertwined, for the professional journalist is not, and cannot be, anything other than a person who has decided to exercise freedom of expression continuously, stably, and for remuneration.” The Court has affirmed that the social communication media play an essential role as vehicles for the exercise of the social dimension of freedom of expression in a democratic society, which is why it is indispensable that they gather the most diverse information and opinions. In effect, the Court has characterized the social communication media as true instruments of freedom of expression and, furthermore, has indicated that “[i]t is the social communication media that serve to materialize the exercise of freedom of expression, in such a way that their conditions of operation must conform to the requirements of that freedom. For this, it is indispensable, inter alia, the plurality of media, the prohibition of any monopoly over them, whatever form it may attempt to adopt, and the guarantee of protection for the freedom and independence of journalists.” 67. The Court recalls that, for the press to be able to develop its journalistic oversight role, it must not only be free to impart information and ideas of public interest, but must also be free to gather, collect, and evaluate that information and ideas. In its 2012 report to the United Nations Human Rights Council, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression noted that persons who conduct journalistic activity “observe, describe, document and analyze events and document and analyze statements, policies, and any proposal that may affect society, with the purpose of systematizing that information and assembling facts and analyses to inform sectors of society or society as a whole.” The foregoing implies that any measure that interferes with the journalistic activities of persons who are fulfilling their function will inevitably obstruct the right to freedom of expression in its individual and collective dimensions.
68. Additionally, within the framework of freedom of information, this Court considers that there is a duty of the journalist to verify in a reasonable, though not necessarily exhaustive, manner the facts they disseminate. That is, it is valid to demand fairness and diligence in the cross-checking of sources and the search for information. This implies the right of persons not to receive a manipulated version of the facts. Consequently, journalists have the duty to take some critical distance from their sources and cross-check them with other relevant data. For its part, the European Court of Human Rights has indicated that freedom of expression does not guarantee unlimited protection to journalists, even in matters of public interest. In effect, that Court has indicated that, even though they are covered by the protection of freedom of expression, journalists must carry out their work in accordance with the principles of “responsible journalism” (periodismo responsable) and ethical conduct, which is particularly relevant in a contemporary society where the media not only inform but can also suggest, through the way in which they present information, the manner in which that information should be understood.
69. Moreover, given the importance of freedom of expression in a democratic society and the high responsibility that this entails for those who professionally carry out social communication work, the State must not only minimize restrictions on the circulation of information but also balance, to the greatest extent possible, the participation of different pieces of information in public debate, fostering informative pluralism. Finally, the Court has indicated that it is fundamental that journalists working in the communication media enjoy the protection and independence necessary to perform their functions fully, since it is they who keep society informed, an indispensable requirement for that society to enjoy full freedom and for public debate to be strengthened.
70. Within the framework of this protection that States must provide, the protection of journalistic sources is fundamental, as the cornerstone of press freedom and, in general, of a democratic society, given that they allow societies to benefit from investigative journalism in order to strengthen good governance and the Rule of Law. The confidentiality of journalistic sources is, therefore, essential for the work of journalists and for the role they fulfill of informing society about matters of public interest (…)”. (The emphasis does not belong to the original).
Thus, press freedom in relation to freedom of expression refers to the right of all persons, and of the communication media in particular, through their journalists, to investigate and inform, without unreasonable limitations or coercion.
The Colombian Constitutional Court has also alluded to this freedom, highlighting three of its most important characteristics. Particularly, in Judgment No. C-135/21 of May 13, 2021, it held that the press fulfills an educator role, is a mechanism that contributes to the construction of peaceful social dialogue, and, in turn, is a guardian of democracy. Additionally, it expressly explained the following regarding these characteristics:
“(…) 57.1. Role of educator. The communication media and the press act as disseminators of knowledge. This allows the general public to access information about facts, scientific knowledge, the laws that regulate them, and public information in a broad sense, which they would otherwise be unable to know. It is a source that centralizes and then disseminates knowledge, allowing the citizenry to be educated and democracy to be strengthened.
57.2. Mechanism for contributing to social dialogue. The access to knowledge that the press and mass communication media allow, together with the investigative analysis adopted by them, leads to greater dialogue and peaceful debate among the citizenry around matters of public interest.
57.3. Guardian of democracy. The press and mass communication media have been called “the fourth power” or the “guardian of democracy,” in allusion to the function they exercise of oversight of the Public Administration, and their designation as an instrument of accountability for those who hold power (…)”.
This constitutional body has likewise ruled on this freedom. Thus, in Vote (Voto) No. 5977-2006 of 15:16 hrs. of May 3, 2006, it stated:
“(…) Press freedom broadly encompasses all types of printed matter, printing, editing, circulation of newspapers, pamphlets, magazines, and publications of all kinds. It is, by its nature, a natural vehicle of the freedom of expression of citizens. It translates into the right of members of the public to seek and disseminate information and ideas to an indeterminate number of people about facts that by their nature are of general interest because they are considered newsworthy. By its nature, it is subject to the same limitations as freedom of expression. Its functions in a democracy are: to inform (facts, newsworthy events), to integrate opinion (stimulating social integration), and to control political power, insofar as it is a permanent guardian of the honesty and correct handling of public affairs. Given its symbiotic link with democratic ideology, an endless number of international instruments and practically all the Constitutions of the free world, since the French Declaration of 1789 (art. 11), have recognized it.
Our Political Constitution, for its part, protects it through various norms: “Everyone may communicate their thoughts by word or in writing and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, under the conditions and in the manner established by law” (Article 29) “No one shall be disquieted or persecuted for the expression of their opinions or for any act that does not infringe the law. Private actions that do not harm morals or public order or that do not prejudice third parties are outside the purview of the law. However, political propaganda of any kind shall not be permitted by clergy or laypeople invoking religious motives or using, as a means, religious beliefs” (Article 28). Other constitutional provisions related to this right are: “The freedom of petition, individually or collectively, before any public official or official entity, and the right to obtain a prompt resolution, are guaranteed” (Article 27). “Free access to administrative departments for purposes of information on matters of public interest is guaranteed. State secrets are excepted” (Article 30).
Freedom of expression has as a consequence the prohibition of all forms of censorship, in a double sense: on the one hand, interlocutors cannot be censored; and on the other, generally, potential contents of the discussion cannot be censored in advance: in principle, in a democracy, all topics are debatable. The non-censorability of subjects has a practically universal character, as established by our Constitution; no one can be deprived of the freedom to speak and express themselves as they see fit best. The non-censorability of content, although it does not operate in advance, finds some limitations; however, these must be such that the freedom continues to have meaning or is not emptied of its content, basically, like all freedom, it must be exercised with responsibility, in short, to pursue legitimate ends within the system (…)”.
Likewise, in Vote No. 10961-2020 of 10:05 hrs. of June 16, 2020, this jurisdiction referred to press freedom and its intrinsic relationship with freedom of information, stating the following:
“(…) IV.— For its part, regarding freedom of information and of the press, there is also a profuse body of doctrine that refers to this right as a preferential right, which is not only a fundamental right, but also serves as an essential guarantee for the functioning of the democratic system. As a reference, judgments 2004-08229 and 2007-017324 may be cited, which define it as:
\"(...) The Right to Information, which is closely related to Freedom of Expression and Press Freedom, consists of the faculty to seek, receive, and disseminate information and ideas of all kinds, and can be exercised through the printed word, radio, and television broadcasts. On this matter, in judgment number 2001–09250 of 10:22 hours of September 14, 2001, the Chamber stated the following:
“...freedom of information is a means of forming public opinion on matters of general interest. This preferential value reaches its maximum level when the freedom is exercised by information professionals through the institutionalized vehicle for forming public opinion, which is the press, understood in its broadest sense. This, however, does not mean that the same freedom can be understood in an absolute manner, but rather each concrete case must be analyzed to weigh whether the information has been provided within the constitutionally protected sphere, or, on the contrary, whether it has transgressed that sphere, affecting the right to honor, intimacy, or image, among other rights also constitutionally protected.” In effect, the doctrine on the subject indicates that Press Freedom protects the possibility of publishing news with truthfulness, good motives, and justifiable ends. However, while the mission of the press in an open and democratic society is to inform public opinion in an objective and truthful manner, this should not be understood as an absolute requirement, since, in practice, there are clearly difficulties of all kinds that would make it completely irrational to demand such an achievement from the communication media. For this reason, it has been accepted that they are only obliged to seek the truth loyally and honorably, in the most impartial manner possible to them. In other words, the duty of truthfulness only imposes on them the obligation to reasonably seek the truth, and not to achieve that task absolutely. Consequently, the duty of truthfulness entails an obligation of means, not of results (…)
The democratic order requires the defense of freedom of expression, as a basic and indispensable instrument for the formation of public opinion. And that defense leads to the possibility of expressing thought using the means chosen by the sender and also the faculty to disseminate it through them. (…) the value of this defense reaches its maximum level when the freedom is exercised by information professionals through the institutionalized vehicle for forming public opinion, which is the press. In this sense, it is understood that although the right to expression, contemplated in Article 13 of the American Convention, is not absolute in nature, the limits on its exercise and controls over its proper performance must in no way limit its exercise beyond what is strictly necessary, to the point that they could become a direct or indirect mechanism that affects freedom of expression, information, and the press and constitutes a violation of the right (…)”. (The emphasis does not belong to the original).
Likewise, in Judgment No. 9512-2020 of 13:02 hrs. of May 22, 2022, this Constitutional Court held the following:
“(…) it is clear that the exercise of freedoms of expression and information acquires distinctive characteristics when it is carried out through a communication medium, characteristics that will vary depending on each type of medium. These variations impact, in turn, the scope of the rights being exercised, their content, and the possible limitations to which they are eventually susceptible. It is clear that the legal object of the protection of freedom of expression, within the framework of freedom of the press, is the possibility of obtaining information, as necessary input to inform oneself and to be able to inform a community. That is to say, in stricto senso, freedom of expression protects the transmission of all types of personal thoughts, opinions, ideas, and information of the person expressing themselves, while freedom of information allows persons to receive and possess information about facts, events, occurrences, persons, groups, and situations in general, in order for the receiver to learn what is happening. Freedom of information covers activities such as the search for information and investigation, through sources, where it can be found, processed, and transmitted through a specific medium. Therefore, the right to inform occupies a special place within the Costa Rican constitutional order, particularly when its exercise is paired with that of press freedom, that is, when it is exercised through the communication media. The different international human rights tribunals have recognized that the communication media hold an important social function in the construction and sustainability of democratic systems, which is why on numerous occasions it has been recognized that mass communication media, as legal persons, can be holders of fundamental rights, according to their particular nature; consequently, it is clear that freedom of expression does cover the communication media as legal persons, as well as those who express themselves through them. It is equally pertinent to highlight, in this context, the relationship between the freedom of expression of the communication medium as a “legal person,” and the freedom of expression of the natural persons who form part of the organizational structure of such legal persons, for example, editors, writers, reporters, and other journalists or social communicators, who contribute to the transmission of expressions of third parties, while simultaneously exercising their own freedom of expression. The relationship existing between both freedoms, and in turn between said freedoms and the freedom of expression of the person who is effectively communicating a message through such media or persons, must be elucidated in each concrete case with special attention to the different interests at play, in order to arrive at a solution that achieves the maximum level of concrete harmonization among all of them, and in turn with the interests of the receiver and, especially, the general public.
The massive dissemination achieved by information transmitted through the media and its power of penetration, the profound impact it can have on people in general, guarantees the democratic development of a constitutional state and, in turn, fosters the strengthening of freedom of expression.
In this regard, the Inter-American Court of Human Rights has indicated that it is essential that journalists working in the media enjoy the protection and independence necessary to carry out their functions fully, since they are the ones who keep society informed, an indispensable requirement for the latter to enjoy full freedom and for public debate to be strengthened, as the social communication media play an essential role as vehicles for the exercise of the social dimension of freedom of expression in a democratic society, for which reason it is indispensable that they gather the most diverse information and opinions (Ivcher Bronstein Case vs. Panama – I/A Court H.R.).
In turn, the European Court of Human Rights, when interpreting Article 10 of the European Convention, concluded that “necessary,” without being synonymous with “indispensable,” implies the “existence of a ‘pressing social need’” and that for a restriction to be “necessary” it is not sufficient to show that it is “useful,” “reasonable,” or “timely” (21). This concept of “pressing social need” was adopted by the Court in its advisory opinion OC-5/85, The Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 of the American Convention on Human Rights). (…)
It must be emphasized that it is through the media that freedom of expression contributes to the consolidation of democratic society. Therefore, the conditions of its use must conform to the requirements of this freedom, which means that the freedom and independence of journalists and the media must be guaranteed (advisory opinion OC-5/85 I/A Court H.R., The Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism).
According to the jurisprudence of the Inter-American Court, freedom of expression is not complete in the theoretical recognition of the right to speak or write, but rather when it also includes, inseparably, the right to use any appropriate means to disseminate information and ensure that it reaches the widest possible audience (…) (Ivcher Bronstein Case vs. Panama – I/A Court H.R.). However, like any other human right, freedom of expression is not an absolute right and may be subject to limitations by any state authority or eventually by private parties, previously adopted by the legislature under strict conditions. (…)”. (The highlighting is not part of the original).
VI.- REGARDING FREEDOM OF EXPRESSION (AND OF THE PRESS) AS GUARANTORS OF THE DEMOCRATIC SYSTEM. Freedom of expression and, concomitantly, the exercise of freedom of the press, become fundamental pillars upon which a democratic society is built. The intrinsic relationship that exists between such freedoms and democracy is practically unquestionable; hence, the latter is arbitrarily weakened and eroded when such freedoms cannot be fully exercised nor are they respected and guaranteed in the legal systems.
The Inter-American Democratic Charter (approved by the Member States of the OAS during a special session of the General Assembly held on September 11, 2001, in Lima, Peru), on this matter, provides in its Article 4 that: “Transparency in government activities, probity, responsible public administration on the part of governments, respect for social rights, and freedom of expression and of the press are essential components of the exercise of democracy.” Furthermore, it must be recalled that the previously issued Declaration of Principles on Freedom of Expression establishes in its first principle that freedom of expression is “(…) an indispensable requirement for the very existence of a democratic society.” Freedom of the press (or what some call a free press), as a manifestation of freedom of expression, constitutes an essential element to scrutinize – without reprisals – the actions of third parties, whether of a private nature or public officials, mainly those who hold high office or aspire to it, thus allowing, consequently, accountability, combating corruption, transparency in the management of public funds, among many other aspects that are fundamental to maintaining a democratic system in force. Part of that duty resides in investigating persons in power, mainly the government, formulating difficult questions and thus attempting to reveal to the citizenry what is really happening, as a means, in turn, for them to make the correct decisions, mainly at the time of voting and also subsequently, when they are in the exercise of power. As the so-called Union for Civil Liberties of Europe (a non-governmental organization that promotes civil liberties for all persons in the European Union) has stated, “(…) A free press helps at every step of this process. It provides information to voters before they vote; it fosters dialogue and debate to enrich the understanding of this information; and then it informs the citizenry about the work of the government and whether they are actually carrying out their promises. In a democracy, the citizenry delegates decision-making power to their elected officials, and the press is a way of controlling them (…)”. In essence, it is feasible to affirm, then, that freedom of the press is fundamental in democratic systems, since it allows citizens to form opinions and criteria in relation to the reality in which they live. For this reason, unfortunately, independent media are precisely one of the main objectives of anti-democratic political systems, or at least of those that seek to take shape and are headed in that direction.
This Constitutional Chamber has specifically pronounced on freedom of expression and its function as a guarantor of democracy. Thus, in the emblematic Vote No. 5977-2006 of 3:16 p.m. on May 3, 2006, it stated the following:
“(…) VIII.- Freedom of expression as an indispensable requirement of democracy. Freedom of expression is without a doubt one of the conditions – although not the only one – for democracy to function. This freedom is what allows the creation of public opinion, essential to give content to various principles of the constitutional State, such as, for example, the right to information, the right of petition, or the rights in matters of political participation; the existence of a free and consolidated public opinion is also a condition for the functioning of representative democracy. The possibility for all persons to participate in public discussions constitutes the necessary precondition for the construction of a social dynamic of exchange of knowledge, ideas, and information, which allows the generation of consensus and decision-making among the components of the various social groups, but which also constitutes a channel for the expression of dissensus, which in a democracy are as necessary as agreements. For its part, the exchange of opinions and information that originates with public discussion contributes to forming personal opinion; both make up public opinion, which ends up manifesting itself through the channels of representative democracy. As the Spanish Constitutional Court itself has pointed out, other rights that the Constitution enshrines would be emptied of real content, the representative institutions reduced to hollow forms, and the principle of democratic legitimacy… which is the basis of our entire legal-political order, absolutely falsified (Judgment 6/1981), if there were no freedoms capable of permitting that exchange, which… presupposes the right of citizens to have broad and adequate information regarding the facts, to allow them to form their convictions and participate in the discussion relating to public affairs (Judgment 159/1986) (…)”. (The highlighting is not part of the original).
Added to this, with regard strictly to the media and their responsibility when informing and thus contributing to democratic processes, in that same vote the following was held:
“(…) XI.- The social responsibility of the media as holders of power vis-à-vis the citizen. The struggle for the defense of the fundamental rights of inhabitants traditionally arises against political power; however, it subsequently evolves to protect the person from other private subjects that have a power relationship with respect to the citizen, in those cases where they harm a fundamental right. It must be clear that in democracies, the media do not have a simply passive role in the matter of freedom of expression; they do not limit themselves to being victims of attacks against such an important freedom. On the contrary, they have a great responsibility and power by being the natural vehicles for communicative freedoms (expression, press, information, etc.) to be a reality, so that they can serve the development of democratic processes by forming a well-informed citizenry that knows its rights and its obligations, that has the necessary tools to be able to elect its governors well. The social responsibility of the media and the place of freedom of expression in democratic development is what justifies the legal status of the media and of the professionals who work in them being different from that of the rest of persons. But that status, as indicated, is not invocable for illegitimate ends, which include attacking fundamental freedoms in bad faith or with evident negligence. Based on these reasons and grounds, it must be concluded that the State, and specifically the legislature, has the right and the duty to protect individuals against the illegitimate use of this right, which, when misused, is as harmful to democracy as censorship itself, not only because its exercise in bad faith can harm the honor of the affected person, but also that of the entire society to receive adequate information capable of helping it to shape public opinion in a transparent manner. The danger that a misuse of this right represents for democracy is as serious as its non-exercise, and that misuse is not determined only by the evident negligence or bad faith that affects other freedoms, but also in the face of other factors, such as the possibility that the lack of media pluralism affects the press’s capacity to generate a free and informed public opinion. Naturally, the requirement of that pluralism is not reduced to a purely quantitative aspect, but also entails some qualitative factor that is concretized in the ‘presence of a diversity of opinions and sources of information.’ Without a doubt, due to their role in democracy and their capacity for dissemination, the media are in a power relationship with respect to the citizen and society, and although their existence is fundamental for legitimate and essential ends of democracy, they have the potential, like any power, to deviate occasionally, in the face of individual actions, in which case the State has the obligation to establish the necessary provisions for the protection of the system and of the individual. Evidently, as indicated, the State’s protection cannot be given, as the Court of Human Rights has pointed out, with the right to censor information beforehand, which will be unconstitutional in all lights (Art. 28), but rather refers to its control a posteriori, in the event that there was an intention to inflict harm or one acted with full knowledge that false news was being disseminated or one proceeded with manifest negligence in the search for its truth or falsity and with it the honor and reputation of some person was affected. The Chamber shares the opinion of the Inter-American Court of Human Rights (advisory opinion 5/85) in the sense that:
33. ...It would not be lawful to invoke the right of society to be truthfully informed in order to establish a regime of prior censorship supposedly aimed at eliminating information that would be false in the censor’s judgment. Just as it would not be admissible, on the basis of the right to disseminate information and ideas, for public or private monopolies to be established over the media in an attempt to mold public opinion according to a single point of view.
In the same manner, it recognizes the jurisprudence established in the 1964 case New York Times vs. Sullivan, in which it is pointed out that the protection that the Constitution offers to freedom of expression does not depend on the truth, popularity, or social utility of the ideas and beliefs expressed, and it recognizes that a certain degree of abuse is inseparable from the proper use of that freedom, on the basis of which the government and the courts must allow a debate that is ‘uninhibited, robust, and wide-open’ to develop, which may include caustic, vehement, and at times severely unpleasant attacks on the government and public officials. Erroneous statements are inevitable in a free debate and must be protected in order to give freedom of expression air to breathe and survive. The rules must prevent a public official from suing a media outlet or a private individual for damages caused by a false defamation relating to his official conduct, unless it is proven with convincing clarity that the expression was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This exception that is made is indispensable in light of the State’s obligation to protect the reputation and honor of persons and, even more so, within its obligation to ensure that the misuse or abuse of this freedom is not used to violate equally essential ends of the democratic system, among which is included the system of fundamental rights. The interdependence that exists between fundamental rights and their systemic value is recognized in doctrine; in that sense, the protection of one freedom to the detriment of others due to a lack of a hermeneutical vision has a negative effect on the entire system of liberty (see Judgment 2771-03 of this Chamber).” (…)”. (The highlighting is not part of the original).
Likewise, in Judgment No. 15220-2016 of 4:00 p.m. on October 18, 2016, this constitutional body very pertinently stated the following:
“(…) Freedom of expression is a fundamental pillar of the democratic State, since it permits the circulation of ideas and information – even those in opposition to the government of the day –, the formation of public opinion, transparency, oversight, and denunciation of government actions, among others. It is not in vain that Bobbio points out that democracy is the exercise of power in public (…) when dealing with public officials, and in particular those of high rank, the threshold of freedom of expression and the duty of tolerance to criticism increase. This is so because a fundamental element of the democratic system, which distinguishes it from dictatorships, consists in the broad freedom enjoyed by both the citizenry in general and the press in particular, with respect to expressing their criticisms and questioning the suitability (technical or moral) of public officials and their decisions, without fear of censorship or reprisals, which evidently does not prevent the person who feels affected from resorting to the right of rectification or to other ordinary judicial channels in defense of their image and good name. In the specific case of public officials, they find themselves more exposed to public scrutiny, since the exercise of their functions transcends the private sphere and, due to its impact on political and national development and events, is incorporated into the public sphere, that is, it has consequences of interest to the citizenry in general. Likewise, citizen control over the Public Administration and the duty of accountability of public officials (Article 11 of the Political Constitution) can only occur in a democratic system with broad freedom of expression and information. That is the relevance of the social dimension of the right to information, intimately linked to that of expression. In that sense, precisely, the Inter-American Court of Human Rights expressed itself in the Tristán Donoso case:
“115. Finally, with respect to the right to honor, the Court recalls that expressions concerning the suitability of a person for the performance of a public office or the acts carried out by public officials in the performance of their duties enjoy greater protection, in such a way that democratic debate is fostered. The Court has indicated that in a democratic society public officials are more exposed to public scrutiny and criticism. This different threshold of protection is explained because they have voluntarily exposed themselves to more rigorous scrutiny. Their activities leave the domain of the private sphere to enter the sphere of public debate. This threshold is not based on the quality of the subject, but on the public interest of the activities they carry out (…)
122. As has already been indicated, international law establishes that the threshold of protection of the honor of a public official must permit the broadest citizen control over the exercise of his functions (supra para. 115). This differentiated protection of honor is explained because the public official voluntarily exposes himself to the scrutiny of society, which leads him to a greater risk of suffering harm to his honor, as well as because of the possibility, associated with his condition, of having greater social influence and ease of access to the media to give explanations or respond to events that involve them.” In equal manner, in the Ricardo Canese case, the Court indicated: “97. Democratic control, by society through public opinion, fosters the transparency of state activities and promotes the responsibility of officials over their public management, for which reason there must be a greater margin of tolerance for affirmations and assessments made in the course of political debates or on issues of public interest.
98. The Tribunal has established that it is logical and appropriate that expressions concerning public officials or other persons who exercise functions of a public nature must enjoy, under the terms of Article 13.2 of the Convention, a margin of openness to a broad debate on matters of public interest, which is essential for the functioning of a truly democratic system. (…)”. (The highlighting is not part of the original).
Further to that, this Chamber, in Judgment No. 12926-2017 of 09:30 a.m. on August 18, 2017, indicated, on the particular topic, that:
“(…) freedom of the press is a fundamental pillar of the democratic State to the point that the second cannot exist without the effective guarantee in favor of all the inhabitants of the Republic of the exercise of the right to seek, receive, and disseminate information and ideas of all kinds, regardless of borders, whether orally, in writing, or in printed or artistic form, or by any other procedure of their choice, without said right being able to be subjected to prior censorship (…)”.
The Inter-American Court of Human Rights has also made reference to the close relationship that exists between democracy and freedom of expression, and has stated that it is a fundamental element on which the existence of a democratic society is based. In that regard, in advisory opinion No. OC-5/85 on the compulsory membership of journalists (judgment of November 13, 1985), it held that it is a conditio sine qua non so that those who wish to influence the community can develop fully, for which reason it affirms that a society that is not well informed is not fully free. That is to say, within democratic systems the exercise of freedom of expression permits the development and projection of the human being, contributes to the functioning of democracy, and is a means or instrument for the exercise of other human rights. For its part, in the Herrera Ulloa vs. Costa Rica case, the Court held the following:
“(…) 113. In equal terms to those indicated by the Inter-American Court, the European Court of Human Rights has pronounced on the importance held by freedom of expression in a democratic society, pointing out that ‘(…) freedom of expression constitutes one of the essential pillars of a democratic society and a fundamental condition for its progress and for the personal development of each individual. Said freedom must not only be guaranteed with respect to the dissemination of information or ideas that are received favorably or considered inoffensive or indifferent, but also with regard to those that offend, prove disagreeable, or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance, and the spirit of openness, without which a democratic society does not exist. (…) This means that (…) any formality, condition, restriction, or sanction imposed in the matter must be proportionate to the legitimate end pursued (…)”. (The highlighting is not part of the original).
In the same manner, on this last occasion, the I/A Court H.R. pointed out that the African Commission on Human and Peoples’ Rights and the Human Rights Committee have also pronounced in that same sense; hence, it has concluded that there is a coincidence in the different regional systems for the protection of human rights and in the universal one, regarding the essential role that freedom of expression plays in the consolidation and dynamics of a democratic society. Furthermore, it expressly indicated that:
“(…) 116. (…) Without an effective freedom of expression, materialized in all its terms, democracy vanishes, pluralism and tolerance begin to break down, the mechanisms of citizen control and denunciation begin to become inoperative and, in short, a fertile field begins to be created for authoritarian systems to take root in society (…)”.
In the Ivcher Bronstein vs. Peru case (judgment of February 6, 2001), the I/A Court H.R. mentioned that, in turn, the European Court has emphasized that Article 10.2 of the European Convention, regarding freedom of expression, leaves a very narrow margin for any restriction on political debate or debate on matters of public interest and explained that, according to said Tribunal: “(…) 155. (…) the limits of acceptable criticism are wider with respect to the government than in relation to a private citizen or even a politician. In a democratic system, the actions or omissions of the government must be subject to rigorous examination, not only by the legislative and judicial authorities, but also by public opinion (…)”.
Likewise, in the judgment Moya Chacón and Another vs. Costa Rica (judgment of May 23, 2022), the I/A Court H.R. confirmed what was cited above, in the following manner:
“(…) b.1 Importance of freedom of expression in a democratic society (…)
63. (…) the Court has established that freedom of expression, particularly in matters of public interest, ‘is a cornerstone in the very existence of a democratic society’63. The Inter-American Court, in its Advisory Opinion OC-5/85, made reference to the close relationship existing between democracy and freedom of expression, by establishing that this right is indispensable for the formation of public opinion, as well as also being a conditio sine qua non so that political parties, unions, scientific and cultural societies, and in general, those who wish to influence the community can develop fully, and so that, in sum, the community is sufficiently informed when exercising its options. And it is that democratic control by society through public opinion fosters the transparency of state activities and promotes the responsibility of officials over their public management, for which reason there must exist a narrow margin for any restriction on political debate or debate on matters of public interest.
64. The Tribunal recalls that, in a democratic society, the rights and freedoms inherent to the person, their guarantees, and the Rule of Law constitute a triad, each of whose components defines, completes, and acquires meaning in function of the others. In that sense, the Tribunal warns that Articles 3 and 4 of the Inter-American Democratic Charter highlight the importance of freedom of expression in a democratic society, by establishing that ‘[e]ssential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms; access to and the exercise of power in accordance with the rule of law; the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people; the pluralistic system of political parties and organizations; and the separation and independence of the branches of government.’ Likewise, it indicates that ‘[t]ransparency in government activities, probity, responsible public administration on the part of governments, respect for social rights, and freedom of expression and of the press are essential components of the exercise of democracy.’ 65. Thus, without an effective guarantee of freedom of expression, the democratic system is weakened and pluralism and tolerance suffer a breach; the mechanisms of citizen control and denunciation may become inoperative and, in short, a fertile field is created for authoritarian systems to take root. Consequently, a society that is not well informed is not fully free (…)”.
For its part, the Special Rapporteurship for Freedom of Expression of the Inter-American Commission on Human Rights (Inter-American Legal Framework on the Right to Freedom of Expression, December 2009), stated the following:
“(…) the IACHR and the Inter-American Court have underscored in their jurisprudence that the importance of freedom of expression within the catalogue of human rights derives also from its structural relationship with democracy. This relationship, which has been described by the organs of the inter-American system of human rights as ‘close,’ ‘indissoluble,’ ‘essential,’ and ‘fundamental,’ among others, explains a large part of the interpretative developments that have been given to freedom of expression by the IACHR and the Inter-American Court in their various decisions on the matter. The link between freedom of expression and democracy is so important that, as the IACHR has explained, the very objective of Article 13 of the American Convention is to strengthen the functioning of pluralist and deliberative democratic systems through the protection and fostering of the free circulation of information, ideas, and expressions of all kinds (…) if the exercise of the right to freedom of expression not only tends to the personal fulfillment of the person expressing themselves, but also to the consolidation of truly democratic societies, the State has the obligation to generate the conditions so that public debate not only satisfies the legitimate needs of all as consumers of certain information (of entertainment, for example), but as citizens. That is to say, there must be sufficient conditions so that a public, plural, and open deliberation can take place on the matters that concern all of us as citizens of a given State (…)”. (The highlighting is not part of the original).
Also, said Rapporteurship stated the following:
“(…) in a democratic society, the press has the right to inform freely and criticize the government, and the people have the right to be informed about different views of what happens in the community (…)”.
Along the same line of thought, the European Court of Human Rights, in the Lingens vs. Austria case (judgment of July 8, 1986), highlighted that “(…) freedom of the press provides public opinion with one of the best means of knowing and judging the ideas and attitudes of political leaders. More generally, the freedom of political controversies belongs to the very heart of the concept of a democratic society (…)”.
Likewise, the Colombian Constitutional Court has made reference to the topic under study on several occasions. Thus, in Judgment No.
T-256/13 of April 30, 2013, held that: "(…) the right to freedom of expression is a principle of the exercise of democracy because it is within the framework of a democratic state that citizen participation acquires special relevance, and in its development, the freedom to express different opinions and to manifest minority thoughts without fear of being repressed by state powers is guaranteed (…)" and explained that:
"(…) Therefore, the pronouncements of the Inter-American Commission and the case law of the Inter-American Court of Human Rights have highlighted that freedom of expression fulfills a triple function in the democratic system: a) it ensures the individual right of every person to think for themselves and to share their personal thoughts and opinions with others, b) it has a close, indissoluble, essential, fundamental, and structural relationship with democracy, and to that extent, the very objective of Article 13 of the American Convention is to strengthen the functioning of democratic, pluralistic, and deliberative systems, through the protection and promotion of the free circulation of ideas and opinions, and c) finally, it is a key tool for the exercise of other fundamental rights, since "it is an essential mechanism for the exercise of the right to participation, to religious freedom, to education, to ethnic or cultural identity and, of course, to equality understood not only as the right to non-discrimination, but as the right to the enjoyment of certain basic social rights (…)".
Likewise, this constitutional body added that:
"(…) This Corporation very early in its case law recognized the value of this right within the framework of a democracy with the following words: "Although the freedom to express and disseminate one's own thoughts and opinions is a right of every person, it is not only an individual right, but also a guarantee of a fundamental political institution: 'free public opinion.' Free public opinion is indissolubly linked with political pluralism, which is a fundamental value and a requirement for the functioning of the democratic state. Without free public communication, other rights enshrined in the Constitution would be emptied of real content, representative and participatory institutions would be reduced to hollow forms, and the principle of democratic legitimacy would be absolutely falsified (…)". (The emphasis is not part of the original).
In Judgment No. T-543 of 2017 of August 25, 2017, the Colombian Constitutional Court indicated that freedom of expression fulfills the following functions in a democratic society: "(…) (i) it allows the search for truth and the development of knowledge; (ii) it makes possible the principle of self-government; (iii) it promotes personal autonomy; (iv) it prevents abuses of power; and (v) it is a 'safety valve' that stimulates the peaceful confrontation of state or social decisions that are not shared (…)". For its part, in Judgment No. C-135/21 of May 13, 2021, said Court mentioned that some of the contributions of the fundamental right to freedom of expression to democratic functioning are the following: "(…) i) it allows the search for truth and the development of knowledge; ii) it creates a space for healthy dialogue and protest for the citizenry, which consolidates pluralistic and deliberative societies; iii) it allows the establishment of control and accountability mechanisms vis-à-vis the rulers; iv) it promotes citizen self-government; and v) it contributes to better popular elections (…)".
Also, in Judgment No. T-145/19 of April 2, 2019, the Colombian Court held that freedom of expression "(…) is a pillar of the Social State of Law and a fundamental principle of democratic regimes, where human dignity is respected and the participation of the citizenry and of all sectors is valued, which allows the consolidation of pluralistic and deliberative societies (…)". Likewise, on this last occasion, said body indicated that "(…) The principal foundation of the legal protection of freedom of expression finds support in human dignity, in the autonomy of the person and in its instrumental character for the exercise of multiple rights, and in the different functions it fulfills in democratic systems (…)".
VII.- ON THE PROHIBITION OF IMPOSING RESTRICTIONS ON FREEDOM OF EXPRESSION (AND ON FREEDOM OF THE PRESS) THROUGH INDIRECT MEANS. Freedom of expression and, consequently, freedom of the press, are not considered unrestricted and absolute rights, but rather –as analyzed supra–, they are subject to certain limits or subsequent controls. In this regard, section 29 of our Political Charter establishes that persons shall be responsible for the abuses they commit in the exercise of the right to freedom of expression and, for its part, Article 13.2 of the American Convention on Human Rights provides that the referred right is subject to subsequent liabilities, which must be expressly established by law and be necessary to ensure respect for the rights or reputation of others or to protect national security, public order, health, or public morals.
However, likewise, these limitations, this Constitutional Court has said, are of an exceptional nature and cannot restrict such rights beyond what is strictly necessary, emptying them of content and thus becoming a direct or indirect mechanism of censorship, which has no place in our environment. These freedoms, consequently, cannot be the object of direct illegitimate restrictions (such as, for example, prior censorship, the murder of journalists by virtue of the exercise of their functions, etc.) nor, either, of restrictions of an indirect nature (also called soft censorship, subtle censorship, veiled censorship). These latter measures –of an indirect nature–, are characterized by being less evident, but which equally have the purpose of arbitrarily reducing or curtailing freedom of expression. They could be considered more subtle forms in which public authorities or private individuals seek to finally and effectively restrict freedom of expression. Authors García Ramírez and Gonza define them very aptly as those "(…) actions or omissions that bring about the inhibition of the subject, as a consequence of intimidation, the obstruction of channels of expression or the 'sowing' of obstacles that impede or severely limit the exercise of that freedom (…)" (GARCÍA RAMÍREZ (Sergio) and GONZA (Alejandra). La libertad de expresión de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, first edition, 2007, p. 42). For its part, the Special Rapporteurship for Freedom of Expression explains that "(…) These measures (…) have not been strictly designed to restrict freedom of expression. Indeed, these per se do not constitute a violation of this right. Notwithstanding this, their effects generate an adverse impact on the free circulation of ideas that is often little investigated and, therefore, more difficult to discover (…)" (Annual Report of the Special Rapporteurship for Freedom of Expression, 2004).
As examples of this type of indirect restrictions or veiled censorship, one may cite, among many others, the use of various means to intimidate and, in this way, prevent a publication, controls on newsprint paper or radioelectric frequencies, the restriction on freedom of movement, the granting or suppression of state advertising, limitations on economic income to media outlets, the imposition of high and unjustified tax burdens. Regarding this type of indirect restrictions, the cited authors García Ramírez and Gonza explain that these can occur when "(…) a right different from freedom of expression itself is violated, in a way that the latter is affected –for example, in a case, the deprivation of the subject's nationality–, undue or excessive investigations are carried out, access is prohibited to certain means that the right holder has regularly used, freedom of movement is restricted, the effects of a contract are disregarded, or the holders of certain goods are prevented from disposing of them (…)" (GARCÍA RAMÍREZ (Sergio) and GONZA (Alejandra). La libertad de expresión en la jurisprudencia de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, first edition, 2007, p. 42). For his part, Magistrate Rueda Leal, in the additional reasons set forth in Judgment No. 15220-2016 of 4:00 p.m. on October 18, 2016, also made reference to some modalities of this type of indirect or veiled censorship, listing the following: "(…) a) The refusal of access to institutions and public information as retaliation for critical coverage, which forces the media outlet to resort to jurisdictional instances. In this way, although an entity is finally compelled to deliver certain information if its public nature is demonstrated, it is no less true that the Administration "gains" time, thus achieving disclosure in a more favorable political 'timing.' b) The inequitable assignment of radio and television frequencies. c) The obstruction of access to elementary resources for the production of a media outlet (such as paper or telephone service) via the setting of arbitrary requirements or unreasonable tax impositions. d) The threat of initiating judicial proceedings, conditioned upon the disclosure or non-disclosure of critical reports (…)".
Regarding these restrictions of a properly indirect nature, Article 13.3 of the American Convention on Human Rights expressly states the following:
"3. The right of expression may not be restricted by indirect methods or means, such as the abuse of governmental or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means aimed at impeding the communication and circulation of ideas and opinions." (The emphasis is not part of the original).
The Declaration of Chapultepec (adopted by the Hemispheric Conference on Freedom of Expression held in Mexico City on March 11, 1994), establishes that there must be no law or act of power that curtails freedom of expression or of the press, regardless of the means of communication. Likewise, in the list of principles, it mentions the following:
"4. The murder, terrorism, kidnapping, pressures, intimidation, unjust imprisonment of journalists, the material destruction of media outlets, violence of any kind and the impunity of aggressors, severely curtail freedom of expression and of the press. These acts must be promptly investigated and severely sanctioned." "5. Prior censorship, restrictions on the circulation of media or on the dissemination of their messages, the arbitrary imposition of information, the creation of obstacles to the free flow of information, and limitations on the free exercise and movement of journalists, directly oppose freedom of the press." "6. Media outlets and journalists must not be the object of discrimination or favors because of what they write or say." "7. Tariff and exchange rate policies, licenses for the importation of paper or journalistic equipment, the granting of radio and television frequencies, and the concession or suppression of state advertising, must not be applied to reward or punish media outlets or journalists." "10. No media outlet or journalist should be sanctioned for disseminating the truth or formulating criticisms or denunciations against public power." (The emphasis is not part of the original).
Likewise, the Declaration of Principles on Freedom of Expression (approved by the Inter-American Commission on Human Rights in October 2000, at the 108th regular period), provides, on this same topic, the following:
"5. Prior censorship, interference or direct or indirect pressure on any expression, opinion or information disseminated through any means of oral, written, artistic, visual or electronic communication, must be prohibited by law. Restrictions on the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the creation of obstacles to the free flow of information, violate the right to freedom of expression." "9. The murder, kidnapping, intimidation, threat to social communicators, as well as the material destruction of media outlets, violates the fundamental rights of persons and severely curtails freedom of expression. It is the duty of States to prevent and investigate these acts, to sanction their perpetrators, and to ensure the victims adequate reparation." "13. The use of the power of the State and the resources of the public treasury; the granting of tariff preferences; the arbitrary and discriminatory allocation of official advertising and official credits; the granting of radio and television frequencies, among others, with the objective of pressuring and punishing or rewarding and privileging social communicators and media outlets based on their informational lines, attacks freedom of expression and must be expressly prohibited by law. Social communication media have the right to carry out their work independently. Direct or indirect pressures aimed at silencing the informational work of social communicators are incompatible with freedom of expression." (The emphasis is not part of the original).
As can be observed with crystal clarity, there are multiple ways in which the media can be manipulated indirectly. Even the American Convention on Human Rights is clear in indicating that the examples cited in section 13.3 are not exhaustive, by stating that this type of indirect restrictions can also be configured "by any other means aimed at impeding the communication and circulation of ideas and opinions." Now, the Inter-American Court of Human Rights has pronounced on various occasions regarding veiled censorship or properly indirect restrictions, condemning them forcefully. Thus, in the Ivcher Bronstein vs. Peru Judgment (judgment of February 6, 2001), the Inter-American Court heard a case brought by Baruch Ivcher Bronstein, a naturalized citizen of Peru and majority shareholder of the company that then operated Channel 2 of that country's television. Ivcher Bronstein, in that capacity, exercised editorial control over the programs, particularly, one called Contrapunto (through which several journalistic reports on torture, an alleged murder, and cases of corruption committed by the Intelligence Services of the Peruvian Government were disseminated) and it was demonstrated that, by virtue of the foregoing, he was subjected to several intimidating acts that concluded with the issuance of a decree that revoked his Peruvian citizenship. On that occasion, the Inter-American Court held that the resolution that legally nullified the nationality granted to Ivcher Bronstein constituted precisely an indirect means to restrict his freedom of expression, as well as that of the journalists who worked on said program. On that occasion, the Inter-American Court offered the following arguments of interest:
"(…) 158. It has likewise been demonstrated that, as a consequence of the editorial line adopted by Channel 2, Mr. Ivcher was the object of intimidating actions of various types. For example, after the broadcast of one of the reports mentioned in the preceding paragraph, the Joint Command of the Armed Forces issued an official communiqué in which it denounced Mr. Ivcher for carrying out a defamatory campaign aimed at discrediting the Armed Forces (supra para. 76.k). Moreover, the same day that the Army issued said communiqué, the Executive Power of Peru issued a supreme decree that regulated the Nationality Law, establishing the possibility of canceling the nationality of naturalized Peruvians (supra para. 76.l).
159. It has also been proven that days after Channel 2 announced the presentation of a report on illegal recordings of telephone conversations held by opposition candidates, the Director General of the National Police reported that the file in which Mr. Ivcher's nationality title was processed had not been located, and that it had not been accredited that he had renounced his Israeli nationality, for which reason, through a "directorial resolution," it was ordered that the said nationality title be nullified.
160. As a consequence of the foregoing, on August 1, 1997, Judge Percy Escobar ordered that the exercise of Mr. Ivcher's rights as majority shareholder and President of the Company be suspended and that his appointment as Director thereof be revoked, that an Extraordinary General Shareholders' Meeting be judicially convened to elect a new Board of Directors, and that the transfer of his shares be prohibited. Furthermore, he granted the provisional administration of the Company to the minority shareholders, until a new Board of Directors was appointed, thus removing Mr. Ivcher Bronstein from the control of Channel 2.
161. The Court has verified that, after the minority shareholders of the Company assumed its administration, the entry into Channel 2 was prohibited to journalists who worked on the Contrapunto program and the informational line of said program was modified (supra para. 76.v).
162. In the context of the indicated facts, this Court observes that the resolution that legally nullified Mr. Ivcher's nationality title constituted an indirect means to restrict his freedom of expression, as well as that of the journalists who worked and investigated for the Contrapunto program of Channel 2 of Peruvian television.
163. By separating Mr. Ivcher from the control of Channel 2, and excluding the journalists from the Contrapunto program, the State not only restricted the right of these persons to circulate news, ideas, and opinions, but also affected the right of all Peruvians to receive information, thus limiting their freedom to exercise political options and fully develop in a democratic society.
164. For all of the above, the Court concludes that the State violated the right to freedom of expression enshrined in Article 13.1 and 13.3 of the Convention, to the detriment of Baruch Ivcher Bronstein (…)". (The emphasis is not part of the original).
Another clear example of this type of indirect restrictions is recorded in the Ricardo Canese vs. Paraguay case (judgment of August 31, 2004). Mr. Ricardo Canese, who was a presidential candidate during the electoral contest for the 1993 elections in Paraguay, linked Juan Carlos Wasmosy (also a candidate), to illegal acts allegedly committed by the latter when he served as president of a consortium, which, in turn, were published in two Paraguayan newspapers. This caused Canese (who worked at a media outlet), to be criminally prosecuted for the commission of the crimes of defamation and slander, being convicted in the first instance in 1994 and in the second instance in 1997; an occasion on which, in turn, he was sentenced to two months in prison and a fine. Furthermore, as a consequence of this process, Canese was subjected to a permanent restriction on leaving the country (and, also, in parallel, he was dismissed from the media outlet where he worked). These judgments were subsequently annulled in December 2002 by the Criminal Chamber of the Supreme Court of Justice of Paraguay. The Inter-American Court made reference to the importance of guaranteeing freedom of expression during an electoral campaign and, after analyzing the case under study, held that the criminal sanction to which Canese was subjected was considered an indirect method of restricting said right. Expressly, on that occasion, the following was indicated:
"(…) 3) The importance of freedom of thought and of expression in the context of an electoral campaign.
88. The Court considers it important to emphasize that, in the context of an electoral campaign, freedom of thought and of expression in its two dimensions constitutes a fundamental bastion for debate during the electoral process, because it becomes an essential tool for the formation of the public opinion of the voters, strengthens the political contest between the different candidates and parties participating in the elections, and becomes an authentic instrument for analyzing the political platforms proposed by the different candidates, which allows for greater transparency and oversight of the future authorities and their management. (…)
90. The Tribunal considers it indispensable that the exercise of freedom of expression be protected and guaranteed in the political debate that precedes the elections of the state authorities that will govern a State. The formation of the collective will through the exercise of individual suffrage is nourished by the different options presented by the political parties through the candidates who represent them. Democratic debate implies that the free circulation of ideas and information regarding the candidates and their political parties be permitted by the media, by the candidates themselves, and by any person who wishes to express their opinion or provide information. It is necessary that everyone be able to question and inquire about the capacity and suitability of the candidates, as well as to dissent and confront their proposals, ideas, and opinions so that the voters can form their criteria for voting. In this sense, the exercise of political rights and freedom of thought and of expression are intimately linked and strengthen each other. In this regard, the European Court has established that:
Free elections and freedom of expression, particularly the freedom of political debate, together form the bedrock of any democratic system (Cf. Judgment of the case Mathieu-Mohin and Clerfayt v. Belgium, of March 2, 1987, Series A no. 113, p.22, para. 47, and judgment of the case Lingens v. Austria of July 8, 1986, Series A no. 103, p. 26, paras. 41-42). The two rights are interrelated and reinforce each other: for example, as the Court has indicated in the past, freedom of expression is one of the 'conditions' necessary to 'ensure the free expression of the opinion of the people in the election of the legislative body' (see the above-mentioned judgment in the case Mathieu-Mohin and Clerfayt, p. 24, para. 54). For this reason[,] it is particularly important that opinions and information of all kinds may circulate freely in the period preceding elections.
91. The Court observes that, in his statements, the alleged victim made reference to the fact that the company CONEMPA, whose president was Mr. Juan Carlos Wasmosy, then a presidential candidate, "passed" "dividends" to the ex-dictator Stroessner. It has been demonstrated, as it is also a public fact, that said consortium was one of the two companies in charge of executing the construction works of the Itaipú hydroelectric plant, one of the largest hydroelectric dams in the world and the principal public work of Paraguay.
92. The Court considers that there is no doubt that the statements made by Mr. Canese in relation to the company CONEMPA concern matters of public interest, because in the context of the time in which he rendered them, said company was in charge of the construction of the mentioned hydroelectric plant. As flows from the evidentiary record of the present case (supra para. 69.4), the National Congress itself, through its Bicameral Commission for the Investigation of Illegal Acts, undertook the investigation into corruption at Itaipú, in which Mr. Juan Carlos Wasmosy and the referred company were implicated.
93. The Court observes that the Criminal Chamber of the Supreme Court of Justice of Paraguay, when issuing the decision by which it annulled the condemnatory sentences dictated in 1994 and 1997 (supra para. 69.49), indicated that the statements that Mr. Canese rendered in the political context of an electoral campaign for the Presidency of the Republic, "necessarily entail, in a Democratic Society directed toward a participatory and pluralistic construction of Power, a matter of public interest." 94. In the present case, when issuing the statements for which he was sued and convicted, Mr. Canese was exercising his right to freedom of thought and of expression in the context of an electoral contest, in relation to a public figure such as a presidential candidate, on matters of public interest, by questioning the capacity and suitability of a candidate to assume the Presidency of the Republic. During the electoral campaign, Mr. Canese was interviewed about Mr. Wasmosy's candidacy by journalists from two national newspapers, in his capacity as a presidential candidate. By publishing Mr. Canese's statements, the newspapers "ABC Color" and "Noticias" played an essential role as vehicles for the exercise of the social dimension of freedom of thought and of expression, because they collected and transmitted to the voters the opinion of one of the presidential candidates regarding another of them, which contributes to the electorate having greater information and different criteria prior to decision-making.
98. The Tribunal has established that it is logical and appropriate that expressions concerning public officials or other persons who exercise functions of a public nature should enjoy, under the terms of Article 13.2 of the Convention, a margin of openness to broad debate regarding matters of public interest, which is essential for the functioning of a truly democratic system. This same criterion applies with respect to opinions or statements of public interest that are made in relation to a person who is running as a candidate for the Presidency of the Republic, who voluntarily submits to public scrutiny, as well as with respect to matters of public interest in which society has a legitimate interest in being kept informed, in knowing what affects the functioning of the State, affects general interests or rights, or entails important consequences for it. As has been established, there is no doubt that the statements made by Mr. Canese in relation to the company CONEMPA concern matters of public interest (supra para. 92).
99. In this sense, the Criminal Chamber of the Supreme Court of Justice of Paraguay, when issuing on December 11, 2002 (supra para. 69.49) the decision by which it annulled the condemnatory sentences dictated in 1994 and 1997 and absolved the alleged victim of guilt and penalty, referred to the character and relevance of his statements, by indicating, inter alia, that [t]he affirmations of Eng. Canese, –in the political context of an electoral campaign for the first magistracy–, necessarily entail, in a Democratic Society directed toward a participatory and pluralistic construction of Power, a matter of public interest. Nothing is more important and public than the discussion and subsequent popular election of the First Magistrate of the Republic.
100. The foregoing considerations do not mean, in any way, that the honor of public officials or of public persons should not be legally protected, but rather that it should be protected in a manner consistent with the principles of democratic pluralism. Likewise, the protection of the reputation of private individuals who are involved in activities of public interest should also be carried out in accordance with the principles of democratic pluralism. (…)
103. It is thus that in the case of public officials, of persons who exercise functions of a public nature, and of politicians, a different threshold of protection must be applied, which is not based on the quality of the subject, but on the character of public interest that the activities or actions of a given person entail. Those persons who influence matters of public interest have voluntarily exposed themselves to more demanding public scrutiny and, consequently, in that sphere they are subjected to a greater risk of suffering criticism, since their activities leave the domain of the private sphere to enter the sphere of public debate. In this sense, within the framework of public debate, the margin of acceptance and tolerance for criticism on the part of the State itself, of public officials, of politicians and even of private individuals who carry out activities subject to public scrutiny must be much greater than that of private individuals. In this hypothesis are found the directors of the company CONEMPA, a consortium which was entrusted with the execution of a large part of the construction works of the Itaipú hydroelectric plant.
104.
Based on the foregoing considerations, it falls to the Court to determine whether, in this case, the application of subsequent criminal liabilities regarding the alleged abusive exercise of the right to freedom of thought and expression through statements relating to matters of public interest, can be considered to meet the requirement of necessity in a democratic society. In this regard, it is worth recalling that Criminal Law is the most restrictive and severe means for establishing liabilities regarding unlawful conduct.
105. The Court considers that, in the proceedings brought against Mr. Canese, the judicial bodies should have taken into consideration that he made his statements in the context of an electoral campaign for the Presidency of the Republic and regarding matters of public interest, a circumstance in which opinions and criticisms are expressed in a more open, intense, and dynamic manner in accordance with the principles of democratic pluralism. In the present case, the adjudicator should have weighed respect for the rights or reputations of others against the value that open debate on issues of public interest or concern holds in a democratic society.
106. The criminal proceedings, the consequent conviction imposed on Mr. Canese for more than eight years, and the restriction on leaving the country applied for eight years and almost four months—facts that support the present case—constituted an unnecessary and excessive sanction for the statements made by the alleged victim within the framework of the electoral campaign, regarding another candidate for the Presidency of the Republic and on matters of public interest; they also limited the open debate on issues of public interest or concern and restricted the exercise of Mr. Canese's freedom of thought and expression to voice his opinions during the remainder of the electoral campaign. According to the circumstances of the present case, there was no compelling social interest that justified the criminal sanction, since the freedom of thought and expression of the alleged victim was disproportionately limited without taking into consideration that his statements referred to matters of public interest. The foregoing constituted an excessive restriction or limitation in a democratic society on the right to freedom of thought and expression of Mr. Ricardo Canese, incompatible with Article 13 of the American Convention.
107. Likewise, the Court considers that, in this case, the criminal proceedings, the consequent conviction imposed on Mr. Canese for more than eight years, and the restrictions on leaving the country for eight years and almost four months constituted indirect means of restricting Mr. Canese's freedom of thought and expression. In this regard, after being criminally convicted, Mr. Canese was dismissed from the media outlet where he worked and for a period did not publish his articles in any other newspaper.
108. For all the foregoing, the Court finds that the State violated the right to freedom of thought and expression enshrined in Article 13 of the American Convention, in relation to Article 1.1 of said treaty, to the detriment of Mr. Ricardo Canese, given that the restrictions imposed on him on the exercise of this right for approximately eight years exceeded the framework contained in said article (...)”. (The highlighting is not part of the original).
Equally, of the utmost and great interest is the case of Granier et al. (Radio Caracas Televisión) vs. Venezuela (judgment of June 22, 2015). In this matter, the IACHR Court found proven the existence of a conflictive and tense environment in Venezuela, resulting from the coup d'état suffered, which, in turn, caused political polarization (radicalization of the positions of the sectors involved) and contributed to the government accusing private media outlets, among them RCTV (Radio Caracas Televisión), of being enemies of the government, coup-plotters, and fascists. The Court also found proven that the State of Venezuela sought a way to silence said media outlet (given that it expressed ideas different from government policies, maintaining a critical line towards the Presidency of Hugo Chávez), through the non-renewal, in 2007, of the concession for use of the radioelectric spectrum (which it had held since its founding in 1953), which, evidently, indirectly or covertly curtailed its possibility of continuing to operate and continue disseminating dissident information, in clear violation of freedom of expression. In this judgment, relevantly, the IACHR Court held that said decision was preceded by various public statements made by both the President of the Republic and other officials, who generated an intimidating environment. Particularly, it was noted that then-President Chávez made, among others, the following statements:
“(…) 75. (…) a) President Chávez's statement of June 9, 2002, on his program “Aló Presidente,” in which he stated: “television channels and radio stations, the broadcasters, even if they are private only make use of a concession, the State is the owner [...], and the State gives permission to a group of businessmen who so request to operate, to launch the image through that pipeline, but the State reserves the permission. It is as if someone wanted to use a water pipeline belonging to the State to supply water to a town, and the State gives them permission. [...] Suppose you [...] we give them permission to use the water pipeline [and] they begin to poison the water. […] [We must] immediately not only revoke their permission, but put them in jail. They are poisoning the people, that is what happens, exactly the same case [and] the same logic, the same explanation applies to a television channel”; b) President Chávez's statement of January 12, 2003, on his program “Aló Presidente,” in which he expressed: “The same happens with these owners of television channels and the owners of radio stations; they also have a concession from the State, but the signal does not belong to them. The signal belongs to the State. I want to make that very clear, I want to make it very clear because if the owners of these television channels and radio stations continue in their irrational determination to destabilize our country, to try to give rise to subversion, because it is subversion, without a doubt, […] it is subversion, in this case fascist, and it is encouraged by the media, by these gentlemen I have mentioned and others I will not mention. So I announce it ahead of time to Venezuela. I have ordered a review of the entire legal procedure through which the concession was given to these gentlemen. We are reviewing it and if they do not return to normality in the use of the concession, if they continue using the concession to try to break the country, or overthrow the government, then I would be obligated to revoke the concession that has been given to them to operate the television channels”; c) President Chávez's statement of November 9, 2003, on his program “Aló Presidente,” through which he declared: “I will not allow you to do it again, […] you: Globovisión, Televén, Venevisión and RCTV, tomorrow or the day after, [Minister] Jesse Chacón, I gave an order, you must have a team of analysts and observers 24 hours a day watching all channels simultaneously and we must be clear, I am clear, where the line is that they must not cross, and they must know, it is the line of the law. The moment they cross the line of the law, they will be closed without fail to ensure peace for Venezuela, to ensure tranquility for Venezuela,” and d) on May 9, 2004, President Chávez declared on his program “Aló Presidente”: [h]ere, those who violate the right to information, the right to freedom of expression, are the owners of the private media outlets, there are some exceptions, but above all the large television channels Venevisión, Globovisión, RCTV […] the owners of these media outlets are committed to coup-mongering, terrorism, and destabilization, and I could say at this point I have no doubt, that the owners of those media outlets we can well declare them enemies of the people of Venezuela (…)
80. (…) a) President Chávez's statement of December 28, 2006, on the occasion of his year-end greeting to the Armed Forces, in which he expressed: “There is a gentleman out there, one of those representatives of the oligarchy, who wanted to be president of the oligarchy, and then those Adeco-Copeyano governments gave him concessions to have a television channel and now he goes around saying that this concession is eternal, his television concession runs out in March, it runs out in March, so he better start packing his bags and seeing what he’s going to do as of March, there will be no new concession for that coup-mongering television channel that was called Radio Caracas Televisión, the concession ends, the measure is already drafted, so start getting ready, start turning off the equipment then, no media outlet that is at the service of coup-mongering, against the people, against the nation, against national independence, against the dignity of the Republic will be tolerated here, Venezuela must be respected, I announce it before the date arrives so, so that they do not continue with their little story of no, that it is 20 more years, 20 more years, I warn you chirulí, 20 more years if it's good, it has ended for you, it has ended for you (…)
Likewise, on this occasion and in the following terms, the Court explained how, in this particular case, a violation of Article 13.3 of the American Convention on Human Rights occurred:
“(…) 148. In this regard, the Court has previously pointed out that the media are true instruments of freedom of expression, which serve to materialize this right and play an essential role as vehicles for exercising the social dimension of this freedom in a democratic society, which is why it is essential that they gather the most diverse information and opinions. Indeed, this Tribunal agrees with the Commission that the media are, generally, associations of people who have gathered to sustainably exercise their freedom of expression, which is why it is unusual today for a media outlet not to be in the name of a legal person, given that the production and distribution of informational goods require an organizational and financial structure that meets the demands of informational demand. Similarly, just as unions constitute instruments for workers to exercise their right to association, and political parties are vehicles for citizens to exercise their political rights, media outlets are mechanisms that serve the exercise of the right to freedom of expression for those who use them as a means of disseminating their ideas or information. (…)
151. Consequently, the Inter-American Court considers that restrictions on freedom of expression frequently materialize through state or private actions that affect not only the legal person that constitutes a media outlet, but also the plurality of natural persons, such as its shareholders or the journalists who work there, who carry out acts of communication through it and whose rights may also be violated (…)
152. In this regard, it should be noted that today, an important part of journalism is carried out through legal persons, and it is reiterated that it is fundamental for journalists working in these media outlets to enjoy the necessary protection and independence to fully perform their functions, since they are the ones who keep society informed, an essential requirement for society to enjoy full freedom. Especially, bearing in mind that their activity is the primary manifestation of freedom of expression of thought and is specifically guaranteed by the American Convention (…)
1.3. Indirect restrictions – scope of Article 13.3 of the Convention 161. In the present case, it has been argued that there was a possible indirect restriction on the right to freedom of expression, which is why the Court highlights that Article 13.3 of the Convention expressly refers to such a situation by stating that “[t]he right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.” This Tribunal considers that the scope of Article 13.3 of the Convention must be the result of a joint reading with Article 13.1 of the Convention, in the sense that a broad interpretation of this norm allows it to be considered that it specifically protects the communication, dissemination, and circulation of ideas and opinions, so that the use of “indirect methods or means” to restrict them is prohibited.
162. In this respect, the Court points out that what this subsection seeks is to exemplify more subtle forms of restricting the right to freedom of expression by state authorities or private individuals. Indeed, this Tribunal has had the opportunity to declare, in previous cases, indirect restriction produced, for example, by a decision that “left without legal effect the nationality title” of the majority shareholder of a television channel or by “the criminal proceedings, the consequent conviction imposed […] for more than eight years and the restrictions on leaving the country for eight years” against a presidential candidate.
163. On the other hand, the list of restrictive means provided in Article 13.3 is neither exhaustive nor does it prevent considering “any other means” or indirect methods derived from new technologies. In this sense, Article 13 of the Declaration of Principles on Freedom of Expression indicates other examples of indirect methods or means (…)
Likewise, the expert witness García Belaunde during the public hearing referred to other possible forms of indirect restriction related to: i) “advertising, [since] States are important advertising agents and […] giving a lot of advertising or taking it away can be important and, if applicable, there can be a sort of asphyxiation for media outlets that basically live off advertising,” or ii) “taxation [when] cases [occur] in which [the] companies […] have been burdened with taxes” in order to cause annoyance or send messages to the media outlet.
164. Furthermore, the Court recalls that for a violation of Article 13.3 of the Convention to occur, the method or means must effectively restrict, indirectly, the communication and circulation of ideas and opinions. Moreover, the Court reiterates that Article 13.3 of the Convention imposes guarantee obligations on the State, even in the sphere of relations between private individuals, since it not only encompasses indirect governmental restrictions but also private controls that produce the same result. In this regard, the Court highlights that indirect restriction can generate a dissuasive, intimidating, and inhibiting effect on all those who exercise the right to freedom of expression, which, in turn, impedes public debate on issues of interest to society. (…)
170. (…) This Tribunal considers that, given that the radioelectric spectrum is a scarce good, with a determined number of frequencies, this limits the number of media outlets that can access them, which is why it is necessary to ensure that within that number of media outlets a diversity of informational or opinion viewpoints or positions is represented. The Court highlights that pluralism of ideas in the media cannot be measured by the number of media outlets, but rather by ensuring that the ideas and information transmitted are effectively diverse and approached from divergent viewpoints without a single vision or position existing. The foregoing must be considered in the processes for granting and renewing broadcasting concessions or licenses. In this sense, the Tribunal considers that the limits or restrictions derived from the regulations related to broadcasting must take into account the guarantee of media pluralism given its importance for the functioning of a democratic society (…)
3. Alleged indirect restriction on freedom of expression established in Article 13.3 of the American Convention (…)
193. Now, to conduct an analysis of the recount of the statements reviewed above, it is imperative to read the statements and remarks together, since in isolation they could not autonomously constitute facts establishing a violation of the American Convention. This is because the fact that several officials made statements in the same vein during the same period demonstrates that they were not isolated statements. Bearing in mind the foregoing, the Court will proceed to assess what was stated therein in order to determine if there were reasons or motives for arriving at said decision other than the stated purpose, since, as already noted, considering the motive or purpose is relevant for the legal analysis of a case, especially if one seeks to determine if an arbitrary action or a deviation of power occurred (supra para. 189). Firstly, the Court highlights that since 2002, it was repeatedly warned that television channels that did not modify their editorial line would not have their concession renewed (supra para. 75) and that this type of statement increased as the expiration date of the concessions approached (supra paras. 76 to 78). As of 2006, in several of these statements that predated Communication No. 0424 and Resolution No. 002, it was announced that the decision not to renew RCTV's concession had already been made and would not be reevaluated or modified (supra para. 79 to 86). Furthermore, it is worth highlighting that these were not only statements by state officials in various media, but publications were also made in national newspapers and even a book was published to announce and justify the decision not to renew RCTV's concession. For the foregoing reasons, the Tribunal can conclude, firstly, that the decision was taken well in advance of the conclusion of the concession term and that the order was given to CONATEL and the Ministry for Telecommunications from the executive branch.
194. Regarding the true reasons that would have motivated the decision, in the statements and publications made by different members of the Venezuelan government, these are: i) RCTV's failure to modify its editorial line after the 2002 coup d'état despite warnings issued since that year, and ii) the alleged irregular actions that RCTV had purportedly engaged in and that would have resulted in sanctions against it. On the first reason put forward, the Court considers it imperative to state that it is not possible to impose a restriction on the right to freedom of expression based on the political disagreement that a certain editorial line may cause a government. As was previously noted, the right to freedom of expression must be guaranteed not only with respect to the dissemination of information or ideas that are favorably received or considered inoffensive or indifferent, but especially regarding those that are disagreeable to the State or any sector of the population (supra para. 140). Regarding the alleged irregular actions in which RCTV would have engaged and that would have resulted in sanctions, the Tribunal highlights the contradiction that remarks and accusations were made about the alleged sanctions while Communication No. 0424 expressly indicated that these were not the justification for the decision. In particular, the Court highlights that despite the seriousness of the events related to the coup d'état, it was not proven before this Tribunal that domestic procedures aimed at sanctioning such irregular actions had been adopted, such that it is not possible to use what happened during the coup as an argument to support the decision when those actions were not sanctioned at the time.
195. At this point, the Tribunal considers it necessary to reiterate the precedent established in another case related to this same media outlet, according to which in a democratic society it is not only legitimate but at times constitutes a duty of state authorities to make pronouncements on matters of public interest. However, when doing so, they are subject to certain limitations in that they must reasonably, although not necessarily exhaustively, verify the facts on which they base their opinions, and they should do so with even greater diligence than that employed by private individuals, due to their high office, the broad reach, and potential effects that their expressions can have on certain sectors of the population, and to prevent citizens and other interested persons from receiving a manipulated version of certain facts. Furthermore, they must bear in mind that as public officials they have a position as guarantors of the fundamental rights of persons and, therefore, their statements cannot disregard these rights nor constitute forms of direct or indirect interference or harmful pressure on the rights of those who seek to contribute to public deliberation through the expression and dissemination of their thought. This duty of special care is particularly accentuated in situations of greater social conflict, alterations of public order, or social or political polarization, precisely because of the set of risks they may pose for certain persons or groups at a given moment.
196. Moreover, the Tribunal notes that of the statements submitted in the present contentious case, only one would have referred to the purpose stated in Communication No. 0424 and Resolution No. 002, that is, the protection of plurality of media, while the majority of the remaining statements coincide in invoking the other purposes. The foregoing allows the Court to conclude, secondly, that the stated purpose was not the real one and was only given with the objective of giving an appearance of legality to the decisions.
4. Conclusion on the right to freedom of expression.
197. The Court concludes then, as it has done in other cases, that the facts of the present case involved a deviation of power, since a permitted power of the State was used with the objective of editorially aligning the media outlet with the government. The foregoing assertion derives from the two main conclusions that this Tribunal can reach from what has been described above, namely, that the decision was made beforehand and that it was based on the annoyance caused by RCTV's editorial line, added to the context of “deterioration of the protection of freedom of expression” that was proven in the present case (supra para. 61).
198. Likewise, this Tribunal considers it necessary to emphasize that the deviation of power declared here had an impact on the exercise of freedom of expression, not only on the workers and directors of RCTV, but also on the social dimension of said right (supra para. 136), that is, on the citizenry that was deprived of having access to the editorial line that RCTV represented. Indeed, the real purpose sought to silence critical voices of the government, which, together with pluralism, tolerance, and a spirit of openness, constitute the very demands of a democratic debate that, precisely, the right to freedom of expression seeks to protect.
199. It is therefore proven that in the present case, an indirect restriction on the exercise of the right to freedom of expression was configured, produced by the use of means aimed at impeding the communication and circulation of ideas and opinions, when the State decided to reserve the portion of the spectrum and, therefore, prevent participation in the administrative procedures for the awarding of titles or the renewal of the concession to a media outlet that expressed critical voices against the government, which is why the Tribunal declares the violation of Article 13.1 and 13.3 in relation to Article 1.1 of the American Convention to the detriment of Marcel Granier, Peter Bottome, Jaime Nestares, Inés Bacalao, Eladio Lárez, Eduardo Sapene, Daniela Bergami, Miguel Ángel Rodríguez, Soraya Castellano, María Arriaga, and Larissa Patiño. (…)”. (The highlighting is not part of the original).
This Constitutional Court, for its part, has also had the opportunity to condemn this type of action. In Judgment No. 1782-2015 of 11:36 a.m. on February 6, 2015, this constitutional jurisdiction heard an amparo appeal filed by a producer of a radio program of criticism, opinion, and denunciation, where, in turn, apparent acts of corruption carried out by a deputy were being denounced and investigated. The appellant alleged on that occasion that the referred deputy sent letters on letterhead and sealed with his signature from the Legislative Assembly to the institutions that placed advertising and made the existence of said program possible, threatening to sue them if they did not withdraw said advertising immediately, given that he considered it a smear campaign against him. After analyzing the cited case, this Chamber, on that occasion, held that the notes sent by said deputy to various public institutions with the aim of having the advertising withdrawn from the appellant's radio program (which also constituted the main financial support that allowed the transmission of the radio programs and, in turn, the economic sustenance of the people who work on said program), constituted indirect or veiled censorship of freedom of expression. The foregoing, in accordance with the following terms:
“(…) Now then, in the specific case, the respondent sent a missive to several public institutions, using paper with the letterhead and seal of the Legislative Assembly, in which he stated:
“(…) 4.- In my particular case, in clear right to safeguard my personal, professional, and moral integrity, I will base the complaint against the producer of that radio space and jointly and severally against its sponsors, since it suffices that you monitor punctually at 8 pm on the 800 AM frequency and listen, within the same sponsorship lineup to which this institution belongs as a sponsor of the program in question, along with the spot that you pay for with public funds, another recorded spot in the voice of Mr. [Name 001] himself in which he asks citizens if they believe a lying Deputy, investigated as a forger and fraudster, aspiring to graduate as a lawyer irregularly, reported by the Supreme Electoral Tribunal (TSE) for attempting to extract millions in sums of money through the use of false documents, and more unfounded accusations, the radio producer taking advantage, with the protection of his sponsors, to recklessly pressure the Attorney General to act against the undersigned, thus avoiding impunity, as if the Chief of the Public Ministry were deliberately covering up a series of crimes committed by this public servant.
5.- Out of the consideration you deserve, I respectfully warn you of this matter and urge you to consider, as a responsible precautionary measure, the possibility of pulling off the air the institutional advertising that you pay for on this radio program, while we resolve in the courts the complaint we are about to file, with the purpose of not tarnishing judicially nor harming the healthy image that Costa Ricans have of this noble institution, which must be protected and should not find itself involved in such deplorable matters foreign to the honorable work of yourselves, with which my lawyers would immediately dismiss, at the request of the undersigned, the eventual joint and several lawsuit extending against this public entity.
(…)” (Extract from the note sent to Correos de Costa Rica S.A., provided by the appellant; the highlighted text is not part of the original).
The letter sent to public institutions requesting that they withdraw their advertising from the protected person's radio program falls within the cases of indirect censorship of freedom of expression for several reasons.
First, advertising provides the main financial support that enables the transmission of radio programs and, ultimately, the economic sustenance of the people who work on said program. It is evident that if the program's economic income is limited, it is also harmed or—even—eliminated, all to the detriment of both freedom of expression and freedom of information. The described situation is even more serious when it comes to small media outlets, such as local newspapers or small radio stations, whose financial stability can depend heavily on state advertising. In the Tristán Donoso Case, the Inter-American Court ruled on economic threats to freedom of expression:
"129. Finally, although the criminal sanction of day-fines does not appear excessive, the criminal conviction imposed as a form of subsequent liability established in the present case is unnecessary. Additionally, the facts under the Court's examination show that fear of civil sanction, given the former Attorney General's claim for an extremely high amount of civil damages, can be clearly as intimidating and inhibiting for the exercise of freedom of expression as a criminal sanction, insofar as it has the potential to compromise the personal and family life of someone who denounces a public official, with the evident and regrettable result of self-censorship, both for the affected person and for other potential critics of a public servant's actions." Second, a Deputy of the Republic is not just any citizen, but rather holds particular political power due to his influence in the approval of bills, regarding which there are numerous both private and public interests. Ergo, a recommendation to withdraw advertising from a radio program, issued by an official in a particular position of political power and having as its leitmotif his disagreement with the criticisms against him broadcast by a certain media outlet, constitutes a veiled form of intimidation that not only affects the directly mentioned radio program, but also sends an intimidating message to other media outlets, fostering an environment hostile to the freedoms of expression and information essential in a democratic system. In the sub iudice case, such a threat even began to have concrete effects, to the extent that, according to the evidence provided by the plaintiff, the ICAA's advertising placement, scheduled for the period from October 15 to November 15, 2014, was suspended while the respondent's official letter was being answered. If the other entities to which the respondent addressed his letter had acted in the same manner, this would have led to a serious impact on the financial stability of the aforementioned radio program, all of this having its genesis in a public official's dissatisfaction with the criticisms broadcast on it.
The foregoing does not imply that the alleged violation of the respondent's honor and of those who could eventually be responsible for it is of little importance. Quite the contrary, what is claimed by the respondent is so relevant that the legal system has established appropriate and reasonable procedural avenues both to defend the affected person's honor (for example, through criminal proceedings), and to ensure the accuracy of the disseminated information (right of rectification and reply).
Now, the explanatory notes sent by the respondent last October to the public institutions do not affect this Chamber's reasoning. On one hand, these are actions that occurred after the notice of the course of this proceeding—the notes were delivered to said institutions on October 7 and 8, 2014, while the notice occurred on October 6, 2014. On the other hand, the Chamber observes that, although it was clarified through such notes that the "...previous letter sent regarding this matter did not seek to necessarily impose on you the obligation to withdraw your advertising from that program...", a warning to the institutions was also indicated, motivated once again by the criticisms made of the respondent:
"5.- I do not fail to respectfully point out your duty of care, understood as exercising greater control over the resources you have available to place for propaganda, advertising, or information in media outlets, maintaining at least minimal monitoring that allows you to appreciate, as in the case of the CD I am providing to you [which contains an edit of the program "Rompiendo El Silencio"], the quality of the statements made in the spaces where you advertise." (Extract from the note sent to the Instituto Nacional de Aprendizaje, provided by the respondent).
Finally, it must be noted that public officials can indeed express themselves on matters of public interest. However, they are guarantors of fundamental rights, so the expressions they make must avoid becoming a form of direct or indirect censorship. Again, the Inter-American Court of Human Rights is cited:
"139. In a democratic society, it is not only legitimate but sometimes constitutes a duty of state authorities to speak out on matters of public interest. However, when doing so they are subject to certain limitations in that they must verify in a reasonable manner, although not necessarily exhaustively, the facts on which they base their opinions, and they should do so with even greater diligence than that employed by private individuals, due to their high office, the broad scope and potential effects their expressions can have on certain sectors of the population, and to prevent citizens and other interested persons from receiving a manipulated version of certain facts. Furthermore, they must bear in mind that as public officials they hold a position of guarantor of people's fundamental rights and, therefore, their statements cannot disregard these rights nor constitute forms of direct or indirect interference or harmful pressure on the rights of those who seek to contribute to public deliberation through the expression and dissemination of their thought. This duty of special care is particularly accentuated in situations of greater social conflict, public order disturbances, or social or political polarization, precisely because of the set of risks they can imply for certain individuals or groups at any given time." (Ríos et al. Case) In conclusion, the Chamber considers that the respondent has every right to defend his honor and reputation through the legal mechanisms provided for in the Constitution and the law, among them, the right of rectification and reply and the complaint for crimes of slander, libel, and defamation regulated in the Código Penal. In that sense, sending a note to the program's sponsors indicating that they consider withdrawing their sponsorship due to its negative content against his image constituted indirect censorship—in the terms indicated in the jurisprudence of the Inter-American Court cited supra—of the radio program "Rompiendo El Silencio." In the assessment made, specific weight is given to the fact that the respondent holds a position of political power as a Deputy of the Republic, and that his missive indeed caused a negative effect beyond a simple complaint, as it was proven in the record that it produced effects on one of the sponsors, who temporarily suspended advertising (ICAA). Consequently, this ground is granted (…)”. (The highlighted text is not part of the original).
The following year, that is, during 2016, the Constitutional Chamber heard another amparo action where reference was made to a different and indirect form of attacking freedom of expression, which, in turn, was resolved through Voto No. 15220-2016 of 4:00 p.m. on October 18, 2016. On this occasion, the plaintiff, in his capacity as director of a national circulation newspaper, alleged that, by virtue of a series of news reports published about various irregular actions carried out by a banking entity, the latter's directors decided to manipulate, pressure, and try to silence the media outlet through the gradual reduction of advertising placement in the newspaper's pages. Once the arguments put forth by both parties were analyzed and studied, as well as the evidence provided, this constitutional body found it proven that the cited media outlet was indeed the object of veiled or indirect censorship by a public official "(…) as a reaction to its editorial line, with the sole purpose of 'motivating' a change, that is, manipulating the media outlet to bring it closer to his purposes, whether to obtain a meeting with one of the media outlet's owners, or a greater space for the Bank's version in light of the questions raised. All of which, without a doubt, is injurious to Article 13.1 of the American Convention on Human Rights and 28 and 29 of the Political Constitution (…)." Furthermore, this jurisdiction, on that occasion, emphasized the fact that advertising was considered the fundamental financial support in the operational scheme of media outlets, such that it was what allowed the publication or dissemination of their content and, therefore, also the sustenance of the people who work in it. Expressly, this Chamber, in the aforementioned ruling, stated the following:
"(…) VII.- It is appropriate to delve deeper into this topic of prior censorship, in order to provide a solution to the case under examination, following the line already established in ruling 2015-1782. In this regard, the third paragraph of Article 13 of the American Convention clearly states:
" 3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions." In this sense, censorship can be direct—for example, the direct prohibition of a certain publication—or indirect (also called soft censorship, subtle or veiled censorship)—for example, the use of various means to intimidate and thereby prevent a publication. The Convention provides a non-exhaustive list of cases of censorship by indirect means (controls over newsprint, frequencies, etc.) and concludes with the general rule, which would be "…or by any other means tending to impede the communication and circulation of ideas and opinions." It is worth mentioning the Ivcher Bronstein Case as an example, in which the Inter-American Court considered that a resolution to render without legal effect Mr. Ivcher Bronstein's nationality certificate—among other facts—constituted an indirect means of restricting his freedom of expression. Also, within comparative law, the ruling "Editorial Río Negro contra Provincia de Neuquén" (9/05/07) is of interest, in which the Supreme Court of Justice of the Nation (Argentina) ruled, because the Executive Branch of the Province of Neuquén temporarily deprived said media outlet of official advertising without demonstrating the reasonableness of such measure, and also ruled against the indirect violation of press freedom through economic means: "The first option for a State is to give or not give advertising, and that decision remains within the scope of state discretion. If it decides to give it, it must do so complying with two constitutional criteria: 1) it cannot manipulate advertising, giving it to and withdrawing it from some media outlets based on discriminatory criteria; 2) it cannot use advertising as an indirect means of affecting freedom of expression. Therefore, it has many distributive criteria at its disposal, but whichever one it uses must always maintain a minimal general guideline to prevent denaturalizations." VIII.- Now, it is of utmost importance for the specific case to indicate that advertising provides fundamental financial support in the current operational scheme of mass media, as it allows the publication or dissemination of its content and, ultimately, the economic sustenance of the people who work in said media. It is evident that if the economic income of a media outlet (in this case print media) is limited, it is also harmed or—even—eliminated, all to the detriment of both freedom of expression and freedom of information. (…)
A clarification must, however, be made to adapt what has been said to the particularities of this case. The Manager of the respondent Bank states that it would be incorrect for the Chamber to come and indicate the way in which a vital aspect for the commercial business that the Bank operates, which is advertising, must be conducted, and he is right on this point. The Chamber understands that the legal condition of the Banco Nacional de Costa Rica must be taken into account, within the state administrative framework, as it is an institution with constitutionally recognized autonomy and which has been tasked with carrying out an unquestionably commercial activity and, furthermore, in a regime of competition with private entities. In this dynamic, the commercial advertising that state enterprises can carry out responds and must clearly respond to technical and objective decisions and assessments, and interference by a body for the protection of Fundamental Rights like this Chamber has no place over such aspects.- It is not there that the constitutional and Human Rights conflict analyzed here originates, as demonstrated by the general position expressed in the 2012 annual report of the Special Rapporteurship for Freedom of Expression of the Inter-American Commission on Human Rights titled "Principles on the Regulation of Official Advertising and Freedom of Expression." In said document, the need for different state institutions to have technically and objectively designed plans for their communication purposes is well established, and this is repeated in the legislative file of the investigation, where the Deputies and the plaintiff himself affirm that the particular condition of public enterprises must be taken into account and technical and objective decisions on advertising must be respected. In this regard, the plaintiff himself precisely states that:
"the criterion for distributing advertising placement should be market criteria, they should be media plans designed by professionals in the field, and the money necessary to fulfill that media plan should be invested, so that what the state enterprise competing in the market wants to communicate is efficiently communicated." (pp. 18-36 of Legislative File 20066) The problem in this case arises rather when public enterprises depart from that channel to manage their advertising placement according to purposes alien to objective and technical reasons, and incompatible with the constitutional framework of fundamental rights.- It is at that point where this Chamber's participation acquires full justification, and that is what is sought to be confirmed or ruled out through this amparo action.
IX- The specific case.- The protected party states that the respondent has used his influence and functions as General Manager of the Banco Nacional de Costa Rica to attempt to pressure Diario La Nación to modify publications and reports made; he affirms that this pressure materialized in the gradual reduction of advertising placement and in its virtual reduction to zero in recent months. From the proven facts and the considering clause on the analysis of evidence, the Chamber finds demonstrated both the reality of the reduction of the Banco Nacional's advertising placement with the Periódico la Nación, starting from the publication made at the end of February, and particularly during the months of June and July, and the reasons that motivated it.- In this latter sense, as indicated supra, the statements of the respondent official himself, issued before the various bodies that inquired about his actions, are sufficiently clear.- In all of them, the official expressed the existence of dissatisfaction with the way the media outlet reported during the months of February, March, April, and May 2016, on topics related to the respondent banking entity concerning the case of the company LATCO; actions of the bank's Board of Directors, as well as the BNCR's participation in the BICSA case. According to the plaintiff's account, confirmed by the respondent Manager, the dissatisfaction reached its peak with this last case, as it was understood that the newspaper was leaving aside the Bank's responses and omitting important information, all of which could result (as indeed occurred) in heavy economic outlays for the Bank to maintain minimum levels of confidence in its situation. It is because of this case and its alleged serious consequences for the Bank that the respondent Manager decided to publish, on May 13, 2016, a paid field in two other national print media outlets, in order to respond to the cited La Nación publications and make known what, in his judgment, was the real situation surrounding the BICSA case. With this last action, the situation worsened, adding to the conflict bitter editorials from the media outlet and responses from the Bank in the same tone. It is at this point that the Manager decided to "have a conversation" with the representatives of the media outlet, as a result of which, he arranged, concomitantly and meanwhile, a pause he called an "impasse" in the advertising placement with the newspaper La Nación; that pause concludes, (according to his own words) after he is attended to by the Director of the media outlet. These narrated facts are repeated consistently both in the plaintiff's brief and in all the versions that the respondent himself provided before the Bank's Board of Directors, before the Legislative Commission that investigated the case, and before the Chamber in the report rendered, and above all, they are clearly recorded in the audio provided by the plaintiff.- Having said the above, the assessment of such facts, against the constitutional framework of freedom of expression and the right to information, by this Court cannot be positive for the respondent. It is constitutionally reprehensible for the General Manager of a public Bank, that is, a public official, to have issued an order to withdraw advertising placement from a specific print newspaper, without a valid objective and technical basis, but rather due to his dissatisfaction with the way the news and reports issued regarding the activities and situation of the banking entity he represents were elaborated. The Court understands that the foregoing constitutes indirect censorship, a clear form of attempting to influence the informative content of the media outlet, and also sends an intimidating message to other media outlets that fosters an environment hostile to the freedoms of expression and information essential in a democratic system. The foregoing, insofar as it comes from a public servant, is totally inadmissible in light of the necessary respect for and adherence to what a Deputy appropriately defined as "democratic logic," to the realization of which all bodies must contribute, including, of course, public enterprises.- (p. 383 of Legislative File 20.066) It requires the broadest possible realization of freedom of expression and the right to information, without this meaning the renunciation of employing legally established means to combat news or opinions that may unjustly affect the work of institutions.
X.- Indeed, if in the respondent's judgment, the media outlet should have given him the due right of reply at the times he requested to meet with the company's representatives due to the relevance of what was published, he could and can file the legal actions he deems pertinent, in order to determine the eventual impact on his honor, or damage to the banking entity he represents, and the possible liability of those who may have exceeded the limits of freedom of expression. Furthermore, he had the option provided for in the legal system of resorting to the rectification or reply process, in favor of persons affected by inaccurate or offensive information issued to their detriment (articles 14 of the American Convention and 66 and following of the Ley de la Jurisdicción Constitucional). However, the respondent opted first for the publication of explanatory notes in paid fields in other print media outlets and did not do so with Diario La Nación. By doing so, he set aside the formal mechanism of rectification and reply before Diario La Nación, or any other press outlet of Grupo Nación, and he did so in an absolutely deliberate manner, as he expressed before the Commission that "…(…) one of you was discussing why I didn't resort to the judicial route. Am I going to file an amparo action before the Sala Cuarta to tell them to give me a right of reply? We would still be in the admission process." (p. 383 Legislative File 20.066). These are unfortunate considerations, not only because they do not respond to the true reality of the rectification and reply process—which, contrary to what he affirms, has a very expeditious admission process—but also because they also seek to justify the carrying out of direct action or acts of pressure over the avenues of law, to achieve a modification in the content of the newspaper's reports.- On this issue, it must be emphasized, as mentioned, that such attempts at censorship, direct or indirect, have no place in our environment, nor in the constitutional state of law.
XI.- Conclusion.- Thus, this Chamber confirms an act of indirect censorship executed by a state servant, with the aim of limiting the freedom of information that the protected media outlet should enjoy, through a decrease in advertising placement, without technical or objective reasons and rather with the clear intention of influencing the informative content of the press outlet in relation to its reports concerning the Banco Nacional de Costa Rica and its subsidiaries.
In the case, what the doctrine has clearly termed indirect censorship is confirmed, a form of illegitimate harassment of a media outlet by a public entity, which not only injures freedom of expression as stated above, but also the right of citizens to have mechanisms for truthful information in a democracy. It is a perverse and anti-democratic way of using the power of the State to direct opinion, according to a system of "reward or punishment," against those who exercise press freedom and free expression guaranteed constitutionally and conventionally. On this topic, the Human Rights Commission and the most authoritative doctrine have been emphatic in pointing out that “the right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.” The mechanisms of direct or “indirect” censorship are clearly prohibited by Article 13.3 of the American Convention and have been the subject of attention by various bodies of the inter-American system. Interpreting the cited Article 13.3, the Declaration of Principles on Freedom of Expression approved by the Inter-American Commission on Human Rights (hereinafter, “IACHR”), establishes in its Principle 5 that “[p]rior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion, or information transmitted through any medium of oral, written, artistic, visual, or electronic communication must be prohibited by law. Restrictions on the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the creation of obstacles to the free flow of information, violate the right to freedom of expression.” And in its Principle 13, it indicates that “the use of the power of the State and the resources of the public treasury; the granting of tariff preferences; the arbitrary and discriminatory allocation of official advertising and official credits; the granting of radio and television frequencies, among others, with the purpose of pressuring and punishing, or rewarding and privileging social communicators and media outlets based on their lines of information, are an attack on freedom of expression and must be expressly prohibited by law." For its part, the Inter-American Court has indicated that “any act of public authority that implies a restriction on the right to seek, receive, and impart information and ideas, to a greater extent or by means other than those authorized by the same Convention, is illegitimate." It is widely recognized in the doctrine that indirect censorship normally hides behind apparently legitimate actions that, however, are carried out with the purpose of conditioning the exercise of individuals' freedom of expression. When that happens, a violation of Article 13.3 of the Convention is configured. As the Inter-American Court of Human Rights (hereinafter, the "Inter-American Court" or "Court") has held, this is a violation of freedom of expression". (I/A Court H.R. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985, Series A No. 5, para. 55.)
These restriction mechanisms were also the subject of analysis by the Special Rapporteurship for Freedom of Expression of the IACHR, which in its 2003 Annual Report drew attention to these “obscure obstructions, silently imposed [that] do not give rise to investigations nor merit general censure.” The issue was also addressed by this office in its 2008 and 2009 Reports.
The jurisprudence of the Inter-American Court, for its part, has condemned on various occasions the adoption of state measures that constitute indirect means of restricting freedom of expression. Thus, for example, it has condemned the requirement of compulsory membership in a professional association for journalists, the arbitrary use of the State's regulatory powers when this has been used to initiate intimidating actions against the directors of a media outlet, or to revoke the nationality of a media outlet's director as a consequence of the editorial line of the programs it transmits (Ivcher Bronstein v. Perú Case).
The rapporteurs for freedom of expression of the UN, the OAS, and the OSCE have also addressed the issue of indirect restrictions on freedom of expression by authorities. For example, in their 2002 Joint Declaration, they affirmed that, “governments and public bodies should never abuse their custody of public finances to try to influence the content of press media information; the placement of advertising should be based on market reasons.” The arbitrary use of official advertising was one of the first mechanisms of indirect censorship addressed by the inter-American system. Indeed, the Special Rapporteurship for Freedom of Expression in its 2003 Annual Report dedicated a special chapter to studying the phenomenon and concluded that “indirect obstruction through state advertising acts as a strong deterrent to freedom of expression” (IACHR Annual Report OEA/Ser. L/VI.118. Doc 70, December 2003). As indicated at that time by the Special Rapporteurship: “this topic deserves special attention in the Americas, where the concentration of media communication has historically fostered the abuse of power by those in government in the La (sic) arbitrary distribution of official advertising, like other mechanisms of indirect censorship, operates on different types of needs that media outlets have to function and interests that can affect them. It is a form of pressure that acts as a reward or punishment aimed at conditioning a media outlet's editorial line according to the will of the one exerting pressure. As stated, indirect censorship mechanisms often hide behind the apparent legitimate exercise of state powers, many of which are exercised by officials in a discretionary manner. In the case of the distribution of official advertising, a case of indirect censorship is configured when it is carried out with discriminatory purposes according to the editorial position of the media outlet included in or excluded from that distribution and with the object of conditioning its editorial position or line of information.
To determine whether or not there was a violation of freedom of expression due to the exercise of those powers, it is necessary to analyze the context.
This is precisely what has been demonstrated in this amparo action: that the withdrawal of advertising during the first half of 2016, but particularly in the months following the publications at the end of February, occurred in a context of confrontation with the media outlet, where it can be proven that the strategy did not follow objective criteria but was implemented, in the words of the manager himself, with the aim of "motivating" the newspaper to change its editorial line and news focus, instead of using existing legal mechanisms such as the right of rectification and reply if the information was considered inaccurate or offensive.
In the cases Baruch Ivcher Bronstein Vs. Perú. Judgment of February 6, 2001. Series C No. 74, para. 154. Similarly, cf. I/A Court H.R., “Caso Perozo y otros Vs. Venezuela”. Judgment of January 28, 2009. Series C No. 195, the Inter-American Court has held that “[in] evaluating an alleged restriction or limitation on freedom of expression, the Court must not confine itself to studying the act in question, but must equally examine said act in light of the facts of the case as a whole, including the circumstances and the context in which they occurred.” Following the same reasoning, it held that “the enumeration of restrictive means in Article 13.3 is not exhaustive nor does it prevent consideration of ‘any other means’ or indirect avenues derived from new technologies (…). For a violation of Article 13.3 of the Convention to occur, it is necessary that the avenue or means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions” (Advisory Opinion OC-5/85 and case Ríos y otros v. Venezuela). For its part, the Office of the Special Rapporteur for Freedom of Expression has been denouncing that this type of indirect censorship occurs frequently and is due to the absence of legal rules regulating the distribution of official advertising and reducing the discretion of public officials. In the same vein, it was noted by the Supreme Court of Justice of Argentina in the case Editorial Río Negro S.A. v. Provincia de Neuquén, in which the court indicated that the Province of Neuquén had violated a newspaper's freedom of expression by eliminating the official advertising it had contracted there as a consequence of critical coverage. The Supreme Court noted that the Province of Neuquén should establish an adequate legal framework that limits the discretion of public officials and prevents this type of arbitrariness.
Likewise, the Supreme Court of Chile resolved a claim filed by Revista Punto Final against the distribution of official advertising carried out by some ministries. There, the court considered that the Chilean legal order grants officials “a wide margin of discretion” and recommended that state advertising investment be made “under transparent and non-discriminatory criteria” (case 9148/09). Cases have also occurred in countries like the United States (El Día Vs. Rossello, the Federal Court of Appeals for the First Circuit), where it was established that the withdrawal of official advertising by the administration of the governor of Puerto Rico, Pedro Rossello, from the newspaper El Día, as a consequence of criticisms the newspaper had made of the governor, constituted a clear violation of the right to freedom of expression guaranteed by the First Amendment to the Constitution of the United States. In that sense, the Court of Appeals understood that “using government funds to punish the political speech of members of the press and seek to coerce [the media to issue] expressions favorable to the government is contrary to the First Amendment.” Additionally, the Court understood that “clearly established law prohibits the government from conditioning the revocation of benefits [in this case, state advertising] on a basis that infringes constitutionally protected interests (Court of Appeals for the First Circuit, Puerto Rico, case El Día vs. Rossello, decision of January 25, 1999, 165 F.3d 106, pg. 110).
It is clear from the foregoing and from the reports of the Office of the Special Rapporteur for Freedom of Expression that the State has the right to establish and modify its advertising guidelines, but that it must do so through objective and transparent criteria, established in a planned manner that ensures the power of the State or its funds are not used to discriminate against, manipulate, or directly or indirectly censor the freedom of expression and press guaranteed conventionally and constitutionally (sic). For the reasons stated, the appeal against the Banco Nacional de Costa Rica is granted, with the effects that will be stated in the operative part (…).” (The highlighted text is not part of the original).
In Judgment No. 8396-2018 of 12:40 hrs., of May 25, 2018, this Chamber stated:
“(…) I.- Purpose of the appeal. The appellant relates that an interview called ‘1.a domestic violence against men’ was conducted on the program “Café Nacional” of the public company Radio Nacional de Costa Rica. He claims that, in reaction to this program, the Director of Radio Nacional published an article titled “Amarga vergüenza,” where he warned that he would pre-censor the topic of aggression towards men and would prevent it from being discussed again on Radio Nacional. Likewise, he claims that the interview was completely deleted from the SINART Internet portal and the Facebook page, which violates the right to freedom of expression and thought. Finally, he alleges that the respondent authority has carried out acts of reprisal against the protected party [Name 006], as he was removed from the program “Café Nacional” and his position was transferred to the Press Department, despite belonging to the Production Department of Radio Nacional. (…)
V.- On the specific case. In the sub examine, the petitioner claims to have been affected by censorship practiced by the public company SINART, since the respondents stated that radio programs like the one conducted by them would be prevented and, in addition, said program was deleted from the Internet and Facebook page. As part of the alleged censorship, the protected party Castro was removed from the program “Café Nacional” and transferred to the Press Department.
In this regard, the Chamber was able to establish as proven that on September 13, 2016, the president of the Fundación Instituto de Apoyo al Hombre and the administrative director of the Fundación Instituto de Apoyo al Hombre were received on the radio program “Café Nacional” of Radio Nacional. The program, produced by the protected parties [Name 005] and [Name 006], was broadcast on the radio frequency 101.5 FM and through the official Radio Nacional page on the social network Facebook. Likewise, it was corroborated that the Director of Radio Nacional published the document titled "Amarga vergüenza" on his personal Facebook page on September 14, 2016. In it he stated:
“Yesterday, Tuesday, September 13, on Radio Nacional de Costa Rica, the topic of domestic violence was addressed in a very unfortunate manner, focusing it on the violence suffered by men in their homes. The editorialization (sic) of the space left no doubt about the personal position of the invited persons and those who conducted (sic) the space. In it, femicides were incredibly (sic) justified, the violence suffered by women was placed on the same level as that suffered by men, the closure of INAMU was requested, and it was proposed to do this type of program once every 15 days, which of course is not going to happen. I, as Director of Radio Nacional de Costa Rica, was not consulted for this topic to be addressed; those who know me know that I would never have allowed this interview to air. But that does not exempt me from responsibility. During my management I have realized that there is a great lack of training internally within the institution regarding Human Rights and their treatment in communication media, and unfortunately the workshops that since yesterday we have been planning with institutions like INAMU, the Defensoría de los Habitantes, the Frente por los Derechos Igualitarios, and the association ACCEDER, will be given as a reaction to the damage caused to society by the airing of that interview. It is my fault for not having acted in advance, for not having made clear the vision on Human Rights that we have in the current management of SINART, and I can only offer my most sincere apology and promise, especially (sic) to the women who systematically suffer violence for the mere fact of being women, that a situation like this will not happen again. In public service media we have a great responsibility. Every time one of us, male and female workers of public radio and television, opens microphones or stands in front of a camera, we do not respond with a personal opinion based on our beliefs, principles, and values, but rather we speak from an institutionality governed by superior principles, public policies, and international treaties. It is not about whether I agree or not, it is not about what I think. We have THE RESPONSIBILITY, in capital letters, to inform and train ourselves on the core topics of the social construction of our current reality and that, neither by action nor omission, anti-human rights discourses or those that foment hatred have space in public media. We are managing what is pertinent so that next Monday at 9 a.m., specialists in equal rights and gender violence can accompany us on the station and explain to our audience why everything that was said last Tuesday is wrong in its approach and rather we can build permanent spaces for the promotion of human rights.” (The underlining is added).
That same day and on the Facebook page of Radio Nacional, SINART published its official position regarding what had happened:
“In relation to the interview conducted yesterday, Tuesday, September 13, on the program Café Nacional, referring to different forms of domestic violence, the Directorate of Radio Nacional and the General Directorate of SINART clarify: The expressions of the invited and conducting persons of said space that erroneously justified the situation of violence suffered by thousands of women in our country and questioned the relevance of the Instituto Nacional de las Mujeres, INAMU, do not in any way represent the position of these Directorates. We recognize that the topic of domestic violence must be addressed from various angles, but never ignoring that the root of this problem is found precisely in a patriarchal, machista structure, and that women and girls are by far the main victims of violent behavior, without this signifying that we ignore that some men also suffer violence and that there are gaps in the system or poor management that affects them. SINART recognizes the necessity of the existence of the Instituto Nacional de las Mujeres and we support its relevance in the construction of an egalitarian and just society, and in the search for the eradication of all forms of discrimination and violence suffered by women. We offer our most sincere apology to the audiences of Radio Nacional, to the people who with just reason have complained about the focus of the interview, and we commit to rectifying this by contributing to the appropriate treatment of the topic with timely and truthful information from the microphones and screens of SINART in its public service mission. We are managing what is pertinent so that next Monday in the same space, specialists in equal rights and gender violence can accompany us on the station to address the topic from a Human Rights focus. As a State, and even more so as a public service medium, we have the obligation to enforce the International Conventions against all forms of discrimination and violence against women, which our country has signed and committed to comply with, such as the Convention of Belém do Pará and CEDAW.” (The underlining is added).
Relevant to the sub lite, the Chamber established as proven that the interview of the protected parties was deleted from the timeline of the station’s Facebook page and also from the SINART web portal.
It is clear that censorship of freedom of expression can occur openly, particularly in the case of a dictatorship or a weakened democracy. However, especially when acting within the framework of a democratic regime, it is frequent that censorship manifests itself in a more subtle and veiled manner, for example, by affecting the inputs or resources that allow its exercise, through the issuance of restrictive guidelines, exerting indirect pressures, etc. This characteristic of veiled censorship—which is very dangerous, precisely because it is clandestine or disguised—obliges the Courts to resort to so-called circumstantial evidence in order to determine the act of censorship.
In application of the above to the sub lite, the Chamber notes sufficient elements to conclude that the statements of the amparo protected parties were censored and, thereby, their fundamental rights were injured. Such a conclusion is derived from the express statements of the Director of Radio Nacional when he stated that the repetition of interviews like that of the protected parties “of course is not going to happen,” and that “he would never have allowed this interview to air…,” but “…a situation like this will not happen again…” The Chamber observes that the respondent party warns with absolute clarity of the censorship that will exist regarding future interviews like the questioned one and of the regret for not having censored the one that was conducted. For this Tribunal, there is no doubt that the transcribed expressions constitute censorship, especially since they come from the director of the medium that served for the transmission of the interview in question.
It is more subtle to say that one must make “...clear the vision on Human Rights that we have in the current management of SINART...” and that “...everything that was said last Tuesday is wrong in its focus...” Equally clandestine was the official communiqué from SINART: “We offer our most sincere apology to the audiences of Radio Nacional, to the people who with just reason have complained about the focus of the interview, and we commit to rectifying this by contributing to the appropriate treatment of the topic with timely and truthful information from the microphones and screens of SINART in its public service mission.” In these citations, it is observed that SINART intends to impose its “vision” of Human Rights or to “rectify” the actions of the protected parties “with timely and truthful information,” assuming that the opinions of the amparo protected parties are the opposite: untimely and false.
Finally, it was accredited that the recording of the interview was deleted from the timeline of the station’s Facebook page and the SINART web portal. The Chamber considers that, with this fact, the threat of censorship materialized into full censorship, since both the freedom of expression of the amparo protected parties and the right of third parties to be informed and have access to the interview were impeded.
It is necessary to reiterate that the limits on freedom of expression must be clearly established by law, as set forth in the American Convention on Human Rights:
“Article 13. Freedom of Thought and Expression 1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law and be necessary to ensure:
a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
4. Public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence, without prejudice to the provisions of paragraph 2.
5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to violence or any other similar illegal action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be prohibited by law (The underlining is added).
As mentioned in the prior clarifications, the content of the message can have a link to the limitations on freedom of expression. Thus, this will be of relevance only when it is prohibited by law and constitutes “...propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to violence or any other similar illegal action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin.” However, this situation does not arise in the sub examine. Furthermore, if the respondents consider that the actions of the protected parties fall within one of these assumptions or those contemplated in paragraph 2 of that norm, the appropriate course would be to resort to the jurisdictional courts in order to claim the subsequent liability of the subjects (by application of a law, as established in the Convention), and not to attempt to remedy the situation through prior censorship.
On the other hand, the Chamber recalls that the work of SINART, in its condition as a public company created by law, has the legal duty to respect political, religious, social, and cultural pluralism as well as to allow the free expression of opinions, as is explicitly established in subsections b) and c) of numeral 4 of the Ley Orgánica del SINART:
“Article 4°-Principles. The activity of SINART, S. A., as a communication system, shall be inspired by the following principles: (...)
b. The separation between information and opinions, as well as the identification of those who hold the latter and their free expression.
c. Respect for political, religious, social, and cultural pluralism.” Therefore, unless it concerns an express legal or conventional exception, SINART must respect the discussion of all opinions, including those that the management of the medium currently in charge considers unpopular, minority, questionable, etc. Apart from the topic addressed in the interview that is the object of this amparo action, it should be noted that there are innumerable matters that generate contrasting, passionate, and strong opinions and responses, some with indignation or repudiation, others rather with support and admiration, such as for example regarding the use of drugs for medicinal purposes, abortion, the rights of the LGTB community, the secularization of the State, the public sector wage policy, pension systems, the establishment of fiscal plans, etc. Reiterating the transcribed jurisprudence, “...Freedom of expression does not depend on the truth, popularity, or social utility of the ideas and beliefs manifested, and it recognizes that a certain degree of abuse is inseparable from the proper use of that freedom, from which the government and the courts must allow a debate to develop that is 'uninhibited, robust, and wide-open,' which can include caustic, vehement expressions and sometimes severe, unpleasant attacks towards the government and public officials.” In support of the above, it is clarified that the interview of the protected parties also cannot be censored for the journalistic approach or the conduct developed, since none of those points constitutes a legal reason to limit freedom of expression.
The Chamber has no doubt in reiterating that responsibility for the exercise of freedom of expression is subsequent and must be provided for by law. In this way, if any person felt affected by the statements made in the interview object of this appeal, whether by the moderators or the interviewees, they could assert their rights before the ordinary courts of justice. However, it is absolutely improper for the Administration to depart from the principle of legality and attempt to limit the exercise of freedom of expression through censorship, as occurred in the sub examine.
VI.- A second point related to censorship is the transfer of the protected party Castro to the Contrapunto team. In the case file, it was accredited that he was transferred to said body, as was communicated to him via official letter PE-DG- 052-2017 of February 24, 2017, and that there is a notable temporal proximity to the other facts narrated in the previous point. Moreover, the open dispute between the Administration and the protected party Castro was evidenced, who communicated his disagreement with the actions of the respondents through an email of September 20, 2016, where he stated:
Greetings Pablo. Allow me to disagree with what you say since I personally consider that: CENSORSHIP: is our director Randall Vega stating on his Facebook: "those who know me know that I would never have allowed this interview to air" (...) CENSORSHIP: is the Director of Radio Nacional having "suggested'' to us that we space out the invitations to lawyer Alexandra Loria because of her thoughts regarding topics like abortion and unions of the sexually diverse population, even though such topics were not addressed by her on our program.” Thus, there are sufficient indications of the existing censorship and the distancing between the Administration and the protected party. In this regard, although the respondent party affirmed that it was a complete reorganization of the resource, the truth is that it omitted to attach evidentiary elements that would allow the Chamber to reach the same conclusion. The evidence it provided referred to the reassigned functions (which were within the profile of a journalist) and the proof of the amparo protected party's salary.
The Chamber reiterates that, in matters of constitutional review, once clear indications of censorship are established ab initio, an evidentiary burden falls on the counterparty that must lead to the conclusion that the actions were not of such a nature, especially when the respondent is in a better position to provide evidence to the case (dynamic burden of proof), since the Administration has a wealth of information and public resources to rule out any discrimination or violation of a fundamental right; despite which, in the sub examine, the respondent fails to discredit the grievance of the appellants with reliable evidence. In this manner, taking into consideration the provisions of the already cited subsections b) and c) of numeral 4 of the Ley Orgánica del SINART, which expressly oblige that public company to respect political, religious, social, and cultural pluralism as well as to allow the free expression of opinions, it is clear that in the instant case a form of veiled censorship has occurred through the relocation of a journalist to a position that limits or eliminates his influence on the transmitted content, all after or on the occasion of the aforementioned statements made in the exercise of his journalistic work.
The foregoing is even more relevant, since through veiled censorship a kind of clandestine intimidation or intimidation of the rest of the journalistic staff of the public company SINART is exercised. In this way, their freedom of the press is threatened by the possibility of being a victim of reprisals derived from the exercise of journalism freely, when opinions are formulated that the management of the medium, according to the government of the turn, does not share; an environment that fosters the scourge of self-censorship to the detriment of journalists, since their job stability could compel them to avoid reprisals. This equally affects the final recipient of the journalism services, the public, who in this way sees their capacity to form their own criteria in an informed manner diminished by not being able to hear a diversity of informational content and points of view.
VII.- By virtue of the foregoing, the appeal is granted, with the effects that will be stated. Given that the harmful acts are attributable only to SINART, the ruling only covers that entity. (…)
Therefore:
The appeal is granted solely against SINART. Mario Alberto Alfaro Rodríguez, in his capacity as Executive President of the Sistema Nacional de Radio y Televisión S.A., or whoever occupies that position in his place, is ordered to refrain from incurring again in the acts that gave grounds for the granting of this amparo action. Additionally, said respondent is ordered that, within the period of TWENTY-FOUR HOURS, counted from the notification of this judgment, place the September 13, 2016 interview of the program "Café Nacional" from Radio Nacional de Costa Rica, object of this appeal, as well as the September 19, 2016 interview (the one conducted with INAMU and ACCEDER), on the Facebook page of SINART, where it will remain pinned on the wall for at least one month, and on the main page of its Internet site, where it must be visible on the front page or "landing page" for the same period. On the other hand, it is ordered to immediately reinstate the protected party Castro to the position he held at the time of the facts, in case said protected party expresses his will to that effect; for the above, the respondent is ordered to immediately communicate to the amparo protected party Castro what was decided by the Chamber. Magistrates Cruz Castro and Castillo Víquez provide different reasons. Magistrate Cruz Castro sets forth a note. The foregoing is issued with the warning that he could incur the crime typified in Article 71 of the Ley de la Jurisdicción Constitucional, which provides that prison of three months to two years, or a fine of twenty to sixty days, shall be imposed on anyone who receives an order that they must comply with or enforce, issued in an amparo action, and does not comply with it or does not enforce it, provided that the crime is not more severely punished. The Sistema Nacional de Radio y Televisión S.A. is ordered to pay the costs, damages, and losses caused by the acts that serve as the basis for this declaration, which shall be liquidated in the execution of judgment of the contentious-administrative jurisdiction. Notify personally Mario Alberto Alfaro Rodríguez, in his capacity as Executive President of the Sistema Nacional de Radio y Televisión S.A., or whoever occupies that position in his place. Magistrate Hernández Gutiérrez dissents and grants the appeal partially. (…). (The highlighted text is not part of the original).
For its part, in Voto No. 10961-2020 of 10:05 hrs. of June 16, 2020, this Tribunal stated the following:
“(…) I.- Purpose of the appeal.- The appellant seeks protection of the right to freedom of the press, as it considers that the respondent entity issued a resolution that illicitly restricts the freedom of information and press of the protected journalistic medium, by ordering it to remove from its databases the image used in a news item of public interest. (…)
V.- The Chamber considers that when a collision occurs between these rights as in the present case (image and freedom of the press), based on the institutional nature of the right to information, and provided that the use of the image that complements the news is truthful and does not affect the dignity of the person holding that right, it must lean towards giving a preferential value to the right to freedom of the press. In the same sense, we can find precedents in Spanish jurisprudence (STC 165/1988 and STC 59/1989) in which the Spanish Constitutional Court, in various cases, has weighed in favor of freedom of information in the face of conflict with other fundamental rights, using the institutional nature of the right to information as its central argument. In the same sense, the Spanish Supreme Court, faced with the weighing of these two rights, has stated:
“The technique of weighing requires assessing the abstract weight of the respective fundamental rights that come into collision, and from this point of view, the weighing must respect the preferential position held by both the right to freedom of expression and the right to freedom of information as they are essential as a guarantee for the formation of a free public opinion, indispensable for the political pluralism required by the democratic principle.
Furthermore, that abstract weighing judgment must consider that the exercise of freedom of expression, by its very nature, includes criticism of another's conduct, even when it is unpleasant and may annoy, disturb, or displease the person against whom it is directed, for this is required by pluralism, tolerance, and the spirit of openness, without which no democratic society exists." Supreme Court Judgment of February 16, 2016.
In the same line of thought, the European Court of Human Rights emphasized the importance that "freedom of the press provides the public with one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. In more general terms, freedom of political debate is at the very core of the concept of a democratic society" (case "Lingens v. Austria," judgment of July 8, 1986, Series A No. 103, para. 42).
Indeed, based on the aforementioned jurisprudential context and the arguments set forth in the cited precedents, this Chamber analyzes the considerations of the case and concludes that the appellant is correct in its claim. The democratic order requires the defense of freedom of expression as a basic and indispensable instrument for the formation of public opinion. And that defense entails the possibility of expressing thought using the means chosen by the sender and also the faculty to disseminate it through them. As indicated in the cited precedent, the value of this defense reaches its highest level when the freedom is exercised by information professionals through the institutionalized vehicle for forming public opinion, which is the press. In that sense, it is understood that although the right to expression, contemplated in Article 13 of the American Convention, is not absolute, the limits on its exercise and the controls on its proper performance must in no way limit its exercise beyond what is strictly necessary, to the point that they could become a direct or indirect mechanism that affects freedom of expression, information, and the press and constitute a violation of the right. Now, in the case under review, this Chamber considers that the publication issued by the newspaper Diario Extra on June 24, 2015, where the image of Mr. Calderón was used, the news outlet merely disseminated information related to a newsworthy event of interest to the community, as it concerned the possible commission of a crime; therefore, the possibility of using a person's image to refer to an event is supported by its relevance to the public, without the consent for the use of their image in that context being necessary. The photograph used is part of a public document, not an image obtained in an intimate, family, or private context, and is used as an accessory to the news, as part of its complement. In the case of the news under analysis, the photograph used is part of the contextualization of a news story that is also truthful (an undisputed fact) and serves as its accessory complement, as indicated, without the image being used in a way that affects the dignity of its subject, such that in those terms it functions as a valid limit to the exceptions admitted by the right to one's image. Today, a communication medium without images, of text only, without illustrations, is inconceivable, such that the analysis of Prohab, in the opinion of this Court, starts from a scenario of decontextualization of the use of the image in question, that is, as if it were not part of a newsworthy event of public interest being communicated at that moment. The respondent points out that the news could have been communicated equally without using the alluded image, which is an illegitimate way of interfering with press freedom; it is equivalent to telling a medium what and how to communicate or disseminate, which is a flagrant violation of the essential content of press freedom. Its effect would be to nullify so-called Photojournalism and would generate a form of self-censorship by the communication media, which would have to be self-limiting in illustrating their information as part of the news content, through the use of images of people, to avoid claims before a State office, which—in this context—attempts to operate as a kind of censor or editor of what and how one can publish, generating, as indicated, a reflexive effect of permanent self-censorship, clearly harmful to the right to press freedom, which of course includes the freedom to choose the content of what is published. Following the line already established in judgment 2015-1782, in accordance with Article 13 of the American Convention: "3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions." In this sense, the censorship of press freedom can be direct—for example, the direct prohibition of a certain publication—or indirect (also called soft censorship, subtle censorship, veiled censorship)—for example, the use of various means to intimidate and thereby prevent a publication. The Convention provides a non-exhaustive list of cases of censorship by indirect means (controls over newsprint, frequencies, etc.) and concludes with the general rule, which would be "...or by any other means tending to impede the communication and circulation of ideas and opinions." (2015-1782) The Chamber considers that the exercise of Prohab's powers for the purposes of the Law on the Protection of the Person Regarding the Processing of Their Personal Data cannot be used as a censor of the legitimate exercise of press freedom, because that would constitute indirect censorship, under State control, of a fundamental, essential right for the sustenance of the democratic regime.
In that sense, the Chamber considers that if the use of the image (photograph of the passport page) as in this case occurs within the context of a newsworthy event of public interest, inserted in a public document, directly related to the content of the news—since it involves a border migration issue—whose use, moreover, does not denigrate or affect the image of its subject, it is not valid to separate or decontextualize that image from its news story, much less to attempt to eliminate it, because it forms an integral part of it. The foregoing would entail censorship of the news itself—harmful to Article 13 of the American Convention on Human Rights. In the case of Kimel v. Argentina (FJ 54 et seq.), the Inter-American Court of Human Rights declared that restrictions on Freedom of Expression "(...) are exceptional in nature and must not limit, beyond what is strictly necessary, the full exercise of freedom of expression and become a direct or indirect mechanism of prior censorship (...)"; they "must be formulated in an express, precise, exhaustive, and prior manner"; and that "the legal framework must provide legal certainty to the citizen," limits that were clearly violated in this case, by attempting to restrict the content of truthful information of public interest.
Based on that reasoning, it is considered that in the specific case, the decision of the respondent entity to order the appellant to delete from its database the photograph of the complainant's passport, contained in the repeatedly cited news, proves to be an action that affects journalistic, informative, and news performance and thereby the essential content of the press freedom of the protected communication medium. Consequently, it is concluded that the order issued by the Data Protection Agency by declaring WITH MERIT the complaint filed by Marco Tulio Calderón Quesada against Diario Extra, and ordering Diario Extra to delete from its database the photograph of the complainant's passport, contained in the repeatedly cited news, is violative of the freedom of information of the appellant medium, so the amparo under review must be granted, as so ordered. (...)" (The highlighting is not part of the original).
This jurisdiction, in Vote No. 16167-2020 of 09:20 hrs. on August 28, 2020, stated:
"(...) I.- PURPOSE OF THE APPEAL. The appellant considers his fundamental rights violated, given that, in the face of the covid-19 pandemic, the government has issued measures that limit freedom of movement and commerce. Furthermore, he maintains that the respondent authorities violate press freedom, due to their actions regarding Diario Extra, since the MTSS canceled the subscription to that medium and the ICAA ordered its officials not to speak with journalists from the newspaper in question. (...)
IV.- ON THE SPECIFIC CASE. In the sub examine, the petitioner claims that the Ministry of Labor and Social Security violates fundamental rights, given that the subscription to Diario Extra was canceled. In this regard, in the report rendered under oath by the Minister of Labor and Social Security, it was indicated, regarding the cancellation by the MTSS of the subscription maintained with Diario Extra, that: '(...) that decision was due to the fact that as a result of the State of Sanitary Emergency facing the country, which has caused economic impact not only nationally but also globally, the Executive Branch managed, days ago, cuts in public spending. Given that this budget cut forced us, as an Institution, to free up costs in certain specific budget lines, taking care, of course, not to affect the service that we as a Ministry provide to the citizenry. Therefore, it was by virtue of that budget cut we made that the decision was adopted to eliminate the subscription that the Institution maintained with several national circulation newspapers, such as: Diario Extra, La Nación, El Financiero, and La República. For the amount for the payment of the invoked subscriptions was charged to the same budget line from which paper and cardboard supplies were purchased, and this represented almost 50% of the budget for those purposes. And since as a result of the pandemic caused by the COVID 19 virus, we must have paper towels available for the sinks installed for handwashing by employees and users of this Ministry; the purchase of the cited supplies was prioritized, with the consequence of eliminating the aforementioned subscriptions' (the bold is not in the original).
Thus, the Court verifies that, on July 14, 2020, an MTSS official sent official letter DGAF-OF-383-2020 to the legal representative of Sociedad Periodística Extra Limitada, in which he stated: 'Most respectfully and within the framework of contract 2019CD-000045-0007000001; under the on-demand modality for the acquisition of copies of the newspaper La Extra, we inform you that in attention to higher instructions and in compliance with the new directives issued by the Government of the Republic of Costa Rica, which urge mandatory budget cuts in order to direct resources to addressing the COVID-19 pandemic, we find ourselves in the need to formally request the indefinite cancellation of delivery of said newspaper starting from July 16, 2020.' Similarly, official letters DGAD-OF-376-2020 directed to the legal representative of Properiodicos Limitada and DGAD-OF-382-2020 sent to the legal representative of Grupo Nación GN S.A. are observed, through which the cancellation of the subscription maintained by the MTSS with the newspapers La República, as well as La Nación and El Financiero, respectively, was communicated.
In this way, contrary to what is alleged by the petitioner, this Court considers that the action of the Ministry of Labor and Social Security does not violate fundamental rights. Note that, in the sub iudice, the MTSS canceled the subscription not only to Diario Extra but also to other communication media such as La República, La Nación, and El Financiero. Furthermore, it is not verified that such a decision was arbitrary, but rather that it responds to a budget cut derived from the covid-19 pandemic. In this regard, it is worth reiterating that in the report rendered under oath by the Minister of Labor and Social Security, it was recorded that '(...) the amount for the payment of the invoked subscriptions was charged to the same budget line from which paper and cardboard supplies were purchased, and this represented almost 50% of the budget for those purposes. And since as a result of the pandemic caused by the COVID 19 virus, we must have paper towels available for the sinks installed for handwashing by employees and users of this Ministry; the purchase of the cited supplies was prioritized, with the consequence of eliminating the aforementioned subscriptions.' Ergo, given the conditions caused by the referenced pandemic, that institution prioritized the purchase of paper towels, which led to dispensing with the referred subscriptions. Consequently, since no violation of fundamental rights has been verified, the appropriate action is to dismiss the appeal with respect to this aspect.
V.- On the other hand, regarding the claim made by the appellant concerning the actions of the ICAA, the Court observes that on June 29, 2020, 'MINUTA GG-2020-02784' was issued, relating to a meeting held between ICAA officials and representatives of the SITRAA union, a document that lacks signatures and in which it is recorded: 'Objective: Various SITRAA topics Place: Virtual Date: 29-06-20 Start time: 11:00am End time: 12:40pm (…) 1. Campaign to reinforce AyA work, action, SITRAA-AyA. operational crews, hygiene heroes motto. Mario Rodríguez explains the proposal, from SITRAA a communication campaign has been carried out to raise the image of AyA. They do not agree with the campaign and expenses that AyA has planned. Motto: “Héroes de la Higiene” [Heroes of Hygiene], they want to start a campaign with this motto and carry it out with the support of operational workers throughout the country. Yamileth Astorga asks Mario what the objective of AyA's Advertising Contract is, apparently he is not clear on it, therefore she gives him a detailed explanation, the objective is the connectivity of homes to AyA's sewerage networks. She clarifies that the campaign is not to raise the image of AyA, but to encourage the population to connect to the sewerage networks. She calls for not feeding Diario Extra and CRHoy, since their objective is privatization. Mario comments that they do not give information to the press, rather he indicates that the press asks them for clarifications on things they do not know about. He clarifies that SITRAA takes to the press things for which they do not receive a response from the Administration. Maritza Alvarado makes comments on the campaign, indicates that the SITRAA proposal seems good to her and can be done with their own resources, recommends that there be unity to raise the image of AyA, points out some tasks that have been developed by the Directorate of Institutional Communication. The internal base must be reinforced before projecting outward. Marianela from SITRAA comments that it would be good for Mrs. Yamileth to carefully read the press releases that appear in the press, so that she realizes that SITRAA is not harming the image, but rather defending the institutionality of AyA, due to its importance in water resource management. Yamileth indicates that the media only publish things that weaken the image of AyA, requests to make an alliance with the unions to raise the image of the Institution (…)' (the emphasis was supplied).
In this regard, the Executive President of the ICAA states in the report rendered under oath before this Constitutional Court that: 'In attention to the formality established at the institutional level, a draft minute of the meeting was drawn up, with number GG-2020-02784, which is associated with the official letter number, said draft does not bear any signature or initial of the participants, and it is clarified in this act that, despite the fact that the officials listed in the draft minute were summoned, Ms. Annette Henchoz Castro and Mr. Alejandro Calderón Acuña did not attend the meeting that had been called virtually; however, it was held in person. The draft minute was drawn up by the official Andrey Vila Abarca, who records in the format customary for these meetings the agenda and a succinct reference to the topics discussed. The minute was subsequently communicated and shared via email by the SDI with Memorandum GG-2020-02784, signed by the official Andrey Vila Abarca of the General Management, who is responsible for following up on the topics and agreements of the meetings with the different unions formed within AYA. From the document called “minute,” it is clearly evident that at no time did the undersigned make the statement complained of, so it is clear that the appellant decontextualizes a phrase from a minute, from a meeting held between Senior Management and the SITRAA Union, where an internal motivational campaign for AyA personnel is analyzed, especially aimed at workers on the front lines of the pandemic response. In that context and in the spirit of joining efforts, I called on the union groups so that if there are situations that concern them internally within the institution, they present their complaints to Senior Management so that they can be addressed, before going to the communication media. That is what I referred to specifically when I indicated “do not feed the media” as cited in the minute. I reiterate that neither from the minute nor from any other document does it ever appear that “an order not to speak with Diario Extra” was given; I am unaware of what the appellant bases that reckless interpretation on regarding freedom of expression. In fact, all press inquiries made by Diario Extra have been attended to in a timely manner; from May to date, 9 information requests raised via email have been received and answered. Diario Extra and Extra TV 42, during this year, have published at least 183 notes related to the institution' (the bold was supplied).
The Chamber also observes that, on July 21, 2020, the executive president of the ICAA sent official letter PRE-2020-01101 to the general manager of Diario Extra, in which she stated: 'In exercise of the right of reply enshrined in Articles 29 of the Political Constitution and 14 of the American Convention on Human Rights, as well as Article 66 et seq. of the Constitutional Jurisdiction Law, in my capacity as Executive President of the Instituto Costarricense de Acueductos y Alcantarillados, I request the appropriate space to rectify the note published by Diario Extra on July 21, 2020, titled “Presidenta AyA orders not to speak with DIARIO EXTRA.” I appreciate the publication of the following text: AyA has never ordered not to speak with Diario Extra Regarding the note published in Diario Extra on July 21, 2020, titled “Presidenta AyA orders not to speak with Diario Extra,” as Executive President of the Costa Rican Institute of Aqueducts and Sewers (AyA), I qualify it as absolutely false that any official has been “ordered” not to speak with Diario Extra. The journalist decontextualizes a phrase from a minute, from a meeting held between Senior Management and the SITRAA Union, where an internal motivational campaign for AyA personnel is analyzed, especially aimed at workers on the front lines of the pandemic response. In that context and in the spirit of joining efforts, I called on the union groups so that if there are situations that concern them internally within the institution, they present their complaints to Senior Management so that they can be addressed, before going to the communication media. That is what is specifically referred to by “do not feed the media..” as cited in the minute. Neither from the minute nor from any other part does it ever appear that an “order not to speak with Diario Extra” was given; I am unaware of what the journalist bases that reckless interpretation on regarding freedom of expression. In fact, all press inquiries made by Diario Extra have been attended to in a timely manner; from May to date, 9 information requests raised via email have been received and answered. Diario Extra and Extra TV 42, during this year, have published at least 183 notes related to the institution. At AyA, we are respectful of the right to information and freedom of expression; we would never agree to injuring those rights. During this year, we have sent two rights of reply to Diario Extra, one regarding a publication on January 15 that was never published, and another that was published in the June 27 edition. We are aware of the vital role the press plays for our democracy. We are clear on how important it is for the country to strengthen the communication media, since as a nation we cannot allow the interruption of a medium's operations; that would be contrary to the public interest of being informed, especially in the midst of a pandemic, which requires truthful and timely information daily. We have trusted and continue to trust Grupo Extra to carry out our informative and accountability campaigns to the population, and we will continue to do so as far as our possibilities allow. We could never allow ourselves to be accused of striking any blow against freedom of expression' (the highlighting was supplied).
Thus, it is deemed appropriate to bring up what was prescribed in judgment No. 2014-011694 of 09:05 hours on July 18, 2014, issued by this Constitutional Court, in which it was ordered:
'III.- ON FREEDOM OF EXPRESSION AND THE STATUTORY RELATIONSHIP. Public officials or servants, by the circumstance of being subject to a statutory relationship, cannot see their freedom of expression and opinion diminished or limited, and, in general, none of the fundamental rights of which they are holders by intrinsic human dignity. Administrative organizations are not watertight compartments separated from the social conglomerate, and the existence of an administrative career or a statutory relationship does not justify the transient deprivation or the limitations of the fundamental rights of public officials, which they enjoy in all facets of their lives. Certainly, freedom of expression within the scope of a civil service or statutory relationship may undergo slight modulations by reason of the hierarchical relationship inherent to the administrative organization, the trust that must exist between the superior and the subordinate, the duties of loyalty of both to the institutional purposes, and confidentiality regarding matters that have been declared state secret by law. In this regard, it is worth adding that such modulation must be proportionate and reasonable, and that not even a public interest could limit or restrict the fundamental rights of a public official given their stronger binding force, direct and immediate effectiveness, and hierarchical superiority. The concepts of good faith and loyalty cannot undermine a public official's freedom of expression when, through its exercise, no unlawful injury is caused to the public entity or body to which they belong and represent, or to third parties. The heads or hierarchical superiors of a public entity or body, due to their special and pronounced responsibilities and exposure to the public, must be subject to and tolerate non-harmful or non-unlawful criticism from both users of public services, the administered public in general, and from the officials themselves. The foregoing is also predicable regarding the forms and instruments of management or administration of a public entity or body. Criticism from users, the administered public in general, and public officials regarding the individual performance of a certain servant and the institutional performance of the public entity or body constitutes a powerful tool for the control and oversight of public management and, of course, for obtaining higher levels of performance results, accountability, and administrative transparency. No public official may be disturbed, persecuted, recriminated, or sanctioned for expressing their opinions, ideas, thoughts, or value judgments about the management of the public entity or the actions of another public official.
IV.- ON THE CONTENT OF ARTICLE 13 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS Article 13 states the following:
Article 13. Freedom of Thought and Expression 1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other medium of one's choice.
In the cited provision, the aim is to maximize the possibilities of participating in public debate, especially when, in addition to protecting the expression of ideas, it recognizes the collective right to be duly informed and the right to reply. However, like any right, it is not absolute but admits restrictions to harmonize its exercise with the rights of others, the security of all, and the just demands of the general welfare in a democratic society (Art. 32 of the Convention). But these limitations cannot be greater than what is established in that same provision or in the Political Constitutions (Art. 30 of the Convention). This right may not be subject to prior censorship but to subsequent liability. The Political Constitution, in Article 29, embodies that postulate by establishing that: 'Everyone may communicate their thoughts verbally or in writing and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law.' Freedom of expression in this sense cannot be subjected to a priori control. The State, through any of its organs, is constitutionally and conventionally prohibited, with the exceptions for the protection of other rights provided by Article 13 and 27.1 of the Convention itself, from carrying out prior censorship. The Inter-American Commission on Human Rights has repeatedly pointed out the dual aspect of freedom of expression: the right of every person to disseminate ideas and information; and the collective aspect, constituted by the right of all society to receive such ideas and information. And when the violation of the right of expression occurs through prior censorship, a range of rights is injured, such as the right of the entire community to receive truthful information. Thus, the Inter-American Court, in Advisory Opinion OC-5/85, has said that: \"...when the freedom of expression of an individual is illegally restricted, it is not only the right of that individual that is being violated, but also the right of everyone to \"receive\" information and ideas.\" V.- ON THE SPECIFIC CASE. In the case under review, the respondent institution ordered, through Circular No. 211-2014, dated March 10, 2014, from the Director of Public Relations of the Ministry of Public Works and Transport, directed to directors and department heads of the MOPT, that they coordinate with the Public Relations Directorate when the communication media contact them directly, for a timely response to the media and to translate into institutional dissemination opportunities; likewise, to jointly define the topic for consultation to be addressed. The appellant considers that said provision is contrary to the right of expression of MOPT workers, because what the Public Relations Directorate intends is to exercise prior censorship over the statements or expressions made by public officials. The respondent Director says that it is a matter of making officials aware when the press contacts them without having coordinated with Public Relations; it is about giving officials appropriate handling of the topic to respond to the information media and not exercising prior censorship as the claimant says. But the truth is that the fact that officials of the Ministry of Public Works and Transport must adapt their statements, according to the rules of the Public Relations Directorate of that ministry, every time they face the collective communication media, is interference, by way of prior censorship, that threatens or prevents them from freely expressing their opinion on matters within their institutional work, which directly affects the community, which receives filtered or censored information. It cannot be admitted that Circular 211-2014 of the Public Relations Directorate falls within one of the assumptions contemplated by our Constitution or by the international instruments that complement it (thanks to the integrating effect of Article 48 according to the 1989 amendment), to legitimize a restriction on freedom of expression.
For these reasons, the appeal must be granted with the legal consequences." (emphasis supplied).
Furthermore, for the purposes of resolving this amparo, it is pertinent to cite the provisions of judgment No. 2015-01782 of 11:36 a.m. on February 6, 2015: (...)
This Court considers that the transcribed precedents are applicable to the case at hand (sub lite), as it finds no grounds to vary the expressed criteria or reasons to assess the presented situation differently.
Thus, in the case under judgment (sub iudice), the Chamber finds that a violation of constitutional relevance has occurred. Note that although the referenced minute lacks signatures, it is no less true that the executive president of the ICAA did not deny its content, but rather limited herself to alleging that the phrase "It makes a call not to feed Diario Extra and CRHoy, since their objective is privatization" was taken out of context, given that what she intended to express was "a call to union groups so that if there are situations that concern them internally at the institution, they present their complaints to the Senior Administration to be addressed, before going to the media. That is what she refers to specifically as 'not feeding the media'." On this point, the Court finds that in the case under examination (sub examine) there are sufficient indications that the executive president of the ICAA said the phrase transcribed above, which, by all appearances, constitutes an infringement of the constitutional rights to freedom of thought and expression, freedom of the press, and equality, all in relation to the constitutional democratic principles of accountability and transparency in public management, by virtue of constituting a form of veiled censorship, given that the practical result of such a call is to prevent the affected media from having access to public information.
Indeed, contrary to what was maintained by the respondent authority, the phrase in question exhorted officials of the Costa Rican Institute of Aqueducts and Sewers (Instituto Costarricense de Acueductos y Alcantarillados) to refrain from sending information of public relevance to certain media outlets. Firstly, such action implies a serious threat to the freedom of thought and expression of those public servants, given that the initiative comes, no more and no less, from the institution's own executive president, for which reason the "call not to feed the media" is particularly serious due to the hierarchical rank of the person who expressed it. Secondly, freedom of the press and the right to equality are violated, since it is incited that two specific media outlets, CR-Hoy and Diario Extra, do not receive information from ICAA officials, while absolutely unjustifiably placing the affected parties in a clear situation of disadvantage compared to the rest of the media. In addition, the exposed situation harms the general population, as the "call not to feed the media" prevents the public from accessing information concerning the provision of essential public services, which is unacceptable in a society governed by democratic principles, accountability, and transparency in public management.
By virtue of the foregoing, the appropriate course is to grant the appeal, under the terms set forth in the operative part of this judgment. (...)
Therefore: The appeal is partially granted only with respect to the Costa Rican Institute of Aqueducts and Sewers for violation of the constitutional rights to freedom of thought and expression, freedom of the press, and equality, all in relation to the constitutional principles of accountability, democracy, and transparency in public management. Yamileth Astorga Espeleta, in her capacity as executive president of the Costa Rican Institute of Aqueducts and Sewers, or whomever occupies that position in her stead, is ordered to refrain from incurring again in the acts that gave rise to the granting of this amparo appeal. The respondent authority is warned that failure to comply with this order will constitute the crime of disobedience and that, in accordance with Article 71 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), imprisonment of three months to two years, or a fine of twenty to sixty days, shall be imposed on those who receive an order, issued in an amparo appeal, which they must comply with or enforce, and fail to do so, provided that the offense is not more severely punished. The Costa Rican Institute of Aqueducts and Sewers is ordered to pay the costs, damages, and losses caused, which shall be liquidated in the execution of judgment of the contentious-administrative jurisdiction. In all other respects, the appeal is dismissed. Let it be notified. (...)".
More recently, this constitutional body, in Judgment No. 23107-2022 of 09:30 hrs. on October 4, 2022, ordered the following:
"(...) VI.- Specific Case. In the case at hand (sub lite), the appellant alleges as a first grievance that, in her condition as a journalist, she directs the analysis, opinion, and self-criticism program called "Hablando Claro," which has been broadcast since February 1, 2007, on Radio Columbia, and she considers that in that capacity the respondent authorities violated her fundamental rights, specifically, the rights to free expression and freedom of the press, given that between July 8 and 9 last, she received calls from five public officials, who work in hierarchical positions within the Government of the Republic or in the communications offices of ministries and decentralized institutions. These officials told her, in their capacity as confidential journalistic sources, that they were alarmed by a communication that the then Minister of Communication, Patricia Navarro Molina, sent to all Government Ministers and Executive Presidents via WhatsApp. She argues that, as related by her sources, in the referenced communication, the Minister instructed all heads of authority to urgently suspend all types of state advertising in the media outlets "Amelia Rueda, La Nación, CRHoy and Canal 7." Furthermore, that in that communication they were urged "with urgency not to participate in interviews on Hablando Claro and Amelia Rueda."
In this regard, from the report rendered by the respondent authorities—which is held as given under oath with the consequences, including criminal ones, provided in Article 44 of the Law governing this Jurisdiction—and the evidence provided for the resolution of the matter, this Chamber could not deem it proven that the order or directive challenged by the appellant was issued. Although it may be considered that, on this particular point, the received reports were succinct or laconic, the truth is that they clearly state that no order or indication in that sense was issued. The Chamber appreciates that such reports focus on the powers and authorities of the Ministry of Communication and on procedural aspects of the filing of this appeal, but by denying the existence of the order, directive, or indication referred to by the protected party (amparada), in this particular case, there is no possibility of deeming its existence proven, and thus the appropriate course is to dismiss the appeal regarding this aspect.
VII.- However, due to the importance of the matter and the seriousness that issuing any order from public power in the terms claimed in this process could imply, it is necessary to remind the authorities of the Ministry of Communication and the Ministry of the Presidency that, as expressed in the fifth whereas clause (considerando) of this judgment, freedom of expression and information entails a double dimension, reflected not only in the possibility for journalists to report on matters of relevance to public opinion, but also the right that the country's inhabitants have to learn of said information. Therefore, public bodies and entities have the duty to adopt the corresponding measures so that the inhabitants of the Republic can be informed about actions and events occurring or developing in the national territory that are of interest to the community. Especially since the topics and decisions taken and addressed by the central government and every institution, body, and administrative entity have a transcendence and relevance for the proper functioning of the country and the exercise of the rights recognized to the general population and its members within their own spheres of action. For this reason, all these matters must be handled with absolute publicity and transparency, without any possibility of preventing the citizenry, public opinion, and any mass media outlet from having knowledge of them. Ergo, practices that obstruct access to information, such as preventing reporting on certain events or decisions, refusing to give interviews to various media outlets, not inviting them to participate in conferences or press briefings, limiting their advertising, preventing access to necessary inputs for dissemination, among other variables related to direct or indirect censorship, cannot and must not be endorsed by a Constitutional Court, for the elementary reason that their access and timely delivery must be done through an easy, expeditious, and uncomplicated process, guaranteeing the population and, in general, public opinion, the right to information and freedom of expression.
That being said, the respondent authorities are reminded that "the government and the courts must allow an 'uninhibited, robust, and open' debate to develop, which may include caustic, vehement, and sometimes severely unpleasant attacks towards the government and public officials" (Cf. judgment No. 2006-5977 of 15:16 hours on May 3, 2006). In other words, the respondents must bear in mind that, in the exercise of public positions such as those they hold, and in the current era, where technological advancement facilitates greater coverage and access to news events, it is normal that some of the discussions generated in the heat of the press may be unfortunate and unpleasant for them; nonetheless, in a democratic country like Costa Rica, that exercise of freedom of expression and freedom of the press is what characterizes us as a Social State of Law (Estado Social de Derecho) and a free people. For these reasons, in order to guarantee the freedom of the press and free expression held by both journalists or mass media outlets, and the population in general, the respondent authorities must ensure that any directive, order, act, or instruction issued from the central government always adheres to the protection of these freedoms and any fundamental right enjoyed in a democratic country like ours, under the terms set forth in this judgment (...)".
As has been observed, it is clear that the use or application by state authorities or private individuals of the indirect restrictions mentioned in this whereas clause, gravely and flagrantly violates freedom of expression and freedom of the press. Hence the importance of the protection and safeguarding provided to them by our Political Constitution and the American Convention on Human Rights, among other instruments; hence also the responsibility that falls on this Constitutional Chamber to ensure that this is fulfilled.
VIII.- CONGLOMERATES OR FINANCIAL STRUCTURES CREATED TO FINANCE OR DIVERSIFY THE INCOME SOURCES OF MEDIA OUTLETS AND, CONSEQUENTLY, ENABLE THE EXERCISE OF FREEDOM OF THE PRESS. Traditional media, mainly print media, have suffered a strong economic decline in recent years with the arrival of the internet, the drop in advertising investment and its migration to large digital platforms such as Google and Facebook, and the consequent change in information consumption habits. All this, combined, has generated a preference among users to access information digitally (i.e., through the use of smartphones, electronic tablets, computers, etc.) rather than by purchasing the printed newspaper or accessing other platforms (radio or television), as was regularly and traditionally done.
By virtue of the foregoing, media outlets have found it necessary to innovate and seek new formats, proposals, or mechanisms to find new income (and audience) that allow, in turn, financing journalism and the media outlet itself, especially investigative journalism, which is costly. In other words, new commercial strategies have had to be implemented or mixed models put into operation in order to "make media outlets profitable," as some have called it. So much so that many media outlets today do not generate money with their main or traditional activity, but with others that allow them to survive. By way of example, media outlets have modernly resorted, among others, to the following formulas or strategies: a) some print media have created their own digital platform and established subscription models or what has been called "pay to view"; a formula successfully used by major media outlets such as The New York Times or The Guardian. b) The creation of higher quality and exclusive content has been used (on specific topics of interest to certain sectors), making the search and access to these attractive. c) Podcasts have been used (a series of episodes on various topics recorded in audio and transmitted online, used, for example, by The New York Times through its program The Daily). d) The organization of events, forums, or congresses on certain topics has been promoted with the help of experts and personalities, for which, in turn, a fee is charged to participate or enter (the media outlets Texas Tribune or The Economist have been characterized for organizing events of this type). e) The sale of pieces to third parties is also used (large media outlets, taking advantage of their enormous experience and structural support, cover certain specialized information, process it, and sell it to others, including their own competition). f) The so-called Brand licenser has been used, which allows media outlets to license their brand so that third-party companies use it on their products or services (e.g., National Geographic sells products related to travel and adventure, books, and has even installed stores related to its coverage line).
Similarly, it should be noted that, as part of the formulas that media outlets have had to resort to in order to diversify their income sources and sustain themselves financially, they have also turned to the acquisition of or adhesion to other companies whose main activities may or may not be directly related to journalism (thus forming what have been called holdings or groups of economic interest). This particular type of phenomenon has manifested itself in other latitudes and also at the national level.
Thus, by way of example, there is the case of the newspaper The Boston Globe and other media (owned, in turn, by the American newspaper The New York Times), which were acquired in 2013 by John Henry, owner of the Red Sox baseball team and the Liverpool FC soccer team, for the purpose of confronting the substantial economic losses suffered by the former, caused by the migration of readers and advertising to the internet. Similarly, Warren Buffet, through his holding company Berkshire Hathaway (a company wholly or partially owning shares in various business groups in textiles, insurance, automobiles, beverages, etc.), in 2012, bought sixty-three newspapers from the Media General Group in the southeastern United States, which were also suffering low profitability. Among the newspapers acquired by Buffett are the Richmond Times of Virginia, the Winston-Salem Journal of North Carolina, and the Morning News of Florence of South Carolina.
Furthermore, there is the case of Jeff Bezos (founder and owner of Amazon, a giant e-commerce company), who in 2013 bought The Washington Post, with the goal of achieving its survival after this media outlet likewise suffered the onslaught of the emergence of new technologies, the decline in audiences, and advertising revenue. Note that, in this particular case, although the media outlet—as reported, among others, by the Spanish newspaper El País—will not be integrated or adhered to Amazon proper, its acquisition is part of that same commercial strategy aimed at helping it continue functioning (https://elpais.com/sociedad/2013/08/05/actualidad/1375736883_735938.html).
In Costa Rica, the use of this type of mechanism or formula is exemplified through Grupo Nación S.A. (a corporation of which the newspaper La Nación is part), which arranged to buy the facilities of what used to be the Autódromo La Guácima and converted them into the event center called Parque Viva, as a means to diversify the company's income sources and thus compensate for the loss of earnings suffered due to the migration of advertising to internet sites.
It is understandable that within the current juncture where written media require financial support due to the loss of some of their traditional income sources, other types of companies or societies are created or established—under the protection of the legal system—to provide them with economic or financial resources and sustainability to maintain the former. The case of Grupo Nación S.A., and the acquisition of the now-called Parque Viva referred to above, represents a clear example of this.
These types of financial structures, like the rest of the examples cited above, become a source of income or resources that contributes to or makes it possible for journalistic work to be carried out, given that the income generated by the former allows covering or offsetting many of the expenses demanded by a media outlet. Therefore, it is a reality that, if this type of mechanism or proposal is affected illegitimately or arbitrarily, it harms, in turn, the exercise of journalism; in essence, freedom of the press, as a manifestation of freedom of expression.
Now, the reflected (indirect or veiled) harm that may materialize against freedom of the press, by virtue of measures adopted against these financing structures, is an aspect that must be weighed in each specific case, it being clear that not every administrative act or conduct that imposes a burden or establishes a negatively impactful content regarding those entities implies a reflected harm as indicated. Indeed, it should be noted that, like any administered party, these structures are bound and subject to the legal norms that regulate, specify, and delimit the exercise of their respective economic activities. In that sense, their operation must satisfy and comply with the regulations proper to their activity, which includes having the respective administrative authorizations for the deployment of their commercial activity. Hence they must have the respective titles to prove compliance with urban planning, municipal (including those pertaining to Law No. 7600), sanitary, and safety regulations, as well as the commercial licenses and permits that are required in each case. Additionally, they must comply with the pertinent tax regulations. Likewise, in the course of their activity, like any person, they are subject to audits and controls over the exercise of their activity, in order to verify that they maintain the level of compliance by virtue of which their commercial activity was authorized. In this dynamic, neglect of the operating conditions imposed by those sectoral regulations could well lead to the imposition of administrative measures of restriction or sanction. The foregoing, provided that the specific exercise of that manifestation of administrative police power can be deemed legitimate, based on the due and timely accreditation of the non-compliance grounds that would give rise to each legal consequence, and that such decision aligns with the merits of the case background and the applicable Legal System (relationship between the objective material elements of motive-content) and is consistent with the protected public interest. In such cases, where the administrative function is established as the legitimate exercise of administrative powers seeking to safeguard the public interest, one could not postulate a sort of reflected infringement of freedom of the press, but rather, it is the lawful and foreseeable consequence of neglecting public order norms to which every administered party is exposed. In contrast, when such measures find no support in the various factual or legal grounds that, in each case, the regulatory plexus defines as a necessary antecedent (conditioning premise) for adopting a specific sanctioning or negatively impactful decision, or when the content of the act adopted based on the verification of those conditions is excessive, disproportionate, unreasonable in relation to those antecedents, antagonistic to the public interest, or generally contrary to legality (in a broad sense), this would constitute administrative behavior that may imply a deviation of power (Art. 113 LGAP) and represents, as indicated, an indirect or reflected violation of freedom of the press. This involves a careful analysis of the particularities of each case, as a parameter for a neutral, equitable, and objective assessment between fundamental freedoms and rights within a framework of a State of Law (Estado de Derecho) and the exercise of administrative powers that have, by principle and purpose, the protection and satisfaction of the public interest. Ergo, not every act that negatively impacts the sphere of a financial structure constitutes an alteration to the freedom under examination, just as not every administrative control function regarding them can be understood as legitimate, without further analysis. Thus, in cases like the present one, where an indirect violation of freedom of expression and the press is alleged, resulting from the control activities of the Health Administration, it is up to this jurisdictional body to weigh the particular nuances to define whether it constitutes a due or undue exercise, as a sine qua non condition for a value judgment regarding the existence or not of the duty to validly tolerate those administrative impositions.
IX.- SPECIFIC CASE. The study of this matter is structured, for better understanding, into the following four sections, namely: a) preliminary clarifications; b) closure of Parque Viva through arbitrary, unfounded, and disproportionate action; c) closure of Parque Viva and indirect violation of freedom of expression; and d) final clarifications of interest.
A. PRELIMINARY CLARIFICATIONS. In this amparo proceeding, what is fundamentally discussed concerns the sanitary closure order issued against Parque Viva on July 8, 2022, as well as the effects it generated or brought with it on the media outlet Diario La Nación, particularly regarding freedom of expression.
In this regard, it is important to clarify, first, that this Constitutional Court has been of the view that it is not its responsibility, as this would be a matter of mere legality, to rule on the technical aspects (requirements) that a given commercial establishment must meet, in light of the provisions of the legal system, in order to be granted a sanitary permit and thus commence operations. This Chamber has also stated that assessing and questioning the technical criteria issued to eventually revoke that permit, through, for example, the issuance of a sanitary order, falls outside the scope of its competence.
However, it is important to note that the above stance does not prevent this constitutional body from conducting an analysis of a sanitary order and the circumstances under which it was issued, from a constitutional perspective, in light of the aspects this jurisdiction has traditionally addressed, analyzed, and guaranteed since its creation, as will be seen in the following sections. In this particular regard, it should be highlighted that this Chamber has also maintained that the sanitary orders issued by the authorities of the Ministry of Health may be reviewable before this jurisdiction, in exceptional cases, determined in a concrete manner by their unavoidable direct relationship with fundamental freedoms or rights essential to the sustenance of the democratic system. Thus, in Judgment No. 21103-2022 of 09:20 hrs. on September 9, 2022, this jurisdiction stated:
"(...) this Court, in reiterated jurisprudence, has indicated that, as a general thesis and save for certain specific exceptions, determined in a concrete manner by their unavoidable direct relationship with fundamental freedoms or rights essential to the sustenance of the democratic system, the sanitary orders issued by the authorities of the Ministry of Health are not challengeable in this jurisdiction. (...)". (The highlighting is not part of the original).
It should be noted that through Decision No. 1515-2021 of 10:00 hrs. on January 26, 2021, this Court ordered the annulment of a sanitary measure issued by the Ministry of Health against an appellant to the detriment of his right to freedom of expression, finding that said administrative act lacked technical grounds. On that occasion, this Chamber expressly ruled as follows:
"(...) III.- PURPOSE OF THE APPEAL. The appellants allege that the protected party (amparado), in exercise of his constitutional right to freedom of expression, has created a movement on social media using his public profile https://www.facebook.com/rolandoarayamonge and his radio program "Cubaces Tiernos," which is broadcast on radio frequency 89.1 FM and, simultaneously, on the Facebook Live platform called "streaming," referencing the alleged efficacy of chlorine dioxide (sodium chlorite) to combat covid-19. However, the Ministry of Health issued a sanitary order against him, considering that he incites the population to consume a substance that has not been authorized and, to the contrary, is contraindicated. (...)
V.- Regarding the specific case. In its jurisprudence, this Court has not hesitated to position freedom of expression as a key element of the democratic system:
"VIII.- Freedom of expression as an indispensable requirement of democracy. Freedom of expression is undoubtedly one of the conditions—although not the only one—for democracy to function. This freedom is what allows for the creation of public opinion, essential to give content to several principles of the constitutional State, such as, for example, the right to information, the right of petition, or rights concerning political participation; the existence of a free and consolidated public opinion is also a condition for the functioning of representative democracy. The possibility for all people to participate in public discussions constitutes the necessary prerequisite for the construction of a social dynamic of exchanging knowledge, ideas, and information, which allows the generation of consensus and decision-making among the members of the various social groups, but which also constitutes a channel for the expression of dissent, which in a democracy is as necessary as agreements. For its part, the exchange of opinions and information that originates from public discussion contributes to forming personal opinion, both of which shape public opinion, which ends up manifesting itself through the channels of representative democracy. As the Spanish Constitutional Court itself has stated, other rights enshrined in the Constitution would be emptied of real content, representative institutions reduced to hollow forms, and the principle of democratic legitimacy... which is the basis of our entire legal-political order (Judgment 6/1981) would be absolutely falsified, if there were no freedoms capable of enabling that exchange, which… presupposes the right of citizens to have broad and adequate information regarding the facts, allowing them to form their convictions and participate in the discussion relating to public affairs (Judgment 159/1986). (...)
Like other fundamental rights, freedom of expression is also subject to limitations, such as those derived from the protection of public health, among others.
The question the parties seek to elucidate in this process refers to the possibility of the Ministry of Health limiting the freedom of expression of the protected party Araya.
To answer that question, however, it is necessary to analyze the statements of the parties and the health order itself, since it was the means used to limit the rights of the protected person.
As a first point, this Chamber notes a discrepancy between what was stated by the authority appealed in this proceeding and the material evidence. Indeed, the report indicates that the health order states:
"In videos published on their Facebook pages: https://www.facebook.com/arayamonge and https://www.facebook.com/rolandoarayamonge, on different dates, they refer to the efficacy of the product sodium chlorite and urge their followers to ingest it since it eliminates viruses and many other things. Furthermore, they state that the product is harmless. I transcribe part of what they state in their video: '...discovery or finding made by some people regarding the efficacy of a product called sodium chlorite, well particularly the active product chlorine dioxide which according to results obtained, eliminates all kinds of germs, scientifically proven because it is used on surfaces, it is generally used for cleaning and purification of water...' '...It turns out that if a person takes a little bit of that, a few drops of that, well, it removes viruses, bacteria, and many of these things...' '...but we are not asking that they use it and accept it, what seems decent, logical, acceptable, reasonable to me, for a crisis like the one the world is experiencing, is that they test it, if nothing happens to people, there is total harmlessness...' You are informed: (...)" (Emphasis added).
However, the health order that was provided lacks such transcriptions, as it textually reads in the relevant part:
"In videos published on their Facebook pages: https://www.facebook.com/arayamonge and https://www.facebook.com/rolandoarayamonge, on different dates, they refer to the efficacy of the product sodium chlorite and urge their followers to ingest it since it eliminates viruses and many other things. Furthermore, they state that the product is harmless and in other shared publications it is stated that sodium chlorite or chlorine dioxide in organisms, reacts against pathogenic germs, immediately oxidizes viruses, bacteria, fungi, parasites, and is useful even for cancer, diabetes, and other diseases.
You are informed: (...)" This Court observes a clear inconsistency between both texts with respect to a core point for the proceeding: what are the expressions attributed to the protected person.
As was due, the Instructing Magistrate warned the parties to provide the videos related to the sub iudice matter (resolution at 16:27 hours on September 18, 2020). However, such warning was breached by the respondent party. In that regard, the latter indicated:
"...In response to the request to provide the publications removed by the Facebook Legal Team regarding the case of Mr. Rolando Araya Monge, you are informed that because this content was uploaded only to their personal pages and the Facebook Legal Team proceeded to analyze them and subsequently remove them, the details of the same are not available. What is provided is official communication MS-DRPIS-UNC-2056-2020 addressed to the Facebook Legal Department, where the URLs of the links to the publications that mentioned chlorine dioxide are indicated, in which the health alert called Products Containing Sodium Chlorite or Chlorine Dioxide, the General Health Law in its articles 107, 111 and 112; and the regulation for the authorization and sanitary control of advertising of products of sanitary interest N° 36868-S were taken as a reference. In this document, what was published on said Facebook pages is observed, supported by the URL of each publication, however, due to the removal by the legal team of this company, the details of the same are not available other than what is indicated in the document..." Now then, the consequences of such breach are different for the appellant party and the respondent party, due to the principle of dynamic burden of proof and the procedural position of each of them.
In constitutional jurisdiction, given that the appellant party has demonstrated a limitation on the rights of the protected person (by written communication of August 10, 2020, it complied with the Chamber's warning and provided a copy of the health order), the dynamic burden of proof obliges the respondent authority to justify such restriction. In the sub lite matter, the justification for the Administration's actions and the administrative order issued lies in the alleged videos of the administrative procedure, and therefore the respondent party should have safeguarded and provided them.
Precisely, from a procedural standpoint, the cited obligation falls on the Administration, given that it has the duty to collect and secure in the administrative file the evidence that serves as the basis for its decisions in the proceedings, so that the affected party can access the administrative file followed against them and fully understand the circumstances of the case, a sine qua non requirement for the effective exercise of their constitutional right to defense.
However, the videos that served as the basis for the health order issued, the object of this matter, are not in the administrative file, which is solely attributable to the Administration. This situation prevents the amparo petitioner from being able to question which expressions could have generated the state reaction and thus defend themselves. Now then, like any procedural burden, the party that breaches it in the sub examine matter, the State must face the procedural consequences of its omission.
This Chamber explains to the respondent authority that, when a person is reproached for the improper use of freedom of expression and limitations are imposed on such right, there must inexorably be certainty regarding the reasons for such exceptional measures, which can only be imposed within the framework of the cases permitted by the constitutional and conventional order. It is reiterated that freedom of expression is essential for the maintenance of democracy and, therefore, constitutes a cardinal aspect of our political system, such that any restriction thereof must not only have an adequate positive-legal basis, whether in domestic regulations or within the framework of international human rights law, but also, the competent authority is obliged to fully substantiate the factual support on which it is based.
Due to the summary nature of the amparo proceeding, this Chamber could not assume an inquisitorial position and investigate which videos could have eventually served as the basis for the state action, especially because such activity would have the purpose of supplementing the omissions of the state authorities, which borders on the nature of a Court that defends the individual against the State.
Finally, this Chamber warns that the foregoing would not have precluded a different assessment if it had been proven that the statements of the amparo petitioner put people's health at risk and the Administration's action had been based on precise and well-founded positive legal reasoning. This Chamber reaffirms that the respondent Ministry can and must safeguard public health. (…)
THEREFORE: The appeal is declared with merit and, consequently, health order No. MS-DRPIS-UNC-2001-2020 of July 30, 2020, issued by the Ministry of Health, is annulled. (…)" (The highlighting is not part of the original).
Thus, it is evident that the line of this Chamber is to grant protection when a health order violates other public freedoms that are directly related to the maintenance of the democratic system, such as, for example, freedom of expression.
Based on the foregoing, it is extremely important to take into consideration that in this amparo we are faced with an absolutely exceptional situation, since one of the fundamental rights of greatest importance and significance for the people of Costa Rica and its precious democratic system is at stake, namely freedom of expression. Hence, the full justification for this Constitutional Court to hear the merits of this matter via amparo and to rule on the accused facts.
B. CLOSURE OF PARQUE VIVA THROUGH AN ARBITRARY, UNFOUNDED, AND DISPROPORTIONATE ACTION. The Director of Diario La Nación, Armando González Rodicio, along with other journalists from that media outlet, appeared before this Court and filed this amparo against the President of the Republic and the Minister of Health, for having issued to Parque Viva (a site owned by Grupo Nación S.A., to which the referenced newspaper also belongs) a health order for the total closure of its activities by virtue of the existence of alleged problems related to the road accesses to said site. Specifically, they argue that said order was executed arbitrarily, despite the fact that technical criteria from the Red Cross and the Fire Department regarding the capacity of the access road to the establishment were not yet available, which were provided and communicated days later and are questionable. Furthermore, they point out that they were required to submit a remedial plan covering the solution to the access problems of the park, despite the fact that the inspectors of the respondent Ministry, during the inspection carried out, found no problem with these and despite the fact that the MOPT authorities issued a report exclusively on the public roads located outside said site. They mention that both the Mayor of Alajuela and community leaders have agreed that the traffic congestion cannot be attributed solely to the activities carried out at Parque Viva, given that the rapid housing and commercial development that has occurred in the same area, namely, La Guácima de Alajuela, must be taken into account concomitantly. They indicate that it was the State that created the problem with its consent to the urban expansion of the area, without providing the necessary public infrastructure. They maintain that Parque Viva, at the time of closure, had all the permits required at the time (among these, the road planning study approved in 2014), and that, even, recently, it was affirmed that the facilities are suitable for carrying out the activities that are organized. They add that there is a road project to remedy the problem (construction of a four-lane access to Ruta Nacional No. 27), for which most of the permits were processed; however, to date, it has not been finally approved by the MOPT and, even, the President of the Republic has publicly disqualified it, referring to their intention not to allow it, despite the fact that it would be financed by Grupo Nación. They point out that since a deficiency could not be found in Parque Viva, it was decided that the defects were on the public road, where it does not fall to private parties, but to the State, to provide the remedy. They question that the problem is not Parque Viva, but the public infrastructure that has made little progress in these years to adapt to the housing density developed after its start-up. They affirm that all the foregoing also makes it impossible for them to exercise an adequate right of defense. By virtue of the foregoing, they request that this amparo appeal be granted and that the temporary suspension of the sanitary operating permit of Parque Viva be annulled, as well as the administrative acts that support it.
In her defense, the Minister of Health referred in her report to the complaint filed on July 5, 2022, against the operation of Parque Viva and the procedure carried out on that occasion. In broad terms, she indicated that, by virtue of that complaint, an inspection was carried out by the authorities of the Área Rectora de Salud de Alajuela 2, in which they concluded that said establishment complies with physical-sanitary and structural conditions internally, so it was recommended to forward the complaint to the MOPT so that it could assess the situation (state of roads, access difficulty, etc.). The Minister affirms that, "thus," by official communication No. MS-DM-5754-2022, she requested the MOPT authorities for a technical criterion regarding the access roads to the commercial venue. The Minister mentions that this latter report was delivered by the MOPT authorities and that it indicated that it was the responsibility of the Municipalidad de Alajuela to grant the access permits and that the entrance road to Parque Viva does not have sufficient capacity for handling the generated traffic. Likewise, the Minister points out that, subsequently, the Comité Asesor Técnico de Concentraciones Masivas agreed to propose issuing a health closure order for Parque Viva for mass events, as well as requesting a remedial plan. That authority indicates that, indeed, on July 8, 2022, health order No. MS-DRRSCN-DARSA2-OS-0368-2022 was notified to the representative of Parque Viva, in which it was indicated that, by virtue of what was indicated by the MOPT and the cited Comité de Concentraciones Masivas, the temporary suspension of the sanitary operating permit was ordered until the required technical criteria were available from the Fire Department and the Red Cross regarding the capacity of the access road to the establishment for first response units, which were being processed by the Ministry of Health. She also points out that they were asked to submit a remedial plan that solves the park's access problem. The Minister affirms that, subsequently, technical reports were issued by the Fire Department, the Red Cross, and the 9-1-1 Emergency System, from which the following emerges: That there must be preventive measures to reduce risks, such as emergency plans that define sufficient access routes with the necessary width to allow an effective response in case of an emergency. That the public roads of the community of La Guácima are insufficient for the rapid access of emergency units, which can be aggravated in the event of mass gathering events. That rapid and timely access by specialized rescue units is required, which is difficult due to the length of the firefighting units. Additionally, the Minister of Health points out that, according to what was reported by the 9-1-1 Emergency System, when there are mass gathering events, a greater number of complaints are filed (for poorly parked vehicles, traffic jams, fights due to not being able to leave, collisions, etc.). She affirms that, consequently, there is indeed a potential risk situation at the site, due to the lack of safe and fluid access to the location and that the administrative act in question seeks to avoid putting the health, safety, and lives of those attending the events at risk, as well as that of those living in the vicinity of Parque Viva, who, in turn, require fluid access to their communities and, if necessary, adequate access for emergency services. For this reason, she affirms that it is essential to submit the requested remedial plan "which must encompass in its content the solution to the access problem in the communities of La Guácima de Alajuela, given the holding of mass gathering activities." The Minister adds that the administrative acts were appealed and dismissed in respect of the right of defense and that the measure of temporary suspension of activities will be maintained until a remedial plan is submitted, approved, and implemented that guarantees that mass gathering activities at Parque Viva do not cause the collapse of the access roads, do not generate inconvenience to neighboring communities, and allow the prompt and safe entry of first response vehicles and personnel. She also mentions that if there are other activities that do not collapse the roads, the legal representatives of the establishment must indicate in the requested remedial plan what these are, as well as the number of people per activity, so that they do not exceed what is indicated in the technical criterion issued by the MOPT. The Minister of Health maintains that what was done has been carried out to protect and preserve the environment, health, and life of people, and therefore it is not possible to claim the existence of acquired rights or consolidated legal situations. Furthermore, she affirms that her actions are in accordance with the law and that she cannot grant differentiated or privileged treatment to the media outlet, as is being sought. Finally, she indicates that in this case the precautionary principle in health matters has been applied and that the complaint was addressed and resolved in accordance with the provisions of Article 41 of the Constitution.
For his part, the President of the Republic, on this particular topic, indicated in the report provided to this constitutional jurisdiction that the complaint filed against Parque Viva was addressed with the greatest possible speed and willingness in order to protect the citizenry. He explains that residents of La Guácima de Alajuela filed an anonymous complaint before the Ministry of Health explaining what they have suffered for years with this location and the consequences that could occur if the necessary measures are not taken urgently. He refers to some published news on the matter, which reflects the discomfort of some residents with the operation of said establishment. He affirms that, once the complaint was received, the Ministry of Health convened a session of the Comité Asesor Técnico en Concentraciones Masivas to analyze the case, and this body, after examining, in turn, the technical report issued by the Dirección General de Ingeniería de Tránsito (where it is concluded that when mass gatherings are held at Parque Viva, the access road does not have sufficient capacity to handle the generated traffic), agreed to propose to the health authorities a closure order for mass events and simultaneously request a remedial plan for the denounced conditions. Therefore, following said recommendation, he mentions that the Área Rectora de Salud de Alajuela 2 issued the health order in question, which temporarily suspended the sanitary operating permit for mass events until the referenced remedial plan is provided, which has not been submitted. He notes that the authorities have required other commercial groups to construct access roads to large-scale commercial centers when it is projected that the start-up of these venues will represent an increase in vehicular flow in the area where they were built, such is the example of EPA in Desamparados or City Mall in Alajuela, which made substantial investments to adjust to vehicle entry and exit requirements. The President adds that there is the criterion of the Dirección Regional de la Fuerza Pública de Alajuela, which indicates that La Guácima is classified as sensitive since different criminal activities converge there and that the agglomerations of vehicles and people outside Parque Viva reduce police mobility and produce an increase in calls from residents to 911, due to incidents of public order disturbance. He explains that the Fuerza Pública alluded to an incident that occurred on May 7, 2022, where assistance had to be provided to emergency services to transport a patient, since the number of people prevented the ambulance from moving quickly. He adds that the Fire Department, for its part, maintained that the communities surrounding Parque Viva, as well as the site itself, are affected, since the response time of firefighting units increases considerably due to the conditions of the roads surrounding the venue. He also argues that before the disbelief generated by the fact that the local government granted operating permits to Parque Viva, the Instituto Nacional de Vivienda y Urbanismo requested the project file from the Municipalidad de Alajuela. He affirms that as a result of the analysis carried out on said file, a series of very concerning situations were found related to the land-use permit (permiso de uso de suelo) and the environmental viability granted. Likewise, he indicates that the lack of presentation of a traffic impact study (estudio de impacto vial) (that would measure the impact of vehicular flow associated with activities carried out at Parque Viva), the lack of authorization from the Fire Department, as well as the fact that no improvement to the cantonal road that provides access to the park was demanded or requested, were demonstrated. He maintains that these are not arbitrary actions, but rather actions aimed at protecting the lives of Costa Ricans. He mentions that the Colegio de Periodistas de Costa Rica itself maintained that the situation of Parque Viva must be addressed from the principle of legality, for which there exists the recourse avenue of challenging the administrative act that ordered the suspension of the sanitary operating permit, which, furthermore, is resolved with the submission of a remedial plan. He refers to a note published on April 27, 2021, where Grupo Nación accepted that the access conditions to the Parque Viva facilities are not the best. He maintains that Grupo Nación was given the possibility of submitting a remedial plan and has also had the possibility of appealing the administrative resolution. He mentions that it is not true that the Administration has definitively closed the venue. He affirms that the Diario La Nación continues to operate, but this does not mean that they will not be required to comply with the law when it is evident and manifest that they are acting illegitimately and to the detriment of the rights of Costa Ricans. Furthermore, he maintains that all decisions have been made according to technical parameters, in accordance with a complaint filed by the citizenry itself.
Now, once the arguments presented by both parties have been indicated (appellants and respondent authorities from the Ministry of Health and the Presidency of the Republic), it is appropriate to conduct a general review of the facts that are considered proven in this amparo proceeding, regarding this particular claim.
Thus, it is appropriate to highlight first that it is considered proven that Grupo Nación (of which Diario La Nación is a part, and which is precisely the media outlet for which the appellants work) acquired the facilities where the so-called Autódromo La Guácima previously operated and created Parque Viva.
It is also recorded that Parque Viva obtained the required permits, and therefore, in 2015, it was granted the respective sanitary operating permit. That same year, said establishment was then re-inaugurated by Grupo Nación. As part of fulfilling these requirements, it is demonstrated that by official communication No. DGIT-ED-5935-2014 of September 1, 2014, an engineer from the Permits Unit and the Head of the Studies and Designs Department, both from the Dirección General de Ingeniería de Tránsito of the MOPT, indicated the following:
"(...) REGARDING THE TRAFFIC IMPACT STUDY Once the review of the traffic impact study (estudio de impacto vial) submitted (for the typical operating conditions of the La Guácima Events Center) has been carried out, this Unit indicates that from a functional standpoint it has no objection whatsoever to the project. The foregoing is because this Unit verified that with the implementation of the mitigation measures proposed based on the capacity analysis carried out, the levels of service (NDS) and queue lengths remain at adequate levels. The approval of this EIV is valid for one year if the traffic conditions and the surrounding road network do not change significantly and the project is built before this period ends, otherwise, this Dirección General reserves the right to request the study to be updated. Additionally, you are reminded that the authorization corresponds exclusively to the presented project, so any modification in size, use, or of any other nature must be analyzed by the Dirección General de Ingeniería de Tránsito to evaluate the new conditions, otherwise this authorization loses its validity (...)."
Furthermore, it is established that, by official communication No. DVT-DGIT-ED-2015-4056 of October 8, 2015, engineers from the Permits Unit of the Dirección General de Ingeniería de Transito of the MOPT indicated the following:
"(...) You are informed that the expansions and signage at intersection # 3 with Ruta Nacional N° 124 for the Project: La Guácima Events Center, located in District No. 05: La Guácima, Canton No. 01: Alajuela, Province No. 02: Alajuela, on the property registered before the Catastro Nacional with number SJ-1244439-2007, whose permit was processed by this Department under file ED-AC-13-0081, according to the design that appears in sheets 01/10, 02/10, 03/10, 04/10, 05/10, 06/10, 07/10, 08/10, 09/10, 10/10 signed by the responsible professional, engineer Natalia Marín Villalobos, IC-16371, are received. The foregoing because during an inspection it was verified that the interested party carried out the respective vertical and horizontal signage satisfactorily, in accordance with the guidelines of the Road Signage Department of this Dirección General, and in conformity with the Manual Centroamericano de Dispositivos Uniformes para el Control del Tránsito, (SIECA). Based on the foregoing, this Technical Unit has no objection whatsoever, from the functional and signage standpoint (does not include the quality of the horizontal and vertical demarcation), to the use of the access in reference (...)."
Also recorded is that the Ministry of Health authorities renewed sanitary operating permit No. MS-DRRSCN-DARSA2-RPSF-0177-2019 for Parque Viva, valid until February 2024.
This Chamber also considers it demonstrated that on December 16, 2021, by official communication No. MS-DRRSCN-DARSA2-4070-2021, the Director of the Área Rectora de Salud Alajuela 2 of the Ministry of Health granted Parque Viva approval for the declared capacities for the amphitheater, halls, and racetrack bleachers. In this regard, 18,203 occupants were permitted in the amphitheater, 12,450 occupants in the halls, and 2,901 occupants in the bleachers. Added to this, it is recorded that by official communication No. MS-DRRSCN-DARSA2-0163-2022 of January 20 of the current year, these same authorities ordered the expansion of the capacity of the Parque Viva bleachers to 8,841 occupants.
It is also considered proven that at an unspecified time on July 5, 2022, an anonymous complaint against the operation of Parque Viva was filed before the Office of the Minister of Health, which was assigned number 243-2022. On that occasion, the complainant completed, in the template or form established for submitting said action, the following aspects related to the reason for their complaint: "2.1. Complaints for matters related to structural conditions of buildings: a) Structural problems (state of walls, roofs, floors, among others) (...) c) Non-compliance with an emergency plan for fire prevention and protection (...) f) Safety and hygiene conditions." Additionally, the complainant expressly exposed their disagreement regarding access to Parque Viva and the problems that arise on the roads leading to this site when mass concerts are held. Specifically, they stated:
"(...) This venue is commonly used to hold mass concerts, where a large number of people gather. The problem with this place is its access points and the limited capacity of the roads, which belong to a rural community, to receive a huge number of vehicles at the same time. All the roads leading to Parque Viva are one-lane roads in each direction, very narrow, without bus bays, or conditions for high traffic. Every time there is a concert, the community's roads absolutely collapse, to the point that it takes people hours to travel short distances or leave the venue's parking lot. The situation is extremely serious because during a potential emergency, the response of emergency services could be compromised. And we are talking about situations as risky as fires, earthquakes, structural collapses, shootings, among other tragic events that could occur at mass events. The roads of La Guácima de Alajuela cannot withstand the massive influx of vehicles, as its residents could also see their rights undermined by this type of event, since, in the event of emergencies in their homes or communities, the response of the relief authorities would take much longer than normal, due to the huge traffic jams this place generates. In view of the foregoing, and given the seriousness of the reported facts, the definitive closure of the place is requested, until a solution to the problem is found. The request is made in order to protect public health and the common interest. PARQUE VIVA DOES NOT MEET (sic) THE CONDITIONS TO HOST MASS CONVOCATION EVENTS. I close by indicating that it is the responsibility of the State, in accordance with Article 50 of the Political Constitution, to ensure that the rights of the inhabitants of the Republic are protected and to grant them the greatest degree of well-being. As evidence, I attach 8 photographs of the only 2 accesses to the place, which demonstrate the conditions of the surrounding roads."
Furthermore, I am attaching 2 notes from media outlets where the problem with the traffic jams caused by mass events is set forth (...)”. (The highlighting is not part of the original).
It is on record that by official communication No. MS-DM-5754-2022, digitally signed at 12:24:14 hrs. on July 5, 2022, the Minister of Health, on an urgent basis, requested from the Minister of Public Works and Transport and the Vice Minister of Transport and Road Safety a technical opinion regarding the access roads to the private commercial venue called Parque Viva. On that occasion, the following was expressly stated: “(...) The technical opinion is required to elucidate structural and human safety aspects. Therefore, the capacity aspects of the roads must be considered in the scenario of the enormous number of vehicles and people simultaneously attending the mass events at said location, in relation to aspects of potential emergencies, access response of emergency response teams, risks due to conflict situations, etc. (...)”. It was also determined that said Minister, through official communication No. MS-DM-5756-2022, digitally signed on July 5, 2022, at 12:38:24 hrs, forwarded said complaint for its attention to the Director of the Dirección Regional de Rectoría de la Salud Central Norte of that same Ministry (office located in Heredia). Furthermore, –according to the respective physical stamp–, it is on record that the aforementioned complaint was received at the Área Rectora de Salud de Alajuela 2 at 12:41 hrs. on that same day, July 5.
It is deemed accredited that at 13:50 hrs. on July 5, 2022, authorities from the Área Rectora de Salud de Alajuela 2 carried out a physical health inspection at Parque Viva, as a result of which report No. MS-DRRSCN-DARSA2-1641-2022 dated July 5, 2022, was prepared, wherein the following was recorded:
“(...) As recorded in ocular inspection report MS-DRRSCN-DARSA2-IT-1639-2022 on July 5, 2022, at 13:50 hours, a specific on-site visit was conducted to assess what was set forth by the complainant. Regarding the reported problem, with respect to the section on structural problems, internally within the venue's facilities during the tour conducted, no visual structural problems related to physical-sanitary aspects were verified; the condition of the walls, floors, sanitary services, and other human occupancy spaces did not present observable problems. In the section on non-compliance with the emergency plan, the presence of four emergency plans was evidenced on-site, corresponding to the venue's own sectorization that the company implements for its facilities, having a specific plan for the Event Center, the Coca Cola Amphitheater, the Competition Circuit, and the Common Areas; on-site it was corroborated that the respective signage was installed, the presence of fire-fighting equipment and the respective implements (food, first-aid kit, splints, among others) was evidenced. Regarding safety and hygiene conditions, during the tour, no presence of risks or unsafe conditions that could affect the integrity of the company's collaborators was evidenced.
Regarding what was pointed out by the complainant about the road problem, it should be noted that this is not within the jurisdiction of the Ministry of Health; however, an analysis of the access and exit points of the facilities was carried out, as shown in Annex 1; the facilities have four access points for vehicle entry and exit and have a capacity of 940 cars in the parking lot near access 2, in addition to having space for 3000 vehicles in the competition circuit sector that is near accesses 3 and 4 of Parque Viva; furthermore, it is shown that the four accesses are interconnected throughout the facilities (a tour was conducted to verify this), which facilitates the exit of vehicles. 3. CONCLUSION. Based on the foregoing, it can be concluded that the Parque Viva facilities comply with adequate physical-sanitary and structural conditions internally; the emergency plans will be forwarded to the Regional Occupational Health Officer for their assessment and in-depth review; in addition, it is recommended to forward the complaint to the Ministry of Public Works and Transport so that they may assess the reported conditions that fall within the jurisdiction of this agency (roads in poor condition, a single lane per direction of travel, difficulty of access for emergency response teams via public roads, among others) (...)”. (The highlighting is not part of the original).
This Court has deemed it proven that, by virtue of the request made on July 5, 2022, at 12:24:14 hrs. by the Minister of Health, the Vice Minister of Public Works and Transport sent to the latter official communication No. DVTSV-2022-0341 dated July 6, 2022, through which it was requested to render without effect official communication No. DVT-DGIT-2022-DVT-DGIT-2022-334 sent by email the previous afternoon (that is, July 5, 2022), with the objective of including more information in the analysis of access to Parque Viva. Likewise, on that occasion, official communication No. DVT-DGIT-2022-339 was attached, signed on that same July 6, 2022, by the Director General of Traffic Engineering, wherein the following was expressly stated:
“(...) 1. Parque Viva is a venue that opened its doors in 2015 and is used to hold various types of events, such as: motor sports events, congresses, fairs, as well as mass gathering events like concerts and festivals. 2. According to the information provided on the Parque Viva website, the venue's capacity is up to 20,000 thousand people. In addition, it has 4,900 private parking spaces, which can be expanded up to 6,000 spaces by using the racetrack. 3. Currently, the Dirección General de Ingeniería de Tránsito has no request related to the existing access to Parque Viva. Nor has it conducted any functional study on the roads under the scenario of a mass event like those held at the location. 4. Parque Viva is located in front of a cantonal route called Calle Rincón Chiquito. Being a cantonal route, the granting of access permits corresponds to the Municipality of Alajuela (...) 5. Calle Rincón Chiquito is an urban two-lane road, one lane per direction of circulation. This type of road could reach a maximum capacity of around 1,200 vehicles per hour per direction. According to the road conditions, a detailed study could yield a capacity lower than that mentioned. According to the data indicated above, it can be assured that at the time mass gathering events are held, the road that provides access to Parque Viva does not have sufficient capacity to handle the generated traffic. Under a conservative scenario, without considering peripheral parking lots to the park or the use of the racetrack, we would have a generation of 4,900 vehicles per hour, which represents more than double what the road could support (...)”. (The highlighting is not part of the original).
It is on record that by virtue of all the foregoing, the Comité Asesor Técnico de Concentraciones Masivas held an extraordinary session on July 7, 2022, at 14:30 hrs. with the presence of the Minister of Health as coordinator, the Minister of Public Works and Transport, officials from the Costa Rican Red Cross, the Traffic Police Directorate, the National Emergency Commission, the Fire Department, the 9-1-1 Emergency System, and Risk Management of the Ministry of Health. In the minutes of said session No. 28643-S-MOPT-SP, the following was recorded:
“(...) Based on the powers established by Article 4 of executive decree 28643, we proceed to hear the case. Mr. Keylor Castro Chacón of the Ministry of Health, at the request of the Minister, reads the document from the Área Rectora de Salud Alajuela number MS-DRRSCN-DARSA2-1641-2022 and which is related to official communication MS-DM-5756-2022 from the Minister of Health. Mr. Luis Amador intervenes. He puts into perspective the situation of the access roads. Mr. Keylor Castro reads report DVT-DGIT-2022-339 (addressed to the Minister of Health with note DVTS-2022-0341). The Minister intervenes. Mr. Alexander Araya of the Fire Department intervenes and points out the difficulties the fire department has in entering, due to the type of emergency units they have, which are 11 meters long and 3 meters wide, making passage difficult under conditions of having vehicles on both sides. The access roads must be widened or there must be another access where there is space for the transit and access of emergency units. Mr. Luis Amador intervenes. He points out the inadequacy of the land use. The route must be widened to guarantee adequate flow during events and during emergencies at the events. That tertiary cantonal route must be improved. There is a risk to human life. Mr. Jorge Rovira of the National Emergency Commission intervenes. There is a valid operating permit. We must be cautious and look at the reality of the Country. Mr. Keylor Castro Chacón intervenes. There are other places with similar situations. The Minister of Health intervenes, making a rebuttal to what was stated by Mr. Keylor. Mr. Felipe Venegas intervenes. The venue has presented problems since it was the La Guácima autodrome. It only has one access road and that presents a problem because one must pass through residential zones. There is still no regulation for mass events. In this case, Parque Viva is not suitable for mass events. Johnny Hidalgo González intervenes, he indicates that since January 1, 2022, there are 18 reports so far this year of traffic problems, more than 30 collisions, 4 reports of illegally parked vehicles, 5 brawls, 3 incidents of events against public order, among other reports. Mr. Jim Batres intervenes. He expresses concern about the number of ambulances attending each event, where sometimes there is not more than a single unit.
AGREEMENT: Having seen the aforementioned official communications, and the recommendation of the Ministry of Public Works and Transport regarding taking a course of action as a result of the situation presented in relation to the capacity of the access road to the venue called Parque Viva, it is agreed to propose to the corresponding authorities a health closure order for mass events at the establishment called Parque Viva, and the measures that correspond with other pertinent authorities. A remedial plan must be requested for the reported conditions, which must be brought to the attention of this Comité Asesor Técnico de Concentraciones Masivas (...)”. (The highlighting is not part of the original).
The authorities of the Ministry of Health, the MOPT, the Fire Department, the National Emergency Commission, and the Costa Rican Red Cross, through their representatives before said Committee, voted in favor of said proposal.
It is also on record that, based on the foregoing, the authorities of the Área Rectora de Salud Alajuela 2 of the Ministry of Health, on July 8, 2022, issued health order No. MS-DRRSCN-DARSA2-OS-0368-2022 (electronically signed at 12:37:21 hrs.), through which the closure of Parque Viva was ordered, under the following terms:
“(...) In response to anonymous complaint No. 243-2022, forwarded via official communication MS-DM-5756-2022 from the Office of the Minister of Health, for apparent structural problems, non-compliance with the emergency plan, and safety and hygiene conditions at Parque Viva, and as recorded in ocular inspection report MS-DRRSCN-DARSA2-1639-2022 of July 5, 2022, at 13:50 hours, the respective on-site visit was conducted to assess what was indicated in the complaint. Likewise, in accordance with the precautionary principle and in response to official communications: MS-DM5814-2022, through which Technical Report DVT-DGIT-2022-339 issued by the Dirección General de Ingeniería de Transito of the Ministry of Public Works and Transport is forwarded; official communication MS-DM-5838-2022 through which Minutes No. 28643-SMOPT-SP of the Comité Asesor Técnico en Concentraciones Masivas is forwarded; the temporary suspension of Health Operating Permit MS-DRRSCN-DARSA2-RPSF-0177-2019 (theme park, autodrome, amphitheater, sporting events, cultural events, fairs, and various exhibitions) is ordered through the following administrative act until such time as the Technical Opinions issued by the Benemérito Cuerpo de Bomberos de Costa Rica and the Benemérita Cruz Roja Costarricense are available for its analysis and the taking of respective actions, regarding the capacity of the access road to said establishment for the first response units of those institutions, which are being processed by the Ministry of Health. Likewise, your represented company must present a remedial plan that encompasses the solution to the problem of the accesses and the consequent risk to Public Health and Safety during the holding of Mass Gathering Activities, and the generation of a potential emergency during said activities (...)”. (The highlighting is not part of the original).
Additionally, it is deemed proven that in said administrative act, reference was made to the consequences of not complying with what was ordered, and it was indicated that the filing of appeals for reconsideration with subsidiary appeal was appropriate within five working days following its notification. This health order was notified to the representative of Parque Viva on July 8, 2022, at 12:40 hrs. (via email), indicating that “important annexes” were attached. Furthermore, personal notification was carried out that same day at 14:15 hrs..
Now, it is deemed accredited in the case file that on that same July 8, 2022, the Minister of Health, by official communication No. MS-DM-5870-2022 digitally signed at 17:05:24 hrs, requested from the Director of the Fire Department and the President of the Costa Rican Red Cross “(...) detailed and comprehensive reports, from their respective fields of competence, in relation to the situation of Parque Viva in La Guácima de Alajuela, within the framework of holding mass events and the risk situations for health and human life. The foregoing as a complement to the topic addressed at the meeting of the Comité Asesor Técnico en Concentraciones Masivas last Thursday, July 7, 2022. The foregoing as soon as possible (...)”.
It is on record that, in response to the foregoing request, the following technical reports were submitted to the respondent Ministry:
“(...) In relation to the situation of Parque Viva, located in La Guácima de Alajuela, within the framework of holding mass events and risk situations for health and human life, I indicate: The extinguishing units of the Benemérito Cuerpo de Bomberos de Costa Rica have an approximate length of 11 meters and a width of 3 meters; this means that sufficient space is required to be able to maneuver, whether near the fire scene or during the route to the emergency location. The width of the road normally used to reach Parque Viva measures approximately six meters for most of its route; as can be seen in this photograph, a bus and a light vehicle cannot transit normally; to transit, one of them must stop and give way (...) There are also stretches where the dimensions are reduced to almost four meters, meaning a Fire Department unit requires all the space to be able to transit, taking the following photographs as reference (...) Due to the width of the road, there are stretches where overtaking maneuvers cannot be performed (...) Due to the situations set forth above, as a consequence, several communities such as Rincón Chiquito, Rincón Herrera, downtown Guácima, as well as the Parque Viva facilities themselves, could be affected because the response time of the Fire Department units increases considerably; furthermore, when road blockages occur, access to the communities is made impossible, a situation that puts lives and property at risk (...)” .
“(...) As a first response institution, we have extensive experience in attending mass events at different events and locations; the Costa Rican Red Cross has had to attend to patients depending on the activities held there, this is due to the number of people attending the different activities which, depending on the event, can be several thousand people. (...) In the case of the events that take place at Parque Viva, it is necessary to clarify that the Costa Rican Red Cross does not cover such activities, but rather the companies organizing the event hire private ambulance companies that provide these types of services; it being necessary to indicate that in the country there are about 70 private companies that provide prehospital patient transfer services; consequently, it is clarified that the videos of several ambulances circulating on social media, linked to the attention of emergency cases at Parque Viva, are not from the Red Cross. Thus, our recommendation in this Comité Asesor Técnico has historically been to express the importance of generating a regulation for the issue of mass events; we know that the Ministry of Health has the General Regulation for Authorizations and Health Operating Permits Issued by the Ministry of Health and that the Ministry of Public Security has the Processing Manual for the Approval of Security Plans for Temporary Events with Mass Attendance of Persons. However, about 6 years ago it was suggested to work with the Maurer Algorithm, which is used in Germany. In general terms, according to the experience of the Costa Rican Red Cross, any place where mass events are held must have an entrance and an exit for all vehicles attending the events, and that allow adequate circulation for emergency vehicles, both to attend incidents at the event site and in surrounding areas, as well as routes that allow the mass evacuation of participants in the event of a threat being activated, and must have an updated Emergency Plan that contemplates an adequate proportion of ambulances based on the number of people attending the event (...)” .
“(...) In the specific case that is the subject of this consultation, it is known that the public roads of the community of La Guácima de Alajuela and surrounding areas are insufficient for the rapid access of our emergency units in the ordinary attention of incidents, which can be aggravated when mass events are held, since we have known of situations in which the simple mechanical failure of a private vehicle substantially delays the entry of our ambulances. Historically, response times to attend emergencies by the different institutions have been affected by traffic congestion at various points in the national territory, a situation that also occurs in La Guácima de Alajuela, experiencing a variable increase in the transfer time of emergency vehicles, generating delays ranging from 10 minutes to 30 minutes. In some specific cases, the arrival or departure time of our vehicles has extended even longer, caused by the number of vehicles located on the sides of the public roads adjacent to the event site, and even by people transiting on the public roads, which means one must circulate with greater caution. For the specific case, the operational structure of the Benemérita Cruz Roja Costarricense has worked on three scenarios that are addressed for an analysis of the situation that allows the authorities to make decisions according to their competencies. 1. Traffic accidents: in attending a traffic accident, depending on its severity, the arrival of different resources is necessary, ambulances, rescue trucks, and even the presence of the Costa Rican Fire Department. It should be noted that cases may arise in which patients are trapped as a result of the incident, requiring the specialized rescue team to join the scene according to needs. In any of the cases, patients require immediate attention, since in some cases life may be at imminent risk. 2. Structural fires: in attending structural fires, the Fire Department generally responds to extinguish the fire and the Costa Rican Red Cross goes to the scene for patient care; therefore, depending on the size of the incident, the amount of resources that appears could be affected by the difficulty of accessing the facilities at risk and the evacuation of patients. 3. Medical cases: Depending on the severity of the case, the patient needs to receive expedited care, given that the delay in response times generates a negative impact on the person's prognosis, potentially affecting life. For example, in the case of a cardiorespiratory arrest, access to the patient is ideally required in less than 10 minutes. On the other hand, depending on the circumstances, there is the possibility that the Advanced Life Support Unit (USAV), on site, requires the support of an Advanced Life Support Unit (USAV), given that this second ambulance has personnel with a higher level of training, more equipment, and therefore, a higher resolution capacity, thus offering a better opportunity for the patient's health. It should be noted that having two or more units at the scene of the incident will require ample and safe space so that the first responders can provide their care (...)”.
Also, it is on record that other reports related to this same topic were provided to the Minister of Health, namely, the following:
Technical report No. 911-DI-2022-2202 of July 11, 2022, through which the Director of the 9-1-1 Emergency System referred to events that occurred in areas surrounding Parque Viva during specific dates, namely, May 7, 14, and 21 and June 17 and 18, 2022 (e.g., situations related to traffic problems, illegally parked vehicles, brawls among people, an unconscious person and another missing person, etc.).
And also, official communication No. DM-2022-3121 of July 11, 2022, through which the Minister of Public Works and Transport noted the following:
“(...) In relation to the situation that has arisen with the temporary closure subject to remedial actions of Parque Viva, the Ministry of Public Works and Transport issues the following opinion considering that: Parque Viva contains multiple land uses that can produce mass gatherings, understood as temporary events that extraordinarily bring together a number of people under crowded conditions in open and/or closed physical spaces, which due to their site characteristics represent a risk or threat scenario that requires preventive measures for controlling the use of the space. Parque Viva has 9000 m2 of industrial building, which has an estimated attraction of 6593 vehicles based on a reference of 3 similar events in the United Kingdom (...) Parque Viva has a capacity of 20,000 people and using an occupancy rate of 3 people per vehicle (...) gives us 6667 vehicles per hour. It is estimated that the adjacent street has a maximum capacity of 800 vehicles per hour for a level of service E, as it is a road 4 m to 6 m wide with two-way traffic. IT IS RECOMMENDED: A maximum gathering of 2400 people at mass events according to the current situation of accesses and surrounding roads in order to guarantee an adequate flow of vehicles entering and exiting the site (...)”.
Now, it was likewise demonstrated that the previous five technical reports (No. CBCR-027150-2022-OPB-00741 of the Fire Department, No. CRC-GG-SO-OF-074-2022 and No. CRC-GG-OF-012-2022 of the Costa Rican Red Cross, No. 911-DI-2022-2202 of the 9-1-1 Emergency System, and No. DM-2022-3121 of the Ministry of Public Works and Transport), were brought to the attention of the legal representative of Parque Viva only on July 15, 2022, through official communication No. MS-DRRSCN-DARSA2-1724-2022. In this last official communication, what was ordered in the cited health order was also confirmed, and the following was expressly recorded:
“(...) Once these documents are known and analyzed in accordance with what is indicated in the summons order, it is demonstrated that they point out that there is an evident problem for emergency response (traffic accidents, structural fires, medical cases, among others), on the part of the First Response Agencies both in the surrounding communities and for the attendees themselves of the mass gathering events held at Parque Viva, due to traffic and access problems to the location; therefore, in accordance with the precautionary principle and in order to guarantee compliance with Articles 21 and 50 of the Political Constitution, Article 11, 152, 153 and 154 of the General Law of Public Administration and Articles 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357 and 364 of the General Health Law, Health Order MS-DRRSCN-DARSA2-OS-0386-2022 (sic) is confirmed in all its terms and scope (...)”.
Likewise, it has been deemed proven that one day before this last official communication was notified, namely, on July 14, 2022, the representatives of Grupo Nación filed an appeal for reconsideration and a subsidiary appeal against what was ordered in health order No. MS-DRRSCN-DARSA2-OS-0368-2022 dated July 8, 2022. Appeals that, as reported by the Minister of Health, have already been resolved and dismissed.
Additionally, it is important to take into account other facts that have been deemed proven in this amparo, which are related to those set forth above.
Thus, it should be noted that it is on record in the case file that official communication No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 of July 10, 2022, reached the hands of the President of the Republic, through which the Regional Deputy Director of the Fuerza Pública of Alajuela informed the Vice Minister of Public Security about the obstruction that occurs in the attention to police incidents in the external perimeter of Parque Viva when activities are held at said establishment. In this official communication, it was stated that the referred activities generate enormous traffic jams, which represents a substantial increase in police response times to emergencies reported via 911 that fall under the responsibility of the Fuerza Pública. Furthermore, it was indicated that the mass activities cause an increase in crimes against property, and the Fuerza Pública is called upon more due to disturbance of public order, brawls, violence against women, reckless driving, consumption of alcohol and drugs on public roads, etc. Therefore, it was held that “(...) the impact on police service during mass events in the referred area is evident, notorious, frequent, and repetitive; given that the impact of diverse criminal incidence, generated by the enormous crowd of visitors, affects the normal development of the activities of the local population, and the daily police actions (...)”. Likewise, it is on record that through official communication No. PE-243-07-2022 of July 29, 2022, the Executive President of the INVU informed President Rodrigo Chaves of a series of aspects related to the so-called Parque Viva, after having conducted a review of the file on record at the Municipality of Alajuela. Roughly, on that occasion, it was indicated that the land uses granted are not in accordance with the regulatory plan approved in 2004; that environmental viability was granted only for improvements to the autodrome; that there is no record of the submission of a road impact study to the MOPT or to the municipality that measured the impact of vehicular flow, because it was not requested, and that no improvement to the cantonal road that provides access to the complex was required either. It was also demonstrated that the Municipality of Alajuela, on August 3, 2022, through its official Facebook page, issued a statement and refuted what was recorded by the INVU. This, under the following terms:
“(...) IN RELATION TO THE PUBLICATIONS OF THE OPINION ISSUED BY THE INVU REGARDING PARQUE VIVA, WHICH HAVE CIRCULATED IN VARIOUS MEDIA OUTLETS TODAY.
Regarding the information that has circulated in various media outlets about the PARQUE VIVA project based on a report issued by the Instituto de Vivienda y Urbanismo, INVU, as the first of the aspects, it must be stated that the Municipality of Alajuela has not been notified of said report, so our knowledge is limited to the publications made by those media outlets; likewise, these are assessments by said institution without consultation with this municipality. It is important to clarify some points. 1. LAND USE (USO DE SUELO). The zoning of property 2-198873 was not modified, since according to the current Urban Regulatory Plan (Plan Regulador Urbano) that applies to the property, the aforementioned property is located in an area called a green zone (zona verde), regulated in Article 56 of the Urban Regulatory Plan. The INVU overlooks in its analysis what is established in Article 60 of the Urban Regulatory Plan, which states that, if 5 years after the publication of the Regulatory Plan the Municipality does not acquire these lands destined for green zones, they acquire the nearest zoning that least affects the user, which was applied in this case, as indicated in the land uses; it is a medium-density residential zone (zona residencial de media densidad). Therefore, the land uses of the project are correct. 2. REGARDING ENVIRONMENTAL VIABILITY (VIABILIDAD AMBIENTAL), the resolution approving the environmental viability reviewed by the Municipality of Alajuela for processing the construction permit (permiso de construcción) for the Parque Viva Project is correct, and it describes the works generally, which coincide with the plans submitted and duly approved by the other institutions previously and by the Colegio Federado de Ingenieros y Arquitectos, as recorded on the APC platform. The project title, that is, the name by which it is known in the file, changed over time, which did not affect the nature of what was analyzed, much less the nature of the works (trade name). Just because the company changed the project name does not change the nature of the works. 3. REGARDING “THE LACK OF UNIFORMITY IN LAND USES” The analysis was carried out coincidentally and consistently in all cases, under the principle of legality (principio de legalidad) and the singular non-derogability of laws (inderogabilidad singular de las leyes). The only thing that varied from 2014 onwards in the successive land uses was the way in which the information was presented. A minute of the land uses was attached to the file, which can be corroborated to confirm what has been stated. 4. IMPACT ON ROADWAYS (IMPACTO VIAL), The Urban Regulatory Plan of Alajuela in its article 12.7 requires the submission of a traffic impact study for the FINAL APPROVAL of the project, not for the granting of land uses, that is, it applies to the construction permit. On this matter, the requirements that the Municipality requests for this or any other project can be observed, based on the regulations governing the matter. For the final approval of the construction permit, this local government reviews the Environmental Viability granted by SETENA, since said entity in its analysis always verifies the traffic impact of new projects. According to the review of the SETENA file, this entity considered that what was presented in plans was sufficient, and thus they granted the respective approval, so what is stated in Law 8220 and its amendments, and its Regulation, is respected, so that, in adherence to the principle of respect for competencies (principio de respeto de competencias), SETENA's criterion was respected. Furthermore, it is important to remember that the project had the proper approval of the Traffic Impact Study by the Dirección de Ingeniería de Tránsito of the MOPT, through resolution No. DGIT-ED-5935-2014. 5. MINUTES ON THE CONSTRUCTION PROCESS, If the final permit was granted, it implies the correction of any situation that could have been notified. 6. REGARDING THE ANNOTATIONS OF OTHER INSTITUTIONS, The Municipality of Alajuela does not substitute in its work for other institutions, which can review the file and carry out the respective field inspections for compliance with these. It is important to indicate in any case that, as observed in the file, each annotation was rectified by the respective institution, which generated the approval by the CFIA. According to the file, contract OC626867, dated 13-11-2013, it is determined that “the project is approved with the institutional observations rectified by the professional”. Ultimately, this local government through the Construction Control Activity is in the best disposition to clarify any doubt that may arise regarding this project; we ratify that all our actions have been consistent and adjusted to the regulations governing the matter (...)”.
Likewise, it is important to take into consideration that in this matter it has been demonstrated that Grupo Nación (since at least 2019, many months before the sanitary order under study was notified to it), initiated a project to build in the coming years a four-lane access road connecting Route No. 27 with Parque Viva (or with the future project called Ciudad Viva). This project in 2021 and early 2022 preliminarily had the approval of a series of governmental entities. Thus, it is recorded that through official letter No. DVT-DGIT-ED-2021-1845 of September 21, 2021, an engineer and the deputy head of the Departamento de Estudios y Diseños of the Dirección General de Ingeniería de Tránsito of the Ministerio de Obras Públicas y Transportes, stated the following: “(…) This Directorate maintains its criterion of no objection to the proposal made from the functional and road safety point of view, issued on July 13 of the current year through official letter DVT-DGIT-ED-2021-1347; therefore, it deems the approval of the preliminary project (anteproyecto) in question pertinent (…)”. By official letter No. GCTT 34-2021-0340 of September 28, 2021, the Acting Manager of Road and Bridge Contracting of the Consejo Nacional de Vialidad stated the following: “(…) In relation to the project indicated in the reference, once reviewed by the engineers of the different technical areas of the Dirección de Diseño de Vías y Puentes, it is determined that: The requested information was provided; however, it is clarified that, at the design stage, the minimum roundabout radii, turning radii, and geometric axes for the design vehicle of the project must be respected. By virtue of the foregoing, it is recommended to approve this Preliminary Project (…)”. By official letter No. CNC-APM-SJC-0608-2021 of October 12, 2021, the Project Manager of the Consejo Nacional de Concesiones, among other aspects, ordered the granting of “No objection” to the preliminary project for access from national route No. 27 to Ciudad Viva. Through official letter No. CCAR-2021-373 of October 28, 2021, the Secretary of the Comisión de Carreteras de Acceso Restringido of the Consejo Nacional de Vialidad indicated that said commission had agreed to “(…) approve the preliminary project in accordance with the reports of the technical units (…)”. By official letter No. DVT-DGIT-ED-2022-0088 of January 18, 2022, an engineer and the deputy head of the Departamento de Estudios y Diseños of the Dirección General de Ingeniería de Tránsito of the Ministerio de Obras Públicas y Transportes, stated the following: “(…) This Directorate has no objection to the proposal made from the functional and road safety point of view, therefore it deems the approval of the project in question pertinent (…)”. This project, as can be inferred from the case file, has not been approved to date.
It is also recorded that, regarding this road project, the President, in a press conference held on July 13, 2022, stated the following:
“(…) Did you hear the barefaced lie published by La Nación that they have been requesting an access to route 27 for two years to fix Parque Viva? Oh no, well, if we score one goal, let’s score four more goals because it is four times the volume of area that they wanted to get the permit for. Aren’t you ashamed to collapse Route 27 risking the entire Occidente, Grecia, Naranjo, Atenas, San Carlos, all of Guanacaste and all of Puntarenas? (…)”.
For the purposes of resolving this part of the appeal, it is equally important to take into account what was stated in the news published on July 13 of this year, titled “Mayor of Alajuela: Parque Viva received permit before urban expansion in La Guácima”, the content of which is as follows:
“(…) Humberto Soto, mayor of Alajuela, assured that the traffic congestion generated in La Guácima, Alajuela, is not caused solely by Parque Viva, but is also due to the great residential growth of the district and the new condominiums that have been built in the area. “There has been very significant growth in the district of La Guácima which, added to the activities and the large number of people entering the district, well yes, it is evident that it generates traffic congestion. “I am open to negotiating and putting the issue on the table; viable solutions must be generated for the district, we should not blame X or Y, nor generalize it,” explained Soto. “We have to look at reality. The park has been built for almost ten years and, in these ten years, there has been a substantial change in the urban development of the district of La Guácima, that is, there is more population and more condominiums,” he added. Since 2014, 44 condominiums have been approved in the district, for example. Likewise, the municipal official said that, although the city council has invested almost 1,000 million [colones] in that district and construction of a bridge leading to the community of San Antonio de Alajuela will soon begin, that is not enough and they need more resources for the entire canton. “The municipality has made some investments, but perhaps not sufficient. Why? Because as a local government we have limited resources and 14 districts, with a network of more than 421 kilometers at the cantonal level to attend to. For that network, in a municipality like Alajuela, there are not sufficient resources and we must attend to the 14 districts of the canton, not just one. Improvements must be made; as mayor I am aware of that,” Soto reported. In September 2014, the Ministerio de Obras Públicas y Transportes (MOPT) approved the road planning study for Parque Viva and requested that accesses to the site be built from the different routes that lead to the place and that vertical and horizontal signage be installed, which were to be ready a year later. In an inspection carried out by the Ministry in 2015, it was verified that the property had complied with what was requested. This Wednesday, President Rodrigo Chaves assured in a press conference at Casa Presidencial that the permit should never have been granted and that he will request the file from the Municipality of Alajuela, while also requesting the intervention of the Defensora de los Habitantes, Catalina Crespo. At that time, the current mayor was a councilor and said in this regard: “The permit was granted by jurisdiction of the municipal administration, which was the competent body for its approval; in the file there is a permit from the Ministry of Health and from many institutions (…).” (The highlighting is not part of the original).
In that same order of considerations, it is recorded that in an expanded district council session held on July 13, 2022, the councilor and resident of La Guácima de Alajuela, Alonso Castillo, addressed the problem related to urban growth in said area. It was demonstrated that, on that occasion, said councilor stated that, from 2010 to date, 48 urban projects have been approved in La Guácima “(…) not counting Parque Viva, not counting commercial developments, not counting Automercado, not counting shopping centers (…)”, which, in his opinion, reflects a vehicular reality that is not consistent with the roads designed thirty years ago. Expressly, said councilor, on that occasion, also stated the following:
“(…) Here there are traffic jams every day, at seven in the morning and at five in the afternoon, with a concert, or without a concert. If an accident happens here in central Guácima today, La Guácima collapses because there is nowhere to turn. If today an accident happens or a pole falls as happened a few months ago (…) we have to go around through San Miguel, with the risk that the car we have does not have the conditions to be able to make that detour (…) That is the reality of the district, which has serious road limitations. When I arrived at the Municipal Council of Alajuela, I promised that I would not vote for a single additional urban project in the Municipal Council until alternate routes were approved (…) To this day (…) The municipality tells me it does not have a budget for alternate routes, so what does this mean? Reality continues in the same conditions that we are in today, with or without Parque Viva, because there is no budget, there is no money for these alternate routes (…) I sincerely am very happy that what happened with Parque Viva happened (…) because today the entire national press is talking about a problem that La Guácima has every day. Because it was Parque Viva, because if (…) a bus had overturned or whatever had happened, nobody cares, the problem continues. And thank goodness it was Parque Viva, because Parque Viva has the voice to be able to say there is a problem here, but there is a real problem, that when there is an event we also collapse (…).” (The highlighting is not part of the original).
Finally, regarding the body of evidence, it is relevant to observe what was stated by the Contraloría General de la República in the so-called Operational Audit Report on the Effectiveness and Efficiency in the Use of Resources of the Cantonal Road Network in the Municipality of Alajuela dated July 14, 2022 (report No. DFOE-LOC-IF-00014-2022). Specifically, in the conclusions section, the following was stated:
“(…) 3.1. It was determined from the established indicators and criteria that it is not possible to guarantee that the management of the cantonal road network service under the responsibility of the Municipality of Alajuela is effective in fulfilling its purposes and objectives related to mobility, road safety, and the resilience of this network, and that the use of allocated resources is carried out in adherence to the principle of efficiency. 3.2. In this sense, although road conservation interventions have been carried out mainly on the running surface and road safety activities, there are still significant limitations in the coverage and improvement of the running surface, in the attention to other essential structures in road infrastructure (bridges and sidewalks), and in the approach to road safety and the resilience of the cantonal road network, supported by technical elements that reasonably guarantee the effectiveness of municipal actions in these matters. 3.3. Regarding efficiency, it was evidenced that the Municipality of Alajuela lacks fundamental minimum elements and sound practices necessary to implement management oriented to compliance with this principle; a situation that reflects the need to generate an organizational culture that considers the use of data and management indicators as an indispensable mechanism for improving management in order to satisfy the public interest. 3.4. Finally, to meet the challenges facing our country such as Sustainable Development Goal No. 11 (Sustainable Cities and Communities) and to advance in the purpose of leaving no one behind, it is necessary to broaden the vision with which the cantonal road network is managed, so that this management has a comprehensive perspective of the problems and an inclusive and participatory vision of all the populations that inhabit the territory, with special emphasis on those populations with greater lags and more vulnerable (…)”.
In addition to the above, it is important to note that in this matter it has not been demonstrated that, prior to Parque Viva commencing operations, its representatives were required to build—outside the venue—access roads or to present a plan to solve the road-related problems. Nor that the representatives of Parque Viva were notified of what was provided in official letters No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 from the Dirección de la Fuerza Pública de Alajuela and No. PE-243-07-2022 signed by the Executive Presidency of the INVU.
Now then, having analyzed the arguments put forth by the petitioners, the reports rendered under oath by the respondent authorities, and the evidence provided by both parties, this Sala Constitucional considers that, indeed, as alleged, the issuance of sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022 dated July 8, 2022 (electronically signed at 12:37:21 hrs.), results in an administrative act that is openly arbitrary, lacking certain basis, hasty, and absolutely disproportionate. This conclusion is reached based on the following considerations of interest:
In that same line of consideration, it is important to note that the closure of Parque Viva could also not be compared with closures that have recently been carried out of other establishments that host or gather large numbers of attendees (e.g., the Gimnasio Nacional or the Estadio Ricardo Saprissa). Note that although this Chamber understands very well the attention that the Ministry of Health and other institutions competent in the matter must maintain and do maintain over venues intended for holding activities that gather a large number of people, the truth is that in those cases, there are particular circumstances of approach and attention that fully distinguish them from the case now being heard. This is because these latter closures—of a total or partial nature—were based on alleged irregularities or deficiencies found in such facilities or properties themselves, that is, within each of these sites, for reasons related, among others, to electrical systems, emergency exits, lighting systems, etc., which are never mentioned in the case of Parque Viva.
On the other hand, one should not overlook the news item reported on July 10, 2022, in the Diario La Nación (days after Parque Viva was closed), through which a female resident of La Guácima affirmed that an official from a public institution contacted her and provided her with a draft letter addressed to the Minister of Health for the purpose of speaking out in favor of the closure of said establishment, which, furthermore, only needed to be signed by her. It draws the attention of this Chamber that said resident exclaimed, at the moment of being interviewed by the journalist, that, from her perspective, "the Government wants to 'clean up the mess' they 'made' with the closure of the event center." Additionally, and as a point of interest, it should be highlighted that the President of the Republic, in the report rendered to this Court, confidently asserted that the "anonymous" complaint filed on July 5, 2022, against Parque Viva, was filed by residents of La Guácima de Alajuela, when, precisely, being anonymous, the petitioners would not necessarily have to be people from said place. Note that this complaint could have been filed, for example, by some attendee of the event center who resides in another part of the country and who was dissatisfied with the operation of this site, or else, any other person.
Now, it should also be noted that the aspects mentioned above, in the strict sense, do not amount to a violation of any fundamental right. However, this jurisdiction considered it important to mention them, so that they may be evaluated and analyzed, together with the rest of the considerations set forth in this ruling.
Now, based on the foregoing, this Chamber considers it pertinent to analyze the matter subject to this amparo in accordance with the provisions, in turn, of the principles of reasonableness and proportionality. In essence, to examine whether the aforementioned action—that is, the issuance of the sanitary closure order for Parque Viva for any type of activity—passes or does not pass the so-called reasonableness and proportionality test, which, in accordance with the provisions of, among other rulings, Ruling No. 1276-2013 of 2:50 p.m. on January 29, 2013, comprises carrying out an analysis of the aspects of legitimacy, suitability, necessity, and proportionality in the strict sense. In this last ruling, the scope of such examination was explained as follows: "(…) Legitimacy refers to the fact that the objective intended by the challenged act or provision must not be, at least, legally prohibited; suitability indicates that the state measure in question must be capable of effectively achieving the intended objective; necessity means that among several equally suitable measures to achieve that objective, the competent authority must choose the one that least affects the legal sphere of the person; and proportionality in the strict sense provides that even if a measure is suitable and necessary, it will be unreasonable if it injures the essential content of another fundamental right, if it empties it of content (…)" (along similar lines, one may consult Rulings Nos. 3951-2012 of 4:31 p.m. on March 21, 2012, and 27601-2021 of 12:15 p.m. on December 8, 2021). Furthermore, it should be noted that in Ruling No. 3564-2015 of 9:20 a.m. on March 13, 2015, this Court clarified, on this matter, that "(…) This protocol is applied in phases, so that if the examination of a first phase is unsatisfactory, it becomes unnecessary to proceed with the study of the rest of the aspects, although, in some cases, for greater forcefulness of the decision, one may delve into it (…)." In application of said test and, in accordance with what has been stated above, it is clear that the sanitary measure under study is not legitimate, because, despite arguing for its issuance the protection of the life and integrity of persons, the truth is that it was issued, as already explained, in a hurried, openly arbitrary manner, and without any reliable basis, thus contravening the provisions of the legal system. The challenged conduct alludes to factual and legal assumptions that, on the one hand, are not exclusively attributable to Parque Viva, as the sanitary order attempts to focus and establish, but, in addition, were not duly accredited or supported at the time of adopting that formal act. That is to say, the background upon which this decision intends to rely is based on a conclusion or value judgment that does not have the technical evidentiary support that is fundamental and imperative to sustain that result. An inexistence of the motive element of the act is therefore observed, in the terms imposed by canon 133 of the LGAP and thereby, by derivation, the adopted content, which imposes an onerous, disproportionate, and unreasonable consequence, is illegitimate, by establishing a legal consequence that finds no support in the legal system. In summary, on this point, the challenged act contravenes the necessary relationship between the objective material elements of motive-content, incorporating an insurmountable deficiency that, in no way, can be understood as overcome by the subsequent generation of opinions from other administrative bodies, which sought to accredit aspects that should have been established as the legitimate basis for the challenged sanitary order. A previous state of affairs that, consequently, also does not allow it to be considered a suitable measure. Likewise, this measure does not satisfy the necessity criterion, since less harmful or less drastic alternatives exist to achieve the alleged purpose (protection of the life and health of persons) and which could be adopted in fulfillment of the powers that the Ministry of Health has for the protection of health and integrity without needing to affect the exercise of other fundamental rights.
Nonetheless, the respondent party, that is, the Ministry of Health, chose to impose—without any valid justification—the most harmful option on the Parque Viva establishment, as it categorically prohibits it from holding any type of event indefinitely, until, as has been explained, a remedial plan is presented and executed for a problem that is not solely caused by the activities organized there, and which, in turn, since it involves cantonal roads, is the responsibility of the municipality of Alajuela to address. In addition to this, it should be noted that the measure under review adopted by the Administration also fails the strict proportionality test, as it harms the essential content of other fundamental rights, thereby emptying it of its protective content. On this point, it has already been demonstrated that the measure under review becomes arbitrary, lacks reasoning or support (as it refers to technical criteria that have not been accepted by this Court), and consequently and flagrantly violates the fundamental rights to defense and due process.
Therefore, in the opinion of this Constitutional Court, the respondents should have carried out an adequate balancing exercise and adopted the least burdensome measure for fundamental rights, fostering their equilibrium and limiting their impact to a minimum. It should be noted that, although it is worth emphasizing, this constitutional body has repeatedly indicated that life, health, and personal integrity are legal interests of the utmost relevance, and therefore clearly deserve protection, this does not mean that, in their name, other fundamental rights can be trampled upon indiscriminately, untimely, and arbitrarily, through a clear misuse of power that constitutes, in turn, a violation of the constitutional principle of legal certainty.
Measures to safeguard such essential interests must always and obligatorily be taken, but under no circumstances may they be issued lightly, precipitously, in a reckless manner, without sufficient grounds, and seriously infringing upon other fundamental rights. Much less should measures as drastic as those analyzed in this case be ordered, when other—less harmful—possibilities exist that can be adopted in order to safeguard the life and health of individuals.
Certainly, it is a fact that in the vicinity of Parque Viva, improvements must be made to the cantonal road network to allow for the unimpeded transit of emergency vehicles; however, as has also been stated, this problem cannot be fully attributed or ascribed to Parque Viva, much less can the responsibility for resolving it be transferred to the representatives of this venue through the imposition of a measure as burdensome and extreme as the absolute closure of its facilities.
For these stated considerations, this Chamber deems it appropriate to uphold this ground of the petition, with the consequences that will be set forth in the operative part of this judgment.
C. CLOSURE OF PARQUE VIVA AND INDIRECT VIOLATION OF FREEDOM OF EXPRESSION. The Director of the Newspaper La Nación, as well as the other petitioners, also contend before this Court that the closure order for Parque Viva (issued through sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022) amounts to an indirect violation of freedom of expression. In this regard, they first explain that Parque Viva is part of Grupo Nación S.A. (of which the said newspaper is also a part) and was created as a complementary source of income, less dependent on the sale of advertising in the media outlet. Specifically, they state that this event center was put into operation to diversify the company's income sources and compensate for the loss of revenue or profits experienced by media outlets worldwide due to the migration of advertising to internet giants. The claimants explain that the aforementioned newspaper published a series of articles of evident public interest concerning then-presidential candidate Rodrigo Chaves Robles, relating to sanctions imposed on him for sexual harassment at the World Bank and to the parallel financing structures of his party's political campaign, among other topics. They affirm that these were serious, well-documented, and relevant journalistic publications, such that failing to disseminate them would have directly affected citizens' right to be informed about matters of public interest, as well as the principle of the informed voter. They also refer to the fact that, as a result of the foregoing, the President publicly threatened to destroy "the corrupt structures of La Nación and Channel 7," and has launched verbal attacks against the press and journalists, whom he has described as "despicable" (canallas). Subsequently, they charge that the President began to materialize the threat leveled against it, through the issuance, on July 8, 2022, of the already cited and arbitrary sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022, by which the closure of Parque Viva was ordered. Therefore, they maintain that this venue (created to diversify the company's income sources) was one of the structures of independent journalism of Grupo Nación that was affected as a consequence of the threat issued by the current President. They state that the measures adopted against Parque Viva do not seek the satisfaction of public interests, but rather spurious interests consisting of intimidating a media outlet so that it does not freely exercise its right to inform. They point out that these acts not only economically affect the company that owns Parque Viva, but also the media outlet where they work, therefore, their right to inform is harmed. They affirm that this is the true purpose of the adopted acts. They refer to the fact that the pressure exerted on the company's finances puts future journalistic practice at risk and invites understandings that compromise it. They charge that the foregoing has implied a clear purpose of limiting freedom of expression through indirect means. They add that on July 6, 2022, days before said order was issued, the President publicly sowed doubts about the financial health of Grupo Nación, by raising questions related to the bonds issued by that company and acquired by the CCSS and its pension operator. They even affirm that, on that occasion, he insinuated the weakening of the debt guarantee due to the future transfer of some company properties to a trust for a promising real estate development. They mention that the actions of President Rodrigo Chaves, on that occasion, had no other purpose than to harm Grupo Nación, casting doubt on its finances, in order to restrict freedom of expression. Concomitantly, they maintain that the President has made other public statements against Grupo Nación (with the aim of continuing to persecute and intimidate it), as was the case on July 13, 2022, when he stated his opposition to the project to build a four-lane access to National Route No. 27. Furthermore, they note that on July 20 of the current year, the President cited, among the reasons for canceling the electric train plan, the existence of a branch line that passes by Parque Viva. They argue that the threat to destroy the companies is more than evident, as retaliation for the editorial lines of the media outlets they own and the actions of their journalistic directors. They indicate that the freedom of expression established in constitutional article 29 has been violated and, in turn, an indirect attack on it has materialized, which is prohibited in Article 13.3 of the American Convention on Human Rights. They refer to the rulings of the Inter-American Court of Human Rights, among others, in the case of Ivcher Bronstein vs. Peru, in the case of Ríos et al. vs. Venezuela, as well as in Advisory Opinion No. OC-5/85. Likewise, in a subsequent brief filed with this Chamber, the Director of the Newspaper La Nación reiterated that they are a group of professionals whose freedom of expression is intended to be limited through arbitrary actions against the structures that support the free exercise of journalism. He clarifies that they have not referred to a direct attack, but to an indirect one, and that, contrary to what the President stated, the payment of their salaries does not depend on Parque Viva. However, he affirms that the closure of Parque Viva would put an end to the bothersome journalism they practice "and that motivated the threat uttered in the campaign." By virtue of the foregoing, they request that the President of the Republic be ordered to refrain from carrying out acts tending to harm freedom of expression.
For his part, the President of the Republic, in response to the accusations, indicates that the situations referred to by the petitioners bear no relation to restricting the freedom of the press of the media outlet. He indicates that, rather, the claimants, shielded by this mistaken discourse, demand without any qualms that the State must allow them to operate as they wish, even when this is contrary to the law and to the detriment of public welfare. He affirms that Grupo Nación cannot be required, like any other Costa Rican business, to comply with the parameters of the law, because immediately in their view, it becomes an attack on freedom of the press. He maintains that it is not possible for Grupo Nación to say that they pin their economic hopes on what the economic activity of Parque Viva can generate in order to pay their employees, and that temporarily closing that venue for holding mass events for failing to comply with minimum health conditions is a direct attack on freedom of the press. He points out that this only demonstrates that the financial health of La Nación is not as they want to make it seem and that they depend on this venue to survive financially. He indicates that protecting the lives of hundreds of families neighboring Parque Viva has no relation to attacking, limiting, or censoring the freedom of the press of Grupo Nación. He refers to the fact that the Colegio de Periodistas de Costa Rica, after analyzing the issue, concluded that freedom of the press in our country enjoys good health and that, at no time, is this right being threatened. He adds that the statements made regarding the financial capacity of Grupo Nación and the statements made by CCSS officials in this regard are valid and justified. He argues that, at the close of the first quarter of 2022, Grupo Nación foresees a net loss of 350 million colones, almost 35% higher than the loss reflected in March 2021. On the other hand, he points out as worrying that the largest asset that Grupo Nación possesses, that is, the property in Llorente de Tibás, is being transferred to a trust along with other properties that this group has been acquiring, even though they have been reporting losses for several years. He maintains that Grupo Nación, like any other debt issuer participating in the national securities market, is obliged to provide accurate information that supports its financial health, and not to hide behind its supposed core activity as a media outlet to claim attacks on freedom of the press when it is required to comply with legality. He also indicates that the need felt by the petitioners to feel persecuted while defending the interests of Grupo Nación reaches the point of asserting that the cancellation of the electric train project promoted by the previous government is due to the fact that a branch of the route passed by Parque Viva. However, that assertion is false, and he maintains that the decision not to continue with said project was made for the benefit of the citizenry, where a better thought-out and designed project would represent greater benefits for all. He refers to the fact that the petitioners forget to indicate that, according to news published in the media outlet CRhoy.com, the current government and Grupo Nación signed an agreement that would increase the cost of the electric train by almost 150 billion colones so that the railway line would pass through the vicinity of Parque Viva. He mentions that, as a Costa Rican and a public official, he has the obligation and the right to speak out forcefully against situations that endanger the public health of the people. He indicates that this is a constitutional right that assists him to freely express his thoughts, something he will do most vehemently when it comes to protecting the rights of Costa Rican families. He points out that recently, the Constitutional Chamber, in Judgment No. 9855-2022, ruled on the right of public servants to express their opinions. Likewise, he refers to the ruling of the Inter-American Court of Human Rights in the case of Ríos et al. vs. Venezuela, where it was indicated that, despite the fact that the pronouncements made may have had a strong and critical content that can even be assessed as offensive, they constitute legitimate expressions of thought. He adds that it is inevitable to question whether Grupo Nación is acting in accordance with the ninth principle of the Chapultepec Declaration and whether, once all the criteria of the specialized entities have been analyzed, credibility and commitment to the truth are not in doubt. He affirms, then, that no kind of censorship is being exercised, either directly or indirectly, against Grupo Nación. He points out that the media outlet continues to operate normally, informing the Costa Rican people according to its editorial line, and this guarantee will never be violated.
Having seen the foregoing, we have then the grievance formulated by the petitioners, in the sense that the closure of Parque Viva (coupled with other statements made by the President of the Republic) represented a materialization of the threats made by this authority aimed at destroying Grupo Nación S.A. (of which, in turn, the Newspaper La Nación is a part), consequently causing an indirect violation of freedom of expression, given that said establishment was created to diversify the company's income sources and compensate for the loss of these experienced in recent years. On the other hand, we have the version of the President of the Republic, who maintains that freedom of expression has not been violated, that the media outlet continues to function normally to date, and that the issuance of the sanitary order in question and the closure of Parque Viva seeks to protect the lives of hundreds of families neighboring said venue. Furthermore, the President argues that he has the full right to freely express what he thinks, especially when it comes to protecting the rights of Costa Rican families.
It should be recalled that, in the previous section of this judgment, it was indicated that the closure of Parque Viva carried out by the Ministry of Health on July 8 of this year through sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022 (issued on July 8, 2022, and electronically signed at 12:37:21 hrs.), was carried out, in turn, through an administrative act considered by this Court to be arbitrary, lacking in support, and also disproportionate (this conclusion, it is clarified, was reached by this jurisdiction independently of what is determined in this new section). Now, this Chamber considers that, in order to determine whether said action also constituted an indirect restriction or limitation (covert censorship) on freedom of expression, it must be examined concomitantly, in accordance with the rest of the events that occurred, including the circumstances and the context in which they arose. Thus, a review will first be made of some of the main events that have surrounded the specific issuance of said sanitary order.
Thus, it is important to note firstly that, in this matter, it has been proven that the Newspaper La Nación is part of Grupo Nación S.A.; the latter corporation which, in turn, acquired Parque Viva some years ago, as a means, in this particular case, to diversify the company's income sources and thus compensate for the loss of profits suffered due to the migration of advertising to internet sites.
Likewise, the case file shows that, in light of the electoral contest (specifically the voting held in our country to elect the President of the Republic this year 2022), the Newspaper La Nación published a series of articles against the then-candidate—now President of the Republic—Rodrigo Chaves Robles. In particular, it was demonstrated that on August 30, 2021, said newspaper published a news article regarding the sanctions for sexual harassment imposed on the cited candidate while he was an official of the World Bank. Subsequently, on this same topic, the newspaper made other publications on August 31, 2021, September 4 and 7, 2021, October 18 and 19, 2021, February 4, 2022, March 8 and 28, 2022, and April 1 and 25, 2022. Likewise, it is shown that a news article criticizing Chaves Robles's proposal to govern through referendums was published by said media outlet on February 13, 2022. For its part, news articles concerning the parallel financing structures of the current President's political campaign were published by the Newspaper Nación, among others, on March 5 and March 29, 2022.
It has also been demonstrated that, in a parallel or concomitant manner to the previous journalistic publications, Chaves Robles, as a presidential candidate, made a series of statements directly against the Newspaper La Nación. Thus, it is shown that on January 29, 2022, Chaves Robles publicly stated the following before a group of followers:
"(…) We are a tsunami and yes, we are going to cause destruction. We are going to cause the destruction of the corrupt structures of La Nación and Channel 7. Listen to me Ignacio Santos, listen to me the other one (…) René Picado, listen to me Armando González. Here we are. Keep making us invisible in what is new, in what is good, and injuriously accusing us in what is bad, because you no longer put presidents in Costa Rica (…)." (Emphasis is not part of the original).
Equally, it was accredited that on February 6, 2022, the then-presidential candidate, at the time of casting his vote, expressly stated to the media outlet AM Prensa the following:
"(…) I did not say that the press was despicable. In Costa Rica there is a despicable press (…) because there is a press that lies (…) that is at the service of powerful groups, that have been dedicated to removing and installing presidents and that is over for them (…)." (Emphasis is not part of the original).
Furthermore, in response to a question posed to that effect by the journalist, Rodrigo Chaves, on this last occasion, specifically clarified that he was referring to "(…) La Nación, Channel 7, CRhoy (…)" and maintained that he said this "(…) transparently and clearly (…)." (Emphasis is not part of the original).
Along the same lines (although without mentioning specific names of media outlets), it was demonstrated that on January 30 of that same year, at the campaign closing (corresponding to the first electoral round), presidential candidate Rodrigo Chaves publicly stated the following:
"(…) we went from the most egalitarian society in Latin America to one of the most unequal in the world (…) to become more millionaires for (…) those who control those media outlets of disinformation, defamation, and lies (…) we said it, we said that the house had to be cleaned and they got scared because at the beginning, who cared about Rodrigo Chaves? nobody (…) the very same day that Pilar Cisneros announced her candidacy, they began to release the venom, the hatred, the lie, and the slander, that was when (…) they began to tremble, that is why they do it (…) because of this tsunami that is going to sweep them away like the trash from the house (…) ink and not blood, but it will have no less historical relevance (…) because here we are telling the same old ones: the party is over, the party is over (…)." (Emphasis is not part of the original).
In addition to this, it is important to bear in mind that in this matter it has also been demonstrated that the current President of the Republic has referred to the press, in general terms, as "the despicable and sold-out press." This, for example, was evident in the news published by the media outlet Columbia on its digital platform on February 7, 2022; an opportunity on which, furthermore, the President indicated that two or three media outlets in this country would be very affected under a government led by him. In this news, the following express statements made by Rodrigo Chaves were recorded:
"(…) In Costa Rica, hear me loud and clear, there is a despicable, bought, and sold press, not all the press is like that, there are honest people in this country, the vast majority, but there are people who are not honest, the same with the press (…) in Costa Rica (…) there are two or three very important media outlets that are at the service of interests that will be very affected in a Rodrigo Chaves government and that have done the impossible for a political execution and lynching of us (…)." (Emphasis is not part of the original).
Likewise, the current President of the Republic has publicly compared the press of this country to rats and other species of fauna. In this regard, it is shown that on August 3, 2022, at a press conference, said authority, addressing the Minister of Health, stated:
"(…) I see you affected by the media and I understand you, but I am going to be very frank, I do not believe those media outlets and those of your species, because they are a species (…) people talk about the press, that is like talking about fauna, there are rhinoceroses, there are raccoons, there are rats, there are birds (…) I do not believe the species of press you are talking about (…) do not get upset with them, let them continue to sink (…)." (Emphasis is not part of the original).
Additionally to the above-cited, it is appropriate to bear in mind a series of events that have occurred, related to this same topic. In this regard, it should be borne in mind that on July 6, 2022, at a press conference, a journalist from the media outlet El Guardián CR asked the now President of the Republic for his opinion on the issue of the Caja Costarricense de Seguro Social and the request made to SUGEVAL regarding the bonds issued by Grupo Nación. In this respect, it is shown that the President stated that there is indeed a very serious issue with bonds that previous governments bought, issued by La Nación. He also indicated that he is concerned about the payment capacity that this media outlet would have (which, in his opinion, "seems very, very slight"), by virtue of some accounting actions and asset diversion that weaken the probability that the people of Costa Rica can recover those resources, which are substantial. After Álvaro Ramos, Executive President of the CCSS, gave his opinion on the matter, the President of the Republic expressly stated the following:
"(…) The profitability of La Nación is in free fall and that means it is incurring constant, constant, constant losses. And so one wonders if that loss trend continues, I don't know, maybe they have a magic wand and manage to lift the cash flow (…) what happens if La Nación's cash flow is strangled and the property is not there because it is elsewhere? That is the question and I think Mr. Álvaro expressed it in very good technical terms but well, he has the obligation to do that. And I also asked him, besides the fact that he was already doing it when I called to ask him, he tells me no, we are already doing it and the consultation is in place (…)." It has also been demonstrated that, by virtue of what happened on that July 6 of this year at the press conference, on July 7, 2022, in the politics section of the Newspaper La Nación, a note was published in which, among other aspects, it was explained why the arguments made by the President regarding the financial capacity of Grupo Nación were not accurate. In addition to this, it is shown that, in that same note, it was recorded that the Executive Director of Grupo Nación stated that "(…) Parque Viva had activity again, starting in March 2022, after being two years without events as a result of the coronavirus pandemic. Likewise, he recalled that the health crisis caused a generalized impact worldwide. Despite this, he emphasized, the company managed to generate cash flow (…)." (Emphasis is not part of the original).
At this point, it must be remembered that, the next day, that is, on July 8, 2022, the Ministry of Health issued the sanitary order that ordered the closure of Parque Viva for any type of activity.
In addition to the foregoing, it should be reiterated that in this matter it has been demonstrated that on July 13, 2022, the President of the Republic, at a press conference, spoke out against the road project proposed by Grupo Nación to address the congestion problems generated in the area of La Guácima, where Parque Viva is located. It is shown that, on that occasion, said authority stated:
"(…) Did you hear the barefaced lie published by La Nación that they have been requesting an access to Route 27 for two years to fix Parque Viva? Oh no, well if we score one goal let's score four more goals because it is four times the volume of area they wanted to get the permit for. Aren't you ashamed to collapse Route 27 risking the entire West, Grecia, Naranjo, Atenas, San Carlos, all of Guanacaste, and all of Puntarenas? (…)." Likewise, it is held as accredited that on July 20, 2022, the President, at a press conference, maintained that one of the reasons for canceling the electric train plan is due to the existence of a branch line that passes by Parque Viva, whose cost would be 150,000 million colones. Specifically, said authority stated:
"(…) We understand that the large metropolitan area needs a transportation solution. When one sees that they had a branch line of 150,000 million colones to Parque Viva for this little train, one becomes even more concerned. So everything together tells us 'this is not going forward' (…)." Having analyzed the above-cited events, jointly, it is clear to this Court that Mr. Rodrigo Chaves Robles, both as a presidential candidate and in the exercise of the presidency of the Republic, has issued a series of clear, direct, and forceful statements against the Newspaper La Nación, through which he expressed his intention to destroy said media outlet, just as a tsunami does, according to the terms expressly used by him. This intention is clear when observing what was declared by Chaves Robles publicly on January 29 and February 6 of the current year, opportunities on which he not only referred to La Nación, but also to Channel 7 and the media outlet CRhoy, which he also branded as "despicable press." Equally, it cannot go unnoticed that the then-presidential candidate, on January 30, 2022, during the closing of his campaign, despite not mentioning specific names, did indicate publicly that he would sweep away the media outlets "like the trash from the house," by the tsunami that he and his party represent or would execute to end their "party." In accordance with the above, it is also important to note that the current President, during this same period, in particular, on February 7 of this year, again hurled epithets against the press, which he branded as despicable and sold-out, and affirmed, forcefully, that two or three media outlets would be very affected under a possible government led by him. Furthermore, on August 3, 2022, Chaves Robles took advantage of his intervention with the Minister of Health to compare the press to rats and other species of fauna.
In addition to this, this jurisdiction also observes that, precisely, the preceding state of affairs coincided with the same period in which the Newspaper La Nación published several news articles regarding Chaves Robles, when, at that time, he held the status of presidential candidate (namely, from August 2021 until, at least, April 2022). News articles that, as stated, could not in any way be to the liking of the current President, much less in the midst of an electoral campaign, since they, as stated, were related, among others, to issues of sexual harassment for which he had been sanctioned during his time as an employee of the World Bank, or to the parallel financing structures of his political campaign (news articles on which, moreover, it is clarified, this jurisdiction does not issue any opinion or pronouncement regarding their veracity or not, as it falls outside its competence, nor is it the object of this amparo).
Thus, there is not the slightest doubt for this constitutional body that the President leveled a series of threats against the press, in particular, against the Newspaper La Nación, as a means to intimidate and bully it. The current President, feeling offended or aggrieved by the disclosures made by said media outlet (editorial line), opted, then, as has been demonstrated, to attack it openly and publicly, "loud and clear," as he himself has said.
It should be noted, as has also been demonstrated, that this was not carried out in isolation; on the contrary, it is evident that it is a series of manifestations (direct and indirect attacks and threats), directed in the same sense and delivered at the same time, parallel to or concomitant with the publication of the aforementioned news reports.
Now, in this context, it is possible to think—or it would be valid to understand—that the sanitary order issued against Parque Viva (through which its closure for any type of event was ordered) materializes the closure of the media outlet.
This is because said closure—in addition to having the particularities already described—of course harms the finances of Parque Viva and, therefore, of Grupo Nación S.A., but also, concomitantly, generates an impact on the media outlet Diario La Nación. It is worth recalling at this point, once again, that both the newspaper La Nación and the aforementioned park form part of said company or financial conglomerate (called Grupo Nación S.A.), and that, precisely, this commercial event venue was acquired to diversify income sources and compensate for the loss of profits suffered due to the migration of advertising to digital platforms; that is, as a mechanism to contribute to or cooperate with the current financing or maintenance of this particular type of press outlet, in the terms amply explained in Considerando VIII of this judgment. Thus, if Parque Viva is affected as has occurred (and it ceases to produce income because it is completely closed, being prohibited from carrying out any type of activity, as was ordered), it also economically and unavoidably affects Diario La Nación, as part of the financial conglomerate that Grupo Nación S.A. represents. In other words, if the formula or mechanism used by Grupo Nación to generate income and contribute to the expenses generated by Diario La Nación is harmed, obviously, this will have a negative impact on the latter medium. This Chamber explained it in these same terms in the already cited Votos Nos. 1782-2015 and 15220-2016, by indicating that, if the economic income of a media outlet is limited, it is also harmed or even eliminated. Note that although the petitioners have been clear in indicating that their salaries, as journalists, at this moment, do not depend absolutely on the operation of Parque Viva (as the President understands and mentions in the report rendered to this Court), the truth is that they have stated that the closure of the venue generates an impact of an economic nature that harms and negatively affects the media outlet. In addition to this, the claimants have pointed out that Parque Viva forms part of the structures to which the President of the Republic refers and which are, precisely, those that "sustain their free exercise of journalism." Furthermore, they have been clear in indicating that the pressure exerted on the company's finances through its closure "puts future journalistic practice at risk and invites understandings that compromise it." In this regard, it is necessary to point out that, as demonstrated in the list of proven facts of this judgment, for this third quarter of the year 2022, at least four major events were being organized at Parque Viva, which represent significant income for Grupo Nación, from which the media outlet Diario La Nación also benefits, according to the terms already explained. However, as was also accredited, the Ministry of Health, on July 14 and 15, 2022, denied the producers of such events the issuance of the requested occupancy certifications, by virtue of the closure order issued against the aforementioned venue, thereby clearly causing significant economic harm to Grupo Nación and, therefore, to the media outlet.
It should also be noted, regarding this last aspect, that it draws the attention of this Constitutional Court that the closure of Parque Viva was ordered on July 8, 2022, just one day after Diario La Nación published a note through which it defended itself against the statements related to its finances expressed on July 6, 2022, by the President of the Republic, in which, in turn, the Executive Director of Grupo Nación pointed out that the venue under study had resumed activity in March 2022 and had managed to generate cash flow. Likewise, it cannot be lost sight of that the President, in the report rendered to this Chamber, concluded that La Nación does depend on Parque Viva to survive financially, which reaffirms that the closure carried out on this site harms it, and that the consequences produced by said act were not unknown to him. Consequently, we are faced with the issuance of a high-handed, arbitrary, and disproportionate act that weakens the financial stability of Diario La Nación.
Now, according to what was amply analyzed in Considerandos VII and VIII of this judgment, what occurred with Parque Viva and the impact it causes to the press outlet translates, in turn, without a doubt, into an indirect violation of freedom of expression, that is, veiled censorship (censura velada). This is mainly because the negative economic repercussions generated for Diario La Nación could lead, by way of example and in the face of a financial crisis, to a decision being made, in the short, medium, or long term, to cut or dispense with personnel—including journalists—or even to proceed with the definitive closure of its operations, thereby preventing said medium and, therefore, those who work there from continuing to exercise press freedom, as a manifestation of freedom of expression. As the Inter-American Court of Human Rights (Corte IDH) made clear in the already cited case of Granier et al. vs. Venezuela, the restriction on freedom of expression in this type of situation affects not only the media outlet (legal entity) but also natural persons (from shareholders to the journalists who work there). Concomitantly, it is clear that the closure of Parque Viva, under the terms set forth herein, also translates into a kind of wake-up call or warning to the media outlet Diario La Nación by virtue of its editorial line, seeking thereby a shift in its favor toward the government or simply to produce a dissuasive or intimidating effect and, with it, to completely silence or appease the voices of its director and its journalists. A clear and unquestionable warning issued to the newspaper La Nación to refrain from engaging in the facts already described, i.e., the publication of news that harms the image of the President or the government in general. It is punished, then, for what has already been published and made known regarding the President, his political party, and his way of seeking to govern, but a warning is also issued so that this type of news is not disseminated to the citizenry again. Furthermore, it is important to note that this threatening message that attacks freedom of expression is sent not only to Diario La Nación but also, dangerously, to the rest of the media outlets in the country that dare to publish any news against the President and his government.
Thus, it is evident that the closure of Parque Viva is an indirect, high-handed, and illegitimate mechanism that violates freedom of expression. The foregoing state of affairs is prohibited by the American Convention on Human Rights itself in its Article 13.3, which also clarifies that it can be carried out not only through "abuse of governmental or private controls of newsprint, radio broadcasting frequencies, or equipment used in disseminating information" but also "by any other means aimed at impeding communication and the circulation of ideas and opinions." The closure of Parque Viva fits perfectly into this latter description and thus becomes one more example, like those cited in Considerando VII of this judgment, of how the fundamental right to freedom of expression can be indirectly violated.
We must note here that, despite the fact that the President of the Republic maintains that the closure of Parque Viva pursued a legitimate purpose (such as safeguarding the life and health of persons), the truth is that it cannot be overlooked that said act also (apart from having been issued arbitrarily, lacking foundation, and being disproportionate under the terms already described) violates one of the most relevant fundamental rights in our Constitutional Rule of Law, namely, freedom of expression and press freedom, as a manifestation of the latter. The President argues that action was taken safeguarding those legal interests, even using a power permitted by the State (such as the issuance of sanitary orders); however, the truth is that, at bottom, with said thesis the media outlet is harmed and punished (with the assistance of the Ministry of Health), thus configuring, by all lights, a clear and evident illegitimate deviation of power. In essence, the impact on the indicated public freedoms was cloaked in apparent legality.
The closure of Parque Viva was carried out with abuse of power, through an indirect mechanism (disguised as legitimate action), with a purpose clearly distinct from that which was stated both in the sanitary order and before this Constitutional Chamber, and this latter jurisdiction is absolutely clear on this. Thus, we find ourselves before what this Court has already termed "(...) a perverse and antidemocratic form of using the power of the State to direct opinion, according to a system of 'reward or punishment,' toward those who exercise press freedom and free expression guaranteed constitutionally and conventionally (...)" (Voto No. 15220-2016).
Note that a discourse absolutely credible to third parties (such as the defense of public interests) is used to justify the arbitrary closure carried out on Parque Viva, but, concomitantly, to flagrantly harm the media outlet Diario La Nación, as retaliation for the news published against the President and his political party, which, it is emphasized, continued to be disseminated despite the threats issued by the latter. Threats that, it bears reiterating, were issued on several occasions, clearly and directly against the media outlet Diario La Nación, until they finally materialized or were executed, just as the Venezuelan government did in its time, lashing out against the media outlet Radio Caracas Televisión for disseminating news against its regime, whose conduct was condemned by the Inter-American Court of Human Rights by holding, among other aspects of interest, that it is not possible to arbitrarily restrict the right to freedom of expression on the basis of the political disagreement that a particular editorial line may generate for the government (case of Granier et al. vs. Venezuela, judgment of June 22, 2015, referred to amply in Considerando VII of this vote and whose content is fully applicable to this amparo proceeding).
Additionally, it must be taken into account that the President has also referred to the press in a derogatory manner (using confrontational words or comparing it to rats and other fauna species) and that he even made public threats to Grupo Nación through other distinct forms, such as by publicly questioning the state of its finances (regarding bonds issued and purchased by the State), lashing out against the road project proposed to help with the traffic congestion problem generated in La Guácima, and pointing out, as one of the causes for canceling the electric train plan, the existence of a branch line that passes through Parque Viva. In essence, carrying out a campaign to publicly discredit the aforementioned press outlet by alluding to various topics of national interest (regarding which, it is also clarified, this Chamber refrains from ruling, as they fall outside its jurisdiction and are not the crux of this amparo).
Regarding these statements, the President of the Republic argues that he has the constitutional right to freely express his thoughts and, in that regard, cites Judgment No. 9855-2022 issued by this constitutional jurisdiction (where reference was made to the right of public officials to express their opinions), as well as what was held by the Inter-American Court of Human Rights in the case of Ríos et al. vs. Venezuela, where it was indicated that statements made by high State officials "(...) although they may have strong and critical content that may even be viewed as offensive, constitute legitimate expressions of thoughts and opinions about the particular ways a media outlet may exercise journalism that are protected and guaranteed under Article 13 of the American Convention (...)." Notwithstanding the foregoing, it is important to note that in the same pronouncement to which the President alludes, the Inter-American Court of Human Rights also held that:
"(...) 139. In a democratic society it is not only legitimate, but at times constitutes a duty of state authorities, to pronounce on matters of public interest. However, in doing so they are subject to certain limitations in that they must verify in a reasonable manner, although not necessarily exhaustively, the facts on which they base their opinions, and should do so with even greater diligence than that employed by private individuals, by reason of their high office, the broad reach, and possible effects that their expressions may have on certain sectors of the population, and to avoid the citizens and other interested persons receiving a manipulated version of certain facts. Furthermore, they must bear in mind that as public officials they have a position of guarantor of the fundamental rights of persons and, therefore, their statements cannot disregard these nor constitute forms of direct or indirect interference or harmful pressure on the rights of those who seek to contribute to public deliberation through the expression and dissemination of their thought. This duty of special care is particularly accentuated in situations of greater social conflict, public order disturbances, or social or political polarization, precisely because of the set of risks they may entail for certain persons or groups at a given time (...)." (judgment of January 28, 2009) (Highlighting is not part of the original).
Furthermore, it must be taken into account that although this Chamber, in the cited Judgment No. 9855-2022 of 2:17 p.m. on April 29, 2022, referred to the right of public officials to express their opinions, the truth is that the facts analyzed on that occasion and for which the then-filed amparo petition was granted differ greatly from the circumstances studied in this new matter. This is because, on that occasion, the case of a judicial official was heard, against whom an administrative proceeding was initiated by virtue of statements made against a former high authority of the same institution for which she provides services. This is very different from what occurs in this case, where it has been the President of the Republic himself—the highest-ranking public official in our country, with great power and influence—who has made the aforementioned statements, and who, although he has the right to opine on what he thinks, the truth is that he must do so within certain limits by virtue of his office (as the Inter-American Court of Human Rights explained in the judgment supra) and, furthermore, without violating other rights or to the detriment of other equally essential freedoms, above all, in a Democratic Rule of Law.
Regarding the foregoing, it is worth reminding the Presidential President of something very important about which this Constitutional Chamber noted and amply explained in Considerando VI of this Judgment, which is the fact that public officials who hold a high rank, as is his case, are obliged to tolerate, with greater margin or breadth, the criticisms to which they are subjected and are continually exposed, precisely because of the office they hold and by virtue of the public interest surrounding the actions they carry out. This was recorded by this Court in the above-cited Judgment No. 15220-2016 and, even, by the European Court of Human Rights, when referring to Article 10.2 of the European Convention, as was also recorded above. Furthermore, it bears reiterating that the same European Court of Human Rights (cited by the Inter-American Court of Human Rights in the case of Herrera Ulloa vs. Costa Rica) has held that freedom of expression must be guaranteed not only with respect to the dissemination of information or ideas that are received favorably or are deemed inoffensive, but also with respect to those that offend, shock, or disturb the State. In addition to this, it is also important to highlight that this right to criticize—so to speak—which, among others, the press outlets enjoy, gains greater force under different circumstances, such as, for example, in an electoral contest, where citizens have the right to know who the candidates or nominees are to occupy one of the most important positions in the country, in fact, as stated, the highest-ranking one. This, precisely, is what the Inter-American Court of Human Rights amply and clearly explained in the likewise already cited case of Ricardo Canese vs. Paraguay; an occasion on which, it is worth recalling, reference was made to the importance of freedom of expression in the context of an electoral campaign and the following, among other aspects of great interest, was held:
"(...) 90. (...) Democratic debate implies that the free circulation of ideas and information be permitted regarding the candidates and their political parties by the media, the candidates themselves, and any person who wishes to express their opinion or provide information. It is necessary that everyone be able to question and inquire into the capability and suitability of the candidates, as well as dissent and confront their proposals, ideas, and opinions so that the voters can form their criteria to vote. (...) In this regard, the European Court has established that (...) For this reason (...) it is particularly important that opinions and information of all kinds can circulate freely in the period preceding elections (...)." (Highlighting is not part of the original).
Also, it is worth pointing out that, on that occasion, the Inter-American Court of Human Rights clearly indicated that those persons who run as candidates for the office of the Presidency of the Republic have voluntarily exposed themselves to public scrutiny, and, consequently, run the risk of being subjected to greater criticism, since their activities leave the private sphere to enter the sphere of public debate.
It must be observed that in this case it is clear that, despite what was recorded supra, Rodrigo Chaves Robles, since the news in question was disseminated, has dedicated himself to publicly threatening Diario La Nación and, even, to justifying the issuance of acts as lamentable as the arbitrary closure of Parque Viva. All this, despite the fact that the President, like any other citizen who feels aggrieved by publications issued against him, has a series of means or mechanisms that the legal system provides and to which he can legitimately resort subsequently to defend his honor or to ensure the accuracy of the information disseminated (exercising the right of rectification and response established in Articles 66 and following of the Ley de la Jurisdicción Constitucional and Article 14 of the American Convention on Human Rights). Despite having these instruments at his disposal, there is no record that the President has made use of them, directing instead his statements against Diario La Nación in the arbitrary manner in which he did, and this has been fully accredited.
Under this state of affairs, it is observed, then, that what has been recorded in this matter has represented a violation of the Constitutional Rule of Law, which has a democratic tradition recognized even internationally. Therefore, the intervention of this Constitutional Court is imperative, above all, if it is taken into consideration, as has also already been said, that attacks on independent media outlets—as is precisely the case of Diario La Nación—tend to be the first targets of antidemocratic and authoritarian political systems, or at least of those that are headed or directed toward that. History and what has occurred in other latitudes demonstrate this.
The threats issued by the President of the Republic against Diario La Nación until reaching the impact on Parque Viva, thereby generating a violation of freedom of expression and press freedom, has undeniably eroded and fractured our democracy—which, it is worth noting, our ancestors forged with so much effort—and, therefore, it is essential to make this kind of observation to prevent similar situations from recurring. For today it was Diario La Nación, but tomorrow it could be any other media outlet.
In addition to the foregoing, it is important to highlight that, in this case, not only has the right of Diario La Nación to express itself, to issue criticisms, and to disseminate, among others, news related to the current President of the Republic and the management carried out by him, before and after assuming said office (as a means, in turn, to oversee his actions in a democratic society) been violated, but also the right of the inhabitants, in a Constitutional Rule of Law, to receive this type of information has been breached; that is, freedom of expression seen from its social dimension. If the press is arbitrarily silenced, then the inhabitants are deprived of an important and valuable mechanism to know what is happening, especially regarding the government's management (as a mechanism, in turn, to exercise control over its acts and to form an opinion on the matter), and this, without a doubt, likewise represents an affront to the Costa Rican democratic system.
For all the arguments set forth above, this Chamber considers that, in the case at hand, there has been a clear breach of Article 29 of our Magna Carta and of Article 13.3 of the American Convention on Human Rights, which expressly prohibits veiled censorship (censura velada) or indirect restrictions carried out "by any means" on the right to freedom of expression. Consequently, it is appropriate to also grant this part of the petition, with the consequences that will be stated infra. This, not without first bringing up what the Declaration of Chapultepec states and is fully applicable in this case:
"The struggle for freedom of expression and of the press, by any means, is not a one-day task; it is a permanent endeavor. It is an essential cause for democracy and civilization in our hemisphere. It is not only a bulwark and antidote against all abuse of authority: it is the civic breath of a society. Defending it day by day is honoring our history and mastering our destiny." D. FINAL CLARIFICATIONS OF INTEREST. Finally, this Constitutional Chamber deems it pertinent, at this point in the judgment, to make clear the following aspects:
First: Through this vote, this constitutional jurisdiction is not saying that one can act contrary to what the legal system dictates; it does not propose or urge acting outside the legal framework. On the contrary, the Chamber points out that the law must be applied correctly and not in an untimely, high-handed, or arbitrary manner, as was demonstrated to have occurred in the case under study.
Second: What is ordered in this judgment does not prevent the continued oversight of commercial enterprises, whether or not they are related to media outlets. The powers of control, supervision, and verification of compliance with the requirements and permits for the operation of these establishments must continue to be exercised, but in accordance with the already established legal framework, and not in the high-handed, arbitrary, and untimely manner in which it was recently carried out in the case assessed in this proceeding.
Third: In the sense set forth above, for the specific case, this Court is aware that the life, health, and integrity of the inhabitants of the La Guácima de Alajuela area, and of those attending the activities held at the establishment called Parque Viva, must be protected and safeguarded. This jurisdiction, as stated above, through copious jurisprudence, has always sought to safeguard these fundamental rights, and this is absolutely indisputable. Now, the exercise of the public powers available to the administration must be carried out in a manner consistent with the legality framework, and not in the high-handed manner in which it has been done in this particular case.
Fourth: It must be absolutely clear that this judgment does not indicate that any commercial activity linked to a media outlet is exempt from the controls required by the legal system. Furthermore, as has also been explained, not every administrative act or conduct that imposes a burden or establishes a content of negative effect on the financing structures of media outlets constitutes, in itself, a reflexive injury such as the one indicated. A complete reading of this judgment does not establish or suggest that rule in any way. What has been established, and must be emphasized, is that the closure of a business or commercial establishment for the purpose of muzzling or silencing a media outlet actually constitutes a subterfuge to violate public freedoms and fundamental rights, in particular, freedom of expression and press freedom, and thereby to unduly and indirectly limit these freedoms, which, as repeatedly explained, are consubstantial with the very existence of democracy; hence the protection that this Constitutional Court deserves to provide.
X.- COROLLARY. In view of the foregoing, it is necessary to grant this amparo proceeding, it having been demonstrated that the closure of Parque Viva was carried out arbitrarily, without a valid objective foundation, as retaliation for the editorial line that Diario La Nación has maintained regarding the current President Rodrigo Chaves Robles, and with the sole objective of silencing the voices of said medium, in clear detriment to freedom of expression and press freedom protected constitutionally and conventionally. (...)” ... See more Otras Referencias: Inter-American Court of Human Rights (hereinafter Corte IDH), in the case of Herrera Ulloa vs. the State of Costa Rica (judgment of July 2, 2004) Court of Appeals for the First Circuit, Puerto Rico, case of El Día vs. Rossello, decision of January 25, 1999, 165 F.3d 106, p. 110 Citas de Legislación y Doctrina Sentencias Relacionadas Contenido de Interés:
Tipo de contenido: Majority vote Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 029- Libertad de expresión Subtemas:
NOT APPLICABLE.
ARTÍCULO 29 DE LA CONSTITUCIÓN POLÍTICA “(…) IV.- ON FREEDOM OF EXPRESSION. Freedom of expression is one of the pillars upon which the Rule of Law is founded and includes both the fundamental and universal guarantee of expressing one's own thoughts or opinions, as well as knowing those of others. In other words, it refers to the freedom to seek, receive, and impart information and ideas, whether orally or in writing. This is why it is said that freedom of expression is characterized by being a right with a double dimension: an individual dimension, consisting of the right of each person to seek information and to express their own thoughts, ideas, and information; and a collective or social dimension, consisting of the right of society to seek and receive any information, to know the thoughts, ideas, and information of others, and to be well informed. Regarding this double dimension of the freedom under study, the Inter-American Court of Human Rights (hereinafter Corte IDH), in the case of Herrera Ulloa vs. the State of Costa Rica (judgment of July 2, 2004), held the following:
“(…) 109.
In this regard, the Court has indicated that the first dimension of freedom of expression "is not exhausted in the theoretical recognition of the right to speak or write, but also inseparably comprises the right to use any appropriate means to disseminate thought and to reach the greatest number of recipients." In this sense, expression and dissemination of thoughts and ideas are indivisible, so that a restriction on the possibilities of dissemination directly, and to the same extent, limits the right to free expression.
110. With regard to the second dimension of the right to freedom of expression, that is, the social dimension, it is necessary to point out that freedom of expression is a means for the exchange of ideas and information among people; it includes their right to try to communicate their points of view to others, but also implies the right of all to know opinions, accounts, and news expressed by third parties. For the ordinary citizen, knowledge of others' opinions or of the information held by others is as important as the right to disseminate their own.
111. This Tribunal has affirmed that both dimensions possess equal importance and must be fully guaranteed simultaneously to give full effect to the right to freedom of expression under the terms provided by Article 13 of the Convention (...)" Meanwhile, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (Inter-American Legal Framework on the Right to Freedom of Expression, December 2009), referred to this right in the following terms:
"(...) it is one of the individual rights that most clearly reflects the virtue that accompanies—and characterizes—human beings: the unique and precious virtue of thinking about the world from our own perspective and communicating with others to build, through a deliberative process, not only the model of life that each person has the right to adopt, but also the model of society in which we want to live. All the creative potential in art, science, technology, politics—in short, all our individual and collective creative capacity—depends fundamentally on respect for and promotion of the right to freedom of expression in all its dimensions. It is, therefore, an individual right without which the first and most important of our freedoms would be denied: the right to think for ourselves and to share our thoughts with others (...)"
Our Political Constitution guarantees freedom of expression and thought in Articles 28 and 29, which state the following:
"ARTICLE 28.- No one may be disturbed or persecuted for the expression of their opinions or for any act that does not violate the law.
Private actions that do not harm public morality or order, or that do not harm a third party, are beyond the reach of the law.
However, political propaganda may not be conducted in any form by clergy or laypersons invoking religious motives or using religious beliefs as a means." "ARTICLE 29.- All persons may communicate their thoughts by word or in writing, and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law." In the international sphere, freedom of expression has been enshrined in various instruments. Regarding the Inter-American system, the International Covenant on Civil and Political Rights provides in its Article 19 the following:
"1. No one shall be subjected to interference on account of their opinions.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of their choice.
3. The exercise of the right provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others; (b) For the protection of national security, public order (orden público), or of public health or morals." The Universal Declaration of Human Rights in its article 19 also states:
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." Meanwhile, the American Convention on Human Rights, in its Article 13, states the following:
"1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other media of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent liability, which shall be expressly established by law and be necessary to ensure:
(a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
4. Public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence, without prejudice to the provisions of paragraph 2.
5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds, including those of race, color, religion, language, or national origin, shall be considered an offense punishable by law." In Article IV of the American Declaration of the Rights and Duties of Man, the following is stated:
"Every person has the right to freedom of investigation, of opinion, and of expression and of dissemination of thought by any means." Likewise, international soft law instruments have safeguarded this freedom. Thus, the Declaration of Chapultepec (adopted by the Hemispheric Conference on Freedom of Expression held in Mexico, D.F. on March 11, 1994), in its first principle states that:
"1. There are no free people or societies without freedom of expression and of the press. The exercise of this freedom is not a concession of the authorities; it is an inalienable right of the people." Meanwhile, the Declaration of Principles on Freedom of Expression (approved by the Inter-American Commission on Human Rights in October 2000, at its 108th regular session), provides the following:
"1. Freedom of expression, in all its forms and manifestations, is a fundamental and inalienable right, inherent in all persons. It is, moreover, an indispensable requirement for the very existence of a democratic society." In another context, within the European legal order, the European Convention on Human Rights stands out, which in its Article 10 specifies the universal entitlement to this right, in the following terms:
"Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." Equally, the Charter of Fundamental Rights of the European Union, in its Article 11, cites the following:
"Article 11 Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The freedom and pluralism of the media shall be respected." The right to freedom of expression has been extensively developed in Costa Rican constitutional jurisprudence. Thus, in Judgment No. 8196-2000 of 3:08 p.m. on September 13, 2000, the Constitutional Tribunal referred to the different forms in which freedom of expression can be manifested, in the following terms:
"(...) IV.- On Freedom of Expression. The doctrine characterizes freedom of expression as a freedom that is a prerequisite for the exercise of other freedoms, which operates as a legitimizer of the functioning of the democratic system and the effectiveness of its institutions, and which legally adopts a plurality of forms. The clearest link is with freedom of thought, which is the prior and indispensable condition for the existence of freedom of expression. In the exercise of both freedoms, the individual can choose or elaborate the responses they intend to give to all those questions posed by the conduct of their life in society, conform their actions to these responses, and communicate to others what they consider true, without prior censorship. The scope of action of these freedoms is very broad, as it encompasses the manifestations of individuals on politics, religion, ethics, technology, science, art, economics, etc. Freedom of expression, then, implies the possibility for the subject to transmit their thoughts (ideas, volitions, feelings), and includes the freedom of artistic or literary creation, freedom of speech, free cinematographic expression, and also the manifestations expressed through the written press, radio, and television, as they are means of disseminating ideas. Likewise, from freedom of expression the right to give and receive information is inferred, and the right to communicate with diverse purposes—whether economic, political, recreational, professional, etc.—without unreasonable restrictive measures being imposed. Freedom of expression not only protects the isolated individual, but also the relations between members of society, and that is why it is of great importance, as it contributes to the formation of public opinion. It is, in turn, a prerequisite for press freedom and freedom of information, since from freedom of expression, in historical succession, derived press freedom (or that of periodical writings directed to the general public) and freedom of information, which is how freedom of expression concretized in the media is termed today. Freedom of information, therefore, encompasses the written, oral, and audiovisual press and, by its nature, is related to the right of chronicle, of criticism, to the press industry or commerce, and to the phenomenon of advertising. This aspect has acquired much importance in recent decades, because due to the high cost of installation and maintenance of mass media, when privately owned they can only survive through the intensive use of advertising. Likewise, there is the phenomenon of the social right to information, which resides precisely in the community and in each of its members, and which gives them the possibility of adjusting their conduct to the reasons and feelings suggested by that information, for decision-making, and at the same time fulfills an integrative function, as it unifies a multitude of particular opinions into a great current of opinion, thus stimulating social integration (...)". (The highlighting does not form part of the original).
Likewise, in that same vote, the Constitutional Chamber ruled on the prohibition of prior censorship, as well as on the limits to which the freedom under study is subject:
"(...) V.- One of the main guarantees that protect freedom of expression is the prohibition of prior censorship, meaning that any control must occur a posteriori. This Chamber understands prior censorship as that control, examination, or permission to which a publication, text, or opinion is subjected prior to its communication to the public, through which a preventive control of the manifestations made by a mass media outlet—whether radio, television, or print—is intended. This concept is not only embodied in our Political Constitution in Article 29, but was also incorporated into the Pact of San José, whose Article 13(2) provides that the exercise of freedom of expression shall not be subject to prior censorship but shall be subject to subsequent liability, which must be expressly established by law and be necessary to ensure either respect for the rights or reputations of others, or the protection of national security, public order, or public health or morals. Article 29 of the Political Constitution enshrines what part of the doctrine classifies as press freedom, while another terms it freedom of information, and provides:
'All persons may communicate their thoughts by word or in writing and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law.' The Chamber referred to this topic in judgment No. 1292-90 of nineteen ninety and said:
'The freedom of expression contained in Article 29 of our Constitution allows the communication of thoughts by word or in writing and their publication without prior censorship, a guarantee that Article 28 of the same normative body reinforces by prohibiting persecution for the exercise of that freedom. Nevertheless, like all rights, this freedom is not absolute, and has its limits, such that the abuse thereof shall cause its author to incur liability, according to the legislation governing the matter.' (...)
Now, despite the great freedom that the individual enjoys to form opinions based on personal criteria and, in turn, to communicate them with full breadth, it should not be thought that the exercise of these freedoms has no limits, because freedom of expression, like the rest of public liberties, is not unrestrictred: its limits are given by the Constitutional Order itself, and this Chamber so considered in judgment No. 3173-93, indicating that 'II.- The fundamental rights of each person must coexist with each and every one of the fundamental rights of others; therefore, for the sake of coexistence, it is often necessary to curtail the exercise of those rights and freedoms, even if only to the precise and necessary extent so that other persons may enjoy them under equal conditions. However, the principle of the coexistence of public liberties—the rights of third parties—is not the only just source for imposing limitations on them; the concepts of "morality," conceived as the set of fundamental principles and beliefs in force in society, the violation of which seriously offends the generality of its members—and "public order," also act as justifying factors for the limitations of fundamental rights. VI- This Chamber is not unaware of the difficulty of unequivocally specifying the concept of public order, nor that this concept can be used both to affirm the rights of the person vis-à-vis public power and to justify limitations in the name of collective interests on those rights. It is not solely about the maintenance of material order in the streets, but also about the maintenance of a certain juridical and moral order, such that it is constituted by a minimum of conditions for a convenient and adequate social life. Its foundation is the safety of persons, of property, public health, and tranquility.' Likewise, in judgment No. 3550-92 of four p.m. on November twenty-fourth, nineteen ninety-two, this Tribunal developed the topic of the legitimate limits on public liberties and referred to the principle of legal reservation, emphasizing that 'only through formal law, emanating from the Legislative Power through the procedure provided in the Constitution for the issuance of laws, is it possible to regulate and, where appropriate, restrict fundamental rights and freedoms—all, of course, to the extent that the nature and regime of these allow it, and within the applicable constitutional limitations (...).' (The highlighting does not form part of the original).
Likewise, more recently, in Voto No. 9512-2020 of 1:02 p.m. on May 22, 2022, this Tribunal issued the following:
"(...) V.- ON FREEDOM OF EXPRESSION AND THE LIMITS THAT MAY BE IMPOSED.- This Tribunal has understood freedom of expression and information as set forth in judgment No. 8109-98 of 2:21 p.m. on November 13, 1998, in which the following was indicated: '...IV.- The Right to Information is that which allows all persons to receive sufficiently broad information about certain facts and about currents of thought and, based on them, to choose and form their own opinions. This is achieved through two different paths: through the objective exposition of facts and through the pluralism of ideological currents. Likewise, Freedom of Expression and Thought constitutes a fundamental right that allows the individual, within a broad area of freedom, to formulate personal criteria of what they consider appropriate or not, to respond to certain situations; allowing, at the same time, to communicate without prior censorship the result of their ideological approach. This right is of great importance, since it contributes to the formation of public opinion through the intellectual contributions of the individual who exercises established opinions or concepts, or by criticizing them. The scope of freedom is very broad, as it encompasses all the manifestations that individuals make about politics, religion, ethics, technology, science, art, economics, etc., from which it follows that the exercise of Freedom of Expression and Freedom of Thought excludes prior censorship, with the existing control being exercised a posteriori and over excesses subject to the abuse of such freedoms, excluding from such prohibition those considered public entertainments.' In addition, the same judgment stated that: '... Freedom of expression forms part of freedom of information, and in a State of Law, it implies an absence of control by public powers and administrative bodies at the time of exercising that right, meaning that no authorization is necessary to make publications, and that prior censorship cannot be exercised, unless health, national security, morality, and good customs are at stake, as is the case with public entertainments. The exercise of freedom of expression cannot be unlimited, because if it were, the media or any legal entity could lend itself to spreading falsehoods, defaming, or promoting any type of disorders and scandals. That is why freedom of information carries with it an implicit limit, which functions as a kind of self-control for the citizen who exercises that right, in the sense that if they commit an abuse, they shall be responsible for it, in the cases and in the manner that the law establishes. Hence, in our legal system, there exist criminal figures such as slander, calumny, or defamation, which may be the consequence of an abuse in the exercise of the right to information. (...)'"
The Inter-American Court of Human Rights, in the case of Mauricio Herrera Ulloa v. the State of Costa Rica, in its judgment of July 2, 2004, on freedom of expression, indicated that freedom of expression is a means for the exchange of ideas and information among people; it includes their right to try to communicate their points of view to others, but also implies the right of all to know opinions, accounts, and news expressed by third parties. For the ordinary citizen, knowledge of others' opinions or of the information held by others is as important as the right to disseminate their own. (...)
Now, freedom of thought and expression in a democratic society is a topic that, as already mentioned supra, has been developed in the American Convention, specifically in its Article 13.2, which provides for the possibility of establishing restrictions on freedom of expression.
The jurisprudence of the Inter-American Court of Human Rights has indicated that, through the application of subsequent liability for the abusive exercise of the right to freedom of thought and expression, the full scope of said rights must in no way be limited beyond what is strictly necessary.
It has been mentioned that the legality of restrictions on freedom of expression founded on Article 13.2 of the American Convention will depend on whether they are aimed at satisfying an imperative public interest, for which the one that restricts the protected right to the least extent must be chosen.
Furthermore, for them to be justified, their weighting against the social necessity for the full enjoyment of the right is necessary, and the protected right must not be limited beyond what is strictly necessary. That is, the restriction must be proportional to the interest justifying it and must closely adjust to the achievement of that objective, interfering as little as possible in the effective exercise of the right to freedom of expression and information (see in this sense Advisory Opinion OC-5/85). (...)". (The highlighting does not form part of the original).
Meanwhile, the Inter-American Court of Human Rights (Corte IDH), in the case of Moya Chacón et al. v. Costa Rica (judgment of May 23, 2022), indicated the following:
"(...) b.3 Permitted restrictions on freedom of expression and the application of subsequent liability in cases affecting honor and dignity in matters of public interest
71. The Tribunal recalls that, as a general rule, the right to freedom of expression may not be subject to prior censorship but, in any case, to subsequent liability in very exceptional cases and subject to compliance with a series of strict requirements. Thus, Article 13.2 of the American Convention establishes that subsequent liabilities for the exercise of freedom of expression must concurrently comply with the following requirements: (i) be previously established by law, in a formal and material sense; (ii) respond to an objective permitted by the American Convention, and (iii) be necessary in a democratic society (for which they must comply with the requirements of suitability, necessity, and proportionality).
72. Regarding strict legality, the Court has established that restrictions must be previously established by law as a means to ensure that they are not left to the discretion of public power. For this, the definition of the conduct must be clear and precise, even more so if it involves criminal rather than civil penalties. Regarding the permitted or legitimate purposes, they are indicated in the aforementioned Article 13.2 and are (a) respect for the rights or reputations of others, or (b) the protection of national security, public order, or public health or morals. Likewise, restrictions on freedom of expression must be suitable, that is, effectively conducive to achieving the legitimately permitted purpose. Regarding the analysis of necessity, the Tribunal has held that, for a restriction on free expression to be compatible with the American Convention, it must be necessary in a democratic society, understanding "necessary" as the existence of an imperative social need that justifies the restriction. In this sense, the Court must examine the existing alternatives to achieve the legitimate aim pursued and specify the greater or lesser harmfulness of those alternatives. Finally, in relation to the proportionality of the measure, the Court has understood that the restrictions imposed on the right to freedom of expression must be proportional to the interest that justifies them and closely adjust to the achievement of that objective, interfering as little as possible in the effective enjoyment of the right. In that sense, it is not enough that it has a legitimate purpose, but the measure in question must respect proportionality when affecting freedom of expression. In other words, "in this last step of the analysis, it is considered whether the restriction is strictly proportional, such that the sacrifice inherent in it does not result exaggerated or disproportionate compared to the advantages obtained through such limitation." The Tribunal recalls that these restrictions are exceptional in nature and must not limit, beyond what is strictly necessary, the full exercise of freedom of expression and become a direct or indirect mechanism of prior censorship.
73. In this sense, the Court has established that such subsequent liabilities can be imposed insofar as the right to honor and reputation could have been affected. Thus, Article 11 of the Convention establishes, in effect, that everyone has the right to the protection of their honor and the recognition of their dignity. The Court has indicated that the right to honor "recognizes that every person has the right to respect for this, prohibits any illegal attack against honor or reputation, and imposes on States the duty to provide the protection of the law against such attacks." In general terms, this Tribunal has indicated that "the right to honor relates to one's own esteem and worth, while reputation refers to the opinion that others have of a person." In this sense, this Tribunal has held that "both freedom of expression and the right to honor, rights both protected by the Convention, are of utmost importance, hence it is necessary to guarantee both rights, so that they coexist harmoniously." The exercise of each fundamental right must be done with respect for and safeguarding of other fundamental rights. Therefore, the Court has indicated that "the resolution of the conflict that arises between both rights requires a balancing between them, for which each case must be examined, according to its characteristics and circumstances, in order to assess the existence and intensity of the elements on which said judgment is based." 74. The Tribunal recalls in this regard that, to determine the conventionality of a restriction on freedom of expression when it collides with the right to honor, it is of vital importance to analyze whether the statements made have public interest, since in these cases the adjudicator must evaluate with special caution the necessity of limiting freedom of expression. In its jurisprudence, the Court has considered to be of public interest those opinions or information on matters in which society has a legitimate interest in being kept informed, of knowing what affects the functioning of the State, or affects general rights or interests, or entails important consequences. Determining this has consequences in the analysis of the conventionality of the restriction on the right to freedom of expression, since expressions concerning matters of public interest—such as, for example, those concerning a person's suitability for a public office or acts performed by public officials in the performance of their duties—enjoy greater protection, so as to promote democratic debate.
75. Thus, the Court has indicated that, in a democratic society, those persons who influence matters of public interest are more exposed to public scrutiny and criticism.
This different threshold of protection is explained because their activities leave the domain of the private sphere to enter the sphere of public debate and, therefore, they have voluntarily exposed themselves to this more demanding scrutiny. This does not mean, in any way, that the honor of persons participating in matters of public interest should not be legally protected, but rather that it must be protected in a manner consistent with the principles of democratic pluralism.
76. On the other hand, in relation to the necessary character and the rigorous proportionality analysis that must govern between the limitation on the right to freedom of expression and the protection of the right to honor, that intervention must be sought which, being the most suitable for restoring damaged reputation, also contains a minimal degree of impact on the sphere of freedom of expression. In this regard, within the framework of freedom of information, the Court considers that there is a duty of the journalist to verify in a reasonable manner, although not necessarily exhaustive, the facts they disseminate. However, this does not mean a strict requirement of truthfulness, at least with respect to matters of public interest, recognizing as a defense that the publication is made in good faith or justifiably and always in accordance with minimum standards of ethics and professionalism in the search for truth. Likewise, the Court warns that, for investigative journalism to exist in a democratic society, it is necessary to leave journalists "room for error," since without that margin of error there can be no independent journalism nor the possibility, therefore, of the necessary democratic scrutiny that emanates from it.
77. Additionally, the Court also considers that no one may be subjected to subsequent liabilities for the dissemination of information related to a public matter that is based on material that is accessible to the public or that comes from official sources.
78. Finally, it must also be emphasized the need that, in the event that it is deemed appropriate to grant reparation to the person aggrieved in their honor, the purpose of this should not be to punish the issuer of the information, but to restore the affected person. In this regard, States must exercise the utmost caution when imposing reparations, so as not to dissuade the press from participating in the discussion of matters of legitimate public interest (…)".
Added to the above, it is worth noting that freedom of expression, as provided in Article 13.3 of the American Convention on Human Rights, cannot be restricted or curtailed through the use of indirect measures or means. However, this particular aspect will be developed later.
V.- REGARDING FREEDOM OF THE PRESS AS A MANIFESTATION OF THE RIGHT TO FREEDOM OF EXPRESSION. Freedom of the press is based on freedom of expression and, at the same time, is one of its natural vehicles. It is one of the main and most important manifestations of freedom of expression. The aforementioned Declaration of Chapultepec has been emphatic regarding the protection that freedom of the press particularly deserves, so, in its first principle, it provides that "1. There are no free people or societies without freedom of expression and of the press. The exercise of this is not a concession of the authorities; it is an inalienable right of the people." It is a fundamental right that defends that any person may, on the one hand, access information and, on the other, disseminate it through any means of expression, be it printed media (newspaper publications, magazines, brochures, etc.), radio, television and, even, more recently, using the internet and digital platforms, among others. Particularly, this Chamber has defined this right as that which the administered have "(…) to seek and disseminate information and ideas to an indeterminate number of persons about facts that by their nature are of interest to the general public because they are considered newsworthy (...)" (Judgments No. 5977-2006 of 3:16 p.m. on May 3, 2006 and No. 8396-2018 of 12:40 p.m. on May 25, 2018).
By virtue of the foregoing, this freedom allows persons the possibility of organizing themselves and creating media outlets independent of governmental power, in which they have the right to express themselves freely, without censorship. All this, furthermore, without fear of reprisals from the State or from other entities or individuals. The purpose of this right is to guarantee the population receives and disseminates information that is not manipulated nor, either, at the service of a person, entity or particular interest.
From its first pronouncements, the Inter-American Court of Human Rights, when resolving Advisory Opinion No. OC-5/85 on the mandatory licensing of journalists through judgment of November 13, 1985, alluded to this freedom from journalistic practice and indicated that:
"(…) 72. (...) The profession of journalist -what journalists do- precisely involves seeking, receiving and disseminating information. The exercise of journalism, therefore, requires that a person engage in activities that are defined or enclosed within the freedom of expression guaranteed in the Convention (...)
74. (...) The exercise of professional journalism cannot be differentiated from freedom of expression; on the contrary, both things are evidently intertwined, since the professional journalist is not, nor can be, anything other than a person who has decided to exercise freedom of expression in a continuous, stable and remunerated manner (...)".
Likewise, in the case of Herrera Ulloa vs. Costa Rica (judgment of July 2, 2004), the Inter-American Court of Human Rights held, regarding the role of the media and journalism in relation to freedom of expression, the following:
"(…) 117. Social media play an essential role as vehicles for the exercise of the social dimension of freedom of expression in a democratic society, which is why it is indispensable that they collect the most diverse information and opinions. The referred media, as essential instruments of freedom of thought and expression, must responsibly exercise the social function they develop.
118. Within this context, journalism is the primary and principal manifestation of this freedom and, for that reason, it cannot be conceived merely as the provision of a service to the public through the application of knowledge or training acquired at university. On the contrary, journalists, by reason of the activity they exercise, are professionally dedicated to social communication. The exercise of journalism, therefore, requires that a person responsibly engage in activities that are defined or enclosed within the freedom of expression guaranteed in the Convention.
119. In this sense, the Court has indicated that it is fundamental that journalists who work in the media enjoy the necessary protection and independence to perform their functions fully, since it is they who keep society informed, an indispensable requirement for it to enjoy full freedom and for public debate to be strengthened. (…)". (The emphasis is not part of the original).
More recently, in the case of Moya Chacón et al. vs. Costa Rica (judgment of May 23, 2022), the Inter-American Court of Human Rights reiterated part of the above-cited and held, on this same topic, the following:
"(…) b.2 Importance of the role of the journalist in a democratic society 66. The Court has emphasized that the professional exercise of journalism "cannot be differentiated from freedom of expression; on the contrary, both things are evidently intertwined, since the professional journalist is not, nor can be, anything other than a person who has decided to exercise freedom of expression in a continuous, stable and remunerated manner." The Tribunal has affirmed that social media play an essential role as vehicles for the exercise of the social dimension of freedom of expression in a democratic society, which is why it is indispensable that they collect the most diverse information and opinions. Indeed, the Court has characterized social media as true instruments of freedom of expression and, moreover, has indicated that "[i]t is the social media that serve to materialize the exercise of freedom of expression, such that their operating conditions must conform to the requirements of that freedom. For this, it is indispensable, inter alia, the plurality of media, the prohibition of any monopoly over them, whatever form it may attempt to adopt, and the guarantee of protection of the freedom and independence of journalists." 67. The Tribunal recalls that, for the press to be able to develop its role of journalistic control, it must not only be free to impart information and ideas of public interest, but must also be free to gather, collect and evaluate that information and ideas. In its 2012 report to the United Nations Human Rights Council, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression referred to the fact that persons who develop a journalistic activity "observe, describe, document and analyze events and document and analyze declarations, policies and any proposal that may affect society, with the purpose of systematizing that information and gathering facts and analysis to inform sectors of society or society as a whole." The foregoing implies that any measure that interferes with the journalistic activities of persons who are fulfilling their function will inevitably obstruct the right to freedom of expression in its individual and collective dimensions.
68. Additionally, within the framework of freedom of information, this Court considers that there is a duty of the journalist to verify in a reasonable manner, although not necessarily exhaustive, the facts they disseminate. That is, it is valid to demand fairness and diligence in the confrontation of sources and the search for information. This implies the right of persons not to receive a manipulated version of the facts. Consequently, journalists have the duty to take some critical distance from their sources and contrast them with other relevant data. For its part, the European Court of Human Rights has indicated that freedom of expression does not guarantee unlimited protection to journalists, even in matters of public interest. Indeed, said Tribunal has indicated that, even when they are protected under the safeguard of freedom of expression, journalists must exercise their work abiding by the principles of "responsible journalism" and ethical conduct, which is of particular relevance in a contemporary society where the media not only inform but can also suggest, through the way they present information, the way in which that information should be understood.
69. Furthermore, given the importance of freedom of expression in a democratic society and the elevated responsibility this entails for those who professionally exercise social communication work, the State must not only minimize restrictions on the circulation of information but also balance, to the greatest extent possible, the participation of different information in public debate, promoting informational pluralism. Finally, the Court has indicated that it is fundamental that journalists who work in the media enjoy the necessary protection and independence to perform their functions fully, since it is they who keep society informed, an indispensable requirement for it to enjoy full freedom and for public debate to be strengthened.
70. Within the framework of this protection that States must provide, the protection of journalistic sources is fundamental, a cornerstone of freedom of the press and, in general, of a democratic society, since they allow societies to benefit from investigative journalism in order to reinforce good governance and the Rule of Law. The confidentiality of journalistic sources is, therefore, essential for the work of journalists and for the role they fulfill of informing society about matters of public interest (…)". (The emphasis is not part of the original).
As things stand, freedom of the press in relation to freedom of expression refers to the right of every person, and of the media in particular, through their journalists, to investigate and inform, without unreasonable limitations or coercion.
The Colombian Constitutional Court has also alluded to this freedom, highlighting three of its most important characteristics. Particularly, in Judgment No. C-135/21 of May 13, 2021, it held that the press fulfills an educational role, is a mechanism that contributes to the construction of peaceful social dialogue and, in turn, is a guardian of democracy. Additionally, it expressly explained the following regarding these characteristics:
"(…) 57.1. Educational role. The media and the press act as disseminators of knowledge. This allows the general public to access information about facts, scientific knowledge, the laws that regulate them and public information in a broad sense, which they otherwise could not know. It is a source that centralizes and then disseminates knowledge, which allows the citizenry to be educated and democracy to be strengthened.
57.2. Mechanism of contribution to social dialogue. The access to knowledge that the press and mass media allow, together with the investigative analysis adopted by them, lead to greater dialogue and peaceful debate of the citizenry around matters of public interest.
57.3. Guardian of democracy. The press and mass media have been called 'the fourth power' or the 'guardian of democracy,' in allusion to the function they exercise of control over the Public Administration and their designation as an instrument of accountability for those who hold power (…)".
This constitutional body has also pronounced itself on this freedom. Thus, in Vote No. 5977-2006 of 3:16 p.m. on May 3, 2006, it stated:
"(…) Freedom of the press generically encompasses all types of printed matter, printing, editing, circulation of newspapers, brochures, magazines and publications of all kinds. It is by its nature the natural vehicle of citizens' freedom of expression. It translates into the right for the administered to seek and disseminate information and ideas to an indeterminate number of persons about facts that by their nature are of interest to the general public because they are considered newsworthy. By its nature, it is subject to the same limitations as freedom of expression. It has as functions in democracy: informing (facts, newsworthy events), integrating opinion (stimulating social integration) and controlling political power, insofar as it is a permanent guardian of the honesty and correct management of public affairs. Given its symbiotic link with democratic ideology, an endless number of international instruments and practically all the Constitutions of the free world, since the French Declaration of 1789 (Art.11), have recognized it.
Our Political Constitution, for its part, protects it through various norms: 'All may communicate their thoughts by word or in writing and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, under the conditions and modes established by law' (Article 29) 'No one may be disturbed or persecuted for the manifestation of their opinions nor for any act that does not infringe the law. Private actions that do not harm morality or public order or that do not harm third parties are outside the action of the law. However, political propaganda may not be made in any form by clerics or laypersons invoking religious motives or using, as a means, religious beliefs' (Article 28). Other constitutional norms related to this right are: 'Freedom of petition is guaranteed, individually or collectively, before any public official or official entity, and the right to obtain a prompt resolution' (Article 27). 'Free access to administrative departments is guaranteed for purposes of information on matters of public interest. State secrets are safeguarded' (Article 30).
Freedom of expression has as a consequence the prohibition of all forms of censorship, in a double sense: interlocutors cannot be censored, on the one hand; and generally, the possible contents of the discussion cannot be censored in advance either: in principle, in a democracy, all topics are debatable. The non-censorability of subjects has a practically universal character, as established by our Constitution, no one can be deprived of the freedom to speak and express themselves as they see fit; the non-censorability of contents, while it does not occur in advance, does find some limitations, however, these must be such that freedom continues to have meaning or is not emptied of its content, basically, like all freedom, it must be exercised with responsibility, in short, to pursue legitimate ends within the system (…)".
Likewise, in Vote No. 10961-2020 of 10:05 a.m. on June 16, 2020, this jurisdiction referred to freedom of the press and its intrinsic relationship with freedom of information, stating the following:
"(…) IV.- For its part, regarding freedom of information and of the press, there is also a profuse development that refers to this right as a preferential right, which is not only a fundamental right, but serves as an essential guarantee of the functioning of the democratic system. As a reference, judgments 2004-08229 and 2007-017324 can be cited, which define it as:
\"(...) The Right to Information, which bears a close relationship with Freedom of Expression and the Right of the Press, consists of the faculty to seek, receive and disseminate information and ideas of all kinds, and may be exercised through the printed word, radio and television broadcasts. On this matter, in judgment number 2001–09250 of 10:22 a.m. on September 14, 2001, the Chamber stated the following:
'...freedom of information is a means of forming public opinion on matters of general interest. This preferential value reaches its highest level when the freedom is exercised by information professionals through the institutionalized vehicle for forming public opinion, which is the press, understood in its broadest sense. This, however, does not mean that the same freedom can be understood in an absolute manner, but rather each specific case must be analyzed to weigh whether the information has been carried out within the constitutionally protected scope, or on the contrary, if it has transgressed that scope, affecting the right to honor, privacy or image, among other rights also constitutionally protected.' Indeed, the doctrine on the topic indicates that Freedom of the Press protects the possibility of publishing news with truthfulness, good motives and justifiable purposes. Nevertheless, although the mission of the press in an open and democratic society is to inform public opinion objectively and truthfully, this should not be understood as an absolute requirement, since, in practice, there clearly exist difficulties of all kinds that would make it completely irrational to demand such an achievement from the media. For this reason, it has been accepted that they are only obliged to seek the truth loyally and honorably, in the most impartial manner possible. In other words, the duty of truthfulness only imposes on them the obligation to reasonably procure the truth, and not to achieve that task in an absolute form. Consequently, the duty of truthfulness entails an obligation of means, not of results (…)
The democratic order demands the defense of freedom of expression, as a basic and indispensable instrument for the formation of public opinion. And that defense leads to the possibility of expressing thought using the means chosen by the emitter and also to the faculty of disseminating it through them. (…) the value of this defense reaches its highest level when the freedom is exercised by information professionals through the institutionalized vehicle for forming public opinion, which is the press. In that sense, it is understood that while the right to expression, contemplated in Article 13 of the American Convention, does not have an absolute character, the limits for its exercise and controls of its adequate performance must in no way limit its exercise beyond what is strictly necessary, to the point that they may become a direct or indirect mechanism that affects freedom of expression, information and the press and constitute a violation of the right (…)". (The emphasis is not part of the original).
Similarly, in Judgment No. 9512-2020 of 1:02 p.m. on May 22, 2022, this Constitutional Court held the following:
"(…) it is clear that the exercise of the freedoms of expression and information acquires distinctive characteristics when carried out through a media outlet, characteristics that will vary depending on each type of medium. These variations impact, in turn, the scope of the rights exercised, their content, and the possible limitations to which they are eventually susceptible. It is clear that the legal object of the protection of freedom of expression, within the framework of freedom of the press, is the possibility of obtaining information, as necessary input to be informed and to be able to inform a community. That is to say, in stricto sensu, freedom of expression protects the transmission of all types of thoughts, opinions, ideas and personal information of the person expressing themselves, while freedom of information allows persons to receive and possess information about facts, events, occurrences, persons, groups and situations in general, so that the receiver learns what is happening. Freedom of information encompasses activities such as the search for information and investigation, through sources, where it can be found, processed and transmitted through a specific medium. Therefore, the right to inform occupies a special place within the Costa Rican constitutional order, particularly when its exercise is paired with that of freedom of the press, that is, when it is exercised through the media. The various international human rights courts have recognized that the media hold an important social function in the construction and sustainability of democratic systems, which is why on numerous occasions it has been recognized that mass media, as legal persons, may be holders of fundamental rights, according to their particular nature; consequently, it is clear that freedom of expression does protect the media as legal persons, as well as those who express themselves through them. It is equally pertinent to highlight, in this area, the relationship between the freedom of expression of the media outlet as a 'legal person,' and the freedom of expression of natural persons who form part of the organizational structure of such legal persons, for example, editors, writers, reporters and other journalists or social communicators, who contribute to the transmission of expressions of third parties, while simultaneously exercising their own freedom of expression. The relationship existing between both freedoms, and in turn between said freedoms and the freedom of expression of the person who is effectively communicating a message through such media or persons, must be elucidated in each specific case with special attention to the different interests at stake, to reach a solution that achieves the highest level of concrete harmonization among all of them, and in turn with the interests of the receiver and, especially, of the general public. The massive dissemination that information transmitted through the media achieves and their power of penetration, the profound impact they can have on persons in general, guarantees the democratic development of a constitutional state and, in turn, fosters the strengthening of freedom of expression.
In this sense, the Inter-American Court of Human Rights has indicated that it is fundamental that journalists who work in the media enjoy the necessary protection and independence to perform their functions fully, since it is they who keep society informed, an indispensable requirement for it to enjoy full freedom and for public debate to be strengthened, because social media play an essential role as vehicles for the exercise of the social dimension of freedom of expression in a democratic society, which is why it is indispensable that they collect the most diverse information and opinions (Case of Ivcher Bronstein vs Panama – I/A Court H.R.–).
In turn, the European Court of Human Rights, when interpreting Article 10 of the European Convention, concluded that 'necessary,' without being synonymous with 'indispensable,' implies the 'existence of a “pressing social need” and that for a restriction to be “necessary” it is not enough to demonstrate that it is “useful,” “reasonable” or “opportune” (21). This concept of “pressing social need” was adopted by the Court in its advisory opinion OC-5/85, The Mandatory Licensing of Journalists (Articles 13 and 29 of the American Convention on Human Rights). (…)
It must be highlighted that it is through the media that freedom of expression contributes to the consolidation of democratic society. Therefore, the conditions of their use must conform to the requirements of this freedom, which means that the freedom and independence of journalists and media outlets must be guaranteed (advisory opinion OC-5/85 I/A Court H.R., The Mandatory Licensing of Journalists).
According to the jurisprudence of the Inter-American Court, freedom of expression is not complete in the theoretical recognition of the right to speak or write, but only when it also includes, inseparably, the right to use any suitable means to disseminate information and guarantee that it reaches the widest possible audience (…) (Case of Ivcher Bronstein vs Panama – I/A Court H.R.–). However, like any other human right, freedom of expression is not an absolute right, and may be subject to limitations by any state authority or eventually by private individuals, previously adopted by the legislator under strict conditions. (…)". (The emphasis is not part of the original).
VI.- CONCERNING FREEDOM OF EXPRESSION (AND OF THE PRESS) AS GUARANTORS OF THE DEMOCRATIC SYSTEM. Freedom of expression and, concomitantly, the exercise of freedom of the press, become fundamental pillars upon which a democratic society is built. The intrinsic relationship that exists between such freedoms and democracy is practically unquestionable; hence, the latter is arbitrarily weakened and eroded when said freedoms cannot be fully exercised nor, either, are respected and guaranteed in legal systems.
The Inter-American Democratic Charter (approved by the Member States of the OAS during an extraordinary session of the General Assembly held on September 11, 2001, in Lima, Peru), on this matter, provides in its Article 4 that: "Fundamental components of the exercise of democracy are the transparency of governmental activities, probity, responsibility of governments in public management, respect for social rights and freedom of expression and of the press." Furthermore, it must be remembered that the already issued Declaration of Principles on Freedom of Expression establishes in its first principle that freedom of expression is "(…) an indispensable requirement for the very existence of a democratic society." Freedom of the press (or what some call a free press), as a manifestation of freedom of expression, constitutes an essential element to oversee –without repression– the actions of third parties, whether of a private nature or public officials, principally those who occupy high positions or aspire to them, thus allowing, consequently, accountability, combating corruption, transparency in the handling of public funds, among many other aspects that are fundamental to maintaining a democratic system in force.
Part of that duty resides in investigating persons in power, principally the government, formulating difficult questions and thereby attempting to reveal to the citizenry what is truly happening, as a means, in turn, for them to make correct decisions, principally at the time of voting and, also subsequently, when power is being exercised. As has been stated by the so-called Union for Civil Liberties of Europe (a non-governmental organization that promotes civil liberties for all persons in the European Union): "(…) A free press helps at every step of this process. It provides information to voters before they vote; it fosters dialogue and debate to enrich understanding of this information; and then it informs the citizenry about the work of the government and whether they are truly carrying out their promises. In a democracy, the citizenry delegates decision-making power to their elected officials, and the press is a way of checking them (…)." In essence, it is feasible to affirm, therefore, that press freedom is fundamental in democratic systems, for it allows citizens to form opinions and criteria regarding the reality in which they live. For this reason, unfortunately, independent media are precisely one of the principal objectives of antidemocratic political systems or, at least, of those that seek to profile themselves and are headed toward that.
This Constitutional Chamber has ruled specifically on freedom of expression and its function as guarantor of democracy. Thus, in the emblematic Voto No. 5977-2006 of 15:16 hrs. of 3 May 2006, it stated the following:
"(…) VIII.- Freedom of expression as an indispensable requirement of democracy. Freedom of expression is without a doubt one of the conditions—though not the only one—for democracy to function. This freedom is what allows the creation of public opinion, essential to give content to various principles of the constitutional State, such as, for example, the right to information, the right of petition, or rights regarding political participation; the existence of a free and consolidated public opinion is also a condition for the functioning of representative democracy. The possibility for all persons to participate in public discussions constitutes the necessary prerequisite for the construction of a social dynamic of exchange of knowledge, ideas, and information, which allows the generation of consensus and decision-making among the components of diverse social groups, but which also constitutes a channel for the expression of dissent, which in a democracy is as necessary as agreements. For its part, the exchange of opinions and information that originates with public discussion contributes to forming personal opinion; both shape public opinion, which ends up manifesting itself through the channels of representative democracy. As the Spanish Constitutional Court itself has pointed out, other rights that the Constitution enshrines would be emptied of real content, representative institutions reduced to hollow forms, and the principle of democratic legitimacy—which is the basis of our entire legal-political order (Judgment 6/1981)—absolutely falsified, if there did not exist freedoms capable of permitting that exchange, which… presupposes the right of citizens to have broad and adequate information regarding the facts, allowing them to form their convictions and participate in the discussion concerning public affairs (Judgment 159/1986) (…)." (The emphasis does not form part of the original.)
Furthermore, strictly regarding the media and their responsibility when informing and thus contributing to democratic processes, in that same vote the following was held:
"(…) XI.- The social responsibility of the media as holders of power vis-à-vis the citizen. The struggle for the defense of the fundamental rights of inhabitants traditionally arises against political power; however, it subsequently evolves to protect the person from other private subjects that have a power relationship with respect to the citizen, in those cases where they injure some fundamental right. It must be clear that in democracies, the media do not have a simply passive role regarding freedom of expression; they do not limit themselves to being victims of attacks against such an important freedom. On the contrary, they have great responsibility and power in being the natural vehicles so that communicative freedoms (expression, press, information, etc.) are a reality, so that they may serve the development of democratic processes by forming a well-informed citizenry, that knows its rights and obligations, that has the tools necessary to choose its governors well. The social responsibility of the media and the place of freedom of expression in democratic development is what justifies that the legal status of the media and of the professionals who work in them be different from that of the rest of persons. But that status, as indicated, is not invocable for illegitimate ends, which include attacking fundamental freedoms in bad faith or with evident negligence. Pursuant to these reasons and grounds, it is appropriate to conclude that the State, and specifically the legislator, has the right and the duty to protect individuals from the illegitimate use of this right, which, misused, is as harmful to democracy as censorship itself, not only because its exercise in bad faith may injure the honor of the affected person, but that of the entire society to receive adequate information capable of helping it shape public opinion in a transparent manner. The danger that a misuse of this right represents for democracy is as serious as its non-exercise, and that misuse is determined not only by evident negligence or bad faith affecting other freedoms, but also by other factors, such as the possibility that the lack of media pluralism affects the capacity of the press to generate a free and informed public opinion. Naturally, the requirement of that pluralism is not reduced to a purely quantitative aspect, but also entails some qualitative factor that is realized in the 'presence of diversity of opinions and sources of information.' Without a doubt, because of their role in democracy and their capacity for dissemination, the media are in a power relationship with respect to the citizen and society, and although their existence is fundamental for legitimate and essential ends of democracy, they have the potential, like any power, to deviate occasionally, in the face of individual actions, in which case the State has the obligation to establish the necessary provisions for the protection of the system and the individual. Evidently, as indicated, the State's protection cannot be given, as the Court of Human Rights has pointed out, with the right to censor information beforehand, which would be clearly unconstitutional (art. 28), but rather refers to its a posteriori control, in the event that there existed an intention to inflict harm or one acted with full knowledge that false news was being disseminated or one proceeded with manifest negligence in the search for the truth or falsity thereof and thereby the honor and reputation of some person was affected. The Chamber shares the opinion of the Inter-American Court of Human Rights (advisory opinion 5/85) in the sense that:
33. …It would not be legitimate to invoke the right of society to be informed truthfully in order to ground a regime of prior censorship supposedly aimed at eliminating information that would be false at the censor's discretion. Just as it would not be admissible that, based on the right to disseminate information and ideas, public or private monopolies over media be constituted to try to mold public opinion according to a single point of view.
Likewise, it recognizes the jurisprudence established in the case New York Times v. Sullivan of 1964 in which it is stated that the protection that the Constitution offers to freedom of expression does not depend on the truth, popularity, or social utility of the ideas and beliefs expressed, and recognizes that a certain degree of abuse is inseparable from the proper use of that freedom, on the basis of which the government and the courts must permit a debate to develop that is 'uninhibited, robust, and wide-open,' which may include caustic, vehement, and sometimes sharp, unpleasant attacks toward the government and public officials. Erroneous statements are inevitable in a free debate, and must be protected in order to leave freedom of expression breathing room so that it can breathe and survive. The rules must prevent a public official from suing a media outlet or a private individual for damages caused by a false defamation relating to his official conduct, unless it is proven with convincing clarity that the expression was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This exception that is made is indispensable in light of the State's obligation to protect the reputation and honor of persons and, even more, within the obligation it has to ensure that the misuse or diversion of this freedom is not used to violate equally essential ends of the democratic system, among which is included the system of fundamental rights. It is recognized in doctrine the interdependence that exists among fundamental rights and their systemic value; in that sense, the protection of one freedom to the detriment of others due to a lack of a hermeneutical vision has a negative effect on the entire system of freedom (see ruling 2771-03 of this Chamber).' (…)." (The emphasis does not form part of the original.)
Likewise, in Judgment No. 15220-2016 of 16:00 hrs. of 18 October 2016, this constitutional body very aptly stated the following:
"(…) Freedom of expression is a fundamental pillar of the democratic State, since it permits the circulation of ideas and information—even those opposing the government in power—, the formation of public opinion, transparency, oversight and denunciation of the government's actions, among others. Not in vain does Bobbio state that democracy is the exercise of power in public (…) when dealing with public officials, and particularly those of high rank, the threshold of freedom of expression and the duty of tolerance toward criticism increase. This is so because a fundamental element of the democratic system, which distinguishes it from dictatorships, consists of the broad freedom enjoyed by both the citizenry in general and the press in particular, with respect to expressing their criticisms and questioning the suitability (technical or moral) of public officials and their decisions, without fear of censorship or retaliation, which evidently does not prevent the person who feels affected from resorting to the right of rectification or to other ordinary judicial avenues in defense of their image and good name. In the specific case of public officials, they find themselves more exposed to public scrutiny, since the exercise of their functions transcends the private sphere and, due to its impact on political and national development and events, is incorporated into the public sphere, that is, it has consequences of interest to the citizenry in general. Likewise, citizen control over the Public Administration and the duty of accountability of public officials (article 11 of the Political Constitution) can only occur in a democratic system of broad freedom of expression and information. That is the relevance of the social dimension of the right to information, intimately linked to that of expression. In that regard, precisely, the Inter-American Court of Human Rights expressed itself in the case Tristán Donoso:
"115. Lastly, regarding the right to honor, the Court recalls that expressions concerning the suitability of a person for the performance of a public office or concerning acts carried out by public officials in the performance of their duties enjoy greater protection, in such a way as to foster democratic debate. The Court has stated that in a democratic society public officials are more exposed to public scrutiny and criticism. This different protective threshold is explained because they have voluntarily exposed themselves to a more demanding scrutiny. Their activities leave the domain of the private sphere to enter into the sphere of public debate. This threshold is not based on the quality of the subject, but on the public interest of the activities they carry out (…)
122. As already indicated, international law establishes that the threshold of protection to the honor of a public official must permit the broadest citizen control over the exercise of their functions (supra para. 115). This differentiated protection of honor is explained because the public official voluntarily exposes himself to society's scrutiny, which subjects him to a greater risk of suffering harm to his honor, as well as because of the possibility, associated with his condition, of having greater social influence and ease of access to media to offer explanations or respond regarding events that involve them." Similarly, in the case Ricardo Canese, the Court indicated: "97. Democratic control, by society through public opinion, fosters transparency of state activities and promotes the responsibility of officials regarding their public management, for which reason there must exist a greater margin of tolerance in the face of statements and assessments made in the course of political debates or on matters of public interest.
98. The Court has established that it is logical and appropriate that expressions concerning public officials or other persons who exercise functions of a public nature should enjoy, under the terms of Article 13.2 of the Convention, a margin of openness to broad debate regarding matters of public interest, which is essential for the functioning of a truly democratic system. (…)." (The emphasis does not form part of the original.)
Further to this, this Chamber, in Judgment No. 12926-2017 of 09:30 hrs. of 18 August 2017, indicated, on the particular subject, that:
"(…) press freedom is a fundamental pillar of the democratic State to the point that the latter cannot exist without the effective guarantee in favor of all inhabitants of the Republic of the exercise of the right to seek, receive, and disseminate information and ideas of all kinds, without regard to frontiers, whether orally, in writing, or in printed or artistic form, or by any other procedure of their choice, without that right being subject to prior censorship (…)." The Inter-American Court of Human Rights has also made reference to the close relationship that exists between democracy and freedom of expression, and has stated that it is a fundamental element upon which the existence of a democratic society is based. In that regard, in advisory opinion No. OC-5/85 on the mandatory licensing of journalists (judgment of 13 November 1985), it held that it is a conditio sine qua non so that those who wish to influence the community may develop fully, for which reason it affirms that a society that is not well informed is not fully free. That is, within democratic systems the exercise of freedom of expression permits the development and projection of the human being, contributes to the functioning of democracy, and is a means or instrument for the exercise of other human rights. For its part, in the case Herrera Ulloa v. Costa Rica, the Court held the following:
"(…) 113. In similar terms to those indicated by the Inter-American Court, the European Court of Human Rights has spoken of the importance that freedom of expression holds in a democratic society, stating that '(…) freedom of expression constitutes one of the essential pillars of a democratic society and a fundamental condition for its progress and for the personal development of each individual. This freedom must be guaranteed not only regarding the dissemination of information or ideas that are received favorably or considered inoffensive or indifferent, but also with regard to those that offend, are unwelcome, or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance, and the spirit of openness, without which there is no democratic society. (…) This means that (…) any formality, condition, restriction, or sanction imposed in this area must be proportionate to the legitimate end pursued (…).' (The emphasis does not form part of the original.)
In the same manner, on this last occasion, the IACHR pointed out that the African Commission on Human and Peoples' Rights and the Human Rights Committee have also pronounced themselves in that same sense; hence it concluded that there is coincidence across the different regional systems for the protection of human rights and in the universal one, as to the essential role that freedom of expression plays in the consolidation and dynamics of a democratic society. Moreover, it expressly indicated that:
"(…) 116. (…) Without effective freedom of expression, materialized in all its terms, democracy vanishes, pluralism and tolerance begin to break down, the mechanisms of citizen control and denunciation begin to become inoperative, and, ultimately, the fertile field begins to be created for authoritarian systems to take root in society (…)." In the case Ivcher Bronstein v. Peru (judgment of 6 February 2001), the IACHR mentioned that, in turn, the European Court has emphasized that Article 10.2 of the European Convention, concerning freedom of expression, leaves a very reduced margin to any restriction on political debate or debate on questions of public interest and explained that, according to that Court: "(…) 155. (…) the limits of acceptable criticism are broader with respect to the government than in relation to a private citizen or even a politician. In a democratic system, the actions or omissions of the government must be subject to rigorous examination, not only by the legislative and judicial authorities, but also by public opinion (…)." Likewise, in the judgment Moya Chacón and another v. Costa Rica (judgment of 23 May 2022), the IACHR confirmed the above cited, in the following manner:
"(…) b.1 Importance of freedom of expression in a democratic society (…)
63. (…) the Court has established that freedom of expression, particularly in matters of public interest, 'is a cornerstone in the very existence of a democratic society'63. The Inter-American Court, in its Advisory Opinion OC-5/85, made reference to the close relationship existing between democracy and freedom of expression, establishing that this right is indispensable for the formation of public opinion, as well as being a conditio sine qua non so that political parties, unions, scientific and cultural societies, and in general, those who wish to influence the community may develop fully, and so that, in sum, the community is sufficiently informed when exercising its choices. For democratic control by society through public opinion fosters transparency of state activities and promotes the responsibility of officials regarding their public management, for which reason there must exist a reduced margin to any restriction on political debate or debate on questions of public interest.
64. The Court recalls that, in a democratic society, the rights and freedoms inherent to the person, their guarantees, and the Rule of Law constitute a triad, each of whose components defines, completes, and acquires meaning in function of the others. In that sense, the Court notes that articles 3 and 4 of the Inter-American Democratic Charter highlight the importance of freedom of expression in a democratic society, establishing that '[e]ssential elements of representative democracy include, among others, respect for human rights and fundamental freedoms; access to power and its exercise subject to the Rule of Law; the holding of periodic, free, fair elections based on universal and secret suffrage as an expression of the sovereignty of the people; the pluralist system of political parties and organizations; and the separation and independence of the branches of government.' Likewise, it indicates that '[t]ransparency in government activities, probity, the responsibility of governments in public management, respect for social rights, and freedom of expression and of the press are fundamental components of the exercise of democracy.' 65. Thus, without an effective guarantee of freedom of expression, the democratic system is weakened and pluralism and tolerance suffer damage; the mechanisms of citizen control and denunciation may become inoperative and, ultimately, a fertile field is created for authoritarian systems to take root. Consequently, a society that is not well informed is not fully free (…)." For its part, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (Inter-American legal framework on the right to freedom of expression, December 2009), stated the following:
"(…) the IACHR and the Inter-American Court have underscored in their jurisprudence that the importance of freedom of expression within the catalog of human rights also derives from its structural relationship with democracy. This relationship, which has been characterized by the organs of the inter-American human rights system as 'close,' 'indissoluble,' 'essential,' and 'fundamental,' among others, explains a large part of the interpretative developments that have been granted to freedom of expression by the IACHR and the Inter-American Court in their various decisions on the matter. So important is the link between freedom of expression and democracy that, as the IACHR has explained, the very objective of Article 13 of the American Convention is to strengthen the functioning of pluralist and deliberative democratic systems through the protection and promotion of the free circulation of information, ideas, and expressions of all kinds (…) if the exercise of the right to freedom of expression tends not only to the personal fulfillment of the one expressing themselves, but to the consolidation of truly democratic societies, the State has the obligation to generate the conditions so that public debate not only satisfies the legitimate needs of all as consumers of certain information (entertainment, for example), but as citizens. That is, there must exist sufficient conditions so that a public deliberation, plural and open, can take place on matters that concern us all as citizens of a given State (…)." (The emphasis does not form part of the original.)
Also, said Office of the Special Rapporteur expressed the following:
"(…) in a democratic society, the press has the right to inform freely and criticize the government, and the people have the right to be informed about different visions of what happens in the community (…)." Along the same line of thought, the European Court of Human Rights, in the case Lingens v. Austria (judgment of 8 July 1986), emphasized that "(…) press freedom provides the public one of the best means to know and judge the ideas and attitudes of political leaders. More generally, freedom of political controversies belongs to the very heart of the concept of a democratic society (…)." Likewise, the Colombian Constitutional Court has made reference to the subject under study on various occasions. Thus, in Judgment No. T-256/13 30 April 2013, it held that: "(…) the right to freedom of expression is a principle of the exercise of democracy, for it is within the framework of a democratic state where citizen participation acquires special relevance, and in exercising it, the freedom to express differing opinions and to manifest minority thoughts without fear of being repressed by state powers is guaranteed (…)" and explained that:
"(…) For this reason, the pronouncements of the Inter-American Commission and the jurisprudence of the Inter-American Court of Human Rights have emphasized that freedom of expression fulfills a triple function in the democratic system: a) it ensures the individual right of every person to think on their own and to share with others their personal thought and opinion, b) it has a close, indissoluble, essential, fundamental, and structural relationship with democracy, and to that extent, the very objective of Article 13 of the American Convention is to strengthen the functioning of democratic, pluralist, and deliberative systems, through the protection and promotion of the free circulation of ideas and opinions, and c) finally, it is a key tool for the exercise of other fundamental rights, since 'it is an essential mechanism for the exercise of the right to participation, to religious freedom, to education, to ethnic or cultural identity and, of course, to equality understood not only as the right to non-discrimination, but as the right to the enjoyment of certain basic social rights (…).'" Similarly, this constitutional body added that:
"(…) This Corporation from very early on in its jurisprudence recognized the value of this right within the framework of a democracy with the following words: 'Although the freedom to express and disseminate one's own thought and opinions is a right of every person, it is not only an individual right, but also the guarantee of a fundamental political institution: "free public opinion." A free public opinion is indissolubly linked with political pluralism, which is a fundamental value and a requirement for the functioning of the democratic state. Without free public communication, other rights that the Constitution enshrines would be emptied of real content, representative and participatory institutions reduced to hollow forms, and the principle of democratic legitimacy absolutely falsified (…).' (The emphasis does not form part of the original.)
In Judgment No. T-543 of 2017 of 25 August 2017, the Colombian Constitutional Court stated that freedom of expression fulfills the following functions in a democratic society: "(…) (i) it permits the search for truth and the development of knowledge; (ii) it makes possible the principle of self-government; (iii) it promotes personal autonomy; (iv) it prevents abuses of power; and (v) it is an "escape valve" that stimulates the peaceful confrontation of state or social decisions that are not shared (…)." For its part, in Judgment No. C-135/21 of 13 May 2021, said Court mentioned that some of the contributions of the fundamental right to freedom of expression to democratic functioning are the following: "(…) i) it permits the search for truth and the development of knowledge; ii) it creates a space of healthy dialogue and protest for the citizenry, consolidating pluralist and deliberative societies; iii) it permits the establishment of control and accountability mechanisms before governors; iv) it promotes citizen self-government; and v) it contributes to better popular elections (…)." Also, in Judgment No. T-145/19 of 2 April 2019, the Colombian Court held that freedom of expression "(…) is a pillar of the Social State of Law and a fundamental principle of democratic regimes, where human dignity is respected and the participation of the citizenry and of all sectors is valued, which permits the consolidation of pluralist and deliberative societies (…)." Likewise, on this last occasion, said body stated that "(…) The principal foundation of the legal protection of freedom of expression finds support in human dignity, in the autonomy of the person, and in its instrumental character for the exercise of multiple rights, and in the different functions it fulfills in democratic systems (…)." VII.- ON THE PROHIBITION OF IMPOSING RESTRICTIONS BY INDIRECT MEANS ON FREEDOM OF EXPRESSION (AND ON PRESS FREEDOM). Freedom of expression and, therefore, press freedom, are not considered unrestricted and absolute rights, but rather—as analyzed supra—, are subject to certain limits or subsequent controls.
In this regard, article 29 of our Political Constitution establishes that persons shall be responsible for the abuses they commit in the exercise of the right to freedom of expression and, for its part, Article 13.2 of the American Convention on Human Rights provides that the aforementioned right is subject to subsequent liability, which must be expressly established by law and be necessary to ensure respect for the rights or reputations of others or to protect national security, public order, public health, or public morals.
However, likewise, these limitations, this Constitutional Court has said, are exceptional in nature and cannot restrict such rights beyond what is strictly necessary, emptying them of content and thus becoming a direct or indirect mechanism of censorship, which has no place in our system. These freedoms, consequently, cannot be subject to direct illegitimate restrictions (such as, for example, prior censorship, the murder of journalists by virtue of the exercise of their functions, etc.) nor to indirect restrictions (also called soft censorship, subtle censorship (censura sutil), veiled censorship). These latter measures—of an indirect nature—are characterized by being less evident, but which equally have the purpose of arbitrarily reducing or curtailing freedom of expression. They could be considered more subtle forms in which public authorities or private individuals seek to finally and effectively restrict freedom of expression. The authors García Ramírez and Gonza very aptly define them as those “(…) actions or omissions that bring about the inhibition of the subject, as a consequence of intimidation, the obstruction of channels of expression or the ‘sowing’ of obstacles that prevent or severely limit the exercise of that freedom (…)” (GARCÍA RAMÍREZ (Sergio) and GONZA (Alejandra). La libertad de expresión de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, first edition, 2007, p. 42). For its part, the Special Rapporteur for Freedom of Expression explains that “(…) These measures (…) have not been strictly designed to restrict freedom of expression. Indeed, these per se do not constitute a violation of this right. However, their effects generate an adverse impact on the free circulation of ideas that is often little investigated and, therefore, more difficult to discover (…)” (Annual Report of the Special Rapporteur for Freedom of Expression, 2004).
As examples of this type of indirect restrictions or veiled censorship, one can cite, among many others, the use of various means to intimidate and, in this way, prevent a publication, controls on newsprint or radioelectric frequencies, restriction on freedom of movement, the granting or suppression of state advertising, limitations on the economic income of media outlets, the imposition of high and unjustified tax burdens. Regarding this type of indirect restrictions, the cited authors García Ramírez and Gonza explain that these can occur when “(…) a right different from freedom of expression itself is violated, in such a way that the latter is affected—for example, in one case, the deprivation of the subject’s nationality—, improper or excessive investigations are carried out, access to certain means regularly used by the right holder is prohibited, freedom of movement is restricted, the effects of a contract are disregarded or the holders of certain assets are prevented from disposing of them (…)” (GARCÍA RAMÍREZ (Sergio) and GONZA (Alejandra). La libertad de expresión en la jurisprudencia de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, first edition, 2007, p. 42). For his part, Judge Rueda Leal, in the additional reasons set forth in Judgment No. 15220-2016 of 4:00 p.m. on October 18, 2016, also referred to some modalities of this type of indirect or veiled censorship, listing the following: “(…) a) The denial of access to institutions and public information as retaliation for critical coverage, which forces the media outlet to resort to jurisdictional instances. In this way, although an entity is ultimately compelled to deliver certain information if its public nature is demonstrated, it is no less true that the Administration ‘gains’ time, thus achieving disclosure at a more favorable political ‘timing.’ b) The inequitable allocation of radio and television frequencies. c) The obstruction of access to essential resources for the production of a media outlet (such as paper or telephone service) via the setting of arbitrary requirements or unreasonable tax impositions. d) The threat of initiating judicial proceedings, conditioned on the disclosure or non-disclosure of critical reports (…)”.
Regarding these restrictions of a properly indirect nature, Article 13.3 of the American Convention on Human Rights expressly states the following:
“3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.” (Emphasis not part of the original).
The Declaration of Chapultepec (adopted by the hemispheric conference on freedom of expression held in Mexico, D.F. on March 11, 1994), establishes that there shall be no law or act of power that curtails freedom of expression or of the press, whatever the means of communication. Likewise, in the list of principles it mentions the following:
“4. The murder, terrorism, kidnapping, pressures, intimidation, unjust imprisonment of journalists, the material destruction of media outlets, violence of any kind, and the impunity of aggressors severely curtail freedom of expression and of the press. These acts must be promptly investigated and severely punished.” “5. Prior censorship, restrictions on the circulation of media outlets or on the dissemination of their messages, the arbitrary imposition of information, the creation of obstacles to the free flow of information, and limitations on the free exercise and movement of journalists directly oppose freedom of the press.” “6. Media outlets and journalists must not be subject to discrimination or favors based on what they write or say.” “7. Tariff and exchange policies, licenses for the importation of paper or journalistic equipment, the granting of radio and television frequencies, and the concession or suppression of state advertising must not be applied to reward or punish media outlets or journalists.” “10. No media outlet or journalist must be sanctioned for disseminating the truth or formulating criticisms or denunciations against public power.” (Emphasis not part of the original).
Likewise, the Declaration of Principles on Freedom of Expression (approved by the Inter-American Commission on Human Rights in October 2000, during the 108th regular period), provides, on this same topic, the following:
“5. Prior censorship, direct or indirect interference in or pressure on any expression, opinion or information disseminated through any oral, written, artistic, visual or electronic medium must be prohibited by law. Restrictions on the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the creation of obstacles to the free flow of information, violate the right to freedom of expression.” “9. The murder, kidnapping, intimidation of, threats to social communicators, as well as the material destruction of media outlets, violates the fundamental rights of individuals and severely curtails freedom of expression. It is the duty of States to prevent and investigate these acts, punish their perpetrators, and ensure adequate reparation for the victims.” “13. The use of State power and public treasury resources; the granting of tariff preferences; the arbitrary and discriminatory allocation of official advertising and official credits; the allocation of radio and television frequencies, among others, with the objective of pressuring and punishing or rewarding and privileging social communicators and media outlets based on their editorial lines, undermines freedom of expression and must be expressly prohibited by law. Social media outlets have the right to carry out their work independently. Direct or indirect pressures aimed at silencing the journalistic work of social communicators are incompatible with freedom of expression.” (Emphasis not part of the original).
As can be observed with crystal clarity, there are multiple ways in which media outlets can be manipulated indirectly. Indeed, the American Convention on Human Rights is clear in indicating that the examples cited in Article 13.3 are not exhaustive, by stating that this type of indirect restrictions can also be formed “by any other means tending to impede the communication and circulation of ideas and opinions.” Now, the Inter-American Court of Human Rights has pronounced on various occasions regarding veiled censorship or properly indirect restrictions, forcefully condemning them. Thus, in the Judgment of Ivcher Bronstein vs. Peru (judgment of February 6, 2001), the Inter-American Court heard a case brought by Baruch Ivcher Bronstein, a naturalized citizen of Peru and majority shareholder of the company that then operated Channel 2 of that country’s television. Ivcher Bronstein, in that capacity, exercised editorial control over the programs, particularly one called Contrapunto (through which several journalistic reports were broadcast on torture, an alleged murder, and cases of corruption committed by the Intelligence Services of the Peruvian Government) and it was demonstrated that, by virtue of the foregoing, he was subjected to various acts of intimidation that concluded with the issuance of a decree that revoked his Peruvian citizenship. On that occasion, the Inter-American Court held that the resolution that nullified the legal effect of the nationality granted to Ivcher Bronstein constituted precisely an indirect means to restrict his freedom of expression, as well as that of the journalists who worked on said program. On that occasion, the Inter-American Court rendered the following arguments of interest:
“(…) 158. It has likewise been demonstrated that, as a consequence of the editorial line adopted by Channel 2, Mr. Ivcher was subjected to intimidating acts of various kinds. For example, after the broadcast of one of the reports mentioned in the previous paragraph, the Joint Command of the Armed Forces issued an official communiqué denouncing Mr. Ivcher for carrying out a defamatory campaign tending to discredit the Armed Forces (supra para. 76.k). Furthermore, the same day the Army issued said communiqué, the Executive Branch of Peru issued a supreme decree regulating the Nationality Law, establishing the possibility of canceling it for naturalized Peruvians (supra para. 76.l).
159. It has also been proven that days after Channel 2 announced the presentation of a report on illegal recordings of telephone conversations held by opposition candidates, the Director General of the National Police reported that the file in which Mr. Ivcher’s nationality title was processed had not been located, and that it had not been accredited that he had renounced his Israeli nationality, which is why, through a ‘directorial resolution,’ it was ordered that said nationality title be left without effect.
160. As a consequence of the foregoing, on August 1, 1997, Judge Percy Escobar ordered that the exercise of Mr. Ivcher’s rights as majority shareholder and President of the Company be suspended and his appointment as Director thereof be revoked, that an Extraordinary General Shareholders’ Meeting be judicially convened to elect a new Board of Directors, and that the transfer of his shares be prohibited. Furthermore, he granted the provisional administration of the Company to the minority shareholders, until a new Board of Directors was appointed, thus removing Mr. Ivcher Bronstein from the control of Channel 2.
161. The Court has verified that, after the Company’s minority shareholders assumed its administration, entry to Channel 2 was prohibited for journalists who worked on the program Contrapunto and the editorial line of said program was changed (supra para. 76.v).
162. In the context of the stated facts, this Court observes that the resolution that left Mr. Ivcher’s nationality title without legal effect constituted an indirect means to restrict his freedom of expression, as well as that of the journalists who worked and investigated for the program Contrapunto of Channel 2 of Peruvian television.
163. By separating Mr. Ivcher from the control of Channel 2, and excluding the journalists from the program Contrapunto, the State not only restricted the right of these to circulate news, ideas, and opinions, but also affected the right of all Peruvians to receive information, thus limiting their freedom to exercise political options and develop themselves fully in a democratic society.
164. For all the foregoing, the Court concludes that the State violated the right to freedom of expression enshrined in Article 13.1 and 13.3 of the Convention, to the detriment of Baruch Ivcher Bronstein (…)”. (Emphasis not part of the original).
Another clear example of this type of indirect restrictions is set forth in the case of Ricardo Canese vs. Paraguay (judgment of August 31, 2004). Mr. Ricardo Canese, who was a presidential candidate during the electoral contest for the 1993 elections in Paraguay, linked Juan Carlos Wasmosy (also a candidate) to illicit acts allegedly committed by the latter when he served as president of a consortium, which, in turn, were published in two Paraguayan newspapers. This caused Canese (who worked for a media outlet) to be criminally prosecuted for the commission of the crimes of defamation and slander (difamación e injuria), and he was convicted at first instance in 1994 and at second instance in 1997; at which time, in turn, he was sentenced to two months’ imprisonment and a fine. Furthermore, as a consequence of this proceeding, Canese was subjected to a permanent restriction on leaving the country (and, also, concurrently, he was dismissed from the media outlet where he worked). These judgments were subsequently annulled in December 2002 by the Criminal Chamber of the Supreme Court of Justice of Paraguay. The Inter-American Court referred to the importance of guaranteeing freedom of expression during an electoral campaign and, after analyzing the case under study, held that the criminal sanction to which Canese was subjected was considered an indirect method of restricting said right. Expressly, on that occasion, the following was stated:
“(…) 3) The importance of freedom of thought and expression in the context of an electoral campaign.
88. The Court considers it important to highlight that, in the context of an electoral campaign, freedom of thought and expression in its two dimensions constitutes a fundamental bastion for debate during the electoral process, because it becomes an essential tool for forming the public opinion of the electorate, strengthens the political contest among the different candidates and parties participating in the elections, and becomes an authentic instrument for analyzing the political platforms put forward by the different candidates, which allows for greater transparency and oversight of future authorities and their management. (…)
90. The Court considers it indispensable that the exercise of freedom of expression be protected and guaranteed in the political debate that precedes the elections of the state authorities who will govern a State. The formation of the collective will through the exercise of individual suffrage is nourished by the different options presented by political parties through the candidates who represent them. Democratic debate implies that the free circulation of ideas and information regarding candidates and their political parties be permitted by the media, by the candidates themselves, and by any person who wishes to express their opinion or provide information. It is essential that everyone be able to question and inquire about the capacity and suitability of candidates, as well as dissent from and confront their proposals, ideas, and opinions so that voters can form their criteria for voting. In this sense, the exercise of political rights and freedom of thought and expression are intimately linked and reinforce each other. In this regard, the European Court has established that:
Free elections and freedom of expression, particularly freedom of political debate, together form the foundation of any democratic system (Cf. Judgment in the case of Mathieu-Mohin and Clerfayt v. Belgium, of March 2, 1987, Series A no. 113, p.22, para. 47, and judgment in the case of Lingens v. Austria of July 8, 1986, Series A no. 103, p. 26, paras. 41-42). The two rights are interrelated and reinforce each other: for example, as the Court has indicated in the past, freedom of expression is one of the ‘conditions’ necessary to ‘ensure the free expression of the opinion of the people in the election of the legislative body’ (see the aforementioned judgment in the case of Mathieu-Mohin and Clerfayt, p. 24, para. 54). For this reason[,] it is particularly important that opinions and information of all kinds can circulate freely in the period preceding elections.
91. The Court observes that, in his statements, the alleged victim referred to the fact that the company CONEMPA, whose president was Mr. Juan Carlos Wasmosy, then a presidential candidate, ‘passed’ ‘dividends’ to ex-dictator Stroessner. It has been demonstrated, as it is also a public fact, that said consortium was one of the two companies in charge of executing the construction works for the Itaipú hydroelectric plant, one of the largest hydroelectric dams in the world and Paraguay’s main public work.
92. The Court considers that there is no doubt that the statements made by Mr. Canese in relation to the company CONEMPA pertain to matters of public interest, because in the context of the time when he made them, said company was in charge of the construction of the aforementioned hydroelectric plant. As evidenced from the body of evidence in this case (supra para. 69.4), the National Congress itself, through its Bicameral Commission for the Investigation of Illegal Acts (Comisión Bicameral de Investigación de Ilícitos), was in charge of the investigation into corruption at Itaipú, in which Mr. Juan Carlos Wasmosy and the referred company were involved.
93. The Court observes that the Criminal Chamber of the Supreme Court of Justice of Paraguay, when issuing the decision by which it annulled the convictions handed down in 1994 and 1997 (supra para. 69.49), indicated that the statements Mr. Canese made within the political framework of an electoral campaign for the Presidency of the Republic, “necessarily entail, in a Democratic Society aimed at a participatory and pluralistic construction of Power, a matter of public interest.” 94. In this case, when making the statements for which he was sued and convicted, Mr. Canese was exercising his right to freedom of thought and expression within the framework of an electoral contest, in relation to a public figure such as a presidential candidate, on matters of public interest, by questioning the capacity and suitability of a candidate to assume the Presidency of the Republic. During the electoral campaign, Mr. Canese was interviewed about Mr. Wasmosy’s candidacy by journalists from two national newspapers, in his capacity as a presidential candidate. By publishing Mr. Canese’s statements, the newspapers “ABC Color” and “Noticias” played an essential role as vehicles for the exercise of the social dimension of freedom of thought and expression, since they gathered and transmitted to the voters the opinion of one of the presidential candidates regarding another, which contributes to the electorate having more information and different criteria prior to decision-making.
98. The Court has established that it is logical and appropriate that expressions concerning public officials or other persons exercising functions of a public nature must enjoy, under the terms of Article 13.2 of the Convention, a margin of openness to broad debate on matters of public interest, which is essential for the functioning of a truly democratic system. This same criterion applies with respect to opinions or statements of public interest made in relation to a person who is running as a candidate for the Presidency of the Republic, who voluntarily submits to public scrutiny, as well as with respect to matters of public interest in which society has a legitimate interest in staying informed, in knowing what affects the functioning of the State, affects general interests or rights, or entails significant consequences. As has been established, there is no doubt that the statements made by Mr. Canese in relation to the company CONEMPA pertain to matters of public interest (supra para. 92).
99. In this sense, the Criminal Chamber of the Supreme Court of Justice of Paraguay, when issuing on December 11, 2002 (supra para. 69.49) the decision by which it annulled the convictions handed down in 1994 and 1997 and acquitted the alleged victim of guilt and sentence, referred to the nature and relevance of his statements by stating, inter alia, that [t]he statements of Eng. Canese, -within the political framework of an electoral campaign for the highest office-, necessarily entail in a Democratic Society, aimed at a participatory and pluralistic construction of Power, a matter of public interest. Nothing more important and public than the discussion and subsequent popular election of the First Magistrate of the Republic.
100. The foregoing considerations do not mean, in any way, that the honor of public officials or public persons must not be legally protected, but rather that it must be done so in a manner consistent with the principles of democratic pluralism. Likewise, the protection of the reputation of private individuals who are involved in activities of public interest must also be carried out in accordance with the principles of democratic pluralism. (…)
103. Thus, in the case of public officials, persons exercising functions of a public nature, and politicians, a different threshold of protection must be applied, which is based not on the quality of the subject, but on the public interest inherent in the activities or actions of a specific person. Those persons who influence matters of public interest have voluntarily exposed themselves to a more demanding public scrutiny and, consequently, in that sphere they are subjected to a greater risk of receiving criticism, since their activities leave the domain of the private sphere to enter the sphere of public debate. In this sense, within the framework of public debate, the margin of acceptance and tolerance for criticism by the State itself, by public officials, by politicians, and even by private individuals who carry out activities subject to public scrutiny must be much greater than that of private individuals. In this situation are the directors of the company CONEMPA, a consortium entrusted with the execution of a large part of the construction works for the Itaipú hydroelectric plant.
104. Based on the foregoing considerations, it is for the Court to determine whether, in this case, the application of subsequent criminal liability regarding the alleged abusive exercise of the right to freedom of thought and expression through statements relating to matters of public interest can be considered to meet the requirement of necessity in a democratic society. In this regard, it is necessary to recall that Criminal Law is the most restrictive and severe means for establishing liability for an illicit conduct.
105. The Court considers that in the proceedings against Mr. Canese, the judicial bodies should have taken into consideration that he made his statements in the context of an electoral campaign for the Presidency of the Republic and regarding matters of public interest, a circumstance in which opinions and criticism are expressed in a more open, intense, and dynamic manner in accordance with the principles of democratic pluralism. In this case, the court had to weigh respect for the rights or reputation of others against the value that open debate on topics of public interest or concern has in a democratic society.
106. The criminal proceedings, the consequent conviction imposed on Mr. Canese for more than eight years, and the restriction on leaving the country applied for eight years and almost four months—events that support this case—constituted an unnecessary and excessive sanction for the statements made by the alleged victim within the framework of the electoral campaign, regarding another candidate for the Presidency of the Republic and on matters of public interest; they also limited open debate on topics of public interest or concern and restricted the exercise of Mr. Canese’s freedom of thought and expression in issuing his opinions during the rest of the electoral campaign. According to the circumstances of this case, there was no imperative social interest that justified the criminal sanction, since it disproportionately limited the freedom of thought and expression of the alleged victim without taking into consideration that his statements referred to matters of public interest. The foregoing constituted an excessive restriction or limitation in a democratic society on the right to freedom of thought and expression of Mr. Ricardo Canese, incompatible with Article 13 of the American Convention.
107. Likewise, the Court considers that, in this case, the criminal proceedings, the consequent conviction imposed on Mr. Canese for more than eight years, and the restrictions on leaving the country for eight years and almost four months constituted indirect means of restricting Mr. Canese’s freedom of thought and expression. In this regard, after being criminally convicted, Mr. Canese was dismissed from the media outlet where he worked and for a period he did not publish his articles in any other newspaper.
108. For all the foregoing, the Court considers that the State violated the right to freedom of thought and expression enshrined in Article 13 of the American Convention, in relation to Article 1.1 of said treaty, to the detriment of Mr. Ricardo Canese, given that the restrictions on the exercise of this right imposed on him for approximately eight years exceeded the framework contained in said article (…)”. (Emphasis not part of the original).
Likewise, of utmost and great interest is the case of Granier and others (Radio Caracas Televisión) vs. Venezuela (judgment of June 22, 2015). In this matter, the Inter-American Court found proven the existence of a conflictive and tense environment in Venezuela, as a result of the coup d’état suffered, which, in turn, caused political polarization (radicalization of the positions of the involved sectors) and contributed to the government accusing private media outlets, including RCTV (Radio Caracas Televisión), of being enemies of the government, coup plotters, and fascists. The Court also found it demonstrated that the State of Venezuela sought a way to silence said media outlet (given that it expressed ideas different from the government’s policies and maintained a critical line toward the Presidency of Hugo Chávez), through the non-renewal, in 2007, of the concession for the use of the radioelectric spectrum (which it had held since its founding in 1953), which, evidently, indirectly or in a veiled manner, curtailed its possibility of continuing to operate and continuing to disseminate dissident information, in clear violation of freedom of expression.
In this judgment, in a significant way, the IACHR Court held that said decision was preceded by various public declarations issued both by the President of the Republic and by other officials, who created an atmosphere of intimidation. In particular, it was indicated that then-President Chávez made, among others, the following statements:
"(…) 75. (…) a) the declaration of President Chávez of June 9, 2002 on his Program 'Aló Presidente', in which he stated: 'the television stations and the radios, the stations, even if they are private only make use of a concession, the State is the owner [...], and the State grants permission to a group of businesspersons who so request it to operate, to launch the image through that pipeline, but the State reserves the permission. It is as if someone wanted to use a water pipeline to supply water to a town that belongs to the State, and the State grants them permission. [...] Suppose that […] we grant permission to use the water pipeline [and] they begin to poison the water. […] [One must] immediately not only revoke the permission, but put them in jail. They are poisoning the people, that happens, it is exactly the same case [and] the same logic, the same explanation with a television channel'; b) the declaration of President Chávez of January 12, 2003 on his program 'Aló Presidente', in which he expressed: 'The same thing happens with these owners of television channels and the owners of radio stations; they also have a concession from the State, but the signal does not belong to them. The signal belongs to the State. I want to make that very clear, I want to make it very clear because if the owners of these television stations and radio stations continue in their irrational determination to destabilize our country, to try to give rise to subversion, because it is subversion, without a doubt, […] it is subversion in this case fascist and it is encouraged by the media, by these gentlemen I have mentioned and others I am not going to mention. I so announce it in advance to Venezuela. I have ordered a review of the entire legal procedure through which the concession was granted to these gentlemen. We are reviewing it and if they do not return to normalcy in the use of the concession, if they continue using the concession to try to break the country, or overthrow the government, then I would be under the obligation to revoke the concession that has been given to them to operate the television channels'; c) the declaration of President Chávez of November 9, 2003 on his program 'Aló Presidente', through which he declared: 'I am not going to allow you to do it again, […] you: Globovisión, Televén, Venevisión and RCTV tomorrow or the day after [Minister] Jesse Chacón, I gave you an order, you must have a team of analysts and observers 24 hours a day watching all the channels simultaneously and we must be clear, I am clear, what is the line they must not cross, and they must know, it is the line of the law indeed. The moment they cross the line of the law they will be closed unfailingly to assure peace for Venezuela, to assure tranquility for Venezuela', and d) on May 9, 2004, President Chávez declared on his program 'Aló Presidente': [h]ere those who violate the right to information, the right to freedom of expression, are the owners of the private media, there are some exceptions, but above all the large television channels Venevisión, Globovisión, RCTV […] the owners of these media outlets are compromised with coup-mongering, terrorism and destabilization, and I could say at this point I have no doubt, that the owners of those media outlets we can well declare enemies of the people of Venezuela (…)
80. (…) a) the declaration of President Chávez of December 28, 2006, on the occasion of his year-end greeting to the Armed Forces, in which he expressed: 'There is a gentleman out there of those representatives of the oligarchy, who wanted to be president of the oligarchy, and then those Adeco-Copeyano governments gave him concessions to have a television channel and now he goes around saying that this concession is eternal, his television concession runs out in March, it runs out in March, so he had better start packing his bags and start seeing what he is going to do as of March, there will be no new concession for that coup-mongering television channel that was called Radio Caracas Televisión, the concession ends, the measure is already drafted, so start getting ready, turning off the equipment indeed, no media outlet that is at the service of coup-mongering will be tolerated here, against the people, against the nation, against national independence, against the dignity of the Republic, Venezuela must be respected, I announce it before the date arrives so that, so that they do not continue with their little story that no, that it is 20 more years, 20 more years I'm letting you know, chirulí, 20 more years if it is good, it's over for you, it's over for you (…)
Likewise, on this occasion and, according to the following terms, the Court explained how, in this particular case, a violation of Article 13.3 of the American Convention on Human Rights occurred:
"(…) 148. In this regard, the Court has previously indicated that the media are true instruments of freedom of expression, that serve to materialize this right and that play an essential role as vehicles for the exercise of the social dimension of this freedom in a democratic society, which is why it is indispensable that they gather the most diverse information and opinions. Indeed, this Tribunal agrees with the Commission that the media are, generally, associations of persons who have come together to exercise their freedom of expression in a sustained manner, such that it is unusual today for a media outlet not to be in the name of a legal entity, given that the production and distribution of the informative good require an organizational and financial structure that responds to the demands of the informative market. In a similar fashion, just as trade unions constitute instruments for the exercise of the right of association of workers and political parties are vehicles for the exercise of the political rights of citizens, the media are mechanisms that serve the exercise of the right to freedom of expression of those who use them as a means of disseminating their ideas or information. (…)
151. Consequently, the Inter-American Court considers that restrictions on freedom of expression frequently materialize through state actions or actions of private individuals that affect, not only the legal entity that constitutes a media outlet, but also the plurality of natural persons, such as its shareholders or the journalists who work there, who carry out acts of communication through it and whose rights may also be violated (…)
152. In this regard, it must be noted that nowadays an important part of journalism is practiced through legal entities and it is reiterated that it is fundamental that the journalists who work in these media outlets enjoy the necessary protection and independence to carry out their functions fully, since it is they who keep society informed, an indispensable requirement for it to enjoy full freedom. Especially, taking into account that their activity is the primary manifestation of the freedom of expression of thought and is specifically guaranteed by the American Convention (…)
1.3. Indirect restrictions – scope of Article 13.3 of the Convention 161. In the present case it has been argued that there would be a possible indirect restriction on the right to freedom of expression, which is why the Court highlights that Article 13.3 of the Convention makes express reference to such a situation by indicating that '[t]he right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.' This Tribunal considers that the scope of Article 13.3 of the Convention must be the result of a joint reading with Article 13.1 of the Convention, in the sense that a broad interpretation of this norm allows considering that it specifically protects the communication, dissemination and circulation of ideas and opinions, so that the use of 'indirect methods or means' to restrict them is prohibited.
162. In this regard, the Court indicates that what this subsection seeks is to exemplify more subtle forms of restriction on the right to freedom of expression by state authorities or private individuals. Indeed, this Tribunal has had the opportunity to declare in previous cases the indirect restriction produced, for example, by a decision that 'rendered legally ineffective the title of nationality' of the majority shareholder of a television channel or by 'the criminal proceedings, the consequent conviction imposed […] for more than eight years and the restrictions on leaving the country for eight years' against a presidential candidate.
163. On the other hand, the enumeration of restrictive means made by Article 13.3 is not exhaustive nor does it prevent considering 'any other means' or indirect methods derived from new technologies. In this sense, Article 13 of the Declaration of Principles on Freedom of Expression indicates other examples of indirect means or methods (…)
Likewise, expert witness García Belaunde during the public hearing referred to other possible forms of indirect restriction related to: i) 'advertising, [since] States are important advertising agents and […] giving a lot of advertising or withdrawing it can be important and, if applicable, there may be a kind of suffocation for media outlets that basically live off advertising', or ii) 'taxation [when there are] cases [in] which [the] companies […] have been burdened with taxes' with the aim of generating annoyance or sending messages to the media outlet.
164. Furthermore, the Court recalls that for a violation of Article 13.3 of the Convention to be configured it is necessary that the method or means effectively restrict, indirectly, the communication and circulation of ideas and opinions. Moreover, the Court reiterates that Article 13.3 of the Convention imposes obligations of guarantee on the State, even in the sphere of relations between private individuals, since it not only covers indirect governmental restrictions, but also private controls that produce the same result. In this regard, the Court highlights that indirect restriction can end up generating a deterrent, frightening and inhibiting effect on all those who exercise the right to freedom of expression, which, in turn, impedes public debate on issues of interest to society. (…)
170. (…) This Tribunal deems that, given that the radioelectric space is a scarce good, with a determined number of frequencies, this limits the number of media outlets that can access them, which is why it is necessary to ensure that in that number of media outlets a diversity of informative or opinionated visions or stances is represented. The Court highlights that pluralism of ideas in the media cannot be measured based on the number of media outlets, but rather on whether the ideas and information transmitted are effectively diverse and are addressed from divergent stances without there being a single vision or stance. The foregoing must be taken into account in the processes of granting, renewal of broadcasting concessions or licenses. In this sense, the Tribunal considers that the limits or restrictions derived from regulations related to broadcasting must take into account the guarantee of media pluralism given its importance for the functioning of a democratic society (…)
3. Alleged indirect restriction on the freedom of expression established in Article 13.3 of the American Convention (…)
193. That being so, to carry out an analysis of the recount of declarations outlined above it is imperative to carry out a joint reading of the declarations and remarks, since in isolation they could not autonomously configure facts constituting a violation of the American Convention. This is because the fact that several officials made declarations along the same lines during the same period demonstrates that they were not isolated declarations. Taking the foregoing into account, the Court will proceed to carry out an assessment of what was set forth therein in order to determine if there existed reasons or grounds for which said decision was reached distinct from the declared purpose, since, as it already indicated, taking into account the motive or purpose is relevant for the legal analysis of a case, especially if one seeks to determine if an arbitrary action or a deviation of power was configured (supra para. 189). In the first place, the Court highlights that since 2002 there had been warnings that television channels that did not modify their editorial line would not have their concession renewed (supra para. 75) and that this type of declarations increased as the expiration date of the concessions approached (supra paras. 76 to 78). As of 2006, in several of said declarations that were prior to Communication Nº 0424 and Resolution Nº 002 it was announced that the decision not to renew the concession to RCTV had already been made and would not be re-evaluated or modified (supra paras. 79 to 86). Likewise, it is worth highlighting that they were not only declarations of state officials in various media outlets, but that publications were also made in national newspapers and even the release of a book with the purpose of announcing and justifying the decision not to renew the concession of RCTV. Based on the foregoing, the Tribunal can conclude, in the first place, that the decision was made well in advance of the end of the concession term and that the order was given to CONATEL and the Ministry for Telecommunications from the executive branch.
194. Regarding the true reasons that would have motivated the decision, in the declarations and publications made by different members of the Venezuelan government these are: i) the non-modification of the editorial line by RCTV after the 2002 coup d'état despite the warnings made since that year, and ii) the alleged irregular actions in which RCTV would have incurred and that would have brought about sanctions. Regarding the first reason given, the Court considers it imperative to state that it is not possible to carry out a restriction on the right to freedom of expression based on political disagreement that a determined editorial line may generate for a government. As was previously indicated, the right to freedom of expression must be guaranteed not only with respect to the dissemination of information or ideas that are favorably received or considered inoffensive or indifferent, but especially with respect to those that are disagreeable to the State or any sector of the population (supra para. 140). Regarding the alleged irregular actions in which RCTV would have incurred and that would have brought about sanctions, the Tribunal highlights that it is contradictory that remarks and accusations were made about the alleged sanctions and that in communication Nº 0424 it was expressly indicated that these were not the justification for the decision. In particular, the Court highlights that despite the seriousness of the facts related to the coup d'état it was not proven before this Tribunal that at the domestic level procedures aimed at sanctioning said irregular actions had been adopted, so it is not possible that what happened during the coup was used as an argument to ground the decision, when said actions were not sanctioned at the time.
195. At this point, the Tribunal considers it necessary to reiterate the precedent established in another case related to this same media outlet, according to which in a democratic society it is not only legitimate, but sometimes constitutes a duty of state authorities, to pronounce on matters of public interest. However, when doing so they are subject to certain limitations in that they must verify in a reasonable manner, although not necessarily exhaustively, the facts on which they base their opinions, and they should do so with even greater diligence than that employed by private individuals, by reason of their high office, the broad reach and eventual effects that their expressions can have on certain sectors of the population, and to prevent citizens and other interested persons from receiving a manipulated version of certain facts. Moreover, they must bear in mind that as public officials they have a position of guarantor of the fundamental rights of persons and, therefore, their declarations cannot disregard these nor constitute forms of direct or indirect interference or harmful pressure on the rights of those who seek to contribute to public deliberation through the expression and dissemination of their thought. This duty of special care is particularly accentuated in situations of greater social conflict, alterations of public order or social or political polarization, precisely because of the set of risks they can entail for certain persons or groups at a given moment.
196. Likewise, the Tribunal notes that of the declarations presented in the present contentious case only one would have made mention of the purpose declared in Communication Nº 0424 and Resolution Nº 002, that is, the protection of media plurality, while the majority of the remaining declarations coincide in invoking the other declarations. The foregoing allows the Court to conclude, in the second place, that the declared purpose was not the real one and that it was only given with the objective of giving an appearance of legality to the decisions.
4. Conclusion on the right to freedom of expression.
197. The Court concludes then, as it has done in other cases, that the facts of the present case entailed a deviation of power, since a permitted power of the State was used with the objective of editorially aligning the media outlet with the government. The foregoing statement derives from the two main conclusions that this Tribunal can reach based on what was described previously, namely, that the decision had been made beforehand and that it was founded on the annoyances generated by the editorial line of RCTV, added to the context of the 'deterioration of the protection of freedom of expression' that was proven in the present case (supra para. 61).
198. Likewise, this Tribunal considers it necessary to highlight that the deviation of power declared here had an impact on the exercise of freedom of expression, not only for the workers and directors of RCTV, but also on the social dimension of said right (supra para. 136), that is, on the citizenry that was deprived of having access to the editorial line that RCTV represented. Indeed, the real purpose sought to silence voices critical of the government, which constitute, together with pluralism, tolerance and a spirit of openness, the very demands of democratic debate that the right to freedom of expression precisely seeks to protect.
199. It has been proven, consequently, that in the present case an indirect restriction on the exercise of the right to freedom of expression was configured, produced by the use of means aimed at impeding the communication and circulation of ideas and opinions, by the State deciding to reserve the portion of the spectrum and, therefore, prevent participation in the administrative procedures for the award of titles or the renewal of the concession to a media outlet that expressed critical voices against the government, which is why the Tribunal declares the violation of Article 13.1 and 13.3 in relation to Article 1.1 of the American Convention to the detriment of Marcel Granier, Peter Bottome, Jaime Nestares, Inés Bacalao, Eladio Lárez, Eduardo Sapene, Daniela Bergami, Miguel Ángel Rodríguez, Soraya Castellano, María Arriaga and Larissa Patiño. (…)". (The highlighting is not part of the original).
This Constitutional Court, for its part, has also had the opportunity to condemn this type of actions. In Judgment No. 1782-2015 of 11:36 a.m. on February 6, 2015, this constitutional jurisdiction heard an amparo action (recurso de amparo) filed by a producer of a radio program of criticism, opinion and denunciation, where, in turn, apparent acts of corruption carried out by a deputy were being denounced and investigated. The petitioner accused on that occasion that the referred deputy sent letterhead letters sealed with his signature of the Asamblea Legislativa to the institutions that placed advertising and made the existence of the referred program possible, threatening to sue them if they did not withdraw said advertising immediately, given that he considered it a campaign of discredit against him. After analyzing the cited case, this Chamber, on that occasion, held that the notes sent by said deputy to various public institutions with the purpose of withdrawing advertising from the petitioner's radio program (which also constituted the main financial support that allowed the transmission of the radio programs and, in turn, the economic livelihood of the people working on said program), constituted an indirect or veiled censorship of freedom of expression. The foregoing, according to the following terms:
"(…) Now, in the instant case, the defendant sent a missive to several public institutions, using paper with the letterhead and seal of the Asamblea Legislativa, in which he stated:
"(…) 4.- In my particular case, in clear right to protect my personal, professional and moral integrity, I will file the complaint against the producer of that radio space and jointly and severally against its sponsors, since it is enough for you to monitor punctually at 8 p.m. on the 800 AM frequency and listen, within the same roster of sponsors to which this institution belongs as a sponsor of the program in question, alongside the commercial spot that you pay for with public funds, another commercial spot recorded with the voice of Mr. [Name 001] himself in which he asks citizens if they believe a lying Deputy, investigated as a forger and swindler, aspiring to graduate as a lawyer irregularly, denounced by the TSE for trying to extract millions in sums of money through the use of false documents, and more unfounded accusations, the radio producer taking advantage of his sponsors to recklessly pressure the Public Prosecutor to act against the undersigned, thus avoiding impunity, as if the Head of the Public Ministry were deliberately covering up a series of crimes committed by this public servant.
5.- Out of the consideration you deserve, I respectfully warn you of this matter and urge you to consider, as a responsible precautionary measure, the possibility of taking off the air the institutional advertising you pay for on this radio program, while we resolve in the courts the complaint we are about to file, with the purpose of not tarnishing judicially or harming the healthy image that Costa Ricans have of this noble institution, which must be protected and should not see itself embroiled in such deplorable matters alien to your honorable activities, by which my lawyers would immediately dismiss, at the request of the undersigned, the eventual joint and several lawsuit extended against this public entity. (…)" (Extract from the note addressed to Correos de Costa Rica S.A., provided by the petitioner; the highlighting does not correspond to the original).
The excitative sent to the public institutions with the purpose that they withdraw advertising from the radio program of the amparo petitioner falls within the cases of indirect censorship of freedom of expression for several reasons.
First, advertising provides the main financial support that allows the transmission of radio programs and, ultimately, the economic livelihood of the people who work on said program. It is evident that if the economic income of the program is limited, it will also be harmed or –inclusive- eliminated, all to the detriment of both freedom of expression and the right to information. The described situation is even more serious when it concerns small media outlets, such as local newspapers or small radio stations, whose financial stability can come to depend to a great extent on state advertising. In the Tristán Donoso case, the Inter-American Court ruled regarding economic threats to freedom of expression:
"129. Finally, although the criminal penalty of days-fine does not appear to be excessive, the criminal conviction imposed as a form of subsequent liability established in the present case is unnecessary. Additionally, the facts under the Tribunal's examination demonstrate that the fear of a civil penalty, given the former Prosecutor's claim for an extremely high civil reparations, can be clearly as or more intimidating and inhibiting for the exercise of freedom of expression than a criminal penalty, as it has the potential to compromise the personal and family life of whoever denounces a public official, with the evident and injurious result of self-censorship, both for the affected person and for other potential critics of the actions of a public servant".
In the second place, a deputy of the Republic is not just any citizen, but rather holds particular political power due to his incidence in the approval of bills, regarding which there are a great many interests, both private and public. Ergo, a recommendation or withdrawal of advertising from a radio program, issued by an official in a particular position of political power and having as its leitmotiv his disagreement with the criticisms against him disseminated by a determined media outlet, constitutes a veiled form of intimidation that not only affects the radio program directly alluded to, but also sends an intimidating message to the rest of the media, fomenting a hostile environment for the freedoms of expression and information essential in a democratic system. In the sub iudice, such threat even came to have concrete effects, to the extent that, according to the evidence provided by the petitioner, the advertising schedule of the ICAA, programmed for the period from October 15 to November 15, 2014, was suspended while the communication of the defendant was being answered. If the other entities to which the defendant addressed his communication had acted in the same way, that would have derived in a serious affectation to the financial stability of the cited radio program, all of this having as its genesis the disagreement of a public official with the criticisms disseminated therein.
The foregoing does not imply that the alleged violation of the honor of the defendant and of those who could eventually be responsible for it is of little importance. Quite the contrary, what the defendant claimed is so relevant that the legal system has established appropriate and reasonable procedural avenues both to defend the honor of the affected person (for example, through criminal proceedings), and to ensure the accuracy of the disseminated information (right of rectification and reply).
Now, the explanatory notes sent by the defendant this past October to the public institutions do not affect the reasoning of this Chamber. On the one hand, they are actions taken after the notification of the commencement of this proceeding –the notes were delivered to said institutions on October 7 and 8, 2014; while the notification occurred on October 6, 2014-.
On the other hand, the Chamber notes that, although it was clarified through such notes that the “…previous letter sent regarding this matter did not necessarily seek to impose on you the obligation of having to withdraw your advertising from that program…”, a warning was also issued to the institutions, again motivated by the criticisms made of the respondent:
“5.- I do not fail to respectfully point out your duty of care, understood as exercising greater control over the resources that, in terms of propaganda, advertising, or information, you have available for placement in media outlets, maintaining at least minimal monitoring that allows you to know, as in the case of the CD I am providing to you [which contains an edition of the program “Rompiendo El Silencio”], the quality of the statements made in the spaces where you place ads.” (Excerpt from the note addressed to the Instituto Nacional de Aprendizaje, provided by the respondent).
Finally, it must be noted that public officials may indeed express themselves on matters of public interest. However, they are guarantors of fundamental rights, so the expressions they utter must avoid becoming a form of direct or indirect censorship. Again, the Inter-American Court of Human Rights is cited:
“139. In a democratic society, it is not only legitimate but sometimes constitutes a duty of state authorities to pronounce on matters of public interest. However, in doing so they are subject to certain limitations in that they must verify in a reasonable manner, though not necessarily exhaustively, the facts on which they base their opinions, and they should do so with even greater diligence than that employed by private individuals, by reason of their high office, the broad scope, and the potential effects that their expressions may have on certain sectors of the population, and to prevent citizens and other interested persons from receiving a manipulated version of certain facts. Furthermore, they must bear in mind that as public officials they hold a position as guarantors of the fundamental rights of individuals and, therefore, their statements cannot disregard these rights nor constitute forms of direct or indirect interference or harmful pressure on the rights of those who seek to contribute to public deliberation through the expression and dissemination of their thought. This duty of special care is particularly accentuated in situations of greater social conflict, disturbances of public order, or social or political polarization, precisely because of the set of risks they may entail for certain persons or groups at a given time.” (Case of Ríos et al.)
In conclusion, the Chamber finds that the respondent has every right to defend his honor and reputation through the legal mechanisms provided for in the Constitution and the law, among them, the right of rectification and reply and the criminal complaint for the offenses of injurias, calumnias, and difamación regulated in the Penal Code. In that sense, the sending of a note to the program’s sponsors indicating that they consider withdrawing their sponsorship due to its negative content against his image, constituted indirect censorship –in the terms set forth in the jurisprudence of the Inter-American Court cited above– of the radio program “Rompiendo El Silencio.” In the assessment made, specific weight is given to the fact that the respondent holds a position of political power by reason of his office as Diputado de la República, and that his missive indeed caused a negative effect beyond a mere complaint, it having been proven in the record that it produced effects on one of the sponsors, which temporarily suspended its advertising (ICAA). Consequently, this aspect is declared with merit (…)”. (Highlighting not part of the original).
The following year, that is, during 2016, the Constitutional Chamber heard another recurso de amparo where reference was made to a different and indirect form of attacking freedom of expression, which, in turn, was resolved through Voto No. 15220-2016 of 4:00 p.m. on October 18, 2016. On this occasion, the petitioner, in his capacity as director of a nationally circulated periodical, alleged that, by virtue of a series of news reports published regarding several irregular actions carried out by a banking entity, the latter’s directors decided to manipulate, pressure, and attempt to silence the media outlet through the gradual reduction of advertising placement (pauta publicitaria) in the newspaper’s pages. Once the arguments put forth by both parties were analyzed and studied, as well as the evidence provided, this constitutional body found it proven that the cited media outlet was indeed subject to veiled or indirect censorship by a public official “(…) as a reaction to its editorial line, with the sole purpose of ‘motivating’ a change, that is, manipulating the outlet to bring it closer to his purposes, whether to obtain a meeting with one of the outlet’s owners, or greater space for the Bank’s version in response to the questions raised. All of which undoubtedly violates Article 13.1 of the American Convention on Human Rights and Articles 28 and 29 of the Constitución Política (…)”. Furthermore, this jurisdiction, on that occasion, emphasized the fact that advertising was considered the fundamental financial support in the operational scheme of media outlets, such that it was what enabled the publication or dissemination of their content and, therefore, also the livelihood of the people working there. Expressly, this Chamber, in the aforementioned judgment, set forth the following:
“(…) VII.- It is appropriate to delve into this issue of prior censorship, in order to provide a solution to the case under examination, following the line already established in judgment 2015-1782. In this regard, the third paragraph of Article 13 of the American Convention states clearly:
“3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.” In this sense, censorship can be direct –for example, the direct prohibition of a certain publication– or indirect (also termed soft censorship, subtle, veiled censorship) –for example, the use of various means to intimidate and thereby prevent a publication–. The Convention provides a non-exhaustive list of cases of censorship by indirect means (controls over paper, frequencies, etc.) and concludes with the general rule, which would be “…or by any other means tending to impede the communication and circulation of ideas and opinions.” It is worth mentioning the Ivcher Bronstein case by way of example, in which the Inter-American Court found that a resolution to render legally ineffective Mr. Ivcher Bronstein’s title of nationality –among other facts– constituted an indirect means of restricting his freedom of expression. Also, within comparative law, of interest is the ruling “Editorial Río Negro contra Provincia de Neuquén” (9/5/07), in which the Corte Suprema de Justicia de la Nación (Argentina) ordered, as a result of the fact that the Poder Ejecutivo of the Province of Neuquén temporarily deprived said outlet of official advertising without demonstrating the reasonableness of such measure, and furthermore ruled against the indirect violation of press freedom by economic means: “The first option for a State is to give or not give advertising, and that decision remains within the scope of state discretion. If it decides to give it, it must do so complying with two constitutional criteria: 1) it cannot manipulate advertising, giving it to and withdrawing it from some outlets based on discriminatory criteria; 2) it cannot use advertising as an indirect way of affecting freedom of expression. Therefore, it has at its disposal many distributional criteria, but whichever it uses, they must always maintain a minimum general guideline to avoid denaturalizations.” VIII.- Now, it is of utmost importance for the specific case to indicate that advertising provides fundamental financial support in the current operational scheme of mass media, as it enables the publication or dissemination of their content and, ultimately, the economic livelihood of the people working in said outlet. It is evident that if the economic income of a media outlet (in this case, print) is limited, it is also harmed or –even– eliminated, all to the detriment of both freedom of expression and freedom of information. (…)
However, a clarification must be made to adapt what has been said to the particularities of this case. The Manager of the respondent Bank argues that it would be incorrect for the Chamber to come and indicate the manner in which a vital aspect of the commercial business operated by the Bank, namely advertising, should be conducted, and on this point he is correct. The Chamber understands that the legal condition of the Banco Nacional de Costa Rica within the state administrative framework must be taken into account, since it is an institution with constitutionally recognized autonomy and which has been entrusted with carrying out an unquestionably commercial activity and, moreover, under a competitive regime with private entities. In that dynamic, the commercial advertising that state enterprises may carry out responds and must clearly respond to technical and objective decisions and assessments, and interference from a body for the protection of Fundamental Rights like this Chamber is not appropriate regarding such aspects.- It is not there that the constitutional and Human Rights conflict analyzed here originates, as demonstrated by the general position expressed in the 2012 report of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights titled “Principles on the Regulation of Official Advertising and Freedom of Expression”. In said document, the need for the different state institutions to have technically and objectively designed plans for their communication purposes is clearly established, and this is repeated in the legislative file of the investigation, where the Diputadas and Diputados and the petitioner himself affirm that the particular condition of public enterprises must be taken into account and that technical and objective decisions on advertising must be respected. In this regard, the petitioner himself precisely states that:
“the criterion for distributing advertising placement should be market criteria, there should be media plans designed by professionals in the field, and the necessary money should be invested to fulfill that media plan, so that what the state enterprise competing in the market wants to communicate is efficiently communicated.” (pp. 18-36 of Expediente Legislativo 20066) The problem in this case arises, rather, when public enterprises deviate from that channel to manage their advertising placement according to purposes alien to objective and technical reasons, and incompatible with the constitutional framework of fundamental rights.- It is at that point where this Chamber’s participation acquires full justification, and this is what is sought to be confirmed or dismissed through this recurso de amparo.
IX- The specific case.- The amparado states that the respondent has used his influence and functions as Gerente General of the Banco Nacional de Costa Rica to attempt to pressure Diario La Nación to modify published articles and reports; he affirms that this pressure materialized in the gradual reduction of advertising placement and in its virtual reduction to zero in recent months. From the proven facts and the section on analysis of evidence, the Chamber finds demonstrated both the reality of the reduction of the Banco Nacional’s advertising placement in Periódico la Nación, starting from the publication made at the end of February, and particularly during the months of June and July, as well as the reasons that motivated it.- In this latter sense, as indicated supra, the statements of the respondent official himself, issued before the various bodies that inquired into his conduct, are sufficiently clear.- In all of them, the official expressed the existence of a disagreement with the way in which the media outlet reported during the months of February, March, April, and May 2016 on issues concerning the respondent banking entity in relation to the case of the company LATCO; actions of the Junta Directiva of the bank, as well as the participation of BNCR in the BICSA case. As the petitioner recounts and the respondent Manager confirms, dissatisfaction reached its peak with this last case, it being understood that the newspaper was setting aside the Bank’s responses and omitting important information, all of which could result (as indeed occurred) in heavy economic outlays for the Bank to maintain minimum levels of confidence in its situation. It is because of said case and its supposed serious consequences for the Bank that the respondent Manager arranged to publish, on May 13, 2016, a paid space in two other national print outlets, in order to respond to the cited publications of La Nación and to make known what in his view was the real situation surrounding the BICSA case. With this last action, the situation deteriorated further, adding to the conflict bitter editorials from the media outlet and responses from the Bank in the same tone. It is at this point that the Manager decided to “have a conversation” with the representatives of the media outlet, as a result of which he arranged, concomitantly and in the meantime, a pause he termed an “impasse” in advertising placement with the newspaper La Nación; that pause concludes (according to his own words) after he was attended to by the Director of the media outlet. These narrated facts are repeated consistently both in the petitioner’s filing and in all the versions that the respondent himself provided before the Junta Directiva of the Bank, before the Legislative Committee that investigated the case, and before the Chamber in the report rendered, and above all it clearly appears in the audio recording provided by the petitioner.- That said, the assessment of such facts, against the constitutional framework of freedom of expression and the right to information, by this Tribunal cannot be favorable to the respondent. It is constitutionally reprehensible that the Gerente General of a public Bank, that is, a public official, issued an order to withdraw advertising placement from a specific print newspaper, without a valid objective and technical basis, but rather by reason of his disagreement with the manner in which the news and reports issued regarding the activities and situation of the banking entity he represents were being produced. The Tribunal understands that the foregoing constitutes indirect censorship, a clear form of attempting to influence the informational content of the media outlet, and furthermore sends an intimidating message to the rest of the media that fosters an environment hostile to the freedoms of expression and information essential in a democratic system. The foregoing, insofar as it originates from a public servant, is entirely inadmissible in light of the necessary respect for and adherence to what a Diputada appropriately defined as “democratic logic,” to the realization of which institutions must contribute, including of course public enterprises.- (p. 383 of Expediente Legislativo 20.066) This logic imposes the broadest possible embodiment of freedom of expression and the right to information, without this signifying the renunciation of employing legally established means to combat news or opinions that may unjustly affect the work of the institutions.
X.- Indeed, if, in the judgment of the respondent, the media outlet should have given him the due right of reply at the times when he requested to meet with the company’s representatives by reason of the relevance of what was published, he could and can file the judicial actions he deems pertinent, in order to determine the eventual harm to his honor, or prejudice to the banking entity he represents, and the possible liability of those who may have exceeded the limits of freedom of expression. Moreover, he had the option provided in the legal system of resorting to the procedure of rectification or reply, in favor of persons affected by inaccurate or offensive information issued to their detriment (Article 14 of the American Convention and Article 66 et seq. of the Ley de la Jurisdicción Constitucional). However, the respondent opted first for the publication of clarifying notes in paid spaces in other print media outlets and did not do so with Diario La Nación. Thereby he set aside the formal mechanism of rectification and reply before Diario La Nación, or some other press outlet of Grupo Nación, and he did so in an absolutely deliberate manner, as he expresses before the Committee that “…(…) some of you were discussing why I didn’t resort to the judicial route. Am I going to file a recurso with the Sala Cuarta to tell them to give me a right of reply? We would still be in the admissibility process.” (p. 383 Expediente Legislativo 20.066). These are unfortunate considerations, not only because they do not correspond to the true reality of the rectification and reply procedure –which, contrary to what he asserts, has a very expeditious admissibility process–, but because with them he also seeks to justify the undertaking of de facto avenues or acts of pressure above the avenues of law, in order to achieve a modification in the content of the newspaper’s reports.- On this topic, it must be emphasized, as mentioned, that such attempts at censorship, direct or indirect, have no place in our environment, nor in the constitutional state of law.
XI.- Conclusion.- Thus, this Chamber verifies an act of indirect censorship executed by a state servant, with the aim of limiting the freedom of information that the amparado media outlet must enjoy, through a reduction of advertising placement, without technical or objective reasons and rather with the clear intention of influencing the informational content of the press outlet in relation to its reports concerning the Banco Nacional de Costa Rica and its subsidiaries.
In the case, what doctrine has clearly termed indirect censorship is verified, a form of illegitimate harassment of a media outlet by a public entity, which not only harms freedom of expression as stated above, but also the right of citizens to have mechanisms of truthful information in a democracy. It is a perverse and anti-democratic way of using State power to direct opinion, according to a system of “reward or punishment,” toward those who exercise constitutionally and conventionally guaranteed press freedom and free expression. On this topic, the Human Rights Commission and the most authoritative doctrine have been emphatic in stating that “the right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.” The mechanisms of direct censorship or “indirect” censorship are clearly prohibited by Article 13.3 of the American Convention and were the subject of attention by various organs of the inter-American system. Interpreting the cited Article 13.3, the Declaration of Principles on Freedom of Expression approved by the Inter-American Commission on Human Rights (hereinafter, “IACHR”), establishes in its Principle 5 that “[p]rior censorship, interference, or direct or indirect pressure upon any expression, opinion, or information disseminated through any oral, written, artistic, visual, or electronic means of communication must be prohibited by law. Restrictions on the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the creation of obstacles to the free flow of information, violate the right to freedom of expression.” And in its Principle 13 it indicates that “[t]he use of the power of the State and the resources of the public treasury; the granting of tariff benefits; the arbitrary and discriminatory allocation of official advertising and official credits; the awarding of radio and television frequencies, among others, with the aim of pressuring and punishing, or rewarding and privileging social communicators and media outlets based on their information lines, attacks freedom of expression and must be expressly prohibited by law.” For its part, the Inter-American Court has stated that “any act of public authority that implies a restriction on the right to seek, receive, and impart information and ideas, to a greater extent or by means other than those authorized by the same Convention, is illegitimate.
It is widely recognized in doctrine that indirect censorship is normally concealed behind apparently legitimate actions that are, however, carried out with the purpose of conditioning the exercise of individuals’ freedom of expression. When that happens, a violation of Article 13.3 of the Convention is configured. As the Inter-American Court of Human Rights (hereinafter, the “Inter-American Court” or “Court”) has held, it is a violation of freedom of expression”. (I/A Court H.R. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985, Series A No. 5, para. 55.)
These restriction mechanisms were also analyzed by the Special Rapporteur for Freedom of Expression of the IACHR, who in her 2003 Annual Report drew attention to these “dark obstructions, imposed silently [that] do not give rise to investigations nor merit widespread condemnation.” The issue was also addressed by this office in its 2008 and 2009 Reports.
The jurisprudence of the Inter-American Court, for its part, has condemned on different occasions the adoption of state measures that constitute indirect means of restricting freedom of expression. Thus, for example, it has condemned the requirement of compulsory membership for journalists, the arbitrary use of State regulatory powers when these have been used to initiate intimidatory actions against the directors of a media outlet, or to revoke the nationality of a media outlet’s director as a consequence of the editorial line of the programs it transmits (Case of Ivcher Bronstein vs. Perú).
The rapporteurs for freedom of expression of the UN, the OAS, and the OSCE have also addressed the issue of indirect restrictions on freedom of expression by authorities. For example, in their 2002 Joint Declaration they affirmed that, “Governments and public bodies should never abuse their custody of public finances to try to influence the content of media reporting; the placement of advertising should be based on market reasons.” The arbitrary use of official advertising was one of the first mechanisms of indirect censorship addressed by the inter-American system. Indeed, the Special Rapporteur for Freedom of Expression in her 2003 Annual Report dedicated a special chapter to studying the phenomenon and concluded that “indirect obstruction through state advertising acts as a strong deterrent to freedom of expression” (IACHR Annual Report OEA/Ser. L/VI.118. Doc 70, December 2003). As the Special Rapporteur indicated at that time: “this topic deserves special attention in the Americas, where media concentration has historically fostered the abuse of power by rulers in the The (sic) arbitrary distribution of official advertising, like other mechanisms of indirect censorship, operates on different types of needs that media outlets have to function and interests that may affect them. It is a form of pressure that acts as reward or punishment intended to condition the editorial line of an outlet according to the will of the one exerting pressure. As stated, indirect censorship mechanisms usually hide behind the apparently legitimate exercise of state powers, many of which are exercised by officials on a discretionary basis. In the case of the distribution of official advertising, a case of indirect censorship is configured when it is carried out with discriminatory purposes according to the editorial position of the outlet included or excluded from that distribution and with the object of conditioning its editorial position or information line.
To determine whether or not there was a violation of freedom of expression due to the exercise of those powers, it is necessary to analyze the context. That is precisely what has been demonstrated in this amparo, that the withdrawal of advertising during the first half of 2016, but particularly in the months following the publications at the end of February, occurred in a context of confrontation with the outlet, where it is proven that the strategy did not follow objective criteria, but rather occurred, in the manager’s own words, with the aim of “motivating” the newspaper to change its editorial line and news focus, instead of using existing legal mechanisms such as the right of rectification and reply if it was deemed that this involved inaccurate or offensive information.
In the cases Baruch Ivcher Bronstein Vs. Perú. Judgment of February 6, 2001. Series C No. 74, para. 154. In similar vein, cf. I/A Court H.R., “Case of Perozo et al. Vs. Venezuela”. Judgment of January 28, 2009. Series C No. 195, the Inter-American Court has held that “[w]hen evaluating a supposed restriction or limitation on freedom of expression, the Tribunal must not limit itself solely to the study of the act in question, but must equally examine said act in light of the facts of the case in their entirety, including the circumstances and the context in which they occurred.” Following the same reasoning, it held that “the enumeration of restrictive means set forth in Article 13.3 is not exhaustive nor does it prevent considering ‘any other means’ or indirect methods derived from new technologies (…). For a violation of Article 13.3 of the Convention to be configured, it is necessary that the method or means effectively restricts, even if indirectly, the communication and circulation of ideas and opinions” (OC-5/85 and Case of Ríos et al. against Venezuela). For its part, the Special Rapporteur for Freedom of Expression has been denouncing that this type of indirect censorship occurs frequently, and this is due to the absence of legal norms regulating the distribution of advertising placement and reducing the discretion of public officials. In the same sense, it was noted by the Corte Suprema de Justicia de Argentina in the case Editorial Río Negro S.A. v. Province of Neuquén, in which the court indicated that the Province of Neuquén had violated the freedom of expression of a newspaper by eliminating the official advertising it had contracted there as a consequence of critical coverage. The Supreme Court noted that the Province of Neuquén should establish an adequate legal framework that limits the discretion of public officials and prevents that type of arbitrariness.
Likewise, the Corte Suprema de Chile resolved a complaint filed by Revista Punto Final against the distribution of official advertising carried out by some ministries. There, the court considered that the Chilean legal order grants officials “a wide margin of discretion” and recommended that state advertising investment be made “under transparent and non-discriminatory criteria” (Case 9148/09). There have also been cases in countries such as the United States (El Día Vs. Rossello, the Federal Court of Appeals for the First Circuit), in which it was established that the withdrawal of official advertising by the administration of the Governor of Puerto Rico, Pedro Rossello, from the newspaper El Día, as a consequence of criticism that the newspaper had made of the governor, constituted a clear violation of the right to freedom of expression guaranteed by the First Amendment to the Constitution of the United States. In that sense, the Court of Appeals understood that “using government funds to punish the political speech of members of the press and to seek to coerce [media outlets to emit] expressions favorable to the government is contrary to the First Amendment.” Furthermore, the Court understood that “the clearly established right prohibits the government from conditioning the revocation of benefits [in this case, State advertising] on a basis that infringes constitutionally protected interests (Court of Appeals for the First Circuit, Puerto Rico, Case El Día vs. Rossello, decision of January 25, 1999, 165 F.3d 106, p.
110).
It is clear from the foregoing and from the reports of the Office of the Special Rapporteur for Freedom of Expression that the State has the right to establish and modify its advertising guidelines, but it must do so through objective and transparent criteria, established in a planned manner that ensures the power of the State or its funds are not used to discriminate, manipulate, or censor, directly or indirectly, the freedom of expression and of the press guaranteed conventionally and constitutionally (sic). For the reasons set forth, the appeal against the Banco Nacional de Costa Rica is granted, with the effects to be stated in the operative part (…)”. (The highlighting is not part of the original).
In Judgment No. 8396-2018 of 12:40 p.m., of May 25, 2018, this Chamber stated:
“(…) I.- Purpose of the appeal. The appellant relates that an interview called ‘1.a domestic violence against men" was conducted on the program “Café Nacional1' of the public company Radio Nacional de Costa Rica. They allege that, in reaction to this program, the Director of Radio Nacional published an article titled “Amarga vergüenza”, where he warned that he would pre-censor the topic of aggression towards men and prevent it from being discussed again on Radio Nacional. Likewise, they claim that the interview was completely deleted from the SINART internet portal and from the Facebook page, which violates the right to freedom of expression and thought. Finally, they allege that the respondent authority has carried out acts of retaliation against the protected party [Name 006], since they removed him from the program “Café Nacional” and his position was transferred to the Department of Press, despite the fact that he belongs to the Department of Production of Radio Nacional. (…)
V.- Regarding the specific case. In the sub examine, the plaintiff claims to have been affected by the censorship practiced by the public company SINART, since the respondents stated that radio programs like the one conducted by them would be prevented and, furthermore, said program was deleted from the internet page and from Facebook. As part of the alleged censorship, the protected party Castro was removed from the program “Café Nacional’’ and transferred to the Department of Press.
In this regard, the Chamber was able to establish as proven that on September 13, 2016, the president of the Fundación Instituto de Apoyo al Hombre and the administrative director of the Fundación Instituto de Apoyo al Hombre were received on the radio program “Café Nacional" of Radio Nacional. The program, produced by the protected parties [Name 005] and [Name 006], was broadcast on the radio frequency 101.5 FM and through the official Radio Nacional page on the social network Facebook. Likewise, it was corroborated that the Director of Radio Nacional published the document titled "Amarga vergüenza" on his personal Facebook page on September 14, 2016. In it, he expressed:
“Yesterday, Tuesday, September 13, on Radio Nacional de Costa Rica, the issue of intrafamily violence was addressed in a very regrettable manner, focusing on the violence suffered by men in their homes. The editorialization (sic) of the space left no doubt about the personal position of the invited persons and of those who conducted (sic) the space. In it, femicides were incredibly (sic) justified, the violence suffered by women was placed on the same level as that suffered by men, the closure of the INAMU was requested, and there was talk of doing this type of program once every 15 days, which of course is not going to happen. I, as Director of Radio Nacional de Costa Rica, was not consulted for this topic to be addressed; those who know me know that I would never have allowed this interview to go on the air. But that does not exempt me from responsibility. During my administration, I have realized that there is a great lack of training internally within the institution regarding Human Rights and their treatment in communication media, and unfortunately the workshops that since yesterday we have been planning with institutions such as the INAMU', the Defensoría de los Habitantes, the Frente por los Derechos Igualitarios, and the association ACCEDER, will be given as a reaction to the damage caused to society by this interview going on the air. It is my fault for not having acted in advance, for not having made clear the vision on Human Rights that we have in the current administration of SINART, and I have no choice but to offer my most sincere apology and promise, especially (sic) to women who systematically suffer violence for the mere fact of being women, that a situation like this will not happen again. In public service media, we have a great responsibility. Every time one of us, workers of public radio and television, open microphones or stand in front of a camera, we do not respond with a personal opinion based on our beliefs, principles, and values, but we speak from an institutionality that is governed by superior principles, public policies, and international treaties. It is not a matter of whether I agree or not, it is not about what I think. We have THE RESPONSIBILITY, in capital letters, to inform ourselves and train ourselves on the core issues of the social construction of our present time, and that neither by action nor omission, anti-human rights or hate-mongering speech have space in public media. We are managing the pertinent arrangements so that next Monday at 9 in the morning, specialists in equal rights and gender-based violence will join us at the station and can explain to our audience why everything that was said last Tuesday is wrong in its approach, and we can rather build permanent spaces for the promotion of human rights.” (The underlining is added).
That same day and on the Facebook page of Radio Nacional, SINART published its official position regarding what happened:
"In relation to the interview conducted yesterday, Tuesday, September 13, on the program Café Nacional, referring to different forms of intrafamily violence, the Direction of Radio Nacional and the General Direction of SINART clarify: The expressions of the invited persons and hosts of said space, which erroneously justified the situation of violence suffered by thousands of women in our country and questioned the pertinence of the Instituto Nacional de las Mujeres, INAMU, in no way respond to the position of these Directions. We acknowledge that the issue of intrafamily violence must be approached from various perspectives, but never ignoring that the root of this problem is found precisely in a patriarchal, machista structure, and that women and girls are by far the main victims of violent conduct, without this meaning that we are unaware that some men also suffer from violence and that there are flaws in the system or poor management that affects them. SINART recognizes the need for the existence of the Instituto Nacional de las Mujeres and we endorse its pertinence in the construction of an equal and just society, and in the search for the eradication of all forms of discrimination and violence suffered by women. We offer our most sincere apology to the audiences of Radio Nacional, to the people who have justly complained about the approach of the interview, and we commit to rectifying it by contributing to the adequate treatment of the topic with timely and truthful information from the microphones and screens of SINART in its public service mission. We are managing the pertinent arrangements so that next Monday in the same space, specialists in equal rights and gender-based violence will join us at the station to address the topic from a Human Rights perspective. As a State, and even more so as a public service medium, we have the obligation to enforce the International Conventions against all forms of discrimination and violence against women, which our country has signed and has committed to fulfilling, such as the Convención de Belém do Pará and the CEDAW." (The underlining is added).
Regarding the sub lite, the Chamber established as proven that the interview with the protected parties was deleted from the Facebook timeline of the station and also from the web portal of SINART.
It is clear that censorship of freedom of expression can occur openly, particularly in the case of a dictatorship or a weakened democracy. However, especially when acting within the framework of a democratic regime, censorship frequently manifests itself in a more subtle and veiled manner, for example, affecting the inputs or resources that allow its exercise, through the issuance of restrictive guidelines, exerting indirect pressures, etc. This characteristic of veiled censorship—which is very dangerous, precisely because it is surreptitious or disguised—obliges the Courts to resort to so-called circumstantial evidence in order to determine the act of censorship.
In application of the foregoing to the sub lite, the Chamber finds sufficient elements to conclude that the statements of the amparo petitioners were censored and, thereby, their fundamental rights were harmed. This conclusion derives from the express statements of the Director of Radio Nacional when noting that the repetition of interviews like that of the protected parties “of course is not going to happen”, and that he “would never have allowed this interview to go on the air...”, but “...a situation like this will not happen again...”. The Chamber observes that the respondent party warns with absolute clarity of the censorship that will exist for future interviews like the one in question and of the regret for not having censored the one conducted. For this Court, there is no doubt that the transcribed expressions constitute censorship, especially coming from the director of the medium that served for the transmission of the interview in question.
More subtly, saying that “...the vision on Human Rights that we have in the current administration of SINART...” must be made “clear” and that “...everything that was said last Tuesday is wrong in its approach...”. Equally surreptitious was the official communication from SINART: “We offer our most sincere apology to the audiences of Radio Nacional, to the people who have justly complained about the approach of the interview, and we commit to rectifying it by contributing to the adequate treatment of the topic with timely and truthful information from the microphones and screens of SINART in its public service mission.” In these quotes, it is observed that SINART intends to impose its “vision” of Human Rights or “rectify” the actions of the protected parties “with timely and truthful information”, assuming that the opinions of the amparo petitioners are the opposite: untimely and false.
Finally, it was proven that the recording of the interview was deleted from the Facebook timeline of the station and from the web portal of SINART. The Chamber considers that, with this fact, the threat of censorship materialized into full censorship, since both the freedom of expression of the amparo petitioners and the right of third parties to be informed and have access to the interview were prevented.
It is necessary to reiterate that the limits to freedom of expression must be clearly established by law, as established by the American Convention on Human Rights:
“Article 13. Freedom of Thought and Expression 1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print, in the form of art, or through any other medium of one's choice.
2.3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
4. Public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence, without prejudice to the provisions of paragraph 2.
5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to violence or to any other similar illegal action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.” (The underlining is added).
As mentioned in the preliminary clarifications, the content of the message may have a link to the limitations on freedom of expression. Thus, this will be relevant only when it is prohibited by law and constitutes “…propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to violence or to any other similar illegal action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin.” However, this situation does not arise in the sub examine. Furthermore, if the respondents consider that the actions of the protected parties fall within one of these assumptions or those contemplated in paragraph 2 of that norm, the appropriate course would be to resort to the jurisdictional instances in order to claim the subsequent liability of the subjects (by application of a law, as established by the Convention), and not to try to remedy the situation through prior censorship.
On the other hand, the Chamber recalls that the work of SINART, in its capacity as a public company created by law, has the legal duty to respect political, religious, social, and cultural pluralism, as well as to allow the free expression of opinions, as is explicitly established in subparagraphs b) and c) of numeral 4 of the Ley Orgánica del SINART:
“Article 4°-Principles. The activity of SINART, S. A., as a communication system, shall be inspired by the following principles: (…)
b. The separation between information and opinions, as well as the identification of those who hold the latter and their free expression.
c. Respect for political, religious, social, and cultural pluralism.” Therefore, unless it is an express legal or conventional exception, SINART must respect the discussion of all opinions, including those that the direction of the medium in turn considers unpopular, minority, questionable, etc. Apart from the topic discussed in the interview that is the subject of this amparo, note that there are innumerable matters that generate contrasting, passionate, and entrenched opinions and responses, some with indignation or repudiation, others rather with support and admiration, such as for example regarding the use of drugs for medicinal purposes, abortion, the rights of the LGTB community, the secularization of the State, the salary policy of the public sector, pension systems, the establishment of fiscal plans, etc. Reiterating the transcribed jurisprudence, “..Freedom of expression does not depend on the truth, popularity, or social utility of the ideas and beliefs expressed, and recognizes that a certain degree of abuse is inseparable from the proper use of that freedom, from which the government and the courts must allow a debate to develop that is 'uninhibited, robust, and wide-open', which may include caustic, vehement, and sometimes severely unpleasant attacks towards the government and public officials.” In support of the foregoing, it is clarified that the interview of the protected parties cannot be censored either due to the journalistic approach or the conduct developed, since none of those points constitutes a legal reason to limit freedom of expression.
The Chamber does not hesitate to reiterate that the responsibility for the exercise of freedom of expression is subsequent and must be provided for by law. In this way, if any person considered themselves affected by the statements made in the interview that is the subject of this appeal, whether by the moderators or by the interviewees, they could assert their rights before the ordinary courts of justice. However, it is absolutely improper for the Administration to depart from the principle of legality and attempt to limit the exercise of freedom of expression through censorship, as occurred in the sub examine.
VI.- A second point related to the censorship is the transfer of the protected party Castro to the Contrapunto team. In the case file, it was proven that he was transferred to said instance, as communicated to him through official letter PE-DG- 052-2017 of February 24, 2017, and that there is a notorious temporal proximity with the other events narrated in the previous point. Furthermore, the open dispute between the Administration and the protected party Castro was revealed, who communicated his disagreement with the actions of the respondents through an email of September 20, 2016, where he stated:
Greetings Pablo. Allow me to disagree with what you say since I particularly consider that: CENSORSHIP: is that our director Randall Vega states on his Facebook: 'those who know me know that I would never have allowed this interview to go on the air' (...) CENSORSHIP: is that the Director of Radio Nacional would have 'suggested'' that we space out the invitations to attorney Alexandra Loria due to her thoughts regarding topics such as abortion and unions of the sexually diverse population, even though said topics were not addressed by her on our program.” Thus, there is sufficient circumstantial evidence regarding the existing censorship and the distancing between the Administration and the protected party. In this regard, although the respondent party affirmed that it was "a complete reorganization of the resource", the truth is that it omitted to attach evidentiary elements that would have allowed the Chamber to reach the same conclusion. The evidence it provided referred to the reassigned functions (which were within the profile of a journalist) and to a certification of the amparo petitioner's salary.
The Chamber reiterates that, in matters of constitutional control, once clear indications of censorship are established ab initio, a burden of proof falls on the counterparty that must lead to the conclusion that the actions were not of such a nature, especially when the respondent is in a better position to provide evidence to the case (dynamic burden of proof), since the Administration has a wealth of information and public resources to rule out any discrimination or violation of a fundamental right; despite this, in the sub examine, the respondent fails to discredit the grievance of the appellants with reliable proof. In this way, taking into consideration the provisions in the previously cited subparagraphs b) and c) of numeral 4 of the Ley Orgánica del SINART, which expressly oblige that public company to respect political, religious, social, and cultural pluralism as well as to allow the free expression of opinions, it is clear that in this case there has been a form of veiled censorship through the relocation of a journalist to a position that serves to limit or eliminate his influence on the transmitted content, all of this following or on the occasion of the aforementioned statements made in the exercise of his journalistic work.
The foregoing is even more relevant, since through veiled censorship a kind of surreptitious intimidation or coercion is exercised over the rest of the journalistic staff of the public company SINART. In this way, their freedom of the press is threatened by the possibility of being victims of reprisals derived from the exercise of journalism in freedom, when opinions are formulated that the direction of the medium, according to the government of the day, does not share; an environment that fosters the scourge of self-censorship to the detriment of journalists, since their job stability could compel them to avoid reprisals. This equally affects the final recipient of journalism services, the public, whose ability to form their own informed criterion is thereby diminished by not being able to listen to a diversity of information content and points of view.
VII.- By virtue of the foregoing, the appeal is granted, with the effects that will be stated. Given that the harmful acts are attributable solely to SINART, the ruling covers only that instance. (…)
Therefore:
The appeal is granted solely against SINART. Mario Alberto Alfaro Rodríguez, in his capacity as Executive President of the Sistema Nacional de Radio y Televisión S.A., or whoever occupies that position in his place, is ordered to refrain from incurring again in the acts that gave grounds for the granting of this amparo appeal. Furthermore, said respondent is ordered that within the period of TWENTY-FOUR HOURS, counted from the notification of this judgment, place the September 13, 2016, interview of the program "Café Nacional" of Radio Nacional de Costa Rica, the subject of this appeal, as well as the September 19, 2016 interview (the one conducted with INAMU and ACCEDER), on SINART's Facebook page, where it shall be pinned on the wall for at least one month, and on the main page of its internet site, where it must be visible on the front page or "landing page" for the same period. On the other hand, it is ordered to immediately reinstate the protected party Castro to the position he held at the time of the events, should said protected party express his will in that sense; for the foregoing, the respondent is ordered to immediately communicate to the amparo petitioner Castro what has been decided by the Chamber. Magistrates Cruz Castro and Castillo Víquez give different reasons. Magistrate Cruz Castro files a note. The foregoing is issued with the warning that he could incur the crime typified in Article 71 of the Ley de la Jurisdicción Constitucional, which provides that a prison sentence of three months to two years, or a fine of twenty to sixty days, shall be imposed on anyone who receives an order that must be complied with or enforced, issued in an amparo appeal, and does not comply with it or does not enforce it, provided that the crime is not more severely punished. The Sistema Nacional de Radio y Televisión S.A. is ordered to pay the costs, damages, and losses caused by the acts serving as the basis for this ruling, which shall be liquidated in the execution of the judgment of the contentious-administrative jurisdiction. Notify personally Mario Alberto Alfaro Rodríguez, in his capacity as Executive President of the Sistema Nacional de Radio y Televisión S.A., or whoever occupies that position in his place. Magistrate Hernández Gutiérrez dissents and grants the appeal partially. (…). (The highlighting is not part of the original).
Meanwhile, in Vote No. 10961-2020 of 10:05 a.m. of June 16, 2020, this Court indicated the following:
“(…) I.- Purpose of the appeal.- The appellant comes in protection of the right to freedom of the press, as they consider that the respondent entity issued a resolution that illicitly restricts the freedom of information and of the press of the protected journalistic medium, by ordering it to remove from its databases the image used in a news item of public interest. (…)
V.- The Chamber considers that when a collision occurs between these rights, as in the present case (image and freedom of the press), starting from the institutional character of the right to information, and provided that the use of the image that complements the news is truthful and does not affect the dignity of the person holding that right, it must lean towards giving a preferential value to the right to freedom of the press. In the same sense, we can find precedents in Spanish jurisprudence (STC 165/1988 and STC 59/1989) in which the Spanish Constitutional Court, in various cases, has weighed in favor of the freedom of information in the face of conflict with other fundamental rights, using the institutional character of the right to information as a central argument. In the same sense, the Spanish Supreme Court, faced with the balancing of these two rights, has stated:
“The technique of balancing requires evaluating the abstract weight of the respective fundamental rights that enter into collision, and from this point of view, the balancing must respect the prevailing position held by both the right to freedom of expression and the right to freedom of information, since they are essential as a guarantee for the formation of a free public opinion, indispensable for the political pluralism demanded by the democratic principle. Furthermore, that abstract balancing judgment must consider that the exercise of freedom of expression, according to its own nature, includes the criticism of another's conduct, even when it is harsh and may bother, disturb, or displease the person against whom it is directed, for this is required by pluralism, tolerance, and the spirit of openness, without which no democratic society exists." Sentencia Tribunal Supremo 16 de febrero 2016.
In the same line of thought, the European Court of Human Rights highlighted the importance that "freedom of the press provides the public one of the best means to know and judge the ideas and attitudes of political leaders. More generally, freedom of political controversy belongs to the very heart of the concept of a democratic society" (case "Lingens vs. Austria", judgment of July 8, 1986, Series A No. 103, para. 42).
Indeed, based on the jurisprudential context set forth and the arguments expressed in the cited precedents, this Chamber analyzes the considerations of the case and concludes that the appellant is correct in their claim. The democratic order demands the defense of freedom of expression, as a basic and indispensable instrument for the formation of public opinion. And that defense entails the possibility of expressing thought using the media chosen by the emitter and also the faculty to disseminate it through them. As indicated in the cited precedent, the value of this defense reaches its highest level when freedom is exercised by information professionals through the institutionalized vehicle for forming public opinion, which is the press. In this sense, it is understood that although the right to expression, contemplated in Article 13 of the American Convention, is not absolute, the limits on its exercise and controls over its proper performance must in no way limit its exercise beyond what is strictly necessary, to the point that they could become a direct or indirect mechanism that affects the freedom of expression, information, and the press and constitutes a violation of the right. Now, in the case under study, this Chamber considers that the publication issued by the newspaper Diario Extra on June 24, 2015, where the image of Mr. Calderón was used, the information medium limited itself to disseminating information related to a newsworthy event of interest to the community, as it concerned the possible commission of a crime; therefore, the possibility of using a person's image to refer to an event is supported by its relevance to the public, without the consent for the use of their image in that context being necessary. The photograph used is part of a public document, not an image obtained in an intimate, familiar, or private context, and it is used as accessory to the news, as part of its complement. In the case of the news under analysis, the photograph used is part of the contextualization of news that is, furthermore, truthful (a fact not disputed) and serves as its accessory complement, as indicated, without the image being used in a way that affects the dignity of its holder, such that in those terms it functions as a valid limit to the exceptions admitted by the right to image. Nowadays, a communication medium is inconceivable without images, with text only, without illustrations; such that the analysis by Prohab, in the judgment of this Court, starts from a scenario of decontextualization of the use of the image in question, that is, as if it were not part of a newsworthy event of public interest that was being communicated at that time. The respondent states that the news could have been communicated just as well without using the alluded image, which is an illegitimate way of interfering with freedom of the press; it is equivalent to telling a medium what and how to communicate or disseminate, which is a flagrant violation of the essential content of freedom of the press.
Its effect would be to nullify so-called Photojournalism and would generate a form of self-censorship by the media, which would have to self-limit themselves from illustrating their reports as part of the news content through the use of images of individuals, in order to avoid lawsuits before a State office—which, in this context, seeks to operate as a kind of censor or editor of what and how content may be published—generating a reflexive effect of permanent self-censorship, as indicated, clearly injurious to the right to freedom of the press, which of course includes the freedom to choose the content of what is published. Following the line already established in judgment 2015-1782, in accordance with Article 13 of the American Convention: “3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means aimed at impeding the communication and circulation of ideas and opinions.” In this regard, censorship of press freedom may be direct—for example, the direct prohibition of a certain publication—or indirect (also called soft censorship, subtle, veiled censorship)—for example, the use of various means to intimidate and thereby prevent a publication. The Convention provides a non-exhaustive list of cases of censorship by indirect means (controls over newsprint, frequencies, etc.) and concludes with the general rule, which would be “…or by any other means aimed at impeding the communication and circulation of ideas and opinions.” (2015-1782) This Chamber considers that the exercise of the powers of the Prohab for the purposes of the Law on the Protection of Individuals Regarding the Processing of Their Personal Data cannot be used as a censor of the legitimate exercise of press freedom, because that would constitute indirect censorship, under State control, of a fundamental right, essential for the sustenance of the democratic regime.
In that sense, this Chamber considers that if the use of the image (photograph of the passport page) as in this case occurs within the context of a news event of public interest, inserted in a public document, directly related to the content of the news—since it concerns a border migration issue—whose use, furthermore, does not denigrate or affect the image of its holder, it is not valid to separate or decontextualize that image from its news story, much less to attempt to eliminate it, because it forms an integral part of it. The foregoing would imply censorship of the news itself—injurious to Article 13 of the American Convention on Human Rights. In the case of Kimel vs. Argentina (FJ 54 et seq.), the Inter-American Court declared that restrictions on Freedom of Expression “(...) are exceptional in nature and must not limit, beyond what is strictly necessary, the full exercise of freedom of expression and become a direct or indirect mechanism of prior censorship (...);” that they “must be formulated in an express, precise, exhaustive, and prior manner;” and that “the legal framework must provide legal certainty to the citizen,” limits that were clearly violated in this case, by attempting to limit the content of truthful information of public interest.
Based on that reasoning, it is considered that in the specific case, the decision of the appealed entity to order the appellant to delete from its database the photograph of the complainant’s passport, contained in the repeatedly cited news story, turns out to be an action that affects journalistic, informative, and news performance and thereby the essential content of the press freedom of the protected media outlet. Consequently, it is concluded that the order issued by the Data Protection Agency in declaring WITH MERIT the complaint filed by Marco Tulio Calderón Quesada against Diario Extra, and in which it orders Diario Extra to proceed to delete from its database the photograph of the complainant’s passport, contained in the repeatedly cited news story, is violative of the freedom of information of the appellant media outlet; therefore, it is appropriate to grant the amparo under study, as so ordered. (…)” (The highlighting is not part of the original).
This jurisdiction, in Ruling No. 16167-2020 of 09:20 hrs. of August 28, 2020, stated:
“(…) I.- OBJECT OF THE RECOURSE. The appellant considers his fundamental rights violated, since, in light of the covid-19 pandemic, the government has issued measures that limit freedom of movement and commerce. Furthermore, he maintains that the appealed authorities violate press freedom, due to their actions regarding Diario Extra, since the MTSS canceled the subscription to that media outlet and the ICAA ordered its officials not to speak with journalists from the mentioned newspaper. (…)
IV.- ON THE SPECIFIC CASE. In the sub examine, the protected party claims that the Ministry of Labor and Social Security violates fundamental rights, given that the subscription to Diario Extra was canceled. In this regard, in the report rendered under oath by the Minister of Labor and Social Security, it was stated, regarding the cancellation by the MTSS of the subscription held with Diario Extra, that: “(…) that decision was due to the fact that, as a result of the National Health Emergency the country faces, which has caused economic impact not only nationally but also worldwide, the Executive Branch recently managed cuts in public spending. Given that this budget cut forced us, as an Institution, to free up costs in certain specific line items, taking care, of course, not to affect the service we provide as a Ministry to the citizenry. Therefore, it was by virtue of that budget cut we implemented that the decision was made to eliminate the subscription that the Institution held with several nationally circulating newspapers, such as: Diario Extra, La Nación, El Financiero, and La República. Since the amount for payment of the invoked subscriptions was credited from the same line item used to purchase paper and cardboard supplies, and this represented almost 50% of the budget for those purposes. And given that, as a result of the pandemic caused by the COVID 19 virus, we must have paper towels available for the sinks we have installed for handwashing by employees and users of this Ministry; the purchase of the cited supplies was prioritized, with the consequence of eliminating the mentioned subscriptions” (the boldface is not from the original).
Thus, the Court verifies that, on July 14, 2020, an MTSS official sent official letter DGAF-OF-383-2020 to the legal representative of Sociedad Periodística Extra Limitada, in which he stated: “Most cordially and within the framework of contract 2019CD-000045-0007000001; under the on-demand modality for the acquisition of copies of the newspaper La Extra, please be informed that, in response to superior instructions and in compliance with the new directives issued by the Government of the Republic of Costa Rica, which urges mandatory budget cuts in order to focus on addressing the COVID-19 pandemic, we find it necessary to formally request the indefinite cancellation of delivery of said newspaper starting July 16, 2020.” In the same vein, official letters DGAD-OF-376-2020 addressed to the legal representative of Properiodicos Limitada and DGAD-OF-382-2020 sent to the legal representative of Grupo Nación GN S.A. are observed, through which notice was given of the cancellation of the subscription held by the MTSS with the newspapers La República, as well as La Nación and El Financiero, respectively.
In this way, contrary to what was alleged by the petitioner, this Court considers that the action of the Ministry of Labor and Social Security does not violate fundamental rights. Note that, in the sub iudice, the MTSS canceled the subscription not only of Diario Extra, but also of other media outlets such as La República, La Nación, and El Financiero. Furthermore, it is not verified that such decision was arbitrary; rather, it responds to a budget cut deriving from the covid-19 pandemic. In this regard, it should be reiterated that in the report rendered under oath by the Minister of Labor and Social Security it was recorded that “(…) the amount for payment of the invoked subscriptions was credited from the same line item used to purchase paper and cardboard supplies, and this represented almost 50% of the budget for those purposes. And given that, as a result of the pandemic caused by the COVID 19 virus, we must have paper towels available for the sinks we have installed for handwashing by employees and users of this Ministry; the purchase of the cited supplies was prioritized, with the consequence of eliminating the mentioned subscriptions.” Ergo, given the conditions caused by the referenced pandemic, that institution prioritized the purchase of paper towels, which led to dispensing with the referenced subscriptions. Consequently, since no violation of fundamental rights was verified, the appropriate course is to dismiss the recourse regarding that aspect.
V.- On the other hand, regarding the claim made by the appellant concerning the actions of the ICAA, the Court observes that on June 29, 2020, “MINUTA GG-2020-02784” was issued, relating to a meeting held between ICAA officials and representatives of the SITRAA union, a document that lacks signatures and in which it is recorded: “Objective: SITRAA Varying Topics Place: Virtual Date: 06-29-20 Start Time: 11:00am End Time: 12:40pm (…) 1. Campaign to reinforce AyA’s work, action, SITRAA-AyA. operational crews, slogan hygiene heroes. Mario Rodríguez explains the proposal, from SITRAA a communication campaign has been carried out to improve AyA’s image. They do not agree with the campaign and expenses that AyA has planned. Slogan: “Hygiene Heroes,” they want to start a campaign with this slogan and carry it out with the support of operational workers throughout the country. Yamileth Astorga asks Mario what the objective of AyA’s Advertising Contracting is, apparently he is not clear on it, therefore she gives him a detailed explanation, the objective is the connection of homes to AyA’s sewerage networks. She clarifies that the campaign is not to improve AyA’s image, but to encourage the population to connect to the sewerage networks. She makes a call not to feed Diario Extra and CRHoy, since their objective is privatization. Mario comments that they do not give information to the press, rather he indicates that the press asks them for clarifications on things they do not know about. He clarifies that SITRAA brings to the press things for which they receive no response from the Administration. Maritza Alvarado makes comments about the campaign, indicates that SITRAA’s proposal seems good to her and can be done with their own resources, recommends that there be unity to improve AyA’s image, points out some tasks that have been developed from the Institutional Communication Directorate. The internal base must be reinforced before projecting externally. Marianela from SITRAA comments that it would be good for Mrs. Yamileth to carefully read the press releases that appear in the press, so that she realizes that SITRAA is not harming the image, but rather defends AyA’s institutionality, due to its importance in water resource management. Yamileth indicates that the media only publish things that weaken AyA’s image, asks to form an alliance with the unions to improve the Institution’s image (…)” (the emphasis was supplied).
In this regard, the Executive President of the ICAA states in the report rendered under oath before this Constitutional Court that: “In attention to the formality established at the institutional level, a draft minute of the meeting was drawn up, with number GG-2020-02784, which is associated with the official letter number; said draft does not bear any signature or rubric of the participants and it is clarified at this time that, although the officials from the list contained in the draft minute were convened, Ms. Annette Henchoz Castro and Mr. Alejando Calderón Acuña did not attend the meeting that had been convened virtually; however, it was held in person. The draft minute was drawn up by official Andrey Vila Abarca, who records in the format customary for these meetings the agenda and a succinct reference to the topics addressed. The minute was subsequently communicated and shared via email by the SDI with Memorandum GG-2020-02784, signed by official Andrey Vila Abarca of the General Management, who has under his responsibility the follow-up of the topics and agreements of the meetings with the different unions formed within AYA. From the document called ‘minute’ it clearly emerges that at no time did the undersigned express the fact that is being appealed; therefore, it is clear that the appellant decontextualizes a phrase from a minute, from a meeting held between the Senior Administration and the SITRAA Union, where an internal motivational campaign for AyA personnel was discussed, especially aimed at workers who are on the front line of pandemic response. In that context and with the aim of joining efforts, I made a call to the union groups so that if there are situations that concern them internally within the institution, they present their complaints to the Senior Administration so that they may be addressed, before going to the media. That is what I referred to specifically when I stated ‘not to feed the media’ as the minute cites it. I reiterate that neither from the minute nor from any other document does it ever emerge that an order was given ‘not to speak with Diario Extra’; I am unaware of what the appellant bases that reckless interpretation on regarding freedom of expression. In fact, all press inquiries made by Diario Extra have been attended to in a timely manner; from May to date, 9 information requests submitted by email have been received and responded to. Diario Extra and Extra TV 42, during this year, have published at least 183 notes related to the institution” (the boldface was supplied).
The Chamber also observes that, on July 21, 2020, the executive president of the ICAA addressed official letter PRE-2020-01101 to the general manager of Diario Extra, in which she stated: “In exercise of the right of reply enshrined in Articles 29 of the Political Constitution and 14 of the American Convention on Human Rights, as well as 66 et seq. of the Law of Constitutional Jurisdiction, in my capacity as Executive President of the Instituto Costarricense de Acueductos y Alcantarillados, I request due space to rectify the article published by Diario Extra on July 21, 2020, titled ‘AyA President orders not to speak with DIARIO EXTRA.’ I appreciate the publication of the following text: AyA has never ordered not to speak with Diario Extra Regarding the article published in Diario Extra on July 21, 2020, titled ‘AyA President orders not to speak with Diario Extra,’ as Executive President of the Instituto Costarricense de Acueductos y Alcantarillados (AyA), I qualify as absolutely false that any official has been ‘ordered’ not to speak with Diario Extra. The journalist decontextualizes a phrase from a minute, from a meeting held between the Senior Administration and the SITRAA Union, where an internal motivational campaign for AyA personnel was discussed, especially aimed at workers who are on the front line of pandemic response. In that context and with the aim of joining efforts, I make a call to the union groups so that if there are situations that concern them internally within the institution, they present their complaints to the Senior Administration so that they may be addressed, before going to the media. That is what is specifically referred to with ‘not to feed the media..’ as the minute cites it. Neither from the minute nor from anywhere does it ever emerge that an order was given ‘not to speak with Diario Extra’; I am unaware of what the journalist bases that reckless interpretation on regarding freedom of expression. In fact, all press inquiries made by Diario Extra have been attended to in a timely manner; from May to date, 9 information requests submitted by email have been received and responded to. Diario Extra and Extra TV 42, during this year, have published at least 183 notes related to the institution. At AyA we are respectful of the right to information and freedom of expression; we would never agree to injure those rights. During this year, we have sent two rights of reply to Diario Extra, one regarding a publication on January 15 that was never published, and another that was published in the June 27 edition. We are aware of the vital role the press plays for our democracy. We are clear about how important the strengthening of the media is for the country, since as a nation we cannot allow the interruption of a media outlet’s operations; that would be contrary to the public interest of being informed, especially in the midst of a pandemic, which demands truthful and timely information daily. We have trusted and trust Grupo Extra to carry out our informative and accountability campaigns to the population and will continue to do so to the extent of our possibilities. We could never allow ourselves to be accused of striking any blow against freedom of expression” (the highlighting was supplied).
Thus, it is deemed appropriate to invoke what was set forth in judgment No. 2014-011694 of 9:05 a.m. on July 18, 2014, issued by this Constitutional Court, in which it was ordered:
“III.- ON FREEDOM OF EXPRESSION AND THE STATUTORY RELATIONSHIP. Public officials or servants, by virtue of being subject to a statutory relationship, cannot see their freedom of expression and opinion diminished or limited, nor, in general, any of the fundamental rights of which they are holders by intrinsic human dignity. Administrative organizations are not watertight compartments separate from the social conglomerate, and the existence of an administrative career or a statutory relationship does not justify the temporary dispossession or limitations of the fundamental rights of public officials which they enjoy in all facets of their lives. Certainly, freedom of expression within the scope of an employment or statutory relationship may suffer slight modulations due to the hierarchical relationship inherent to the administrative organization, the trust that must exist between superior and subordinate, the duties of loyalty of both to institutional purposes, and confidentiality regarding matters that have been declared State secrets by law. On this point, it should be added that such modulation must be proportionate and reasonable, and that not even a public interest could limit or restrict the fundamental rights of a public official due to their stronger binding force, direct and immediate effectiveness, and hierarchical superiority. The concepts of good faith and loyalty cannot undermine a public official’s freedom of expression when its exercise does not cause unlawful harm to the public entity or body to which the official belongs and represents or to third parties. Hierarchs or hierarchical superiors of a public entity or body, due to their special and pronounced responsibilities and exposure to the public, must be subject to and tolerate non-harmful or non-unlawful criticism from both users of public services, the public in general, and the officials themselves. The foregoing is also applicable with respect to the forms and instruments of management or administration of a public entity or body. Criticism by users, the public in general, and public officials regarding the individual performance of a server and the institutional performance of the public entity or body constitutes a powerful tool for the control and oversight of public management and, of course, for achieving higher levels of performance—results—accountability, and administrative transparency. No public official may be disturbed, persecuted, reprimanded, or sanctioned for expressing their opinions, ideas, thoughts, or value judgments about the management of the public entity or the actions of another public official.
IV.- ON THE CONTENT OF ARTICLE 13 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS Article 13 states the following:
Article 13. Freedom of Thought and Expression 1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print, in the form of art, or through any other medium of one’s choice.
The cited provision seeks to maximize the possibilities of participating in public debate, especially when, in addition to protecting the expression of ideas, it recognizes the collective right to be duly informed and the right to reply. Nevertheless, like any right, it is not absolute but admits restrictions to harmonize its exercise with the rights of others, the security of all, and the demands of the common good in a democratic society (Art. 32 of the Convention). But these limitations may not be greater than those established in the same provision or in the Political Constitutions (Art. 30 of the Convention). This right may not be subject to prior censorship but to subsequent responsibilities. The Political Constitution in its Article 29 enshrines that postulate by establishing that: ‘Everyone may communicate their thoughts orally or in writing and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law.’ Freedom of expression in this sense cannot be subjected to a priori control. The State, through any of its organs, is constitutionally and conventionally prohibited, with the exceptions for the protection of other rights set forth in Article 13 and 27.1 of the Convention, from exercising prior censorship. The Inter-American Commission on Human Rights has repeatedly pointed out the dual aspect of freedom of expression: the right of every person to disseminate ideas and information; and the collective aspect, constituted by the right of all of society to receive such ideas and information. And when a violation of the right of expression occurs through prior censorship, a range of rights is injured, such as the right of the entire community to receive truthful information. Thus, the Inter-American Court, Advisory Opinion OC-5/85, has stated that: ‘...when the freedom of expression of an individual is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all to “receive” information and ideas.’ V.- ON THE SPECIFIC CASE. In the case under study, the appealed institution ordered, through circular number 211-2014, dated March 10, 2014, from the Director of Public Relations of the Ministry of Public Works and Transport, addressed to directors and heads of Departments of the MOPT, that coordination be made with the Public Relations Directorate when the media contacts them directly, for timely attention to the media and so that it translates into institutional dissemination opportunities; likewise, that the topic of inquiry to be discussed be defined jointly. The appellant considers that said provision is contrary to the right of expression of MOPT workers, because what the Public Relations Directorate intends is to exercise prior censorship over the statements or expressions made by public officials. The appealed Director states that it involves making officials aware when the press contacts them without having coordinated with Public Relations; it is about giving officials suitable handling of the topic to respond to the information media and not exercising prior censorship as the claimant alleges. But the truth is that the fact that the officials of the Ministry of Public Works and Transport must adapt their statements according to the rules of the Public Relations Directorate of this ministry, every time they face the mass media, is an interference, by way of prior censorship, that threatens or does not permit them to freely express their opinion on matters pertaining to their institutional work, which directly affects the community that receives filtered or censored information. It cannot be admitted that Circular 211-2014 from the Public Relations Directorate falls within any of the circumstances contemplated by our Constitution or by the international instruments that complement it (thanks to the integrating effect of Article 48 according to the 1989 amendment), to legitimize a restriction on freedom of expression. For these reasons, the recourse must be granted with the legal consequences.” (the emphasis was supplied).
Furthermore, for the purposes of resolving this amparo it is pertinent to cite what was ordered in judgment No. 2015-01782 of 11:36 a.m. on February 6, 2015: (…)
This Court considers that the transcribed precedents are applicable to the sub lite, since it finds no reasons to vary the expressed criteria nor reasons to assess the presented situation differently.
Thus, in the sub iudice, the Chamber considers that a constitutionally relevant injury has occurred. Note that although the referenced minute lacks signatures, it is no less true that the executive president of the ICAA did not deny its content, but merely alleged that the phrase “Makes a call not to feed Diario Extra and CRHoy, since their objective is privatization” was decontextualized, since what she intended to express was “a call to the union groups so that if there are situations that concern them internally within the institution, they present their complaints to the Senior Administration so that they may be addressed, before going to the media. That is what is specifically referred to with ‘not to feed the media.’” On this point, the Court considers that in the sub examine there is sufficient evidence that the executive president of the ICAA uttered the previously transcribed phrase, which, by all lights, constitutes an infringement of the constitutional rights to freedom of thought and expression, press freedom, and equality, all of this in relation to the democratic, accountability, and transparency constitutional principles in public management, by virtue of the fact that it involves a kind of veiled censorship, given that the practical result of such call is to prevent the harmed media outlets from having access to public information.
In effect, contrary to what was maintained by the appealed authority, the phrase in question exhorted officials of the Instituto Costarricense de Acueductos y Alcantarillados to refrain from sending information of public relevance to certain media outlets. In the first place, such action implies a serious threat to the freedom of thought and expression of those servers, given that the initiative comes, no more and no less, from the very executive president of the mentioned institution, as a result of which the “call not to feed the media” takes on particular gravity by virtue of the hierarchical rank of the person who expressed it. In the second place, press freedom and the right to equality are violated, since it is incited that two particular media outlets, CR-Hoy and Diario Extra, not receive information from ICAA officials, while in an absolutely unjustified manner it places the affected parties in a clear situation of disadvantage vis-à-vis the rest of the media. In addition, the exposed situation injures the population in general, given that “the call not to feed the media” prevents the public from accessing information concerning the provision of essential public services, which is unacceptable in a society governed by democratic, accountability, and transparency principles in public management.
By virtue of the foregoing, the appropriate course is to grant the recourse, in the terms set forth in the operative part of this judgment. (…)
Therefore: The recourse is partially granted only with respect to the Instituto Costarricense de Acueductos y Alcantarillados for violation of the constitutional rights to freedom of thought and expression, press freedom, and equality, all in relation to the constitutional principles of accountability, democratic, and transparency in public management. Yamileth Astorga Espeleta, in her capacity as executive president of the Instituto Costarricense de Acueductos y Alcantarillados, or whomever holds that position, is ordered to refrain from engaging again in the acts that gave grounds for the granting of this amparo recourse.
The appealed authority is warned that failure to comply with such order will result in the crime of disobedience and, pursuant to Article 71 of the Constitutional Jurisdiction Law, imprisonment of three months to two years, or a fine of twenty to sixty days, shall be imposed on those who receive an order that they must comply with or enforce, issued in an amparo proceeding, and do not comply with it or do not enforce it, provided the crime is not more severely punished. The Costa Rican Institute of Aqueducts and Sewers is condemned to pay the costs, damages, and losses caused, which shall be liquidated in execution of the judgment in contentious-administrative proceedings. In all other respects, the recourse is declared without merit. Notify. (…)”.
More recently, this constitutional body, in Judgment No. 23107-2022 of 09:30 hrs. of October 4, 2022, ordered the following:
“(…) VI.- Specific case. In the sub lite, the petitioner alleges as a first grievance, that in her condition as a journalist, she directs the analysis, opinion, and self-criticism program called "Hablando Claro," which has been broadcast since February 1, 2007, on Radio Columbia, and she considers that in that condition the appealed authorities violated her fundamental rights, specifically, the rights to free expression and freedom of the press, given that between July 8 and 9 of last year, she received calls from five public officials, who hold hierarchical positions within the Government of the Republic or in the communication offices of ministries and decentralized institutions, who told her, in the condition of confidential journalistic sources, that they were alarmed by a communication that the then Minister of Communication, Patricia Navarro Molina, sent to them via WhatsApp, to all the Ministers and Executive Presidents of the Government. She argues that, according to what her sources related, in the referred communication, the Minister instructed all the hierarchs to suspend, with urgency, all types of state advertising to the media outlets "Amelia Rueda, La Nación, CRHoy and Canal 7." Likewise, that in that communication they were urged "with urgency not to participate in interviews on Hablando Claro and Amelia Rueda." Regarding this, from the report rendered by the appealed authorities—which is taken as given under oath with the consequences, including criminal ones, provided for in Article 44 of the Law governing this Jurisdiction—and the evidence provided for the resolution of the matter, this Chamber could not deem it proven that the order or directive questioned by the petitioner was issued. While it may be considered that, on this particular point, the reports received are succinct or laconic, the truth is that they clearly state that no order or indication in that sense was issued. The Chamber appreciates that such reports focus on the competencies and powers of the Ministry of Communication and on procedural aspects of the filing of this recourse, but by denying the existence of the order, directive, or indication referred to by the amparo petitioner, in this particular case there is no possibility whatsoever of deeming its existence proven, such that the appropriate course is to declare the recourse without merit as to this extreme.
VII.- However, due to the significance of the issue and the gravity that issuing any order from public power in the terms claimed in this process could entail, it is necessary to remind the authorities of the Ministry of Communication and the Ministry of the Presidency, that as expressed in the fifth recital of this judgment, freedom of expression and information entails a double dimension, which is reflected not only in the possibility of journalists to report on issues of relevance to public opinion, but also the right that the country's inhabitants have to learn of such information, such that public organs and entities are under the duty to adopt the corresponding measures so that the inhabitants of the Republic can be informed about the actions and events that occur or develop in the national territory and that are of interest to the community. Especially since the issues and decisions that are taken and addressed from the central government and any institution, organ, and administrative entity have a transcendence and relevance for the proper functioning of the country and the exercise of the rights recognized to the population in general and to its members within their own spheres of action, such that all these issues must be treated with absolute publicity and transparency, without any possibility of preventing the citizenry, public opinion, and any mass media outlet from having knowledge of them. Ergo, practices that obstruct access to information, such as preventing reporting on certain events or decisions, refusing to give interviews to various media outlets, not inviting them to participate in conferences or press rounds, limiting their advertising, preventing access to inputs necessary for dissemination, among other variables related to direct or indirect censorship, cannot and should not be endorsed by a Constitutional Court, for the elementary reason that their access and timely delivery must occur through an easy, expeditious, and uncomplicated process, which guarantees the population and, in general, public opinion, the right to information and freedom of expression.
Having said the above, the appealed authorities are reiterated that “the government and the courts must allow a ‘uninhibited, robust, and open’ debate to develop, which may include caustic, vehement, and sometimes severely unpleasant attacks toward the government and public officials” (Cf. Judgment No. 2006-5977 of 15:16 hours of May 3, 2006). In other words, the respondents must bear in mind that, in the exercise of public offices such as those they hold, and in the current era, where technological advancement provides greater ease of coverage and access to news events, it is normal that some of the discussions generated in the heat of the press may turn out to be unfortunate and unpleasant for them; nevertheless, in a democratic country like Costa Rica, that exercise of freedom of expression and freedom of the press is what characterizes us as a Social State of Law and a free people. For these reasons, in order to guarantee the freedom of the press and free expression that both journalists or mass media outlets, and the population in general have, the appealed authorities must ensure that any directive, order, act, or instruction issued from the central government always adheres to the protection of these freedoms and any fundamental right enjoyed in a democratic country like ours, in the terms that have been set forth in this judgment (…)”.
As has been observed, it is clear that the use or application by state authorities or private parties of the indirect restrictions alluded to in this recital, gravely and flagrantly violates freedom of expression and freedom of the press. Hence, the importance of the safeguarding and protection that our Political Constitution and the American Convention on Human Rights, among other instruments, provide them; hence also the responsibility that falls upon this Constitutional Chamber to ensure that this is so complied with.
VIII.- CONGLOMERATES OR FINANCIAL STRUCTURES CREATED TO FINANCE OR DIVERSIFY THE SOURCES OF INCOME OF MEDIA OUTLETS AND, CONSEQUENTLY, ALLOW THE EXERCISE OF FREEDOM OF THE PRESS. Traditional media outlets, mainly print media, have suffered in recent years a strong economic decline with the arrival of the internet, the fall in advertising investment and its migration to large digital platforms such as Google and Facebook, and the consequent change in information consumption habits. All this, combined, has generated that the user mostly prefers to access information via digital means (be it, through the use of smartphones, electronic tablets, computers, etc.) and not through the purchase of the printed newspaper or by accessing other platforms (radio or television), as regularly and traditionally used to be done.
By virtue of the above, media outlets have found themselves in the need to innovate and seek new formats, proposals, or mechanisms to seek new income (and audience) that allow, in turn, financing journalism and the media outlet as such, especially investigative journalism, which is costly. In other terms, new commercial strategies have had to be implemented or mixed models put into operation in order to “make media outlets profitable,” as it has been called by some. So much so that many media outlets, today, do not generate money with their main or traditional activity, but with others that allow them to subsist. By way of example, media outlets have modernly resorted, among others, to the following formulas or strategies: a) some print media have created their own digital platform and have instituted subscription models or what has been called “pay to view”; a formula that large media outlets such as The New York Times or The Guardian have successfully resorted to. b) The creation of higher-quality and exclusive content has been resorted to (on specific topics of interest to certain sectors), which makes the search for and access to them attractive. c) Use has been made of podcasts (a series of episodes on various topics recorded in audio and transmitted online, resorted to, for example, by the media outlet The New York Times through its program The Daily). d) The organization of events, forums, or congresses on certain topics with the help of experts and personalities has been promoted, for which, in turn, a fee is charged to participate or enter (the media outlets Texas Tribune or The Economist have been characterized by organizing events of this type). e) The sale of pieces to third parties is also resorted to (large media outlets, taking advantage of the enormous experience and structural support they have, cover certain specialized information, process it, and sell it to others, even to their own competition). f) Use has been made of the so-called Brand licenser, which allows media outlets to license their brand so that third-party companies use it in their products or services (e.g., National Geographic sells products related to travel and adventure, books, and has even installed stores related to its coverage line).
Likewise, it is worth highlighting that, as part of those formulas that media outlets have had to appeal to in order to diversify their sources of income and sustain themselves financially, resort has also been made to the acquisition of or adhesion to other companies whose main activities are directly related or not to journalism (thus forming what have been called holdings or economic interest groups). This type of phenomenon in particular has manifested in other latitudes and also at the national level.
Thus, by way of example, there is the case of the newspaper The Boston Globe and other media (owned, in turn, by the U.S. newspaper The New York Times), which were acquired in 2013 by John Henry, owner of the Red Sox baseball team and the Liverpool FC soccer team, with the purpose of facing the substantial economic losses suffered by the former, originating from the migration of readers and advertising toward the internet. Likewise, there is the case that Warren Buffet, through his holding Berkshire Hathaway (a company wholly or partially owning shares in several business groups in textiles, insurance, automobiles, beverages, etc.) in 2012, bought sixty-three newspapers from the Media General Group of the southeastern United States, which were also suffering low profitability. Among the newspapers acquired by Buffett are the Richmond Times of Virginia, the Winston-Salem Journal of North Carolina, and the Morning News of Florence of South Carolina.
Furthermore, there is the case of Jeff Bezos (founder and owner of Amazon, a giant e-commerce company), who in 2013 bought The Washington Post, with the goal of achieving its survival, after this media outlet similarly suffered the onslaught of the irruption of new technologies, the decline in audiences, and advertising revenue. Note that, in this particular case, despite the fact that the media outlet—as announced, among others, by the Spanish media outlet El País—will not be integrated into or adhered to Amazon proper, its acquisition forms part of that same commercial strategy aimed at helping it to keep functioning (https://elpais.com/sociedad/2013/08/05/actualidad/1375736883_735938.html).
In Costa Rica, the use of this type of mechanism or formula is exemplified through Grupo Nación S.A. (the corporation of which the Newspaper La Nación forms part), which arranged to buy the facilities of what used to be the Autódromo La Guácima and converted them into the event center called Parque Viva, as a means to diversify the company’s sources of income and thus compensate for the loss of earnings suffered due to the migration of advertising toward internet sites.
It is understandable that within the current juncture where written media outlets require financial support given the loss of some of their traditional sources of income, other types of companies or societies are created or established—under the protection of the legal order—that provide them with resources and economic or financial sustainability to maintain the former. The case of Grupo Nación S.A., and the acquisition of the now-called Parque Viva referred to above, represents a clear example of the said.
This type of financial structures, like the rest of the examples cited above, become a source of income or resources that contributes to or makes it possible for journalistic work to be exercised, given that the income the former generate allows covering or offsetting many of the expenses that a media outlet demands. Therefore, it is a reality that, if this type of mechanism or proposal is affected in an illegitimate or arbitrary manner, the exercise of journalism is harmed, in turn; in essence, freedom of the press, as a manifestation of freedom of expression.
Now then, the reflected (indirect or veiled) affectation that may materialize to freedom of the press, by virtue of the measures adopted against said financing structures, is an aspect that must be weighed in each specific case, it being clear that not every administrative act or conduct that imposes a burden or establishes a negatively effective content regarding those entities, supposes a reflected injury like the one indicated. Indeed, it is worth warning that like every administered person, these structures are affected by and subject to the legal norms that regulate, specify, and delimit the exercise of their respective economic activities. In that sense, their functioning must satisfy and comply with the regulations proper to their activity, which includes, having the respective administrative authorizations for the deployment of the commercial matter. Hence, they must have the respective titles that allow verifying compliance with urban planning, building (within these, those pertaining to Law No. 7600), health, safety standards, as well as the commercial licenses and patents that are due in each case. Additionally, they must comply with the pertinent tax regulations. Likewise, in the course of their activity, like every person, they are subject to the oversight and control of the exercise of the activity, in order to verify that they maintain the level of compliance by virtue of which the commercial activity was enabled for them. In that dynamic, the neglect of the conditions of exercise imposed by those sectorial regulations could well lead to the imposition of administrative measures of restriction or sanction. The foregoing, provided that the specific exercise of that manifestation of the administrative police power can be deemed legitimate, based on the due and timely accreditation of the non-compliance presuppositions that would give rise to each legal consequence, and that such decision is in accordance with the merit of the case background and the applicable Legal Order (relationship between the objective material elements motive-content) and that it is congruent with the protected public interest. In those cases, where the administrative function is established as the legitimate exercise of administrative powers that seek to safeguard the public interest, a sort of reflected infringement to freedom of the press could not be postulated, but rather, the licit and foreseeable consequence of the neglect of public order norms to which every administered person is exposed. By contrast, when those measures find no support in the various factual or legal presuppositions that, in each case, the normative plexus defines as a necessary antecedent (conditioning presupposition) to adopt a given sanctioning decision or one with negative content, or when the content of the act adopted based on the verification of those conditions is excessive, disproportionate, unreasonable in relation to those antecedents, antagonistic to the public interest or, in general, contrary to legality (in a broad sense), one would be facing an administrative behavior that may imply a deviation of power (Art. 113 LGAP) and supposes, as indicated, an indirect or reflected injury to freedom of the press. This requires a careful analysis of the particularities of each case, as a parameter of a neutral, equitable, and objective evaluation between fundamental freedoms and rights within a scheme of a State of Law and the exercise of administrative powers that have, by principle and purpose, the protection and satisfaction of the public interest. Ergo, not every act that negatively affects the sphere of a financial structure supposes an alteration to the freedom under examination, just as not every administrative control function with respect to those can be understood as legitimate, without more. In this way, in cases like the present one, in which an indirect violation of freedom of expression and of the press is alleged, resulting from control activities of the Health Administration, it is for this jurisdictional instance to weigh the particular nuances, to define whether it is a due or undue exercise, as a sine qua non condition of a value judgment regarding the existence or not of the duty to validly tolerate those administrative impositions. (…)” VCG02/2023 XI.- NOTE OF MAGISTRATE CRUZ CASTRO. THE REINFORCED PROTECTION OF FREEDOM OF EXPRESSION IN THE PACT OF SAN JOSÉ.
This case has great richness in the constitutional analysis and defines an unusual scenario in the control of political power. The Executive Power, within a system of checks and balances, requires judicial supervision and review. The detailed description made in the majority vote concludes that the health order MSP-DRRSCN-DARSA2-OS-0368-20022 is an administrative act “….openly arbitrary, lacking any solid basis, and absolutely disproportionate..”. The judgment that I subscribe describes facts and indicia that support such conclusion. It is not a minor issue that the constitutional instance determines, through amparo, that the authorities of the Executive Power have incurred in an arbitrary act. It is an openly arbitrary act, incompatible with the rules that govern in a State of Law. Error or excess is a risk always assumed by whoever adopts decisions that affect the rights of third parties. Despite the large number of cases that this Chamber hears via amparo, hearing cases such as these deserves special attention, where a grave arbitrariness is denoted in an act linked to a health issue, but furthermore, it constitutes a violation of freedom of expression, which also has recognition in international human rights law.
In a democracy, political authority is subject to constant review of its decisions, that is the healthy balance that ensures the reasonable exercise of presidential or parliamentary power. I consider that in this case the conduct of the Executive Power constitutes a deviation of power, by carrying out actions that appear legitimate, but that lack technical support and appear disproportionate. From doctrine and from the General Law of Public Administration, deviation of power can be defined as the exercise of administrative powers for purposes different from those set by the legal Order. Deviation of power is “The pursuit of an end different from the principal one, to the detriment of the latter...” (Art. 131.3 LGAP). It is a defect in the purpose of the administrative act, the use of power with ends and motives different from those for which such power was conferred. In the face of arbitrariness, the health of democracy is put to the test, institutional and judicial controls are put to the test. In that contradictory process it is ensured that the exercise of power does not overflow, that is how we must live, between controls and balances, it is the dialectic that prevents authoritarianism. It is the dialectic of control to which the Executive Power, especially the President of the Republic, must submit. The exercise of power requires controls, objections, and dissents. It is not easy for one who has a delicate political responsibility to always be right in their decisions. In this case, the path taken turned out to be inadmissible in a democratic State of Law, but the power that the Administration has to undertake other actions that allow protecting health and ensuring the interdiction of arbitrariness, also protecting the freedom of a press outlet, subsists, unharmed. In this matter, the Executive Power has broad faculties to address the serious problems of vehicle circulation on all the country’s highways.
In this case, in addition to the gross arbitrariness of the Executive Power in the exercise of its powers, an indirect restriction of freedom of expression and thought is configured. Law requires subtlety, it requires nuances, and therefore demands a legal framework that captures unforeseeable reality, and with greater brilliance, if it concerns the control of power. That is why the thirteenth article, third paragraph, of the American Convention on Human Rights refers to indirect means or ways of restricting freedom of expression: the definition is broad, an inexhaustible range of possibilities, such as the abuse of official or private controls of newspaper paper, radio frequencies, equipment and apparatus used in the dissemination of information “…or by any other means aimed at impeding communication and the circulation of ideas and opinions..”; it is an open, flexible definition, which includes a multiplicity of abusive actions in which formal power restricts such an important right. Law and its application require subtleties, demand a circumstantial evaluation, to capture reality, so rich in twists and disguises. If that were not the case, legal control would be of little use, especially if it concerns promoting the effective validity of fundamental rights. In this case, there is not only a gross violation of fundamental due process rights, but the governmental action attempts to use a health order to limit a press outlet. This would have seemed unthinkable thirty years ago, but social and economic changes have transformed the economic structures of private press outlets. It is not the best scenario for giving the press more independence, but that is the reality. Many media outlets are part of a complex economic conglomerate, thus ensuring their economic and media survival. That is the economic reality of many press outlets; their existence as a media outlet is achieved through complex structures of legal persons in which the anonymous power of money prevails, without one being able to clearly identify the owners of those media outlets; they are part of a complex network in which economic groups converge, with their communicating vessels. Through this diverse and complex structure, the media outlet finances itself thanks to a varied ensemble of companies that are not directly engaged in journalistic activity. Everything has changed in media outlets, it is a reality that cannot be ignored, assuming, with inadmissible simplism, that the media outlet is only its name and journalistic activity. It is a transformation similar to what has occurred in social networks, where anonymity prevails and the roots of their activity are not visible to the common citizen. Today’s press outlets are part of a complex legal structure, with diversity of activities and communicating vessels in relation to the economic structure to which the press outlet belongs. Anonymity has worsened, just as has occurred with social networks, in which there is not even certainty about the identity of the person who presents themselves as a participant in a public debate. This business and economic context, described in very simple terms, is what permeates the case of the closure of Parque Viva. Indirect actions can manifest in very concrete and forceful acts, such as the closure of an activity for health reasons or, it could be, through actions of the tax administration. The norm of the American Convention on Human Rights possesses unusual flexibility, without limiting what can be considered indirect action, but rather allowing that reality, so varied and unforeseeable, be included within a broad and flexible normative provision. This open concept allowed the compulsory licensing of journalists to be considered an indirect restriction on freedom of expression, as determined by Advisory Opinion OC-5/85, of November 13, 1985, of the Inter-American Court; requiring compulsory licensing of journalism, on public order grounds, was catalogued as an indirect restriction on the exercise of free expression. This restriction permanently limits a fundamental right, to the detriment of those who do not have such licensing. (see the CoIDH advisory opinion, 1985: paragraphs 48 and 76). I also highlight the Case of Ivcher Bronstein vs. Peru, the CoIDH catalogued as an indirect restriction on freedom of expression the arbitrary use of the State's regulatory faculties when exercised to intimidate a media outlet (see CoIDH, 2001: paragraphs 158-163). The precedents of the Court have indicated that an indirect restriction also exists when statements by public officials can be qualified as forms of direct or indirect interference, or inadmissible pressure on the rights of those who seek to contribute to public deliberation by expressing and disseminating their thought (see CoIDH; 2009: paragraph 151); likewise, it has been considered an indirect restriction when accreditations are required in a disproportionate or discriminatory manner from press outlets for participation in official events (see CoIDH, 2009: paragraph 375). All these examples demonstrate the breadth of the provision contained in the third paragraph of Article thirteen of the Pact of San José. The mentioned norm does not impose any restriction, it merely defines an open concept that includes all possible governmental actions that apply an indirect procedure to restrict freedom of expression. There is nothing novel in what this Court pointed out in the decision I subscribe, it merely applied to the specific case a normative provision whose breadth and flexibility allows recognizing varied forms of intervention of public power on freedom of expression. This case has two key elements: the manifestly arbitrary act in the closure of Parque Viva and the indirect restriction on a press outlet, pursuant to the provisions of the American Convention on Human Rights.
The discussion and assessment of this amparo made me recall the vote 2016-15220. In that judgment we admitted an indirect limitation of freedom of expression, as a result of the reprehensible conduct of Banco Nacional officials. In that decision I recorded a note, in which I express my vision on a variety of actions by factual powers, for which the Chamber's competence and the provisions of the Pact of San José prove insufficient. There are spaces where Law does not reign, it is the reign of savage powers, to use Ferrajoli’s terminology.
How wonderful it would be if the social state, the independence of the judiciary, social rights, had the guarantees that the Pact of San José contains for freedom of expression. I only imagine what social justice and democracy would be like, if that were possible. There is a bias in the American Convention toward individual rights, with overly abstract provisions regarding social rights. However, the norms of the Pact of San José on freedom of expression are wise and adapt to sociological and political transformations, but in other areas as sensitive to democracy and the social state, anomie and “political convenience” prevail. I believe that the note I included in that vote, on a similar issue, still remains valid, my reflections on the limitations and weaknesses of legality in our democracy are still pertinent. My condition as a judge does not turn me into a silent witness to what I consider are the injustices that float, very clearly, in the cases we resolve. I do not like that indifference, I do not like that silence. Excesses from formal power require control and counterweight; I have no doubt that it is also required that de facto powers (poderes fácticos) become more visible before the citizenry, understanding that they also exert an influence that escapes the healthy controls of a full democracy. So much remains to be done, in electoral matters, in participation, in the validity of the social state, labor guarantees, so diminished in the last fifteen years, so much so that a Collective Bargaining Agreement seems a luxury and privilege of a minority of workers. Indeed, a case like this, which arouses passion and provokes controversy, is of lesser rank alongside the deterioration of our Welfare State. The frustration of so many citizens should not lead us to overstate this litigation; there are other challenges and issues, in which we face paralysis, deterioration, and silence. The issue of vehicle traffic from Parque Viva has a solution, but I cannot say the same of the problems facing democracy and the social state in Costa Rica. These are pending assignments for Costa Rican society that transcend what is discussed in this amparo. I add, verbatim, the note I included in the vote on Banco Nacional, whose validity, as I expressed, remains:
“Note of Magistrate Cruz Castro. Freedom of opinion and its distortions.
The amparo filed by Diario La Nación denounces a serious distortion suffered by press freedom and access to information. However, the event supporting the amparo raises a series of questions about the role of the media, the threat that they act as de facto powers, and the serious distortion to freedom of information that the concentration of media outlets represents. Many actions that distort the state of public opinion and the rules of democracy are not known in the constitutional instance. It is the world of savage powers and their anti-values, which pervert what should be a democratic society. It is very healthy for democracy that the actions attributed to some of the heads of a state bank can be evaluated in light of constitutional power and fundamental rights. However, there is a threat that I cannot ignore, regarding the actions of de facto powers and that totally distort the fundamental freedoms that sustain democracy.
The protection and control of freedom of opinion is concentrated in public powers, but there are other actors that are far from being evaluated by constitutional control instances. De facto powers escape these controls, among which may be cited, among others, the Church, the Army, financial institutions, and the media. The influence of these powers allows them to alter social and political events, to influence the decisions of the institutional system.
Until now, the concept of de facto powers has been used to point out those actors or groups that, under certain mechanisms, influence public decisions. However, it is a controversial concept and there is no consensus on its content. There is even a divergence of positions among academics. The differences not only oscillate between the quality of democracy and the role of these powers within it, but even regarding the very groups that hold this de facto power. In this way, media outlets, banks, and organized crime are treated as equivalent, when there is a notable difference in their actions before the State. But these very important differences do not prevent admitting that there exist a series of very powerful actors that are not visible and that are not subject to any type of scrutiny.
The concentration of media worsens the distortion that de facto powers can have on the quality of democracy and the regime of public opinion. In the case denounced by Diario La Nación, there is no doubt that a serious distortion and contamination of the regime of opinion has existed, but other actions by diverse actors, especially de facto powers, persist, which, without any supervision or limitation, condition the democratic process and the determination of what is important for democracy. These powers can condition the exercise of political action, they can neutralize or manipulate it. All these distortions caused by de facto powers pervert the regime of public opinion.
The constitutional instance and the protection of fundamental rights do not reach de facto powers; these are actions that transcend the framework of control and discussion that characterizes constitutional power. It deals with a power with incidence outside the formal system. So many actions that can be carried out on the margins of transparency, invisible to the validity of fundamental rights. Real factors of power without control and visibility that can colonize and influence the functioning of institutions or the state of opinion in a consultation or an election.
The economic power of de facto powers surpasses that of a public institution in the distribution of public resources for advertising. A de facto power, if it does not self-contain, can finance certain candidates or groupings, it can also condition the participation of advertising or polling companies regarding a candidate they consider “inconvenient,” causing an aspirant for deputy or president to lose, during the electoral contest, their best teams in directing their opinion or image campaign. These are actions that go unrecorded, they are the savage powers acting without control, without transparency, conditioning the state of public opinion regarding an election or a decision of political relevance. Half of the political scenario is in the shadows, only the acts and decisions of public law bodies and powers can be subjected to healthy scrutiny.
In October 2010, the Second Report on Democracy in Latin America was presented, carried out by the United Nations Development Programme (UNDP) and in which Dante Caputo participated. The report mentions the de facto powers that can influence, in fair contest or in the shadows, the official instances of power.
In the survey included in the mentioned report on who exercises real power in Latin America, the percentages of responses were as follows: economic groups, businesspeople, and the financial sector, 79.7%; media, 65.2%; churches, 43.8%; unions, 31%; illegal powers: mafias, drug trafficking, guerrillas, paramilitaries, 26%; civil society organizations, 12.8%; and indigenous sector, 3.2%. Regarding formal powers, the responses were: Executive Branch, 36.4%; Legislative Branch, 12.8%; and Judicial Branch, 8.5%. This sample on the various non-formal powers includes, of course, the media. Pressures or reprisals like those we have seen in this matter can appear in the world of de facto powers, including the press, without them being visible or being able to be denounced. It is timely, in such a delicate matter, to abandon naive or reductionist views.
This is a reflection I raise apropos of a relevant case in which improper pressure is exerted against a media outlet, however, in the world of savage powers, as Ferrajoli calls it, these actions are executed in the shadows and without constitutional control. They are actions against the principles and rules of the game in a democracy, just as occurred in this case. The healthy corollary of this case is that regarding freedom of opinion and thought, there cannot be improper pressures or manipulations. In Costa Rican history, the conduct of Diario La Nación has always been impeccable; it has truly given us, in our history, lessons in journalistic ethics. However, I cannot ignore that in the opacity of various actors that exercise de facto power, actions more serious and reprehensible than those attributed to the heads of Banco Nacional are executed. It deals with a culture of naked powers, without an ethical ideal, for they are only interested in achieving improper influence over the interests of democracy and the will of the citizenry.
There is no doubt that the actors who hold and exercise, de facto, great power, who engage in activities of pressure, distortion, or manipulation, cannot subject and violate the rules of a State of Law. In that world of pressures, conditioning, in that culture of savage powers, the constitutional instance can do nothing; thus, the most serious actions against the regime of opinion and democracy remain hidden; it concerns an illegitimate power that remains submerged.
In the matter of freedom of information and the right to information, threats arise that may be related to the action and incidence of de facto powers, such as economic concentration and political control of the media. That is, the action of de facto economic powers can condition the activity of social opinion media; it is another perspective of this phenomenon with many angles. The concentration of media causes another very serious distortion of freedom of thought and opinion, alienating these highly relevant constitutional values; access to information and freedom of opinion can have, in media concentration, a structural distortion.
It must be recognized that ownership of information media is a power, it is a source of power that must foster pluralism and democratic coexistence, but they must submit to rules that derive from the essence of the State of Law, preventing media power from becoming an absolutist power. It is required that it submit to the law, defining limits and bonds to ensure that freedom of information and the right to information flow without distortions. The second rule is the separation of powers, applying Montesquieu’s old rule, from which the fourth estate cannot be excepted, for it to be such in a democratic regime, it must respond to guarantees that make it independent from political and economic power. This assessment requires a deep and balanced reflection; the independence of the media requires: independence from centers of economic power and political parties. In case there are links, that such connections be as transparent as public information. These rules and others that L. Ferrajoli proposes would strengthen the function of the media, so that they respond to a state of opinion that derives from pluralism and authentic citizen participation. Ferrajoli, in an article published in 2004, titled: “Freedom of Information and Private Property: A Non-Utopian Proposal,” proposes various measures so that the power of the media is not exercised in the shadows of de facto powers, but rather responds to these guidelines: “…Guaranteeing the separation between the administration of information and ownership; instituting guarantee authorities oriented toward the protection of press freedom and freedom of information; preventing all types of ownership concentration; excluding employer or political controls; ensuring that everyone can access the media; favoring non-commercial televisions with adequate financing, also creating common infrastructures; affirming the objectively ‘public’ character of television and expanding the space of public television are just some of the possible reforms to face the imminent danger of the ‘big brother’…” (consult: http://www.nexos.com.mx/ p=11115). In the evaluation of media concentration, a policy that strengthens the function of television in a democratic society has special relevance. So many attacks against freedom of information and opinion that are imperceptible, not only due to cultural invisibilization, but due to the impunity of a system in which there are powers that act without controls and in opacity. Much remains to be done in the construction and strengthening of democracy and the dignity of the citizen…” VCG02/2023 ... See more Content of Interest:
Content Type: Separate note Branch of Law: 4. MATTERS OF GUARANTEE Topic: EXECUTIVE BRANCH Subtopics:
SANITARY ORDER..
Topic: FREEDOM OF EXPRESSION AND PRESS Subtopics:
CENSORSHIP. MEDIA.
Docket N° 22-016697-0007-CO Additional reasons of magistrate Salazar Alvarado.
I concur with the majority vote, which declares the remedy with merit and annuls the cited sanitary order, it having been demonstrated, with total clarity, that the closure of Parque Viva was an arbitrary act, as retaliation for the editorial line held by Diario La Nación regarding the President of the Republic, and with the objective of silencing said media outlet, in clear detriment to freedom of expression and press freedom, protected constitutionally and conventionally.
However, in view of the annulment of sanitay order N° MS-DRRSCN-DARSA2-OS-0368-2022, issued on July 8, 2022, as well as what is ordered in official letter N° MS-DRRSCN-DARSA2-1724-2022 of July 15, 2022, I consider it necessary that the respondent authorities (in conjunction with the Municipality of Alajuela, and any other competent public institution), provide effective protection to the fundamental rights of the residents of La Guácima de Alajuela.
To this end, I consider it pertinent and timely that this Constitutional Chamber order, within a period of eighteen months following the notification of this resolution, that all those coordination measures they deem pertinent and necessary be carried out for the purpose of executing the remedial plan repeatedly referenced in this matter; or, any other they see fit, with the purpose of providing a comprehensive solution to the problem of traffic congestion that affects the residents of La Guácima de Alajuela, in relation to events involving massive concentrations of people and vehicles at Parque Viva; and that, in the event of an eventual emergency, the health or physical integrity of persons could be compromised.
In the case at hand, it must be borne in mind that this Chamber has protected the right of the administered to enjoy a public physical space that meets the necessary accessibility conditions, allowing adequate mobility, and guaranteeing the physical integrity, health, and life of persons.
In Judgment N° 2014-013854 at 9:05 a.m. on August 22, 2014, what doctrine knows as the “Right to the City” was developed, which includes the following:
“(…) In the ‘World Charter on the Right to the City,’ the following were recognized, among others: the right to accessibility to public transport services and to public physical space –which involves both the movement of users from one place to another in the city, and the possibility of having good sidewalks, pedestrian zones, etc.– and to inclusion, which, as this Tribunal has held, implies the removal of all architectural barriers that impede mobility by one’s own means as well as the installation of the necessary aids to guarantee the accessibility of persons with disabilities, children, older adults, etc. For its part, the ‘Convention on the Rights of Persons with Disabilities’ enshrines the right of all to enter, transit, and remain in a place, in a safe, comfortable, and autonomous manner (…)”. (Criterion reiterated in Judgment N° 2015-04827 at 9:40 a.m. on April 10, 2015, and Judgment Nº 2016-009051 at 9:05 a.m. on July 1, 2016, among other resolutions of the Constitutional Chamber).
Consequently, if a group of citizens, in their territorial circumscription, suffer problems due to obstruction of public roads, with an impact on their quality of life and general well-being, this falls within the concept of local interests and services of numeral 169 of the Political Constitution, problems whose causes must be precisely identified and, even more so, the solutions, in order to implement them as soon as possible; for which it falls to the respondent authorities to coordinate with national-level institutions with competence to act on the problem. Indeed, the Chamber has developed the municipal obligation to coordinate with other state institutions in order to serve the interests and properly provide local services. In Judgment N° 1999-5445 at 2:30 p.m. on July 14, 1999, the following was stated:
“(...) they refer to the obligation of coordination that must exist between local governments, decentralized institutions, and the Executive Branch, to carry out the functions that have been entrusted to them, which must be analyzed based on the very nature of municipal autonomy. It is by virtue of what is provided in article 170 of the Constitution that the municipalities (local corporate entities) enjoy functional, administrative, and financial autonomy in the administration of local interests and services (article 169 of the Political Constitution) (...)”.
Furthermore, in this matter it is relevant to keep in mind the content of technical report N° CRC-GG-OF-012-2022, of July 12, 2022, signed by the General Manager of the Costa Rican Red Cross Association, through which the difficulties faced by emergency vehicles on the public roads of the area in responding to incidents are recognized, a situation that is made worse when massive events are held at Parque Viva. In that document, the following was reported to the Minister of Health: “(…) In the specific case that is the subject of this inquiry, it is known that the public roads of the community of La Guácima de Alajuela and surrounding areas are insufficient for the rapid access of our emergency units in the ordinary attention of incidents, which can be made worse when massive events are held, given that we have known of situations in which the simple mechanical breakdown of a private vehicle substantially delays the entry of our ambulances. Historically, response times for attending emergencies by the different institutions have been affected by traffic congestion in various points of the national territory, a situation that also occurs in La Guácima de Alajuela, experiencing an increase in the transfer time of emergency vehicles in a variable manner, generating delays that range from 10 minutes to 30 minutes. In some specific cases, the arrival or departure time of our vehicles has been extended even longer, caused by the number of vehicles positioned on the sides of the public roads adjacent to the event site, and even by people moving on the public roads, which means one must drive with greater caution. For the specific case, the operational structure of the Benemérita Costa Rican Red Cross has worked on three scenarios that are addressed for an analysis of the situation that allows the authorities to make decisions according to their competencies. 1. Traffic accidents: in attending a traffic accident, depending on its severity, the arrival of different resources becomes necessary, ambulances, rescue trucks, and even the presence of the Fire Department of Costa Rica. It should be noted that cases may arise in which patients are trapped as a result of the incident, requiring that the specialized rescue team join the scene according to the needs. In any of the cases, patients require immediate attention, since in some cases life may be at imminent risk. 2. Structural fires: in attending structural fires, the Fire Department generally responds to extinguish the fire and the Costa Rican Red Cross attends the scene for patient care, so depending on the size of the incident, the amount of resources that appear could be affected by the difficulty of accessing the facilities at risk and the evacuation of patients. Medical cases: Depending on the severity of the case, the patient needs to receive expedited attention given that the delay in response times generates a negative impact on the person’s prognosis, potentially affecting life. For example, in the case of cardiorespiratory arrest, access to the patient is required ideally in less than 10 minutes. On the other hand, depending on the circumstances, there is the possibility that the Advanced Life Support Unit (USAV), on site, requires the support of an Advanced Life Support Unit (USAV), given that this second ambulance has personnel with a higher level of training, more equipment, and therefore, greater resolution capability, thus offering a better opportunity for the patient’s health. It should be noted that when there are two or more units at the scene of the incident, a large and safe space will be required so that the first responders can provide their care (…)”.
Given the described scenario, and for the reasons set forth, I reiterate that, in order to avoid an omission in the effective protection of the physical integrity, health, and life of the residents of La Guácima, as well as of any other citizen, I consider it necessary to implement the remedial plan repeatedly cited in this matter; or, any other measure the authorities deem necessary, to resolve the problem of traffic congestion affecting said area, in relation to events involving massive concentrations of people and vehicles at Parque Viva.
Luis Fdo. Salazar Alvarado Magistrate VCG02/2023 ... See more Content of Interest:
Content Type: Dissenting vote Branch of Law: 4. MATTERS OF GUARANTEE Topic: FREEDOM OF EXPRESSION AND PRESS Subtopics:
CENSORSHIP. MEDIA.
Topic: EXECUTIVE BRANCH Subtopics:
SANITARY ORDER..
Docket 22-16697-0007-CO DIFFERENT REASONS AND PARTIAL DISSENTING VOTE OF MAGISTRATE GARRO VARGAS regarding judgment 2022-25167 (Parque Viva) INDEX Content
A. Type of proceeding 8 B. Parties 8 1. Claimants 8 2. Respondents 8 C. Object challenged 8 D. Object protected 9 E. Admissibility and standing 9 F. Claims sought 12 G. Factual framework 12
A. Admissibility phase: procedural requirements 15 1. Formal aspects of the filing brief 15 2. The competence of the body 16 a) The object protected: fundamental rights 16 b) The object challenged: the allegedly harmful conduct 17 c) The nature of the harm 18 d) The nature of the proceeding 19 3. The capacity and standing of the parties 21 B. Merits phase: aspects to consider and reconsider 22 1. Overview 22 2. Definitive verification of some procedural requirements 23 a) The object challenged: the sanitary order and the related official letter 23 (1) The order and the related official letter 23 (2) The unsuitability of the amparo: constitutional jurisprudence 26 (a) Jurisprudence in normal times 26 (b) Jurisprudence during the pandemic 31 (c) The case of Rolando Araya Monge 37 (3) The suitability of the contentious-administrative proceeding 40 (a) Constitutional provision for control of the Administration 40 (b) Scope of analysis in the ordinary proceeding 42 (c) Advantages of the ordinary proceeding 44 b) Standing 49 (1) Framework of the problem 49 (2) Regarding the claim that they only have standing before the Chamber 50 (3) Claimants’ arguments on the cause of standing 52 (4) Considerations of the judgment on dependency 56 (5) The financial statements and the alleged dependency 63
A. Introduction 69 B. Possibility of hearing the alleged harm 70 C. Non-existence of the violation of article 13.3 of the ACHR 72 1. Very brief exegetical analysis of article 13.3 of the ACHR 72 2. Substantive consequence of the non-accreditation of dependency 73 3. Non-existence of the violation, even if there were standing 73 a) Regarding the impact on freedom of expression 74 b) Regarding the arbitrariness of the acts 75 (1) If the acts are not arbitrary: consequences 75 (2) If the acts are arbitrary: consequences 76 D. Considerations on the jurisprudence invoked in the case file 77 1. The jurisprudence of the Inter-American Court 77 2. The jurisprudence of the Constitutional Chamber 87 E. Additional reflections on the non-existence of the violation 94 F. Reasons to grant the remedy regarding freedom of expression 100 1. Normative and jurisprudential framework 100 2. Factual framework 102 3. Considerations on the manifestations 105 4. Conclusion 109
A. The dilemma: “making the amparo ordinary” or respecting its summary nature 110 1. On evidentiary aspects 110 2. On the parties brought into the proceeding 113 B. The consequences of the annulment of the challenged acts 116 C. On the scope of the award for damages 117
With the customary respect for the other members of the Constitutional Chamber and the parties to this proceeding, I set out to set forth my different reasons for declaring it with merit –regarding the violation of freedom of expression– and the arguments of my partial dissenting vote by which I declare it without merit –regarding the annulment of the challenged sanitary order and related official letter issued by the Ministry of Health–.
Beforehand, I will make a very brief description of the litigation. Then I will explain my position. However, to facilitate understanding, I will first develop my partial dissenting vote and then my different reasons. Finally, I will make some reflections on the case file and the judgment itself that confirm what is stated in the dissenting vote.
Much to my regret, this text is lengthy, but it is designed so that it can be read, at least, on three levels of depth. The first, superficial: for that it will suffice to read the index, the executive summary, and some underlined passages that appear on various pages. The second, slightly more detained, which entails reading the whole text straight through and probably skipping the abundant transcriptions of jurisprudence. Finally, a more exhaustive one, which requires reading everything, including the footnotes.
I have had to elaborate on some topic due to its importance or to meet the intended purpose. I explain the latter: it is not the same to contradict what is stated in the judgment as to argue that something was not said in it. That is the reason why, for example, everything related to the examination of standing in the merits phase of the remedy is so long, as it was pertinent to transcribe and gloss passages from the claimants’ briefs and the judgment.
It is intended here to condense the main ideas on the following: the dissenting vote regarding the annulment of the challenged acts, the different reasons for which I declare the remedy with merit regarding the harm to freedom of expression, and the reflections on the judgment.
THE CASE Some journalists from the newspaper La Nación challenge a sanitary order and a related official letter issued regarding Parque Viva, which belongs to Grupo Nación S. A. (hereinafter, Grupo Nación), which is the owner of the newspaper.
They allege that their freedom of expression has been harmed by virtue of such acts.
POSITION OF THE MAJORITY OF THE CHAMBER It grants the amparo appeal in all its aspects, annulling the challenged administrative acts, because it considers that they are arbitrary and manifestations of abuse of power and, pursuant to Article 13.3 of the American Convention on Human Rights (ACHR), were indirect means to harm the freedom of expression of the appellants.
MY POSITION Partially dissenting vote. I dismiss the appeal with respect to the annulment of the challenged acts, because I consider that they should be examined through the ordinary legality channel and not in an amparo appeal. The foregoing is based on the following arguments.
Every amparo appeal is analyzed by the Constitutional Chamber in two phases:
Admissibility phase. In this phase, it is examined whether prima facie the appeal meets the procedural prerequisites: 1) formal aspects; 2) the jurisdiction of the body, which is determined by the object sought to be protected (the fundamental rights and freedoms alleged to be violated), the challenged object (the conduct accused of being arbitrary), the nature of the injury (whether direct or indirect), and respect for the nature of the proceeding (which is summary); 3) the capacity and standing of the parties.
In the present case, there could be doubt about an aspect that determines the jurisdiction of the body, that is, whether the challenged object is susceptible to being examined in a summary proceeding. The question arises because the Chamber habitually—for various duly justified reasons—has not examined sanitary orders and because the one challenged here concerns particularly complex technical aspects. This suggests that the amparo appeal is not the appropriate channel for the Chamber to rule on the alleged arbitrariness of those administrative acts. Doubt also arises as to whether the appellants have standing, since they allege harm to their freedom of expression, but the challenged administrative acts fall upon a property that is owned by the business group to which the newspaper where they work belongs. However, since it is alleged that such acts are indirect means to harm freedom of expression, which Article 13.3 ACHR proscribes, despite the doubts, it might seem reasonable that the presidency of the Chamber admitted the appeal so that it could be examined on the merits.
Merits phase: In this phase, once all the respondent party’s reports and any other material added to the case file have been gathered, the Chamber conducts a second analysis in two directions: it definitively verifies whether the procedural prerequisites are indeed met and, only after confirming that, examines the matter on the merits.
Regarding the first point, in the present case, in my judgment, it is appropriate to examine the two points about which reasonable doubts arise: whether the challenged object can be examined in a summary proceeding and whether the appellants have standing.
After studying the factual framework, verifying the evidentiary record (numerous, voluminous, coming from multiple involved authorities and mostly dealing with technical and particularly complex aspects), the applicable norms and jurisprudence (issued before and during the pandemic), I conclude that the challenged object should not have been examined in a summary proceeding such as the amparo appeal. In that vein, I explain the reasons why the contentious-administrative channel is the proper venue to examine the appellants’ reproach, not only by express constitutional provision, but because it offers many more advantages for the rigorous examination of the issue and the possibility of issuing interim measures and even requesting preferential processing. Also, after examining the factual framework and noting the absence of evidence supporting a link between what is sought and what is challenged, I observe that the appellants lack standing. Furthermore, I refute their argument that they lacked standing to go to the contentious-administrative channel to challenge the questioned administrative acts and to allege there the harm to freedom of expression.
Consequently, since two unavoidable procedural prerequisites (jurisdiction and standing) are not met, I consider that the appeal should be dismissed with respect to the annulment of the sanitary order and the related official communication. That is, I do not rule on these, but rather point out that the examination of their alleged arbitrariness should be carried out in the contentious-administrative channel.
Different reasons for granting the appeal with respect to the harm to freedom of expression.
Before justifying my partial granting of the appeal, I explain that—despite the fact that the challenged acts cannot be examined in this appeal—by virtue of the iura novit curia principle, it is possible to do so with respect to other acts reflected in the factual framework. Additionally, since what is observed from the analysis of these are direct injuries to freedom of expression, the appellants would have standing to be party to this proceeding.
In the first place, I set out the reasons why I consider that a violation of Article 13.3 ACHR did not occur. I analyze the jurisprudence referred to in the judgment, both from the Inter-American Court of Human Rights (I/A Court H.R.) and the Constitutional Chamber, and show that it rather confirms my thesis. Then I refer to some scenarios that did not occur in the present case, but whose study allows some reflections on the topic under discussion. There I highlight that everything points to the fact that it would not have been sufficient to prove the economic dependence of the La Nación newspaper on Parque Viva in order to declare the harm to freedom of expression.
Finally, after examining the evidence provided and the public and well-known facts, and by virtue of the applicable norms and jurisprudence, I verify and declare the violation of freedom of expression, by the President of the Republic, due to some statements that constituted direct, express, albeit relative, censorship regarding the subjects (the appellants) and the content (what was communicated).
Final considerations on the case file and the judgment. These confirm what is stated in the dissenting vote, in which I maintain that the amparo appeal was not the proceeding in which the challenged object should have been examined. Specifically, I refer to the dilemma that arises between “ordinary-izing” an amparo appeal or resolving it without having all sufficient elements (evidence and parties) and the implications of having opted for the second choice. I also allude to the consequences of the annulment of the challenged acts and their possible impact on public health and safety matters. Finally, I make some comments on the scope of the award of damages and losses —whose execution can only be requested by the appellants and circumscribed to the declared harm to freedom of expression, not by the business group that owns the media outlet where they work. However, this judgment gives the latter the possibility of filing a proceeding for State liability, in which, based on the declaration of nullity of those acts carried out in a summary proceeding, it only has to show the causal nexus between such acts and the damages and losses it alleges.
A. Type of proceeding The present is an amparo appeal, which is one of the proceedings that the Constitutional Chamber examines, established in Articles 48 of the Political Constitution and 29 of the Law of Constitutional Jurisdiction (LJC).
B. Parties 1. Appellants The appellants are: Armando Manuel González Rodicio, Armando Mayorga Aurtenechea, Daniela Cerdas Espinoza, Diego De Jesús Bosque González, Esteban Enrique Oviedo Álvarez, Fabrice Le Luos, Guiselle Mora Morales, Harlen Natasha Cambronero Jiménez, Juan Fernando Lara Salas, Kimberly Herrera Salazar, Krisia Chacón Jiménez, Óscar Gerardo Rodríguez Arguedas, Ronald Arturo Matute Charpentier and Vanessa Auxiliadora Loaiza Naranjo. All, it is stated, journalists and members of the editorial staff of the La Nación newspaper.
2. Respondents The respondents are: Rodrigo Chaves Robles, in his capacity as President of the Republic, and Joselyn María Chacón Madrigal, in her capacity as Minister of Health.
C. Challenged object According to the filing brief, the challenged object is sanitary order MS-DRRSCN-DARSA2-OS-0368-2022 and, by connection, official communication MS-DRRSCN-DARSA2-1724-2022. This follows clearly from the relief sought in which they request that “the present amparo appeal be granted, the temporary suspension of the sanitary operating permit of Parque Viva and the administrative acts ordering it be annulled.” D. Protected object The appellants state the following:
“The arbitrary actions (…) constitute a gross deviation of power to violate our right to free expression and the right of Costa Ricans to receive information and opinions on matters of public interest in accordance with Article 29 of the Political Constitution and Article 13.3 of the American Convention on Human Rights” (filing brief, p. 1).
That is, they consider that the actions of the respondents harm freedom of expression through indirect means.
They also argue that those same actions violate the principle of legality and the principle of equality, established respectively in Articles 11 and 33 of the Political Constitution.
E. Admissibility and standing The appellants consider that the appeal must be admitted because the administrative acts harm the mentioned rights and principles. That is, they consider that the act is arbitrary, due to an infringement of the principle of legality and the principle of equality, and constitutes a violation of the freedom of expression of the appellants themselves and the right to information of Costa Ricans. In that regard they point out:
“The administrative acts used to exercise indirect or veiled censorship through economic pressures related to the media outlet where we work lack any technical basis and pursue no legitimate purpose, but rather a reprisal for the newspaper’s critical line and an attempt to silence it” (ibid.).
Then they state:
“The unlawfulness of indirect pressures on journalists has been the subject of jurisprudence of the Inter-American Court of Human Rights” (ibid.).
And then they cite several cases resolved by the I/A Court H.R. and immediately say:
“In this context, the appeal we present is admissible and we consequently request that the Chamber give it the corresponding course. Indeed, the actions taken by the respondent officials (…) constitute an obvious case of deviation of power (…). The particularity and the special and extraordinary nature of the case is that it is not a matter of mere legality or ordinary legality, that is, of mere legal infringement, susceptible consequently to being examined in the corresponding ordinary jurisdiction, but rather that the deviation of power in this specific case is the instrument devised to violate our fundamental rights and freedoms directly and immediately, and capable of producing this result. The direct or immediate violation of rights and freedoms, as an inevitable consequence of the spurious aims jointly pursued by the respondents and of the acts that manifest them, fits as a ground within the protective scope proper to the amparo appeal, pursuant to the provisions of Article 29 of the Law of Constitutional Jurisdiction” (ibid., p. 2).
That is, they understand that the administrative conduct is a case of obvious deviation of power, whose purpose is to harm freedom of expression and information (hereinafter, we will speak of freedom of expression to refer to both, as does the heading of Article 13.1 of the ACHR). They consider that herein lies what makes it appropriate for the Chamber to admit this appeal. Thus, because they consider that those administrative acts have violated their fundamental rights and freedoms, they state that the matter is not one of legality, but rather one proper to an amparo appeal and, therefore, must be examined and resolved in this jurisdiction and not in the ordinary jurisdiction.
In that sense, they indicate the following:
“If this case is erroneously considered a matter that must be examined in the ordinary venue because it is a matter of legality, journalists would be condemned to not having access to judicial protection, since we would lack standing to question the facts described here in the contentious-administrative venue because, being indirect attacks on freedom of expression and the press, the questioned administrative acts are not directed against us, but rather harm our rights indirectly. Thus, at most, we could act as coadjuvants in an ordinary action, always subject to the fate of the principal and with limited scope, especially regarding freedom of expression, which is our fundamental concern. The constitutional venue that protects our right to freely exercise journalism is the only suitable means to defend ourselves against the abuses that, indirectly, the respondents level against us” (ibid.).
That is, they reiterate that it is not a matter of legality, and they argue another point: if this amparo appeal were rejected, their right to judicial protection would be harmed.
Moreover, to show the link between the challenged acts and the alleged harm to freedom of expression, in the first place, they argue the following:
“The threat to destroy the companies as retaliation for the editorial lines of the media outlets they own and the actions of their journalistic directors, mentioned in the speech delivered by the now president on January 29, could not be more evident” (ibid., p. 4).
Then they explain the topics that, in the appellants’ judgment, displeased the respondent here and state what is central to this matter:
“In all cases, these were serious, well-documented and completely pertinent journalistic publications. Not publishing them would have directly affected the right of citizens to inform themselves about matters of public interest and, at the specific time, the principle of the informed voter. As a consequence of fulfilling that duty and exercising that right, we, the directors and our journalistic collaborators, were warned of the destruction of the structures that allow us to exercise independent journalism.
Parque Viva is one of those structures, in the case of Grupo Nación. It was created, precisely, to diversify the company’s sources of income and compensate for the loss of income experienced by media outlets worldwide due to the migration of advertising to internet giants, such as Google and Facebook. That fact is public and appears in various statements by the company and its representatives since at least 2013. In the shareholders’ report for the 2013-2014 period, visible on the nacion.com page https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html the executive presidency stated: ‘…changes in the industry, in media consumption and in the national competitive environment, will continue to challenge the print media business. Aware of that landscape, we designed, two years ago, a strategy to face it. While the new initiatives mature, especially in the digital realm, every journalistic media outlet will require a complementary source of income, less dependent on advertising sales. Consequently, as we announced last year, we invested significant resources and efforts in the creation of Parque Viva, in La Guácima de Alajuela’” (ibid., p. 4; emphasis not in original).
In this way, they explain the link between Parque Viva and the La Nación newspaper, pointing out that the former is a source of income for the latter. Based on this they argue that the sanitary order, by preventing the operation of Parque Viva, leaves the newspaper without financial support, so they consider that that act causes harm to freedom of expression.
That is, they understand that the sanitary order must be classified within “any other means aimed at impeding the communication and circulation of ideas and opinions” (Article 13.3 ACHR), since its ultimate purpose was to harm freedom of expression, in the context of threats uttered by Mr. Rodrigo Chaves, first during the electoral campaign, then as president-elect, and also in the exercise of office.
F. Claims The appellants in their relief sought refer to three aspects: On one hand, as has been said, they request the annulment of the sanitary order. On the other, they request that the Chamber “order the President of the Republic and the Minister of Health to refrain from carrying out acts intended to directly or indirectly harm the freedom of expression enjoyed by us, the appellants, like every Costa Rican citizen.” And, finally, they indicated: “We expressly waive requesting an award of damages, losses and costs.” G. Factual framework Without attempting to replace the list of facts set out in the judgment, it is appropriate to briefly set out the factual framework of the litis, in order to provide the context that facilitates a proper understanding of the partial dissenting vote and the different reasons.
Many are public and well-known facts and all have documentary support in the case file.
1-. Grupo Nación has two business units of relevance for the analysis of the specific case. The La Nación newspaper, obviously related to journalistic activity, and Parque Viva, dedicated to carrying out entertainment activities. This venue, located in La Guácima de Alajuela, had sanitary permits for holding events.
2.- On January 29, 2022, during the presidential electoral campaign, the current President of the Republic made statements in the following terms:
“We are going to cause the destruction of the corrupt structures of La Nación and Channel 7. Listen Ignacio Santos, listen the other (…) René Picado, listen Armando González. Here we are. Keep invisibilizing us in the new, in the good and injuriously accusing us in the bad, because you no longer appoint presidents in Costa Rica.” 3.- The appellants in this proceeding are journalists from La Nación.
4.- Complaint: In the context of the mass events organized at Parque Viva, news had been generated about the traffic collapse in the area. Additionally, on July 5, 2022, an anonymous complaint was filed before the authorities of the Ministry of Health, alleging the existence of dangers arising from that collapse, particularly, the difficulties for emergency response teams to attend to all kinds of emergencies, and the closure of Parque Viva was requested. Preliminary reports: A technical opinion was requested from the heads of the MOPT on the matter, a physical sanitary inspection was conducted at Parque Viva, technical reports were prepared, and a meeting was held of the Technical Advisory Committee on Mass Gatherings —composed of the Minister of Health as coordinator, the Minister of Public Works and Transport, and officials from the Costa Rican Red Cross, the Traffic Police Directorate, the National Emergency Commission, the Fire Department, the 9-1-1 Emergency System and Risk Management of the Ministry of Health.
5.- On July 6, 2022, at a press conference, the President of the Republic was asked his opinion on the issue of the CCSS and the request made to the General Superintendency of Securities (Sugeval) regarding the bonds issued by Grupo Nación. In answering, he said that there was a very serious issue with those bonds that previous governments had bought. He indicated that he was worried about the repayment capacity that that group would have, due to the accounting results and the diversion of assets that, in his judgment, weaken the probability that the people of Costa Rica can recover those resources, which are substantial.
6.- On July 7, 2022, the executive director of Grupo Nación gave extensive public explanations and mentioned the role of Parque Viva in the cash flow of Grupo Nación.
7.- Sanitary order. The authorities of the Health Area Directorate Alajuela 2 of the Ministry of Health issued sanitary order MS-DRRSCN-DARSA2-OS-0368-2022 of July 8, 2022 —notified that same day— in which the following was ordered:
“In response to anonymous complaint No. 243-2022, forwarded by official communication MS-DM-5756-2022 from the Office of the Minister of Health, due to apparent structural problems, non-compliance with the emergency plan and safety and hygiene conditions at Parque Viva, and as recorded in the ocular inspection report MS-DRRSCN-DARSA2-1639-2022 of July 5, 2022 at 13:50 hours, the respective visit was made to the site to assess what was indicated in the complaint. Likewise, in accordance with the precautionary principle and in attention to official communications: MS-DM5814-2022, through which Technical Report DVT-DGIT-2022-339 issued by the General Directorate of Traffic Engineering of the Ministry of Public Works and Transport is forwarded, official communication MS-DM-5838-2022 through which Minutes No. 28643-SMOPT-SP of the Technical Advisory Committee on Mass Gatherings is forwarded, it is ordered, by the following administrative act, the temporary suspension of Sanitary Operating Permit MS-DRRSCN-DARSA2-RPSF-0177-2019 (theme park, racetrack, amphitheater, sporting events, cultural events, fairs and various exhibitions) until such time as the Technical Criteria issued by the Benemérito Cuerpo de Bomberos de Costa Rica and the Benemérita Cruz Roja Costarricense are available for analysis and taking of the respective actions, regarding the capacity of the access road to said establishment by the first response units of those institutions, which are being managed by the Ministry of Health. Likewise, your represented entity must submit a remedial plan that addresses the solution to the access problem and the consequent risk to Public Safety and Health in the event of Mass Gathering Activities, and the occurrence of a potential emergency during said activities.” 8.- Related official communication. After gathering the technical criteria of the director of the Fire Department and the president of the Costa Rican Red Cross, official communication MS-DRRSCN-DARSA2-1724-2022 of July 15, 2022 was issued, through which the director of the Health Area Directorate Alajuela 2 indicated to the legal representative of Parque Viva that, as a follow-up to the provisions of the sanitary order, the technical reports CBCR-027150-2022-OPB-00741 of the Fire Department, CRC-GG-SO-OF-074-2022 and CRC-GG-OF-012-2022 of the Costa Rican Red Cross, 911-DI-2022-2202 of the 9-1-1 Emergency System and DM-2022-3121 of the Ministry of Public Works and Transport (MOPT) were forwarded. Additionally, the following was resolved:
“Once said documents have been reviewed and analyzed in accordance with the provisions of the referenced order, it is demonstrated that they indicate that there is an evident problem for the attention of emergencies (traffic accidents, structural fires, medical cases, among others), by the First Response Entities both in the surrounding communities, and for the attendees themselves of the mass gathering events held at Parque Viva, due to traffic and access problems to the place, therefore, in accordance with the precautionary principle and in order to ensure compliance with Articles 21 and 50 of the Political Constitution, Articles 11, 152, 153 and 154 of the General Law of Public Administration and Articles 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357 and 364 of the General Health Law, Sanitary Order MS-DRRSCN-DARSA2-OS-0386-2022 is confirmed in all its terms and scope.” 9.- On July 13, 2022, at a press conference, the president referred to the reaction of Grupo Nación and the La Nación newspaper regarding the closure of Parque Viva.
10. On July 20, 2022, at a press conference, the president indicated, among the reasons for canceling the electric train plan, the existence of a branch line that passes by Parque Viva.
I partially dissented because I consider that the Constitutional Chamber should not have ruled on the challenged administrative acts (the sanitary order and the related official communication), because the case under study does not meet the procedural prerequisites that must be proven in every amparo appeal before this jurisdictional body.
To develop my arguments, I will refer to the procedural phases of every amparo appeal that is resolved on the merits.
A. Admissibility phase: the procedural prerequisites For an amparo appeal to pass the admissibility phase, the Constitutional Chamber must verify three elements: the formal requirements of the complaint, its jurisdiction to examine the matter, and the standing of the parties.
1. Formal aspects of the filing brief It is necessary, first, to verify if the brief meets some minimal conditions. Since the amparo appeal is an informal proceeding, these are very few: names of the appellants and respondents, the facts, the challenged object (what act, omission or de facto action is being attacked), the protected object (the fundamental rights or public freedoms allegedly violated, which would be what the Chamber would protect), the evidence and the claim. In reality, what is indispensable is determining who the appellant party is, recounting the facts and providing a minimum of evidentiary support. The rest, the court can deduce or, if it has doubts, can issue a preclusion order (an act in which it orders that it clarify what it deems necessary) in accordance with Article 42 of the LJC.
2. The jurisdiction of the body Then the Chamber must verify if it has jurisdiction to examine the matter. Jurisdiction is conditioned by several elements: the challenged object, the protected object, the nature of the injury and the nature of the proceeding.
Article 29. The amparo appeal guarantees the fundamental rights and freedoms referred to in this law, except those protected by habeas corpus.
The appeal shall lie against any provision, agreement or resolution and, in general, against any action, omission or simple material action not based on a valid administrative act, by public servants and bodies, that has violated, violates or threatens to violate any of those rights.
The amparo proceeding shall lie not only against arbitrary acts, but also against actions or omissions based on erroneously interpreted or improperly applied norms. (Emphasis not in original).
In the present case, prima facie, the Chamber has jurisdiction to examine the sanitary order and the related official communication that the appellants seek to annul, since they are provisions of public servants and it is alleged that they have violated fundamental rights and freedoms that are guaranteed through the amparo appeal. However, as will be seen in detail later, the Chamber in the vast majority of cases usually rejects at the threshold amparo appeals against sanitary orders, arguing that their examination is not compatible with the characteristics of a summary proceeding and because it has always been considered that it is the initial act of the procedure, so it is from that moment on that the parties can exercise their right to a defense. Therefore, in order to admit it, it had to have well-founded reasons that departed from that jurisprudential line. I will refer to this almost immediately when pointing out the need to respect the nature of the amparo appeal. It is enough for now to say that, regarding the admissibility of the present appeal, there is room for doubt with respect to the challenged object, and not only for what has been noted, but also because those acts do not fall directly on the appellants but on a property owned by the same business group that owns the company for which the appellants work, which is not the location where they perform their work. Although this is an aspect that relates more to standing, as will be examined later.
In any case, presumably in the face of doubt, it was deemed prudent to proceed.
From the very beginning of its history, this Chamber stated:
“Under sound constitutional doctrine, the criterion is based on the fact that any infringement of legality, in matters related to those rights, may eventually cause injury to those fundamental rights, but when it is a merely indirect injury, because within the state apparatus there are bodies that can and must safeguard those rights and remedy their violation, it is they who must hear the matter and not this Chamber” (sentencia 1610-90).
It is worth citing another ruling which, in addition to collecting that 1990 precedent, states:
“It is necessary to warn that the admissibility of recurso de amparo, in general, is conditioned, not only on the existence of a disturbance —or threat thereof— to one or more of the rights or guarantees contemplated in the Constitution or those of a fundamental nature established in international human rights instruments signed and duly incorporated into the legal system, but also on the alleged grievance constituting a threat or direct and gross breach of those rights, which endangers that part of their content that is essential and inherent to them, that is, the core that gives them their particularity and makes them recognizable as rights of a specific nature. In this sense, constitutional case law has specified that the problem of direct and indirect violations of the Constitution also involves a necessary assessment of the suitability and expeditious nature that must characterize the amparo route (…). For these reasons, recurso de amparo cannot be used to control the legality of the acts of the various Public Administrations, given that amparo is a summary proceeding with simple and fast processing, incompatible with conducting extensive and technically complex debates” (sentencia 2020-12053; the emphasis is not from the original).
Note that the Chamber points out that recurso de amparo is only suitable for hearing direct injuries, not indirect ones, due to the summary nature of this proceeding. It is precisely for this reason that it is worth pausing to analyze the nature of this recurso.
Not every act or omission or de facto action, emanating from an authority, even if appealable per se, is susceptible to being heard in a summary and informal proceeding. The reasons may be diverse: the legal or technical complexity of the act, the need for a broad body of evidence to determine its validity and effectiveness, etc. On this point, there is consolidated case law that the Chamber reiterates every week when rejecting a good portion of the recursos de amparo filed before it.
Likewise, the court must verify whether the protected interest (the fundamental rights allegedly infringed) can be effectively guaranteed through a recurso de amparo, which is a summary and informal proceeding. In this regard, there is highly reiterated case law on the matter, which the Chamber also regularly invokes.
Precisely in this sense, I signed a note with Justice Hernández López that we have repeated on many occasions:
“IV.- NOTE FROM JUSTICES HERNÁNDEZ LÓPEZ AND GARRO VARGAS WITH DRAFTING BY THE LATTER. Recurso de amparo is a summary proceeding by nature and, pursuant to Article 48 of the Political Constitution, is designed to protect constitutional rights (with the exception of personal liberty and integrity) and those of a fundamental nature established in international human rights instruments applicable to the Republic. Therefore, a matter is susceptible to being heard via recurso de amparo when the alleged injury to one of those rights is invoked. But that is not sufficient. It is necessary that the subject matter in dispute can be adequately heard in a summary proceeding: that is, in a simple process without the need for a complex evidentiary phase. Furthermore, the summary nature must be evident not only in the hearing phase but also in its enforcement phase. Based on the foregoing, we, the undersigned justices, consider that the present matter is not suitable to be heard in this Constitutional Chamber via recurso de amparo, because, although fundamental rights may be involved, to properly analyze it, it is necessary to produce technical evidence from various disciplines, in order to examine the diverse elements that come into play in its resolution” (note to sentencia 2020-23153).
This is so because certainly many matters involve fundamental rights, but they must be heard in their appropriate venue. For example, if a person claims that they were defrauded in the sale of a lot, there is no doubt—if indeed this was the case—that their right has been violated and that this is a fundamental right. This is the right recognized in Article 45 of the Political Constitution; but it is clear that the litigation on this matter is not suitable to be heard in this Constitutional Chamber, not even if the seller was a public-law entity, because to resolve this type of conflict there is the corresponding jurisdiction. Without going any further, since examples could be exceedingly abundant, if a passerby shoots another, the perpetrator is violating the fundamental right to life or, at least, to the integrity of the victim, but evidently the matter cannot be heard via recurso de amparo either, because that conduct is criminalized and, therefore, it will be the criminal judge who determines liability and the scope and consequences thereof. This, then, is something the Chamber has usually been very clear about in its case law, which is why, every week, it rejects many recursos de amparo, noting that they are matters pertaining to ordinary legality.
The foregoing means that, for a case to be examined and resolved in a recurso de amparo, it is not enough to claim that the alleged injury to the fundamental right is caused by conduct of the respondent. And the Chamber seeks to respect those criteria precisely so as not to invade the competences of the ordinary jurisdiction (established in Articles 49 and 153 of the Political Constitution) or those of the administrative authorities, as applicable. But not only for that reason, but because in that way, by lodging the matter where it belongs, the parties will have all the procedural guarantees inherent to due process, which are reduced in a summary and informal recurso such as amparo. Thus, for example, the reports of the authorities, when given under oath (fe de juramento), are taken as true, so the possibilities of refuting them are much lower than in plenary proceedings (procesos plenarios).
That is why the Chamber must verify whether, in view of the challenged subject matter (the allegedly injurious acts), the protected subject matter (the fundamental rights allegedly infringed), and the type of injury (whether the harm is direct or not), the matter is susceptible to being heard in a summary proceeding such as amparo.
Having said the foregoing, the question arises as to whether this recurso should have been admitted. Everything seems to indicate that this was not a sanitary order (orden sanitaria) concerning a simple matter, but, on the contrary, one of great complexity, which could hardly be analyzed in a summary proceeding. However, as the ruling correctly states, this Constitutional Chamber has left a residual possibility of admitting recursos de amparo against a sanitary order and, in fact, has exceptionally granted them leave to proceed. Thus, one might think that, given the magnitude of the alleged grievance and the status of the alleged offender and—why not—the status of the alleged aggrieved parties, the case had particular relevance. Therefore, it could well be understood that it met the conditions to be considered an exception to the jurisprudential line. Thus, the doubt as to whether the challenged subject matter could be heard in this venue through a summary proceeding was resolved in favor of the petitioners, both in the preliminary phase and not only in that phase.
3. The capacity and standing of the parties Thirdly, the Chamber must verify whether the petitioner has procedural capacity and standing (legitimación). Regarding capacity (capacidad), this being an informal proceeding, every natural person of sound mind and every duly represented legal person has it. In the present case, these are natural persons who evidently have the capacity to act. Regarding active standing (legitimación activa), it can be said that in the Costa Rican legal system it is universal: every person has it provided they allege a violation of a fundamental right, whether their own or that of another. This is so because Article 48 of the Political Constitution says “every person,” and since every (natural) person, by virtue of being so, has fundamental rights, then every natural person can validly file a recurso de amparo, that is, they will have standing provided they allege some injury or threat to a fundamental right. Moreover, Article 3 of the LJC laconically states: “Any person may file recurso de amparo.” In the present case, prima facie, the petitioners have standing to resort to amparo, because they allege injury to freedom of expression, which is recognized “by the Political Constitution and (…) the International Law in force in Costa Rica” (Article 2 of the LJC). Nevertheless, again, one may ask whether they indeed have it, because it must be remembered that they request the annulment of the sanitary order and the related official letter (oficio conexo) so that they may be restored in the enjoyment of freedom of expression, as they consider that this has been injured by said administrative acts which they deem arbitrary. That is, the relief sought concerns acts that do not weigh upon them but upon property of a company that also belongs to their employer. However, they emphatically state that they do have standing to file the recurso, because they understand that there is a link between the challenged subject matter—the sanitary order and the related official letter—and the subject matter they seek to protect—their freedom of expression.
Now, it could be argued that this margin of doubt, again, should have favored the petitioners, so this aspect of active standing should not in itself have been an obstacle to granting leave to the amparo.
*** Having overcome that admissibility phase, as is known, the presidency issues a decision granting leave (auto de curso), and the investigation phase (instrucción) of the proceeding begins in order to hear the matter on the merits.
B. Hearing phase: aspects to consider and reconsider 1. General aspects To hear the matter on the merits, when issuing the decision granting leave, reports are requested from the respondent. Clarifications and evidence may also be requested from the parties or other bodies. The recurso may even be extended to other subjects who would be considered respondents. Indeed, in the hearing phase, all necessary elements must be gathered to determine whether what is alleged has adequate evidentiary support, that is: whether the challenged subject matter is injurious and whether it is so directly, whether the alleged and duly proven injury falls on the petitioners, and whether liability should be attributed to the respondents.
However, that is neither the only nor even the first thing the Chamber must do; rather, it must address all kinds of questions about the full compliance with procedural prerequisites (presupuestos procesales), because a deficiency in any of these implies an injury to due process, which, incidentally, must be respected in an amparo, no matter how informal and summary it may be.
In the first place, it must ensure it has competence and for that reason must calibrate—now with even greater rigor and with all the elements already present in the case file (expediente) at this phase—whether the previously mentioned conditions are met.
2. Definitive verification of certain procedural prerequisites In the present case, as I have said, it was understood that, prima facie, those prerequisites were met; but, as I have pointed out, reasonable doubts arise as to whether their compliance can truly be taken as proven. Therefore, I will immediately analyze two aspects that, in my view, should be examined again: the challenged subject matter and active standing.
The sanitary order and the related official letter In addition to the videos they provided, the petitioners attached to the filing brief (escrito de interposición) a series of official letters and publications as documentary evidence:
“Notification of the temporary suspension of the operating sanitary permit (permiso sanitario de funcionamiento) of Parque Viva dated July 8, 2022; report from the inspectors of the Ministry of Health, dated July 5; approval of the capacities (aforos) issued by the Ministry of Health on December 16, 2021, and expansion dated January 20 of the following year; news article of an interview with the mayor of Alajuela, Humberto Soto, published on July 13; news article of an interview with Hellen Espinoza, community leader from La Guácima; news article of July 13 regarding an IMF report related to traffic slowness in Costa Rica; front page of Diario Extra of July 14; page from the report to shareholders of the president of Grupo Nación for the period 2013-2014 from where the quote included in the recurso is extracted; ratification of temporary suspension of the operating sanitary permit of Parque Viva dated July 15; chronicles of concerts in La Guácima; report No. DFOE-LOC-IF-00014-2020 of July 14, 2022; operational audit report on the effectiveness and efficiency in the use of resources of the cantonal road network in the Municipality of Alajuela; firefighters’ report from Belén regarding the March 4 fire attended by four units; Red Cross report dated July 12; 911 report of July 11; MOPT report of July 11; Firefighters report of July 10; no-objection letters to the access proposed from Route 27 from the Dirección General de Ingeniería de Tránsito, the Consejo Nacional de Vialidad, the Consejo Nacional de Concesiones, and the Comisión de Carreteras de Acceso Restringido; email exchange between journalists of “interferencia,” Radio Universidad, and the press office of the Ministry of Health; social media message from Hulda Miranda, editor of the program “Interferencia” from Radio Universidad; response from SUGEVAL to the Caja Costarricense de Seguro Social; news article about an IMF study on vehicle traffic speed in the world” (filing brief, p. 16; paragraph breaks have been removed).
The respondents, besides the challenged acts, also provided other documents:
The complaint (denuncia); the official letter by which the complaint is sent to the Área Rectora de Salud Central Norte, several news articles reporting the road problems when events are held at Parque Viva; inspection report (acta de inspección) No. MS-DRRSCN-DARSA2-1639-2022; official letter No. MS-DRRSCN-DARSA”-1641-2022 of July 5, which is a follow-up report to the environmental complaint; official letter No. DVT-DGIT-2022-339, signed by Engineer Junior Araya Villalobos, official of the Dirección General de Ingeniería de Tránsito; minutes of the session of the Comité Asesor Técnico de Concentraciones Masivas of July 7, 2022; sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022; technical report No. CRC-GG-SO-OF-074-2022 of July 11, 2022, signed by Mr. Jim Batres Rodríguez, Deputy Operations Manager of the Costa Rican Red Cross; technical report No. CBCR-027150-2022-OPOB-00741 of July 10, 2022, signed by Mr. Alexander Araya Mico, from Fire Operations of the Benemérito Cuerpo de Bomberos; report No. CRC-GG-OF-012-2022 of July 12, 2022, signed by Mr. José David Ruiz Piedra, General Manager of the Costa Rican Red Cross Association; report No. CRC-GG-SO-OF-074-2022 of July 11, 2022, signed by Mr. Jim Batres Rodríguez, Deputy Operations Manager of the Costa Rican Red Cross and report No. 911-DI-2022-2202 of July 11, 2022, signed by María Elena Amuy Jiménez from the 911 Emergency System.
Added to this were those later provided by the petitioners:
“Official communiqué, Municipality of Alajuela, denying the INVU (Evidence #1). Notarial certification of land uses (usos de suelo) # MA-ACC-U-01335-2013, dated June 18, 2013, for construction of Hotel and Food Service, # MA-ACC-U-01334-2013, dated June 18, 2013, for construction of Amphitheater and Exhibition Center, # MA-ACC-U-01336-2013, dated June 18, 2013, for construction of fairground, # MA-ACC-U-00817-2013, dated April 16, 2013, for construction of parking, fairground and convention center (see evidence #2, first point). Resolution number 3088-2013 from SETENA. Project Improvements to Autódromo La Guácima. (see evidence #4). Official letter DGIT-ED-5935-2014 of December 1, 2014, where the Dirección General de Ingeniería de Tránsito issues formal approval of the traffic impact study (estudio de impacto vial) (see evidence #5). Notarial certification of the seal authenticity verification report, via QR code of the project Obras de Infraestructura La Guácima, issued by the Colegio Federado de Ingenieros y Arquitectos (see evidence #2, second point). Copy of the index of construction plan sheets for the project “Obras de Infraestructura La Guácima” (see Evidence #3). Official letter CBCR-0018379-2014-INB-00736, dated June 16, 2014, where the Benemérito Cuerpo de Bomberos accepts the elimination of fire hydrants and requests minor defects be corrected. (See Evidence #6). Official letter DVT-DGIT-ED-2015-4056 where MOPT accepts the completion of the road improvement construction project and records receipt of the works. (see evidence #7). Notarial certification of Letter of Intent to reactivate rail services between Parque Viva (Guácima) and Incofer (see evidence #8). Notarial certification of pages 9 and 83 of the document ’APPROVAL OF LOAN AGREEMENT No. 2241 BETWEEN THE GOVERNMENT OF THE REPUBLIC OF COSTA RICA AND THE BANCO CENTROAMERICANO DE INTEGRACION ECONOMICA (BCIE) TO SUPPORT THE FINANCING OF THE PROJECT; CONSTRUCTION, EQUIPPING AND COMMISSIONING OF A RAPID PASSENGER TRAIN SYSTEM (TRP) IN THE GREAT METROPOLITAN AREA, published in Alcance No. 112 to La Gaceta No. 110, May 14, 2020 (see evidence #2, third point). Notarial certification of the Editorials of La Nación of August 25 and 26, 2020, explaining the infamy regarding the supposed electric train branch. (See Evidence #9). Certification of the following news articles: Article titled “Los mandos medios a cada rato se atraviesan”, Article titled “Zona franca en Grecia iniciara obras después de 24 meses varada por rechazo de acceso a ruta 1”, Article titled “Chaves ataca a La Nación con datos distorsionados”, Manifesto “Defendamos la libertad de prensa”, Article by Jimen Chan “¿En qué se parece Rodrigo Chaves y sus actuaciones a Donald Trump y las suyas?” (See evidence #9). Notarial certification of the response sent to the CCSS on Monday, August 8, 2022, and its attached documents; response brief and relevant material fact dated June 26. (see evidence #10)” (petitioners’ brief of August 17, 2022, p. 13; paragraph breaks have been removed).
This means that at the time of hearing this matter on the merits, the case file contained numerous official letters from very different authorities on a particularly complex topic.
That is, it was not a sanitary order like the one issued to thousands of inhabitants during the pandemic, many of which were challenged through the filing of recursos de amparo and which, incidentally, the Chamber overwhelmingly and systematically rejected. In those recursos, it was alleged that the sanitary order had caused injury to other rights: freedom of movement, freedom of commerce, right to work, etc. However, the Chamber held that they should be denied admission, in accordance with reiterated case law on sanitary orders, to which I will refer immediately.
What is now important to emphasize is that the challenged subject matter (the order and the related official letter) not only in itself has broad and complex scopes, but to determine whether those acts were arbitrary, it was absolutely necessary, at least, to analyze the documents provided by the parties, and these were neither few nor simple, nor consistent with each other.
(2) The unsuitability of amparo: constitutional case law It is now appropriate to examine what the case law of this Chamber has said about the suitability of recurso de amparo for hearing sanitary orders. I will excerpt some of its very numerous resolutions on this topic. I will first comment on the robust case law issued from the early years of this Court and spanning its entire history up to 2019, and then that issued during the pandemic caused by COVID-19. In referring to both stages, I will divide the rulings into those by which rejections are ordered and rulings in which the matter is decided on the merits. Within these latter, I will make some observations on a case cited by the majority in the ruling, in which it was claimed that the challenged sanitary order violated freedom of expression.
(a) Case law in normal times As will be seen, in normal times, the usual practice has been for the Chamber to reject outright (rechazar de plano) recursos de amparo in which sanitary orders are challenged. Since its origins, this Constitutional Chamber has maintained an almost uninterrupted jurisprudential line in which it asserts that it is not its role to review the legality of sanitary orders.
“SOLE: (…) As the challenged act is grounded in Articles 356 and 363 of the Ley General de Salud, and in the provisions of the Reglamento de Seguridad e Higiene Industrial, and as the petitioner had and exercised their right of defense through the administrative procedure followed for that purpose, the act becomes legitimate, from the constitutional point of view, that is, it does not produce any constitutional breach, leaving this Chamber unable to review the strictly legality aspects that might derive from it, an aspect which, in any case, can be discussed in the corresponding ordinary venue. However, it is clarified that the Health authorities cannot order the petitioner to demolish the structure, if they do not demonstrate that he is the owner, nor can they do so on their own, if they have not previously heard the owner of that property” (sentencia 1991-1948; the emphasis is not from the original).
It has also stated that recurso de amparo is not the route to assess the appropriateness and legality of the order:
“[T]he recurso seeks that the Chamber examine the technical reasons on which the Ministry based the sanitary order, which they qualify as illegal and unjust, and as it is evident that no violation of a fundamental right has occurred and this is not the route to review the appropriateness and legality of what was done, the recurso is inadmissible and must be rejected outright” (sentencia 1992-856).
In an identical sense, and always to reject outright, it has said that there are already other mechanisms to challenge them, that is, ordinary administrative appeals:
“The amparo, as inferred from what the petitioner states, has no other basis than to prevent the closure of the aforementioned commercial activity from being declared. The Chamber has repeatedly held that sanitary orders are susceptible to being contested through the ordinary appeals of the administrative procedure, so that the interested parties can, in that venue, demonstrate technically and by expert evidence that their activity does not fall within the assumptions referred to in said order. That being the case, the recurso is inadmissible in the constitutional venue, and as it is a legality matter, it must be debated in the corresponding venue” (sentencia 1992-3056; the emphasis is not from the original).
Furthermore, it has indicated that the sanitary order does not constitute the final act of the procedure, so its imposition does not in itself entail an injury to due process:
“As to the appropriateness or not of the sanitary order issued by the competent authorities of the Ministry of Health, the technical requirements made therein regarding non-compliance with physical-sanitary conditions and the alleged lack of permits, these also cannot be discussed in this venue, given that it is the authorities of the Ministry of Health, in accordance with the legislation in force and applicable, who must ensure compliance with minimum requirements in commercial businesses, among others, through duly supported technical criteria. Repeatedly, this Chamber has indicated that sanitary orders which, in the exercise of their competences, the health authorities issue, do not constitute the final act of an administrative procedure in which the affected parties have not been given any participation, but rather, on the contrary, must be considered the initial act, the notice given to the affected parties, to initiate the administrative procedure, giving them the opportunity to become acquainted with the technical studies supporting the order, study them, challenge them, offer exculpatory evidence, and make alternative proposals to resolve the problems that the authorities have detected. Likewise, they may challenge the order through a recurso de revocatoria y apelación, if they deem it convenient—as the petitioner has done. If they were not made aware of the studies and evidence supporting the order, or were not given the opportunity to challenge it, there could eventually be a violation of due process reviewable in this venue, but that has not occurred in the case before us” (sentencia 2000-11215).
And it has added that the Chamber is not yet another instance in the administrative procedure nor a legality controller.
“What is raised by the petitioner is nothing more than a conflict of ordinary legality outside the scope of competence of this Chamber. In the first place, as this Court has repeatedly held, the sanitary order is the initial act of the administrative procedure, from which due process must be observed through the exercise of the applicable remedies, as the protected party indeed exercised them (folios 7 to 10). Now then, what was resolved regarding said remedy by the Ministry of Health, according to resolution DM-RC-9030-05 of two thirty-one in the afternoon of October thirty-first, two thousand five, cannot be challenged in this venue, since the Chamber is neither yet another instance within the administrative procedure nor a legality controller. Therefore, if the petitioner believes that her house is not uninhabitable and, thus, it is not appropriate to order her eviction, and that the reports issued both by the Comisión Nacional de Emergencias and by the Ministry of Health itself—the latter in relation to the field inspection carried out—are general and do not individualize the specific situation of her case, it is not in this venue that she should present her arguments, but before the respondent administration itself or, where appropriate, in the ordinary jurisdiction, since it is they—and not the Chamber—who are competent to hear and rule on the matter” (sentencia 2006-00773; the emphasis is not from the original).
That is, it has understood that the constitutional jurisdiction is not the appropriate venue to hear them. Thus, it has explained that the examination of sanitary orders is not compatible with the summary nature of amparo:
“Moreover, since what is sought with the amparo, as can be inferred from the recurso filing brief, is to discuss in this venue the technical support of the challenged administrative acts, the recurso is inadmissible, because any existing dispute on the matter constitutes a conflict of mere legality which, by its nature, must be raised, discussed, and resolved in the administrative venue—as has occurred—or in the administrative litigation venue (vía contencioso administrativa) upon exhaustion of the prior phase. Furthermore, discussing in this venue the content or basis of the challenged orders implies reviewing in this jurisdiction the technical criteria used to reach the challenged determination, which is not only outside the scope of amparo, but also exceeds its summary nature” (sentencia 1997-2548, the emphasis is not from the original).
Following that logic, and gathering many of the criteria mentioned above, it has also held that, if one disagrees with a sanitary order, in addition to administrative appeals, one may resort to the ordinary venue, so that the technical basis thereof can be assessed there, as this requires a significant evidentiary phase:
“II.- SPECIFIC CASE.
This Chamber has repeatedly established that the health orders (órdenes sanitarias) issued by the Ministry of Health—as occurs in this case—constitute precisely the initial act of the corresponding proceeding in which the factual and legal reasons motivating such orders are communicated, a point from which the administered party may fully exercise their right of defense, and challenge the administrative acts through the remedies and before the instances provided for that purpose. Thus, for the issuance of the acts in question, the Administration did not have to observe due process (debido proceso), grant a prior hearing, or make any warning to the amparo petitioner, since through the exercise of the remedies indicated in the very resolutions cited supra, the right of defense is exercised and due process is fulfilled. Now, if the amparo petitioner disagrees with the propriety of said health orders, because they question its technical basis or the evidentiary assessment that supports it, that refers to a conflict of ordinary legality whose cognizance and resolution falls outside the scope of competence of this Chamber. Especially since this entails an evidentiary and technical discussion whose resolution is not proper to the eminently summary nature of the amparo remedy (recurso de amparo), a proceeding in which it is not materially or reasonably possible to enter into a complicated evidentiary system or into the practice of slow and complex evidentiary proceedings. By virtue of the foregoing, the remedy is inadmissible and must be so declared" (judgment 2015-001416; the emphasis is not from the original; identical considerations were reiterated in judgments 2016-9673, 2016-15956, and 2016-17176).
All these judgments cited up to this point—which are mere examples, because they are highly reiterated lines—have been issued to reject outright. That is, they are arguments with which the Chamber justifies why it does not proceed to hear the merits of the matter.
However, certainly in an exceptional manner, this court has admitted for processing amparo remedies against health orders, when gross violations of due process have been alleged or it has been argued that it is necessary to hear them in order to protect other invoked fundamental rights, such as religious freedom. Nevertheless, even in such cases, the jurisprudential line is equally solid in the sense that the technical basis of the health order should be discussed through the ordinary channels of legality. In the vast majority of cases, at that stage it declares the remedy without merit, and habitually in those cases it reiterates many of the arguments set forth in the outright rejections. I shall immediately refer to some examples.
Thus, in one case it concluded that the right of defense had not been violated:
"II.— On the merits. The amparo seeks to protect the principle of legality and equality, due process, the right to obtain prompt and complete justice, and religious freedom. In that sense, the particular claim of the petitioner is that the respondent authorities ordered the closure of their Church, motivated by a series of sonic measurements, in which their represented party was not given participation, and without ruling in a reasoned manner on the petition they submitted. (...). From the record it follows that the respondent health authorities intervened in the case under study of the Iglesia Evangélica de Curubandé de Liberia, due to complaints of excessive noise filed by local residents, and that in the case in question an administrative proceeding has been followed, of which the petitioner has had knowledge and opportunity for defense, including via notes of the twentieth of June and the sixteenth of July, both of two thousand two. It is precisely in light of those reflections that this Chamber does not find that the petitioner's right of defense has been violated" (judgment 2002-10129; the emphasis is not from the original).
It has also explained that the health order is not suspended by the filing of ordinary remedies and that this does not violate due process. In pertinent part, it noted the following:
"Furthermore, regarding the execution of the closure of the petitioner's commercial premises, the Administration has the power to execute by itself, without resorting to the Courts, administrative acts that are effective, valid, or voidable, even against the will of the administered party. Therefore, the filing of remedies does not have a suspensive effect, unless the public servant who issued it, their hierarchical superior, the authority deciding the remedy, or the jurisdictional body hearing the conflict, orders the suspension of execution when it may cause serious or difficult-to-repair harm, or when dealing with ineffective or absolutely null acts (see Article 146 and following of the Ley General de la Administración Pública). On the other hand, Article 53 of the Ley Orgánica del Ministerio de Salud indicates that the filing of remedies does not suspend the execution of the challenged act, unless, in highly qualified cases, in a reasoned manner, the Head of the Ministry, on an interlocutory basis and to avoid an irreparable result, orders the provisional suspension of the act, which shall be done, in any case, under their responsibility. Therefore, if the petitioner believes they are in such a scenario, they must file the corresponding petition with the Minister of Health. For the reasons stated, the remedy must be dismissed as is hereby ordered" (judgment 2006-14378; the emphasis is not from the original).
It has affirmed that it is not for it to question the legitimacy or content of the Ministry of Health's provisions, with regard to the execution of health orders:
"It is necessary to clarify that it is not for this Court to question the legitimacy or the content of the provisions adopted by the Ministry of Health regarding deadlines, extensions, and resolution of remedies related to the issuance of health orders, since that is part of its own competence" (judgment 2010-004938).
Moreover, it has indicated that this Court is not competent to hear the reasons for which the closure of a children's center was ordered, reiterating that it is not for it to assess in an amparo remedy the technical basis of that decision:
"IV.— Now, if the petitioner disagrees with the administration's action of having revoked agreement 31-17-2012, in which the authorization (habilitación) was granted to the children's center 'El Naranjito,' given that it does not meet the minimum required conditions and the Rector Area was instructed to carry out the closure, that falls outside the scope of competence of this Chamber, since the amparo remedy has been instituted to protect violations or imminent threats to the fundamental rights and freedoms of individuals, and not to control in the abstract the correct application of the law. Consequently, it is not appropriate in this venue to analyze the reasons of the respondent Council for ordering the contested closure, which, as indicated, is part of its competencies, since the jurisdiction of this Chamber is reserved for the analysis of the challenged actions or omissions, and their comparison with the legal system, to determine the legitimacy or illegitimacy of what is challenged, without it being possible to venture into fields of science or technique for that purpose, in view of the summary nature of the amparo, a proceeding in which it is not materially or reasonably possible to enter into a complicated evidentiary system or into an analysis of facts beyond the challenged acts themselves, limiting itself rather to the factual hypotheses on which those acts are based. Therefore, those aspects must be heard, discussed, and resolved in the administrative proceeding itself, and once it is concluded, if the amparo petitioner considers that the resolution that concluded the administrative proceeding is contrary to law, they have the power to challenge it before the administrative contentious jurisdiction, so that in that venue it may be determined whether or not what was ordered by the respondent bodies is proper" (judgment 2014-2423, the emphasis is not from the original).
As can be observed, these are examples of judgments that resolve the matter on the merits and dismiss the remedy, almost always asserting the same thing that is usually said in outright rejections.
(b) Jurisprudence during the pandemic The jurisprudence of this Chamber issued during the pandemic caused by COVID-19 requires particular attention. Especially in the moments of greatest restrictions, numerous amparo remedies were filed challenging health orders, arguing that they violated the right to work and the freedom of commerce (by requiring, for example, the closure of commercial premises). These were cases of great importance, since the limitation on the exercise of such rights entailed serious impacts on so many Costa Rican families who, overnight, saw the source of income for their subsistence significantly diminished—if not completely cut off. In other remedies, vehicular health restrictions and provisions on the use of masks were challenged. Health orders were also challenged alleging that they violated rights, no longer in the economic sphere, but in a more intimate and no less important one: for example, the violation of freedom of worship and the violation of the rights of persons deprived of liberty to receive conjugal visits and visits from their other family members was argued. In all those cases, one could say, the Chamber was implacable and consistent, as will be demonstrated below with a few judgments, which are only a very illustrative sample of what has just been stated.
Thus, regarding an amparo in which a health order was challenged that ordered the closure of a commercial business—a possible labor and economic sustenance for the family of its owners and their collaborators who depend on the operation of said premises—the Chamber said that the cognizance of that matter exceeded the summary nature of the amparo and rejected the remedy outright:
"II.— ON THE SPECIFIC CASE. In the sub iudice, let the petitioner note that it is not appropriate to elucidate in the summary channel of the amparo whether the events that occurred are true or not, whether one or another health regulation is applicable to their commercial establishment, or whether the closure was proper; likewise, it is not for the Chamber to determine the propriety of the fine. In other words, it is not for this Court to act as an appellate jurisdiction in the matter and review whether the decision to decree and execute such closure conforms or not to the facts and to the applicable infra-constitutional regulations, much less to usurp the powers of the respondent health authority and, after verifying the legal and regulatory requirements of the case, order that the questioned acts be annulled, as the petitioner intends, since these are aspects of ordinary legality that must be resolved through the common, administrative, or jurisdictional channels. Thus, the foregoing constitutes an aspect of ordinary legality that exceeds the eminently summary nature of the amparo remedy. Therefore, the petitioning party must, if they so wish, raise their disagreements or claims before the respondent authority, or else, in the competent jurisdictional channel, venues in which they will be able, in an ample manner, to discuss the merits of the matter and assert their claims. Consequently, the remedy is improper and must be so declared" (judgment 2021-3603; very similar considerations were reiterated in judgment 2022-3545).
In the same vein, it ruled on another of many occasions, when rejecting amparos outright, it noted that this type of acts must be heard through the ordinary channels:
"It maintains that, through health order R1-b11-001-2020, the closure of its business was ordered. It adds that police authorities appeared at the commercial premises and closed it down, because supposedly the consumption of liquor is permitted inside the establishment, which it refutes. It considers it unreasonable that police authorities who are not officials of the Ministry of Health closed the business through a health order, due to the alleged violation of Decreto Ejecutivo 42227-MP-S issued on the occasion of the COVID-19 coronavirus pandemic. (...)
In the sub lite, the Chamber observes that what is raised by the petitioning party is nothing more than an ordinary legality conflict, which does not constitute a violation of fundamental rights of such magnitude as to justify the intervention of this jurisdiction. Indeed, it is not for this Court to assess, in accordance with the infra-constitutional regulations governing the matter, the propriety or not of the aforementioned health order, nor to determine whether or not the alleged offense was committed. Furthermore, the Chamber does not omit to state that it is from the issuance of a health order that the initial act of the corresponding proceeding occurs. Thus, from the notification of such order, the administered party may fully exercise their right of defense, whether by challenging the administrative act before the instances provided for that purpose—an occasion on which they may present the evidence they consider relevant and raise the arguments they deem appropriate—or by performing all acts they consider pertinent in the exercise of their defense. (...) By virtue of the foregoing, the remedy is rejected" (judgment 2020-7165; the emphasis is not from the original; in the same vein, see judgments 2020-7626 and 2020-7934).
In the context of the pandemic, the gradual opening measures ordered by the Ministry of Health were also questioned. For example, the owners of some gyms argued that their right to equality, the right to work, and the freedom of commerce had been violated, and the Chamber resolved the following:
"I.— Purpose of the remedy. The petitioners, who are owners of gyms located in the GAM, allege inconsistency in the selection of the commercial establishments that the government, in the context of the COVID-19 pandemic, has allowed to open as of August 10, 2020. They state that the respondent has authorized the opening of beauty salons, aesthetic centers, and swimming clubs, but not that of gyms, despite the fact that similar activities are carried out in them 'and even safer ones than those that were permitted.' (...) They argue that the restriction encourages unfair competition, since users are moving to gyms located in yellow zones because those located in orange zones are closed, which also harms the containment of the virus, since people from different sectors mix. They consider that the recently initiated opening phase generates discriminatory treatment and violates their right to work and commercial freedom. They request that the resumption of activities focused on physical maintenance and conditioning be authorized.
II.— On the specific case. As can be inferred, the claims of the protected party concern aspects that exceed the competencies of this Constitutional Court, which is called upon to remedy gross violations of fundamental rights, but not to serve as a generic instrument to channel petitions and disagreements of other types. In this sense, this Constitutional Court is not a controller of the legality of the actions or resolutions of the respondent authorities and cannot replace the active Administration in the management of its competencies, so it is not for it to usurp the powers legally conferred on other offices or bodies such as the Ministry of Health, which exercises the stewardship in matters related to the safeguarding of public health, by virtue of which it has the power and the duty to decree the technical measures it deems useful and necessary in the context of the current pandemic, whose technical pertinence is not to be analyzed through the summary channel of the amparo but rather, if the petitioning party so wishes, the relevant grievances must be raised through the competent ordinary channel of legality" (judgment 2020-15420; the emphasis is not from the original).
Similarly, the Chamber abstained from hearing about alleged restrictions on freedom of worship. For example, the following was considered:
"The petitioning party expresses its disagreement with the measures taken by the Presidency of the Republic and the Ministry of Health, in addressing the pandemic caused by COVID-19 since, in their estimation, they are discriminatory. They consider that the protocols and protection measures proposed by the Episcopal Conference should be adopted, and proceed to the immediate opening of places of free worship (...). [T]hrough the channel of the amparo, this Chamber cannot usurp the powers of the Ministry of Health authorities, in order to define the propriety of the claims set forth by the petitioning party, in accordance with public health policies, since these are matters that require weighing technical, medical-scientific criteria, as well as considerations of opportunity and convenience. Such issues, due to their nature and complexity, must be resolved through the common, administrative, or jurisdictional channels, and not in this venue. Consequently, the remedy is inadmissible and is so declared" (judgment 2020-9093; the emphasis is not from the original).
Additionally, this Court warned that the alleged violation of freedom of worship should be raised and resolved in the ordinary venues:
"In this sense, the questioned health restrictions, prima facie, are applied to all temples and churches—regardless of the religion or worship to which they belong—in view of the nature of the activity and the congregation or influx of people attending it, since what is at issue here is the protection of the right to health and life in a health emergency situation, all of which takes precedence over other considerations, without this revealing, at least preliminarily and without prejudice to evidence to the contrary, a desire to harm religious activities in order to deliberately damage freedom of worship. Therefore, it is proper that this matter be resolved through the common, administrative, or jurisdictional channels, so the protected party must, if they so wish, raise their disagreements or claims before the competent legality channel, since it is in that venue where they will be able, in an ample manner, to discuss the merits of the matter and assert their claims. Consequently, the remedy is inadmissible and is so declared" (judgment 2020-9570; the emphasis is not from the original).
Note that this meant—as much as in the other cases being referred to here—that, even though it understood that a fundamental freedom or right might be involved, it considered that the legality channel was the competent one to hear the matter.
On other occasions, it rejected the remedy on the merits, for example, when it concerned vehicular health restrictions. In this regard, the following judgment is illustrative, in which, echoing several precedents, it dismissed the alleged illegitimacy of the restriction on freedom of transit, and concluded:
"Under that line of reasoning, the Chamber considers that for the case under study, what was established in the judgments cited in the preceding paragraphs is perfectly applicable, in which it is ruled out that there is a violation of constitutional rights, since the State possesses the capacity to specially regulate the circulation of vehicles in a specific sector or zone, in order to make a public interest prevail. It must be noted that by virtue of this public interest, the State is legitimized to establish certain special rules regarding the circulation of automobiles, in pursuit of the well-being and common good of the people. (...).
In summary, in the case under examination, the claim of the amparo petitioner revolves around the same fact discussed in the aforementioned precedents, that is, the vehicular restriction applied by the central government. From that perspective, since that claim bears a close similarity to what has already been heard and resolved in this venue, and considering that there is no reason whatsoever to change the criterion previously expressed by the Chamber, the remedy must be rejected on the merits, as is hereby declared" (judgment 2020-6917; the emphasis is not from the original; in a similar vein, see judgments 2020-7538 and 2020-9509).
In relation to the health provision on the obligation to use masks, the Chamber declared that it was not in a position to assess the technical-health criteria that supported it:
"ON THE ADMISSIBILITY OF THIS REMEDY. In the sub lite, the petitioner claims that the measure of forcing all persons to wear a mask to control the coronavirus epidemic in Costa Rica is discriminatory and violates the right to equality because it is unreasonable and disproportionate. (...) Given the foregoing, it is clarified that the challenged determinations obey technical-health criteria and considerations of opportunity and convenience that the Chamber is not in a position to assess" (judgment 2020-12551; the emphasis is not from the original).
However, certainly, during the pandemic it admitted for processing other amparos in which health orders were challenged.
In one of them, it had the particularity that not only was the closure of a commercial premises at issue, but also the detention of a person for non-compliance with health restrictions, and, in resolving it on the merits, it noted that it was not for it to rule on the propriety of the health order:
"The petitioner considers her fundamental rights violated, since she is the owner of Restaurante Malibu No. 2, which has a restaurant license (patente), and officers of the Fuerza Pública and the Municipal Police, who appeared on April 1, 2020, at said establishment, closed the commercial premises, and illegally deprived her of liberty for supposedly having violated a health order (...). In the case at hand, the Court observes that the deprivation of liberty of the protected party, carried out at 8:08 p.m. on April 1, 2020, was executed in accordance with numeral 235 subsection a) of the Código Procesal Penal, since the officers of the Fuerza Pública considered that the amparo petitioner had been caught in flagrante delicto by allowing the consumption of liquor in the bar area of the aforementioned commercial premises, which contravenes the health measures adopted in the face of the COVID-19 coronavirus pandemic. (...) Thus, in the sub lite, it is not evident that the protected party was apprehended illegitimately during the initial processing of the proceeding, since the legal system provides for the possibility of apprehending a person when they are caught in flagrante delicto or contravention. Ergo, the proper course is to declare the remedy without merit.
On the other hand, the protected party requests that the closure seals placed on the commercial premises of her property be lifted. However, it is not for this Court to assess, in accordance with the infra-constitutional regulations governing the matter, the propriety or not of the aforementioned health order, nor to determine whether or not the alleged offense was committed. Furthermore, it should be noted that it is from the issuance of a health order that the initial act of the corresponding proceeding occurs" (judgment 2020-8302; the emphasis is not from the original).
It also admitted for hearing some arguments from persons deprived of liberty. However, in resolving on the merits, it equally abstained from hearing the grievances related to the suspension of prison visits and considered that the discussion about those health provisions should not be ventilated in this venue:
"[T]he respondent authority reports under oath—warned of the consequences, including criminal ones, provided for in Article 44 of the Law governing this Jurisdiction—that currently, all types of visits to penitentiary centers are suspended as a preventive measure in relation to the pandemic resulting from COVID-19, and that said provision was communicated to the entire imprisoned population, indicating that the procedures would remain suspended until they can be made effective. Regarding the suspension of the benefit, this Court has ruled that the referenced suspension is a provisional measure, executed in compliance with orders issued in a coordinated manner by the health and penitentiary authorities, with respect to which it is not for this Chamber to act as a legality instance and, based on that, assess the technical criteria used to determine the propriety of said measure" (judgment 2021-14529; the emphasis is not from the original; in an identical vein, see judgment 2020-10317).
In a similar vein, regarding a health order that ordered the closure of the Depósito Libre de Golfito, the Chamber reiterated that it is not another instance within the different administrative and judicial processes, and therefore it is not for it to hear the merits of this type of matter:
"Given the described scenario, first, it is necessary to indicate to the petitioner that the Constitutional Chamber is not competent to act as another instance within the different administrative or judicial processes that the administered parties undertake. In the specific case, the petitioner intends for this Court to review the eviction decreed since, in their view, it is improper in light of the fact that they consider they have more than twenty years of working in the Plazoleta del Depósito Libre de Golfito. However, that claim is expressly directed at questioning in this venue aspects that it is for the ordinary jurisdiction to elucidate, whether at the administrative or judicial level, since it will be there where, after evidentiary assessment, it will be possible to determine who has a better right over the property. In this case, it was proven that the petitioner does not have a municipal license (patente) to engage in stationary sales activity issued by the Municipalidad de Golfito, nor a permit from the Ministry of Health. Furthermore, it could not even be established as proven that they are one of the evicted persons, as extracted from the reports rendered under oath. In any case, as was assured under oath, those affected by the eviction accepted the health order without issue. That being the case, since this jurisdiction lacks competence to analyze the merits of the matter raised, the petitioner must raise their dispute in the ordinary judicial channel, after exhausting the administrative phase, and therefore, nothing more than the dismissal of the remedy is proper, as is hereby ordered" (judgment 2020-12161; the emphasis is not from the original).
Note by the way, that in this and in the other judgments just cited, after having given it processing, the Chamber warns in this phase that it is not for it to resolve on the merits and dismisses the remedy; but it is not a dismissal of the remedy because it understands that the petitioning party is wrong, but rather because it confirms that it is not appropriate for this court to rule on the merits in an amparo remedy. That is, with more elements, it says what it habitually states in the rejections.
Likewise, on another occasion, the Chamber reiterated that this type of health measure—being issued in the exercise of the Ministry of Health's own competencies—should not, in order to determine the reasons motivating the act, be analyzed by the constitutional jurisdiction. Also because the health order is the beginning of the administrative proceeding, so it is from its notification that the parties can question its basis and exercise their right of defense:
"As follows from the aforementioned judgment supra, the closure order issued by the administration is precisely the act that precedes the start of the process, so it is from that moment when the closure order is issued that due process must be strictly respected in the subsequent actions, which, as described above, was duly respected in the sub lite, by notifying the petitioner of the health order and indicating in it the remedies available and before which authority, so that they may proceed accordingly.
In the same manner, being measures established by administrative bodies under the protection of competencies that are their own, it is alien to the constitutional jurisdiction to analyze or determine whether there are reasons that have motivated their issuance, so the discussion of their propriety, viability, and duration escapes the cognizance of this jurisdiction (see, in this sense, judgment No. 2006-9685, of 1:17 p.m. of July 7, 2006).
That being the case, the proper course is to declare the remedy without merit with respect to this aspect, as is hereby ordered, upon verifying that the amparo petitioner was provided the due process that corresponds in these cases and was informed how they may proceed, if they so wish, to challenge the actions they claim" (judgment 2021-7471; the emphasis is not from the original).
That is, even though during the pandemic the Chamber gave course to several amparos challenging health orders, when resolving them it reiterated its long-standing jurisprudence.
(c) The case of Rolando Araya Monge The precedent resolving an amparo remedy filed on behalf of the presidential pre-candidate Rolando Araya Monge deserves particular attention.
It was filed in the context of the pandemic and was admitted for processing, but it is brought up especially because in it a violation of his freedom of expression was alleged and also because in the judgment resolving the present case, the majority invokes this precedent to illustrate a supposed case in which this Chamber did examine the legality of a health order (orden sanitaria). However, it is necessary to clarify that in that matter the majority of the Chamber did not properly examine the legality of the health order and the alleged illegitimate restriction on Mr. Araya Monge’s freedom of expression. That case was declared with merit by the majority based on the finding that there was an evidentiary problem on the part of the respondents, who neither safeguarded nor provided to the Chamber the videos of the protected person’s statements that led to the issuance of the health order. The Chamber did not assess the legitimacy of the restriction in light of the statements made by Mr. Araya Monge. The majority even pointed out that the Ministry of Health could very well issue restrictions of this type if a threat to public health had been proven. In that regard, the following was resolved:
“[T]he videos that served as the basis for the issued health order, the object of this matter, are not in the administrative file, which is only attributable to the Administration. Such a situation prevents the protected person from being able to question which expressions could have triggered the state reaction and thus defend himself. Now then, like any procedural burden, the party that fails to comply with it in the sub examine, the State, must face the procedural consequences of its omission.
The Chamber explains to the respondent authority that, when a person is reproached for the improper use of freedom of expression and limitations are imposed on such a right, there must inexorably be certainty as to the reasons for such exceptional measures, which can only be imposed within the framework of the cases permitted by the constitutional and conventional order. It is reiterated that freedom of expression is essential for the maintenance of democracy and, therefore, constitutes a cardinal aspect of our political system, such that any restriction on it must not only have an adequate positive-legal basis, either in domestic regulations or within the framework of international human rights law, but also, the competent authority is obligated to fully substantiate the factual basis on which it is grounded.
Due to the summary nature of the amparo proceeding, the Chamber could not assume an inquisitorial position and investigate which videos could have eventually served as a basis for the state action, especially because such activity would have the purpose of supplementing the omissions of the state authorities, which borders on the nature of a Tribunal that defends the individual against the State.
Finally, the Chamber warns that the foregoing would not have prevented a different assessment, had it been proven that the protected person’s statements endangered people’s health and the Administration’s action had been based on precise and well-founded positive legal reasoning. The Chamber reaffirms that the respondent Ministry can and must safeguard public health” (judgment 2021-1515; the highlighting is not from the original).
Therefore, due to the specific evidentiary circumstances of that case—rather, due to the absence of evidence—the granting of the appeal was ordered. But it bears reiterating that that judgment did not refer to the content of the health order. Thus, contrary to what is stated in the judgment, I respectfully consider that it is not a good example to illustrate the majority’s thesis. On that occasion, by the way, Justice Castillo Víquez and I dissented, based on the case law that has habitually affirmed that health orders are not subject to an amparo appeal (vid. the dissenting vote to judgment 2021-1515).
*** Based on a review of the case law, it is possible to conclude that historically the Constitutional Chamber has been very rigorous and restrictive in hearing amparo appeals in which health orders have been challenged, even when it has been alleged that they entail injuries to highly important fundamental rights and freedoms. To this end, it has relied on public health protection regulations that, in principle, legitimize the conduct of the Ministry of Health authorities; it has deemed that it is not appropriate to review the technical basis of the decision because these are highly complex evidentiary aspects that are not suitable to be elucidated in a summary proceeding such as amparo; and it has pointed out that the health order is the initial act of the administrative proceeding, such that, upon its formal notification, appellate mechanisms are activated, both within the administrative venue itself and in the contentious-administrative venue, which is the ideal avenue for controlling the legality of the administrative function.
Therefore, to be consistent with those solid jurisprudential lines, the proper course would have been for the Chamber to also dismiss this amparo appeal. Furthermore, as has been said, if this Tribunal has not heard other amparo appeals in which it was alleged that the challenged health orders violated other fundamental rights and freedoms of the utmost importance in the lives of individuals and communities (right to work, freedom of commerce, freedom of worship, and freedom of movement), it is not easy to find sufficient justification for having made a break with those lines in the specific case.
One final consideration is warranted on a matter that has been taken for granted: And on what basis has the Chamber issued that case law, if, as has also been indicated, Article 29 of the LJC does not expressly exclude health orders from among the administrative acts that could be challenged in an amparo?
The answer is as follows: First, based on Article 7 of the LJC, which grants the Chamber, by its nature as a constitutional tribunal, the competence to define (specify, demarcate) its own competence. Second, by virtue of Article 9 of the LJC, which allows it to reject an appeal outright, when it is manifestly inadmissible, or on the merits, when there are precedents. Note that, if, as the provision states, it can reject on the merits at any time, a fortiori—and in fact it does so, as has been seen—it can also reject an appeal as inadmissible at any time. Third, based on respect for the nature of the proceeding and the provisions of Articles 48 and 153 of the Political Constitution. And not only for that reason, but also in consideration of the fact that that Article 48 did not nullify Article 49 of the same Constitution. That is precisely what must now be analyzed.
(3) The suitability of the contentious-administrative avenue It is appropriate to show why the contentious-administrative jurisdiction is the framework contemplated and favorable for the proper handling of the present matter.
(a) Constitutional provision for control of the Administration Note that this constitutional case law on health orders, which has its origin in the early years of the Chamber’s history and had been strengthening over more than three decades, does not assert that these administrative acts are inherently legitimate and must remain exempt from control. In that regard, the Chamber has been consistent in determining that it is the ordinary jurisdiction’s responsibility to conduct a legality analysis to determine that the health order was issued in accordance with the Law. Indeed, precisely for that purpose, the Constituent Assembly established the contentious-administrative jurisdiction as an attribution of the Judicial Branch, with the object of guaranteeing the legality of the State's administrative function. Moreover, it is clear that respect for that legality can and usually has impact on the sphere of fundamental rights, not only property rights. Well then, the Constitution states:
Article 49. The contentious-administrative jurisdiction is established as an attribution of the Judicial Branch, with the object of guaranteeing the legality of the administrative function of the State, its institutions, and any other public law entity.
Deviation from power (desviación de poder) shall be grounds for challenging administrative acts.
The law shall protect, at least, the subjective rights and the legitimate interests of the administered parties.
Based on the content of that article, the Chamber has derived the constitutional principle of jurisdictional review of the administrative function and the fundamental right to challenge administrative conduct. On this point, it is pertinent to set down a somewhat extensive quotation, but its conceptual density warrants it:
“Currently, all Public Law doctrine admits the principle of jurisdictional review of the administrative function, that is, that any specific manifestation of the administrative function can and must be reviewed before a jurisdictional instance to verify its conformity with the legality parameter (…). This principle, in some constitutions, such as that of Costa Rica, translates, at the same time, into an individual guarantee or fundamental right, thus Article 49 of the Constitution establishes the contentious-administrative jurisdiction to guarantee the legality of the administrative function. In other words, in most legal systems, including the Costa Rican one, the citizen or the administered party has the guarantee that any administrative act of the public authorities will be reviewed by the contentious-administrative jurisdiction, even being able to annul (for absolute or relative nullity) that act when it transgresses the legal system (…). This Constitutional Tribunal has emphasized the constitutional rank held by the principle of jurisdictional review of the administrative function and the fundamental right to obtain effective judicial protection against administrative conduct that infringes the legality parameter, thus in Vote No. 9928-2010 (…) it considered the following:
“IV.- CONSTITUTIONAL REGULATION OF THE CONTENTIOUS-ADMINISTRATIVE JURISDICTION AND THE CONSTITUTIONAL ATTRIBUTION OF A COMPETENCE. The original constituent and the reforming power took care to define the material competence and, consequently, the extension and scope of two essential jurisdictions for the Social and Democratic Rule of Law. Indeed, in articles 10 and 48, the material competence of the constitutional jurisdiction is established, and in article 49, that of the contentious-administrative jurisdiction. The foregoing makes evident, in the will of the original constituent and the reforming power, the transcendence of both constitutional and legality control of public authorities in order to guarantee the effective enjoyment and exercise of the fundamental and human rights enshrined, respectively, in the constitutional text and the instruments of Public International Law. Without a doubt, such constitutional precepts embody what the doctrine has called the regal clause of the Constitutional Rule of Law. As regards, particularly, the contentious-administrative jurisdiction, constitutional Article 49, after the partial reform (…) of 1963, provides the following: (…) From the literal transcription of the constitutional precept, the following should be highlighted:
1°) The derived constituent or reforming power opted for a “judicialist” model of administrative justice, that is, entrusting to a specialized jurisdictional order of the Judicial Branch the competence and attribution of exercising oversight of the legality of the administrative function, that is, its substantial conformity or alignment with the legality parameter. This system offers considerable guarantees and comparative advantages for the justiciable party, such as specialization, which accompanied by the judicial career established infra-constitutionally represents a true guarantee of correctness and compliance with the constitutional imperative contained in Article 41 of the Constitution of a “full justice (…).
5°) The derived constituent opted for a mixed administrative justice, since the first paragraph, by defining the object of the contentious-administrative jurisdictional order—”to guarantee the legality of the administrative function”—must be complemented, ineluctably, with the final paragraph, by prescribing that the law shall provide protection, at a minimum, to subjective rights and legitimate interests—without distinguishing, as regards the latter, such that protection of both personal and collective interests, be they corporate or diffuse, is admissible—. Consequently, the contentious-administrative jurisdiction, according to the Law of the Constitution, was instituted both to ensure the legality of the administrative function and for the effective protection of the substantial legal situations of the administered parties against the public authorities. Thus, an objective and subjective role of the contentious-administrative jurisdiction is constitutionally combined” (judgment 2013-04491; the highlighting is not from the original).
Thus, the avenue provided for exercising control over administrative acts such as those challenged is the contentious-administrative one. It is now appropriate to pause to consider what is examined in that venue.
(b) Scope of the analysis in the ordinary avenue If the object challenged here (the health order and the related official communication) had been submitted to control in the contentious-administrative avenue, the validity requirements would have been assessed, that is, the substantial elements: both the subjective ones—competence, standing (legitimación) and investiture—and the objective ones—motive (motivo), content, and purpose (fin)—; and the formal elements—statement of reasons (motivación), procedure employed, and the forms of manifestation of the act. The efficacy requirements—proper notification—would also have been analyzed. Furthermore, bear in mind that in the specific case it is alleged that there is a deviation from power, which is why it was precisely appropriate to examine the motive, content, and basis of the administrative acts in light of the General Law of Public Administration (LGAP), which, where pertinent, provides the following:
Article 132.
1. The content must be lawful, possible, clear, and precise and encompasses all questions of fact and law arising from the motive, even if they have not been debated by the interested parties.
2. It must also be proportionate to the legal purpose and correspond to the motive, when both are regulated.
3. When the motive is not regulated, the content must be, even if in an imprecise manner.
4. Its adaptation to the purpose may be achieved through the discretionary insertion of conditions, terms, and modes, provided that, in addition to meeting the characteristics of the content indicated above, the latter are legally compatible with the regulated part thereof.
Article 133.
1. The motive must be legitimate and exist as it has been taken into account to issue the act.
2. When it is not regulated, it must be proportionate to the content, and when it is regulated in an imprecise manner, it must be reasonably consistent with the indeterminate concepts employed by the legal system” (The highlighting is not from the original).
To assess those elements and be able to conclude, with due support, that they are arbitrary administrative acts, it was essential to examine the basis of the health order and, therefore, the abundant technical evidence provided, coming from varied specialist opinions, which it was appropriate to contrast. Only in this way would it have been possible to determine whether, indeed, one is faced with the absence of one or several of the essential elements of the administrative act and of the alleged injuries to the appellants’ fundamental rights and freedoms.
That analysis, necessary to arrive at the conclusion of the supposed nullity of the administrative act, undoubtedly exceeds the summary nature of the amparo appeal. It bears reiterating that on hundreds of occasions this Chamber has warned that “the amparo appeal is a summary proceeding in which it is neither materially nor reasonably possible to enter into a complicated evidentiary system or an analysis of facts that goes beyond the acts challenged in themselves” and has insisted on “the impossibility of analyzing in this venue the discrepancy as to technical criteria or parameters” (vid. the uninterrupted line of the Chamber, at least from judgment 1997-2943, to date in the recent judgments 2018-0787, 2019-16757, 2022-7145, and 2022-10379, among others).
In the specific case, as has been said, a full technical-probative analysis was essential to assess the administrative conduct of the various parties involved—which are not exclusively the Ministry of Health authorities. All of the foregoing with the purpose of verifying that, as alleged, the challenged object (the health order and the related official communication) is tainted by nullity and is a manifestation of a deviation from power. But, in addition, in consideration of the object sought to be protected (freedom of expression and other fundamental rights), it was necessary to examine additional evidentiary elements to verify a certain, real, effective impact on the legitimate interests or subjective rights (whichever they may be) allegedly injured, since the point is to determine the causal link between the challenged act (the order and the related official communication) and the inflicted harm (the alleged injury to freedom of expression and to other rights claimed to be violated).
In short, since the appellants challenged the basis of the contested administrative acts, and the respondents argued that they were based on technical criteria, and the Chamber was able to verify that there was inherently highly technical and complex matter at hand, what was appropriate at this stage of review (in which it was assumed it was proper to address the merits of the matter) was to reiterate the robust constitutional case law and, in consideration of the nature of the amparo appeal, to dismiss the appeal insofar as it sought to annul the challenged acts.
This brings us to one of the key points of this dissenting vote. It has already been said that prima facie the appeal meets the basic procedural requirements to be admitted; however, it does not meet the latter point that has been explained: the analysis of the challenged object is not consistent with the nature of the proceeding. In other words, what is challenged (the health order and the related official communication), even if it is alleged to be arbitrary and injurious to fundamental rights and freedoms, is not suitable to be heard by the Constitutional Chamber in an amparo appeal, because its full and fair assessment exceeds the summary nature of this proceeding.
But the contentious-administrative avenue is not only the one provided for hearing this type of matter, especially considering the complexity and scope of the challenged acts in the present case, but it is an avenue that has multiple advantages, as will be explained immediately.
(c) Advantages of the ordinary avenue In the first place, standing (legitimación) is even broader, according to Article 10 of the Contentious-Administrative Procedural Code (CPCA), because those who invoke the impact on legitimate interests or subjective rights may file suit and may request the declaratory relief, recognition, or reestablishment of a legal situation, with or without financial compensation.
However, the appellants argue that, if the Constitutional Chamber had not admitted this amparo, their right to judicial protection would have been injured.
Although a subsequent heading will address the issue of standing in more detail, it is worth citing their words again and analyzing them in light of what is now relevant:
“If this case is erroneously considered a matter that must be heard in the ordinary venue because it is a legality issue, the journalists would be condemned to not having access to judicial protection, since we would lack standing to challenge the facts described here in the contentious-administrative venue because, as these are indirect attacks on freedom of expression and the press, the challenged administrative acts are not directed against us, but rather injure our rights indirectly. Thus, at most, we could act as interveners in an ordinary action, always subject to the fate of the principal party and with limited scope, especially regarding freedom of expression, which is our fundamental concern. The constitutional venue that protects our right to freely exercise journalism is the only suitable means to defend ourselves against the abuses that, indirectly, the respondents wield against us” (filing brief, p. 2; the highlighting is not from the original).
Such assertions depart from the provisions of the CPCA, because, as has been seen, the appellants here could have filed a lawsuit to object to the health order and the related official communication, alleging that those administrative acts injured their freedom of expression and the press. There was not, nor is there, any obstacle to doing so: neither due to the challenged object (the health order and the related official communication), nor due to the protected object (the rights and freedoms allegedly violated), nor due to standing (which could even be based on legitimate interests).
Thus, they would indeed have had standing not only to appear in defense of constitutional rights, but also legal ones; not only personal rights, but also property rights; not only subjective rights, but also legitimate interests. Moreover, and this is especially relevant for the case before us, they could allege not only direct injuries but also indirect and reflective injuries to any subjective right or legitimate interest.
In the second place, in accordance with Article 31 of the CPCA, it is not necessary to exhaust administrative remedies to resort to the contentious-administrative avenue, just as it is not required to file an amparo appeal, pursuant to Article 31 of the LJC. Thus, the appellants could very well have gone to that avenue, just as they did when they came to the Chamber, without waiting to learn of the decision on the appeal filed by the company owning the property.
In the third place, the contentious-administrative jurisdiction has broad powers to exercise robust and effective provisional relief (justicia cautelar). Thus, in that avenue, they could have requested the immediate suspension of the act, something—incidentally—they did not request before the Constitutional Chamber. Such suspension could have been granted with or without prior hearing. So provides Article 19 of the CPCA, which, where relevant, states:
Article 19. 1) During the course of the proceeding or in the enforcement phase, the respective tribunal or judge may order, at the party’s request, the appropriate and necessary precautionary measures (medidas cautelares) to protect and guarantee, provisionally, the object of the proceeding and the effectiveness of the judgment. 2) Such measures may also be adopted by the respective tribunal or judge, at the party’s request, before the proceeding has begun.
Furthermore, the jurisdictional body that exercises that provisional relief has broad discretion to impose on the parties various types of obligations, whose compliance it shall supervise:
“Article 20.- The precautionary measures may contain the conservation of the state of affairs, or else, anticipatory or innovative effects, through the regulation or provisional satisfaction of a substantial factual or legal situation. By means thereof, the respective tribunal or judge may impose, provisionally, on any of the parties to the proceeding, obligations to do, not to do, or to give. // If the measure involves active administrative conduct or omissions with discretionary elements, or defects in the exercise of its discretion, it shall be subject to the provisions of section 128 of this Code.” Thus, the contentious-administrative judge is even empowered to modulate the suspension of the challenged act, determining whether it is granted totally or partially and, in the latter case, whether conditions are imposed. For example, it could have indicated that the suspension did not apply to the holding of sporting events, which usually have a less massive attendance than concerts.
The appellants could have alleged the serious damages or injuries, current or potential, deriving from the acts accused as arbitrary, and the jurisdictional body had to conduct a weighing process considering the public interest and that of third parties, and the rights that the respondents claim to protect (the life, health, and integrity of the users of the property and of the neighbors).
Regarding the precautionary proceeding, the rules provide for short time limits and, at the same time, adequate conditions for the body to have all the necessary elements for judgment.
This provisional relief not only has high-quality regulatory provisions but is also of proven promptness and effectiveness. To demonstrate this, many decisions could be cited. It suffices to note that just in recent weeks, two precautionary measures against governmental acts have been granted.
There is another advantage of the contentious-administrative avenue that stands out, especially when it handles a non-summary proceeding: that of offering the possibility of having an exhaustive examination of all types of evidence, pursuant to Article 82 of the CPCA.
The procedural advantages and guarantees offered by the contentious-administrative avenue for hearing a matter such as the present one do not end there. If the objection is that its greatest disadvantage is its slowness, Article 69 of the CPCA provides a solution that contributes to avoiding it: the declaration of preferential processing (trámite preferente), which establishes much shorter time limits and prerogatives to accelerate the proceeding.
Note that this is not a solution to suspend the effects of the act, since provisional relief would serve that purpose, but rather to resolve the dispute more expeditiously. Thus, the matter could very well have reached judgment within a reasonable time, despite its complexity, precisely because—in consideration of the challenged object, its very impact, and the rights sought to be guaranteed—there were clear possibilities for it to follow that preferential processing.
(1) Framework of the problem As I have said, Article 48 of the Political Constitution establishes universal standing, and this is reflected in Article 33 of the LJC, which states that “any person may file the amparo appeal.” This has been understood by the Chamber as the regulatory provision of universal active standing, which includes vicarious active standing. In other words, those provisions establish that any person may file an amparo appeal and that this includes the possibility of filing it on behalf of another person.
But, of course, this is from the logic that, if it is filed on one’s own behalf, it is because the challenged act is injurious to oneself. Likewise, if it is filed on behalf of another person, it is because the challenged act is injurious to that other person.
However, in the present amparo, we are faced with an atypical case, because the appellants claim to have standing to file the amparo appeal in which they challenge administrative acts that do not fall upon them, but rather upon a property owned by a company that belongs to the same business group that owns the newspaper for which they work.
They claim to have the right to be granted annulment of the health order and the related official communication—which they deem arbitrary—as a means for the enjoyment of their freedom of expression, which they consider injured.
Therefore, although, due to those regulatory provisions, standing problems almost never arise in amparo appeals, they do in this one. And, it seems that they are aware of this, since in the filing brief they state:
“…as these are indirect attacks on freedom of expression and the press, the challenged administrative acts are not directed against us, but rather injure our rights indirectly” (filing brief, p. 2).
Thus, the key to the appellants’ argument to request that the Chamber admit the present appeal and rule on it is the link they assert exists between the health order and the alleged injury to freedom of expression.
It is evident that in order to consider that connection proven, it is not enough to show the mere business link between the two business units, but rather the dependence of the newspaper (where they exercise their freedom of expression) on Parque Viva (which is the subject of the challenged matter).
(2) Regarding the argument that they would only have standing before this Chamber The appellants not only maintain that they have standing to bring an amparo action, but they even go so far as to affirm that only here, before this Chamber, do they have standing, because in the ordinary jurisdiction they could only be coadjuvants, and freedom of expression, which is what they are interested in having protected, could not be guaranteed:
"If this case is erroneously considered a matter that must be heard in the ordinary venue because it is a matter of legality, the journalists would be condemned to having no access to judicial protection, since we would lack standing to challenge the facts described here in the administrative litigation venue because, in the case of indirect attacks on freedom of expression and the press, the challenged administrative acts are not directed against us, but rather harm our rights indirectly. Thus, at most, we could act as coadjuvants in an ordinary action, always subject to the fate of the main party and with limited scope, especially regarding freedom of expression, which is our fundamental concern. The constitutional venue that protects our right to freely practice journalism is the only suitable means to defend ourselves against the abuses that, indirectly, the respondents wield against us" (ibid., p. 2; emphasis not in original).
Regarding these assertions, in my opinion, two objections may arise. The first, as has already been seen, is that they seem unaware that in the administrative litigation jurisdiction, the appellants would indeed have even broader standing, because pursuant to Article 10.1 of the CPCA, they could allege not only a subjective right but also a legitimate interest. The second is that they disregard the fact that this Chamber is not the only one that can protect fundamental rights. To say otherwise, to understand that this Chamber is the only instance for guaranteeing those rights, would be tantamount to maintaining that the ordinary jurisdiction only protects patrimonial and legal rights. In essence, it would be to affirm that the Constitutional Chamber has a monopoly on the protection of fundamental rights, when the truth is that it only has a monopoly on the protection of fundamental rights through the amparo remedy. I will now proceed to explain, in a tight synthesis, what I have just said.
Fundamental rights were not recognized upon the creation of the Constitutional Chamber; rather, by hearing the amparo remedy, this Chamber has enabled their guarantee to be provided with great efficacy and promptness. What other jurisdictional avenues exist for protecting fundamental rights? The ordinary avenues, provided for in Articles 153 and 49 of the Political Constitution, already cited. Indeed, I believe that it is not without reason that the Constitution-maker wanted that provision, together with Article 48—dedicated to the amparo remedy and habeas corpus—to culminate Title IV, entitled "Individual Guarantees," as if to emphasize that this title not only establishes the substantive fundamental rights but also the mechanisms for protecting them jurisdictionally.
The Chamber protects fundamental rights (with the exception of personal liberty and integrity, which are heard in habeas corpus) through the amparo remedy, which is an expeditious and effective avenue; and only the Chamber has jurisdiction to hear that remedy provided for in Article 48 of the Political Constitution. But it is by no means the only venue where fundamental rights are protected. If one were to say that the ordinary judge does not protect fundamental rights, we would be affirming that the judge only applies the law and regulations. On the contrary, the ordinary judge is among the first called upon to safeguard and enforce the fundamental rights of individuals. Furthermore, this Chamber itself, through its case law and often in view of legal reforms that provide for other channels, has progressively delegated to other bodies the hearing of matters that were previously only heard through the amparo remedy. That is why I have said that the Chamber does not have a "monopoly" on the protection of fundamental rights.
In addition to having standing to be plaintiffs, alleging the violation of subjective rights and legitimate interests, they could also have requested the corresponding restitution and compensation. All in accordance with Article 10 of the CPCA already cited.
It was not necessary for the company as such to file a lawsuit in the administrative litigation venue. They themselves could have resorted to that venue to protect freedom of expression by alleging, as they do here, that the administrative acts are arbitrary, that they are the materialization of an abuse of power, and that they entail an injury to that freedom. It seems to me that this is precisely what would mean that, in the event this Chamber had declared this amparo petition without merit, the admissibility of a petition filed by the appellants before the Inter-American Commission on Human Rights, with a view to the matter subsequently being brought before the Inter-American Court of Human Rights, would have encountered a serious obstacle, since the domestic remedies referred to in Article 46.1 of the ACHR had not been exhausted, nor could Article 46.2 of that Convention have been invoked. Unfortunately, an analysis of this interesting topic exceeds the scope of this dissenting vote.
Now, having said this: that the appellants would have standing to resort to the administrative litigation venue, even though the company for which they work had not done so; and that they could be plaintiffs, not mere coadjuvants; and that in that venue they would be protected not only regarding subjective rights (in this case, freedom of expression) but also legitimate interests; and that they could obtain for themselves the restitution they request (and even compensation if they had requested it), the next step is to analyze whether they indeed have standing to bring an amparo action before the Constitutional Chamber.
(3) Allegations of the appellants regarding the basis for standing The appellants argue that there is a connection between the challenged matter (the sanitary order and the related official communication) and the matter they seek to protect (their freedom of expression). This, despite the fact that these acts relate to a property that does not belong to the newspaper nor is dedicated to anything related to the journalistic sphere.
But on what do they base that connection? On the fact that the acts are motivated, not formally, but in their ultimate intent, by a desire to destabilize the Grupo Nación, which owns both companies: Parque Viva and the newspaper La Nación.
"The administrative acts used to exercise indirect or veiled censorship through economic pressures related to the medium in which we work lack any technical basis and pursue no legitimate purpose, but rather a reprisal for the newspaper's critical line and an attempt to silence it" (ibid., p. 1).
The appellants argue that the injurious actions by the President of the Republic occur on two fronts: casting doubt on the financial solidity of Grupo Nación and the closure of Parque Viva. Regarding the former, they affirm:
"It is worth noting that no financial authority has expressed the same doubts; Grupo Nación maintains an 'A' rating and the company's assets double its liabilities. The financial statements are public, because Grupo Nación is registered on the stock exchange, and they show the reserve of the necessary resources to cancel the next maturity" (ibid., p. 5).
They collect statements made by the President at a press conference:
"La Nación's profitability is in free fall, and that means it is incurring constant, constant, constant losses. And then one wonders, if that trend of losses continues, I don't know, maybe they have a magic wand and manage to lift the cash flow. What happens? It is the duty to protect your grandmother's pension. What happens if La Nación's cash flow is choked off and the property isn't there because it's somewhere else? (...) ' the president stated" (ibid., p. 5).
They refer to the fact that the President urged the Caja Costarricense de Seguro Social to request information from Sugeval regarding the payment capacity of Grupo Nación:
"As is clear, the spectacle had no other purpose than to harm Grupo Nación, casting doubt on its finances, in order to curtail our freedom of expression because 'the usual practice of institutional investors' is to consult the issuer directly and to rely on information published by mandate of law.
Never before had a president personally concerned himself with the fate of a public institution's investments which no financial authority had questioned. Never before had a good part of a presidential press conference been dedicated to reporting that questions were posed to the issuer through Sugeval, instead of doing so directly. And two days later, the closure of Parque Viva would come, undoubtedly to see 'if La Nación's cash flow is choked off'" (ibid., p. 6).
They accuse the illegitimacy of those statements in light of judgments of the Inter-American Court of Human Rights, and specifically, they argue:
"In our case, as is public and notorious, in addition to the constant use of the word 'scoundrel,' an insult to delegitimize, intimidate, and encourage the rejection of the press among the government's followers, which is in itself dangerous, the references to the financial health of Grupo Nación fall short of the 'reasonable, though not necessarily exhaustive' verification of 'the facts on which he bases his opinions,' and the duty to 'do so with even greater diligence than that employed by private individuals, due to his high office, the broad reach and potential effects that his expressions may have on certain sectors of the population, and to prevent citizens and other interested persons from receiving a manipulated version of certain facts'" (ibid., p. 6).
In their argumentation, all of the foregoing seems to have the purpose of offering context to show the second front of actions they consider injurious: the closure of Parque Viva, effected through the challenged acts.
"In the Public Administration's actions aimed at closing Parque Viva, there is a clear abuse of power to violate human rights. The measures adopted do not seek to satisfy public interests, but rather spurious interests consisting of retaliating against their right to inform. This [is] the true purpose of the administrative acts adopted. These acts not only affect the company that owns Parque Viva economically, but also, in addition, the information medium where we work and, thereby, harm our right to inform. This is the true purpose pursued by the administrative acts against which I seek amparo" (ibid., p. 7; emphasis not in original).
Along the same lines, they add:
"If the community celebrates anything, it is that the government's abuse of power shed light on a long-standing problem that will not be resolved by the arbitrary administrative acts indicated in this petition. The ineffectiveness of those acts distorts their alleged public purpose and demonstrates that the sole purpose is to affect Grupo Nación's finances in reprisal for the free exercise of journalism by us, the appellants, in an attempt to silence us in the future, as the President promised" (ibid., p. 13; emphasis not in original).
They then add a passage that continues along the same lines as those just cited:
"The legality of the described actions must be discussed, by whoever has standing to do so, in the appropriate jurisdiction, but together with the President's campaign promise, the arbitrariness noted leaves no doubt about the persecutory purpose against the newspaper where we work and its character as a reprisal, with abuse of power, against the news and editorial line with serious injury to the right of freedom of expression. Of course, the pressure exerted on the company's finances puts future journalistic practice at risk and invites understandings that compromise it" (ibid., p. 14; emphasis not in original).
In a subsequent brief following the report given by the President of the Republic, in the same vein, the appellants affirm:
"'Grupo Nación cannot be required, like any other Costa Rican business, to comply with the parameters of the law because immediately, in its view, it becomes an attack on press freedom,' says the President's report. We, the appellants, never alleged such an absurdity. Grupo Nación, and we as individuals, are subject to the laws. We do not seek an odious and undemocratic exceptionality. We, the appellants, maintain that in this specific case there is an abuse of power to indirectly limit our freedom of expression in fulfillment of the threat made during the political campaign, to which the presidential report makes no reference even once. And at this point it is worth noting the fallacy of the allegations about the fulfillment of the duty to protect social interests with the closure of Parque Viva. It is not that the appellants use freedom of expression as a pretext to exempt Grupo Nación from complying with the law; it is that the President and the Minister of Health use the fulfillment of duty as a pretext to materialize the purpose of silencing us, expressed in the electoral campaign and duly documented" (appellants' brief of August 17, p. 9; emphasis not in original).
Previously, they had referred to the origin of that relationship between the newspaper La Nación and Parque Viva, which is worth citing again:
"Parque Viva is one of those structures [that allow us to exercise independent journalism], in the case of Grupo Nación. It was created, precisely, to diversify the company's sources of income and compensate for the loss of income experienced by media worldwide due to the migration of advertising to internet giants like Google and Facebook. This fact is public and is recorded in various statements by the company and its representatives since at least 2013. In the shareholders' report for the 2013-2014 period, visible on the nacion.com page https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html, the executive presidency affirmed: '...the changes in the industry, in media consumption, and in the national competitive environment will continue to challenge the printed media business. Aware of that landscape, we designed, two years ago, a strategy to face it. While new initiatives mature, especially in the digital sphere, every journalistic medium will require a supplementary source of income, less dependent on advertising sales. Consequently, as we announced last year, we invested significant resources and efforts in the creation of Parque Viva, in La Guácima de Alajuela'" (filing brief, p. 4; emphasis not in original).
As can be observed, this paragraph speaks of the connection, but it does not prove the dependence: it only refers to the justification for the decision to venture into another commercial line.
The appellants do not show data that would allow one to observe since when and in what percentage the alleged dependence occurs. That is, they do not provide evidence that makes it possible to establish a direct and unequivocal relationship that would allow one to affirm, without a margin of doubt, that the sustainability of the newspaper La Nación depends on Parque Viva.
Indeed, they only make an analytical reference to the financial statements of Grupo Nación, affirming its payment capacity, and explain that assets are much higher than liabilities, a fact that is indeed reflected in the audited consolidated financial statements report for 2020-2021. In 2020: Assets 68,883,898, Liabilities 27,661,566. In 2021: Assets 68,555,759 and Liabilities 28,288,573.
In a subsequent brief, they do include the words of the executive director of Grupo Nación in which he explains what the expectations are for Parque Viva:
"It is worth noting that the day after the conference on the bonds, the executive director of Grupo Nación, Pedro Abreu, gave ample public explanations and mentioned the role of Parque Viva in the company's cash flow. A day later, the government precipitously closed Parque Viva.
Abreu stated, among other things: 'It is said that La Nación only accumulates losses. It is very important to distinguish between accounting losses and cash flow generation. We are accumulating accounting losses, it is true, but we are generating cash flow. This means that, between operations and financial investments, we are generating sufficient cash flow to pay the debt, to pay all the interest, to pay all the investments, and, in addition, we are saving to face future maturities. That can be seen in our financial statements, which are public,' Abreu affirmed, adding: 'Parque Viva has been halted for two years (due to the pandemic). So, the numbers we have been showing, where cash flow has been positive, are with Parque Viva closed. Since March 2022, Parque Viva has been functioning, it will begin to generate cash flow and will begin to contribute to that flow we were already generating. So, this year's numbers will look much better than last year's. We believe that will be the trend from now until 2025.' (See attached evidence). The next day, Parque Viva was closed. (See publication 'Chaves attacks La Nación with distorted data')" (Appellants' brief of August 17, p. 9).
It is therefore of interest now to observe whether the judgment adequately substantiates that dependence, which would be the root of the standing that allows the appellants to validly bring an amparo action to annul acts that do not directly affect them.
(4) Considerations of the judgment regarding the dependence In reality, the judgment does not properly address the problem of standing. It takes such dependence for granted with arguments that only aim to explain various phenomena that I do not question and which are, in themselves, public and notorious facts, without real incidence in proving that dependence in the specific case.
First, the phenomenon of the migration of press readers to the digital format:
"Traditional media, mainly printed media, have suffered in recent years a sharp economic decline with the arrival of the internet, the fall in advertising investment, and its migration to large digital platforms" (judgment, eighth whereas clause).
That is something unquestionable, but it is only useful for showing the context in which the newspaper La Nación and all press media operate.
Next, they explain that this phenomenon has led to another: the reaction of the owners of these companies to that change in circumstances:
"By virtue of the foregoing, media have found themselves in the need to innovate and seek new formats, proposals, or mechanisms to find new income (and audience) that allow, in turn, to finance journalism and the medium as such, especially investigative journalism, which is costly. In other words, they have had to implement new commercial strategies or put into operation mixed models in order to 'make media profitable,' as it has been called by some. So much so that many media, today, do not generate money with their main or traditional activity, but with other activities that allow them to subsist" (ibid.).
It is recognized that actions have been directed in several directions: innovating and seeking new formats, using other income mechanisms to finance journalism. It is within this last type of action that the investment made by Grupo Nación in acquiring and launching Parque Viva would fall, as they understand that "many media, today, do not generate money with their main or traditional activity, but with other activities that allow them to subsist." Up to this point, the only thing that can be clear is that the original business unit of Grupo Nación (the newspaper) needs the new business unit (Parque Viva). But, just like the appellants, the judgment does not concern itself with showing to what extent and how that dependence occurs.
Afterward, the judgment points out:
"By way of example, media have modernly resorted, among others, to the following formulas or strategies: a) some printed media have created their own digital platform and have established subscription models or what has been called 'pay-per-view'; a formula that large media such as The New York Times or The Guardian have successfully resorted to. b) There has been recourse to the creation of higher quality and exclusivity content (on specific topics of interest to certain sectors), which makes the search for and access to them attractive. c) Use has been made of podcasts (a series of episodes on various topics recorded in audio and transmitted online, which for example the medium The New York Times has resorted to through its program The Daily). d) The organization of events, forums, or congresses on certain topics with the help of experts and personalities has been promoted, for which, in turn, a fee is charged for participating or entering (the media Texas Tribune or The Economist have been characterized by organizing events of this type). e) Recourse is also made to the sale of pieces to third parties (large media, taking advantage of the enormous experience and structural support they have, cover certain specialized information, process it, and sell it to others, even their own competition). f) Use has been made of the so-called Brand licenser, which allows media to license their brand for third-party companies to use in their products or services (e.g., National Geographic sells products related to travel and adventure, books, and has even installed stores related to its line of coverage)" (ibid.).
As can be observed, this is merely a list of activities that different press media or printed magazines have carried out to innovate the way of disseminating ideas or news, in this new and challenging context. But none of those activities relates to the diversification of investments by the owner group of the communication company for the purpose of obtaining financial resources to sustain the press medium. In the present case, however, the appellants are pointing out that the original business unit of Grupo Nación (the newspaper) depends for its subsistence on another business unit that has nothing to do with the exercise of journalism or communication (Parque Viva).
Immediately, the judgment delves into the phenomenon of holdings or conglomerates of companies in the following terms:
"Likewise, it is worth highlighting that, as part of those formulas that media have had to resort to in order to diversify their sources of income and sustain themselves financially, recourse has also been made to the acquisition of or adhesion to other companies whose main activities are directly related or not to journalism (thus forming what have been called holdings or economic interest groups). This type of phenomenon in particular has manifested itself in other latitudes and also at the national level" (ibid.).
It then enters a realm closer to that of the case before us, since it deals with business groups whose original business unit is the communication medium, and which diversify investment by acquiring "companies whose main activities are directly related or not to journalism." Grupo Nación falls within that phenomenon. Well, that is not in question. It is a public and notorious fact, but it does not reflect the real dependence. It is one thing for that group or any group to wish to diversify its investment, and quite another for it, in doing so, to want to maintain a business unit that is inherently loss-making. In other words, the very purpose of holdings is not to maintain within their fold a financially unviable business unit, but rather to increase income in diverse activities and minimize the risks involved in investing all capital in a single business unit.
Next, the judgment collects examples of holdings that have investments in the field of communication media. It begins with the following:
"Thus, by way of example, there is the case of the newspaper The Boston Globe and other media (owned, in turn, by the American newspaper The New York Times), which were acquired in 2013 by John Henry, owner of the Red Sox baseball team and the Liverpool FC soccer team, with the purpose of facing the substantial economic losses suffered by the former, caused by the migration of readers and advertising to the internet" (ibid.).
It is a good example, although in the reverse direction: it is the owner of a non-journalistic company that acquires two journalistic companies. But it does not seem that Mr. Henry could claim an injury to freedom of expression in the event that his respective sports teams were sanctioned with substantial fines. In any case, let us remember that here we are primarily analyzing the issue of financial dependence, which would be a condition for determining the alleged connection between the administrative acts and the injury to freedom of expression. Thus, it is only worth saying that this example only serves to point out that, indeed, today as never before, journalistic activity in written format is less profitable than that of other business units, regardless of their line of business, and that these others can serve as financial support, since the owner of both is the same and may wish to subsidize the one that is not profitable.
The judgment continues:
"Likewise, it is noted that Warren Buffet, through his holding Berkshire Hathaway (a company wholly or partially owning the shares of several business groups in textiles, insurance, automobiles, beverages, etc.) in 2012, purchased sixty-three newspapers from the Media General Group in the southeastern United States, which were also suffering from low profitability. Among the newspapers acquired by Buffett are the Richmond Times of Virginia, the Winston-Salem Journal of North Carolina, and the Morning News of Florence of South Carolina" (ibid.).
Again, the example is closer, but, also again, it is the reverse of the case before us: the business group that already had its investment diversified in different activities, although none in the field of communication, according to what is stated in this passage, acquires "newspapers (...) which were also suffering from low profitability." Since the example is similar, the comments would also be similar. It is therefore appropriate to transcribe what the judgment immediately goes on to say:
"Likewise, there is the case of Jeff Bezos (founder and owner of Amazon, a giant e-commerce company), who in 2013 purchased The Washington Post, with the aim of ensuring its survival, after this communication medium likewise suffered the onslaught of new technologies, the decline of audiences and advertising income. Note that, in this particular case, despite the fact that the communication medium—according to what has been announced by, among others, the Spanish newspaper El País—will not be integrated or properly adhered to Amazon, its acquisition forms part of that same commercial strategy aimed at helping it to continue functioning" (ibid.).
Indeed, this means that the owner of a business unit unrelated to the media sphere invests in one of them, but does not incorporate it into his original financial scheme. The truth is that it is not known whether that integration also occurred with Mr. Henry or Mr. Buffet, and in itself it is not relevant. What is important is that these are examples in which the financial viability of communication media occurs thanks to their acquisition by owners of companies with other, more profitable commercial lines.
In the present case, it is a group whose original business unit is a newspaper, which is claimed not to be inherently profitable, and which ventures into another commercial line: it acquires another business unit whose activity is not developed in the field of communication. This is pointed out by the judgment:
"In Costa Rica, the use of this type of mechanisms or formulas is exemplified through Grupo Nación S.A.
(corporation of which the newspaper La Nación forms a part), which decided to purchase the facilities of what used to be the Autódromo La Guácima and converted them into the event center called Parque Viva, as a means of diversifying the company's sources of income and thus compensating for the loss of profits suffered due to the migration of advertising to internet sites" (ibid.).
That, as I have said, is a public and well-known fact, and besides, it is an absolutely legitimate financial decision.
The judgment adds:
"It is understandable that within the current situation where print media require financial support due to the loss of some of their traditional sources of income, other types of enterprises or companies are created or established—under the protection of the legal system—that provide them with resources and economic or financial sustainability to maintain the former. The case of Grupo Nación S.A., and the acquisition of the now-called Parque Viva referred to above, represents a clear example of this" (ibid.).
I agree that it is understandable, and it is taken as true that Grupo Nación sought this when venturing into this new commercial line of business. That is, the acquisition of Parque Viva goes in that direction: diversifying investment so that the group as such would have sufficient returns. I even concede that such diversification intended to make the existence of the newspaper itself financially viable. But the judgment does not deal with showing the financial dependency in real terms, which would allow verification of what the petitioners claim, who—as has been seen—have not proven it either.
The judgment immediately picks up what it was saying and adds:
"This type of financial structures, like the rest of the examples cited above, become a source of income or resources that contributes to or makes possible the exercise of journalistic work, given that the income the former generates allows underwriting or balancing many of the expenses demanded by a media outlet. Therefore, it is a reality that, if this type of mechanisms or propositions are affected in an illegitimate or arbitrary manner, the exercise of journalism is, in turn, harmed; in essence, freedom of the press, as a manifestation of freedom of expression" (ibid.).
Again, it is not overly difficult to admit that the diversification of investments allows compensating the losses of one business unit with the profits of another; but here, in the present case, before beginning to argue about the arbitrariness of the challenged acts, it is necessary to prove, demonstrate, clarify that the newspaper La Nación does indeed depend financially on Parque Viva. And, after this exhaustive analysis, it is my opinion that the judgment omits reference to this very important point, which is the key to the entire argumentative arc of the petitioners, without which they lack legal standing.
This recital of the judgment ends with a rather long paragraph, but one which, due to its importance and consistency, deserves to be transcribed as well:
"Now, the indirect (or veiled) impact that may materialize on freedom of the press, by virtue of the measures adopted against said financing structures, is an aspect that must be weighed in each specific case, it being clear that not every administrative act or conduct that imposes a burden or establishes negative-effect content regarding those entities implies an indirect injury as indicated. In effect, it should be noted that like any administered person, these structures are affected by and subject to the legal rules that regulate, specify, and delimit the exercise of their respective economic activities. In that sense, their operation must satisfy and comply with the regulations specific to their activity, which includes possessing the respective administrative authorizations for the deployment of the commercial matter. Hence, they must have the respective permits that verify compliance with urban planning and municipal building regulations (within these, those pertaining to Ley 7600), health, safety regulations, as well as the commercial licenses and patents due in each case. Additionally, comply with the pertinent tax regulations. Likewise, in the course of their activity, like any person, they are subject to the inspection and control of the exercise of the activity, in order to verify that they maintain the level of compliance by virtue of which the commercial activity was authorized for them. In this dynamic, the neglect of the conditions of exercise imposed by those sectorial regulations could well lead to the imposition of administrative measures of restriction or sanction. The foregoing, provided that the specific exercise of that manifestation of administrative police power can be considered legitimate, based on the due and timely proof of the non-compliance premises that would give rise to each legal consequence, and that this decision is in accordance with the merit of the case's background and the applicable Legal System (relationship between the objective material elements, motive-content) and that it is congruent with the protected public interest. In those cases, where the administrative function is established as the legitimate exercise of administrative powers seeking the protection of the public interest, a sort of indirect violation of freedom of the press could not be postulated, but rather, the lawful and foreseeable consequence of the neglect of public order rules to which every administered person is exposed. By contrast, when those measures find no support in the various factual or legal premises that, in each case, the normative plexus defines as a necessary prerequisite (conditioning premise) for adopting a particular sanctioning decision or one of negative content, or when the content of the act adopted based on the verification of those conditions is excessive, disproportionate, unreasonable in relation to those premises, antagonistic to the public interest or, in general, contrary to legality (in the broad sense), one would be facing an administrative behavior that could imply a misuse of power (art. 113 LGAP) and implies, as has been indicated, an indirect or veiled injury to freedom of the press. It is a careful analysis of the particularities of each case, as a parameter for a neutral, equitable, and objective assessment between fundamental freedoms and rights within a framework of a Rule of Law and the exercise of administrative powers that have, by principle and purpose, the protection and satisfaction of the public interest. Ergo, not every act that negatively affects the sphere of a financial structure implies an alteration to the freedom under examination, just as not every administrative control function regarding them can be understood as legitimate, without further consideration. In this way, in cases like the present one, where an indirect violation of freedom of expression and press is alleged, resulting from control activities of the Health Administration, it falls upon this jurisdictional body to weigh the particular nuances, to define whether it is a due or undue exercise, as a sine qua non condition for a value judgment regarding the existence or not of the duty to validly tolerate those administrative impositions" (ibid.; the emphasis is not from the original).
Said in other terms: each business unit must comply with the legal system, and the Administration can impose sanctions when it deems this is not the case; but these must be duly grounded. To determine whether they are, it is necessary to examine the relationship between the objective material elements (motive-content) and their congruence with the protected public interest.
Precisely that examination is what the Chamber is expected to conduct in the subsequent recitals, for as is rightly stated in that passage: "Not every act that negatively affects the sphere of a financial structure implies an alteration to the freedom under examination, just as not every administrative control function regarding them can be understood as legitimate, without further consideration." Here in this epigraph of the dissenting vote, an analysis is being conducted to confirm whether the procedural prerequisite called legal standing is present, under the understanding that the dependency of the newspaper, not the simple financial linkage, is a condition without which it cannot be affirmed that there is a legal connection between the challenged acts and the accused injury. That is, that such a connection is the requirement for holding said legal standing. But in the analysis on the merits, as that passage of the judgment correctly points out, another condition must be met for the injury to be declared: that the act is arbitrary. However, as I have shown in the previous epigraph, the complexity those acts contain leads to the conclusion that their knowledge is not appropriate for an amparo appeal, which is summary in nature.
Thus ends that recital in which precisely the analysis and verification of the alluded dependency is lacking. One can only conclude that Grupo Nación expanded its range of businesses, but it is not demonstrated that the operation of the newspaper where the petitioners work depends financially on Parque Viva and that, therefore, there is merit to examine whether their freedom of expression has been somehow affected by acts that fall upon that other business unit.
(5) The financial statements and the alluded dependency Now, in the filing brief there appears a link to the financial statements of Grupo Nación. I propose to make a brief analysis of these regarding the determination of the alleged dependency.
The mentioned link leads to the website where the audited consolidated financial statements, the reports of the Presidency, and the reports to shareholders appear. This last one also includes the previous two. The quarterly financial statements are also recorded.
Regarding the last period closing in December 2021, the table titled "La Nación, S. A. and subsidiaries. Assets, liabilities, and results by segments as of December 31, 2020, and for the period ended on that date (expressed in thousands of Costa Rican colones)" is of particular interest, as well as the similar table but as of December 31, 2021, because they reflect in various columns those items by business unit. Before those tables, the following information appears:
"As of December 31, 2021 and 2020, the information on assets and liabilities is presented, as well as the financial performance of the main operating segments that the Group has, which comprise the activities developed by: a) Media - Includes income from the daily newspapers La Nación, La Teja and the weekly El Financiero, as well as income from printing for third parties, production and distribution of papers and cardboard, b) Digital - Comprises the results from the products El empleo and Yuplón, c) Parque Viva - Business that revolves around the administration of venues and creation of entertainment platforms, d) Portfolio, considers investments at fair value with changes in other comprehensive income held abroad through its subsidiary Desarrollo Los Olivos, S.A. and investments in local financial instruments and investments in associates and other participations".
In those tables, the following is indicated. In 2020, the consolidated losses of Media, to which—according to the cited text—the daily newspapers La Nación and La Teja and the weekly El Financiero belong, were ¢ (1,772,204); and the consolidated losses of Parque Viva were ¢ (2,365,096). In 2021, the consolidated losses of Media were ¢ (1,969,114) and those of Parque Viva were ¢ (51,802).
From that information, it is only possible to conclude:
1.- The newspaper La Nación and Parque Viva belong to Grupo Nación (a fact which, besides, is public and well-known).
2.- The information that appears on the website reflects the consolidated financial statements of Grupo Nación, not the financial statements of each subsidiary.
3.- The tables appearing in the Report to Shareholders on the assets, liabilities, and results by segments as of December 31, 2020, and as of December 31, 2021, reflect that both business units—Media (to which the newspaper La Nación belongs) and Parque Viva—had losses. And in global terms (both years), Media ¢ (3,844,599) had greater losses than those of Parque Viva ¢ (2,416,898).
But it cannot be inferred from this, without further information provided by the petitioner, that the newspaper financially depends on Parque Viva; especially because the latter is a business unit with losses. That financial situation is reflected for both units also in previous years. So, between 2018 and 2021, the financial results were unfavorable for both the Media segment (in which the newspaper La Nación is located) and for Parque Viva.
Perhaps, the results observed in recent years could originate from the investments and indebtedness that Grupo Nación has had to assume in that process of transforming its news business and seeking new sources of income. Eventually, the expectation is that at some point in the future, the main source of income for Grupo Nación will be Parque Viva. But the fact is that it is not clear that the newspaper La Nación, as a press media, depends on Parque Viva, at least not at this moment.
Now, although it could not be said that the development of Parque Viva is oriented towards financing the Media business unit, perhaps it could be understood that it seeks to guarantee an adequate return on their investment to the group's shareholders.
On the other hand, if what justifies those consolidated losses are investments whose return is foreseen in a determined timeframe, that was not duly proven. It was only mentioned in a later brief, already cited here, which collects some words from the executive director of Grupo Nación, which had the purpose of defending the health of the group's finances as such. However, at the same time, they serve to verify that to date, Parque Viva has not had the cash flow that would allow proving that the newspaper La Nación financially depends on it or, stated another way, that without Parque Viva it is not possible to carry out the journalism that the petitioners say they practice.
In reality, the only thing the petitioners provided was the link where the information appears, without presenting the slightest accounting explanation that would support the assertion of dependency.
In summary, the information recorded on the website neither alludes to nor is sufficient to take as true the financial dependency of the Media business unit on the Parque Viva business unit. Even if the dependency were not absolute, the possibility could be assessed of understanding that there is a legal connection between the challenged acts and the alleged injury; but the problem is that the only thing proven is that the diversification of investments by Grupo Nación (a public and well-known fact) was driven by the challenges suffered by the newspaper La Nación, within the framework of the migration of its readers to other platforms (another public and well-known fact, which did not require proof).
Finally, I must make another observation: From the statements of the President of the Republic before and after assuming office, it could be said that he himself is the one making the connection. Nevertheless, it is not the financial linkage between the two business units that is in doubt here, since both belong to the same Grupo Nación, but the financial dependency of the newspaper on Parque Viva and, as has been seen, that was not proven by the petitioner nor analyzed and verified by the majority of the Chamber. It is taken for granted, being that it is the condition for determining whether there is a legal connection between the challenged acts and the allegedly violated freedom.
Furthermore, regarding the words of the President of the Republic, not in the statements that gave rise to the filing of the appeal, but in those contained in the report to this Chamber, the petitioners state:
"The report from Mr. President asks: 'How is it possible, magistrates, that Grupo Nación comes to say that they place all their economic hopes in what the economic activity of Parque Viva can generate to be able to pay its employees and that temporarily closing that place for holding mass events for failing to comply with minimum health conditions is a direct attack on freedom of the press? That only demonstrates that the financial health of La Nación is not as they want to make it seem and that they depend on this place to survive financially.' None of that has been said by Grupo Nación. We, the petitioners, are journalists from Grupo Nación (…), we are professionals whose freedom of expression is intended to be limited through arbitrary actions against the 'structures' that support our free exercise of journalism, as promised by the president. On the other hand, we have not spoken of a 'direct attack' on freedom of expression, but of an indirect one, equally prohibited by article 13.3 of the Convention and the jurisprudence of the Inter-American Court. We never said that the payment of our salaries depends on Parque Viva, as is also affirmed in the press release from the Presidency. To verify everything said, it is enough to read the appeal, but it is worth pointing out the insistence on the supposed demonstration that 'they depend on this place to survive financially.' The unfounded obsession with the company's finances extends to the interpretation of what we have not said! Of course, if the wishes made transparent by the passage turned out to be true, the closure of Parque Viva would put an end to the bothersome journalism that we petitioners practice and that motivated the threat uttered during the campaign. It couldn't be clearer" (petitioners' brief of August 17, p. 12; the emphasis is not from the original).
This passage calls for reflection. On one hand, as the petitioners correctly point out, Mr. President confuses "Grupo Nación" with "journalists of La Nación." On the other, the president is surprised that this Grupo Nación places its hopes in Parque Viva. He adds that this only demonstrates that the health of La Nación (here it is not known if he refers to the newspaper or the group) is not good and that, in effect, according to what was said by the petitioners (whom he confuses with the group) it confirms that they depend on Parque Viva to survive financially (both the group and, one could say, the newspaper). With those words, it is not that he says La Nación depends on Parque Viva, but rather that he says they affirm that La Nación (the group or the newspaper) depends on Parque Viva.
At this point, the problem of legal standing would be resolved: the petitioners affirm that the newspaper La Nación depends on Parque Viva and the respondent accepts it, since he understands that this is a confirmation that the group (or the newspaper) lacks financial health. (This last point would justify his conduct, his manifested concern about the bonds; but, for purposes of the analysis on the merits of the present amparo, it is an element that clearly disfavors him, as it would be the confession that the order was intended to leave the newspaper without financial sustenance). In any case, what is important to emphasize here is that Mr. President, although he does not affirm the existence of that financial dependency (whether of the newspaper itself or of the group) on Parque Viva, does not deny it either.
But it turns out that the petitioners reply that it is not true that they, nor Grupo Nación, have said that La Nación, the company in which they practice journalism, depends on Parque Viva. Instead, they say, if that were so, if they did depend, if what the president says were true, the closure of the Park would indeed consummate the injury to freedom of expression:
"Of course, if the wishes made transparent by the passage turned out to be true, the closure of Parque Viva would put an end to the bothersome journalism that we petitioners practice and that motivated the threat uttered during the campaign" (ibid.).
So then? Do they depend or do they not depend?
In any case, I consider that the lack of proof of the financial dependency of the newspaper (in which the petitioners work) on Parque Viva (the property upon which the challenged acts fell and which is owned by another business unit) has a procedural legal effect: the absence of legal standing to appear before the Chamber to validly file an amparo appeal for an alleged injury to freedom of expression arising from the closure of Parque Viva. That is, as that dependency was not proven, the conditions were also not met for the Chamber to examine on the merits the existence of a nexus between the closure of the venue and the specific impact on the media outlet and its ordinary functioning and, specifically, the freedom of expression of the petitioners.
I must add that even in the event that legal standing had been proven, the unsuitability of the amparo appeal to hear the challenged acts persists.
Furthermore, it is opportune to underline that this is not an analysis on the merits of the matter, but on the procedural prerequisites, the existence of which is not dispensable but constitutive of due process.
A. Introduction As will be recalled, the petitioners request the annulment of the challenged acts that fall upon Parque Viva, as they accuse them of being arbitrary and of constituting an indirect way to harm their freedom of expression, because they leave the media outlet in which they work without economic sustenance, and therefore without true independence.
As can be appreciated, my dissenting vote goes in two directions. On one hand, I show that the petitioners do not have legal standing to allege that presumed injury through indirect means, since the connection between the challenged acts (the health order and the related official letter) and the alleged injury to freedom of expression is not verified. This is because they did not prove that there was a financial dependency of the newspaper on Parque Viva. On the other hand, because determining whether the challenged acts are arbitrary or not exceeds the summary nature of the amparo appeal.
The majority of the Chamber does not refer to those aspects, but rather admits the connection between the challenged acts and the injury presumably caused by them, just as the petitioners claim, and declares the appeal granted under the understanding that article 13.3 of the CADH was violated.
I opted to declare the appeal granted, with regard to the injury to freedom of expression, but for reasons different from those of the majority. I now propose to set them forth.
Firstly, I will refer to the procedural principle that makes it possible to hear this injury and to the reasons why there is no legal obstacle whatsoever to doing so. Then I will explain why I consider that it is not appropriate to declare the injury to freedom of expression through indirect means, that is, the violation of article 13.3 of the CADH. Afterwards, I will make some comments on all the jurisprudence of the I/A Court H.R. and of the Constitutional Chamber regarding this rule, which is invoked in the case file, and which rather seem to confirm my thesis. Subsequently, I will allude to some scenarios that allow some reflections on the topic under discussion. Finally, I will show why, in my judgment, the injury to the freedom of expression of the petitioners was indeed realized.
B. Possibility of hearing the invoked injury Throughout the dissenting vote, I have emphasized that the Constitutional Chamber is not competent to hear the challenged object (the health order and the related official letter) and that the petitioners do not hold the legal standing they claim to have. So I understand the surprise that might be caused by the fact that, at the same time, I maintain that it is appropriate to hear the matter regarding freedom of expression on the merits.
The apparent dilemma disappears when it is noted in what sense and under what assumption I proceed to hear this amparo appeal on the merits.
In effect, what I affirm is that it is possible to hear whether the injury to freedom of expression has materialized, but not the one adduced by the petitioners; and it is possible to hear a challengeable object (act or conduct), even though it was not expressly but tacitly attacked by the petitioners; and that such object would be the cause of that injury. Since that challenged object directly affects the petitioners, even though it was not expressly alleged as such, it is possible to hear it. Therefore, they have legal standing and that procedural prerequisite is met. Moreover, as will be seen, due to its characteristics, that object and that injury are capable of being heard in a summary process such as the amparo appeal.
Is it possible to make that distinction to hear what was not alleged? What allows me to do that? The principle iura novit curia, which is translated as: "the court knows the law." This principle is linked to the aphorism da mihi facta, dabo tibi ius which, in simple terms, is usually translated as: give me the facts, and I will give you the law. In other words: explain to me what happened and I will tell you who is right from a legal point of view.
This is the classic principle by which the judge is empowered to take the facts into consideration and apply the law, as they deem appropriate to do so, without necessarily adhering to the arguments presented by the parties.
The Diccionario panhispánico del español jurídico of the Real Academia de la Lengua Española defines that principle as follows:
'The court knows the law.' Principle that allows a judicial body to apply rules different from those invoked by the parties, after a prior hearing of the same.
And the same dictionary immediately transcribes a judgment from the Supreme Court of Spain that illustrates the concept very well:
"The principle iura novit curia allows the Judge to base the ruling on the legal precepts or norms that are pertinently applicable to the case, even if the litigants have not invoked them, and the judge is only bound by the essence and substance of what was requested and discussed in the lawsuit, not by the literal wording of the specific claims exercised, as formulated by the litigants, so that there will be no extra petitum lack of congruence when the Judge or Court decides or pronounces on one of them that, even if it was not formally and expressly exercised, was implicit or was an indispensable or necessary consequence of the articulated requests or of the main issue debated in the process" (STS, 3rd Chamber, 16-VI-2015, rec. 3739/2013; the emphasis is not from the original).
I reiterate, this principle allows the judge to apply the Law as they deem appropriate, but, that said, without modifying the facts. Of course, the judge will assign value to these according to the relevance they consider reasonable; but this also happens when this principle is not invoked. That is, the judge, when assessing the facts—weighs them—and determines what they think is relevant. So that, in attention to that principle, what is significant is not what the petitioners intended but what the parties narrate.
The Chamber has applied that principle since its beginnings, both in constitutional review processes and in processes of jurisdictional guarantees for fundamental rights. Here are some examples referring to the latter, specifically to amparo appeals:
"II.- The silence of the Minister of Public Works and Transport in answering the repeated petitions and complaints of the petitioner and other interested parties constitutes in itself a violation of their right to petition enshrined in article 30 of the Political Constitution. Although that provision was not expressly invoked in the appeal, the silence of the Minister was, which implies the indicated violation, which can be declared by the Chamber by virtue of the principle 'iura novit curia' and must be so by virtue of the fact that fundamental rights and freedoms are of public order, by definition" (judgment 1989-73).
In the same sense, it affirmed:
"In application of this imperative, and of the principle 'iura novit curia,' the constitutional judge is obliged to analyze any aspect that, even if it has not been alleged, could result in a violation of a constitutional right" (judgment 1991-1129).
In another judgment, it indicated that an injury can be declared, even if it was not expressly adduced in the appeal:
"The silence of the Banco Nacional in not answering the repeated petitions and complaints of the petitioners in a specific manner constitutes in itself a violation of their right to petition enshrined in article 27 of the Political Constitution.
Although that provision was not expressly invoked in the appeal, the bank's silence was, which implies the indicated violation, which may be declared by the Chamber by virtue of the principle "Iura Novit Curia" and must be so given that fundamental rights and freedoms are public order by definition" (judgment 1998-5839).
Along the same lines, it emphasized that the injury tacitly alleged by the appellant must be taken into account:
"There being no injury with respect to the rights the appellant alleges as violated, this Chamber, based on the principle iura novit curia, notes that the facts reveal the injury of a right that the appellant tacitly alleges as injured: the right of access to the case file as an integral part of the right of defense, the exercise of which is one of the essential conditions of due process" (judgment 2013-9403).
If in every proceeding this classic principle has a place, much more so in one such as the amparo appeal, which is summary and informal, and has as its purpose the protection of the rights of individuals.
C. Nonexistence of the violation of Article 13.3 of the CADH First, I wish to set forth why it seems to me that no violation of freedom of expression through indirect means occurred. To that end, before assessing the factual framework, I will provide a very brief exegetical analysis of the provision that the appellants and the Chamber consider to have been violated.
1. Very brief exegetical analysis of Article 13.3 of the CADH It is appropriate to transcribe again that provision of the Pact of San José or CADH:
Article 13. (…) 3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means aimed at impeding the communication and circulation of ideas and opinions (emphasis not in original).
As can be observed, this subsection has three clearly defined parts: the first establishes the prohibition of restricting, by indirect methods or means, freedom of expression; the second contains the examples of such methods and the phrase that removes the exhaustive nature of such examples (or by any other); and the third captures the essential characteristic of those means, which relates to their purpose (impeding the communication and circulation of ideas and opinions).
Furthermore, although the list of examples of indirect methods or means included in the provision certainly has an indicative and not exhaustive character, it must be borne in mind that those "any other means" must follow the logic of the mentioned examples, which have a common denominator: they are conducts that affect the communicative activity itself. Even the third part of the provision confirms this, since it specifies that what makes those indirect methods or means illegitimate is that they are "aimed at impeding the communication and circulation of ideas and opinions." On the other hand, it speaks of indirect means for direct injuries, not of indirect injuries by indirect means. That is particularly important.
2. Substantive consequence of the non-accreditation of dependence As examined, the appellants do not prove the financial dependence of the newspaper La Nación on Parque Viva. This has a procedural effect, since the link between the challenged acts—which affect another business unit different from the one in which they work—and the alleged injury to the freedom of expression of the appellants not having been demonstrated, they lack standing.
However, in the present case, that also has a consequence for the decision on the merits of the matter. It cannot be understood that acts affecting a real property that belongs to the same owners of the newspaper are an indirect means of injuring the freedom of the appellants, since, there being no financial dependence, it cannot be affirmed either that those acts impede "the communication and circulation of ideas and opinions" (Article 13.3 of the CADH). The latter even under the assumption that affecting the financial situation of the newspaper constitutes an injury to freedom of expression.
3. Nonexistence of the violation, even if there were standing I have said there is no standing because the dependence was not proven, that the link between the challenged object and the alleged injury to freedom of expression was established. But what would have happened if it had been proven? That is, is it sufficient to prove the financial dependence of a communication medium on another business unit of a different commercial line, belonging to the same owner of the newspaper, to understand that any allegedly arbitrary act suffered by that business unrelated to the field of communication affects the freedom of expression of those who work at the newspaper?
This is a matter of great importance. Now, from the moment I find that the dependence was not proven, it would not be necessary for me to reflect on it; but I do not wish to give rise to confusion.
Standing is a procedural aspect, relating to the admissibility of the appeal (on which the court may rule at any time, not only in the initial phase, that is, it may dismiss it for lack of this procedural prerequisite: that is precisely what I did in the dissenting vote). Now, to enter into these reflections, it will be assumed that there is dependence and, therefore, standing.
Evidently, for it to be understood that an injury to freedom of expression by indirect means occurred, it is not sufficient to prove standing. Afterwards, two aspects must be examined: whether there was an affectation of that freedom and whether the challenged acts were arbitrary.
Said provision establishes as an essential condition that those indirect means or methods be "aimed at impeding the communication and circulation of ideas and opinions." In fact, as has been pointed out, the examples that Article 13.3 of the CADH itself includes, in an indicative and not exhaustive manner, refer to actions that affect the communication enterprise.
But I am not the only one saying this. The jurisprudence of the Inter-American Court of Human Rights and the Constitutional Chamber itself has said it. In the following section, reference will be made to this particular point in greater detail. Now it is appropriate to analyze the other condition: that the acts be arbitrary.
Thus, it would not be necessary to continue with the analysis.
But let us assume several things that are not proven in order to continue reflecting on this matter: Let us assume that there is financial dependence of La Nación on Parque Viva and that the challenged acts impeded or are a certain threat that will impede "the communication and circulation of ideas and opinions." Then, under those assumptions, it would be appropriate to proceed to the examination of the alleged arbitrariness of the challenged acts. It is clear that there would only be two possibilities: that they are arbitrary or that they are not.
(2) If the acts are not arbitrary: consequences If the acts were legitimate (because all the requirements of validity and effectiveness were met), they would have the same incidence on the financial health of the newspaper, but there would be nothing to protect. That is, freedom of expression would not have been injured, since the financial incidence that the challenged acts declared legitimate would have is a collateral effect also legitimate, although harmful to the newspaper. To affirm this, it suffices to recall the classic principle of double effect, by virtue of which there is no imputability for the indirect harm produced by a direct voluntary act that is lawful and proportionate. This, for the specific case, translates as follows: if it were demonstrated that the challenged acts issued by the Administration are legitimate (direct voluntary acts affecting Parque Viva), no responsibility can be attributed to the former (to the Administration, that is, to the Ministry of Health) for the indirect effects (even if harmful) affecting the newspaper La Nación and, specifically, its journalists.
Thus, if the Chamber—or the contentious-administrative jurisdiction, which is where in my opinion it was proper to hear those acts—had declared that the acts are legitimate and not arbitrary, they would materially have had the same incidence on the financial health of the newspaper; but formally no injury to freedom of expression would have been configured, not even under the assumption of Article 13.3 of the CADH. That is, the journalists would be in the financially vulnerable situation in which, according to their allegations, they suffer; but that situation would not be the result of injurious conduct but of legitimate conduct by the Administration and, therefore, there would be no protectable injury to freedom of expression.
(1) If the acts are arbitrary: consequences If it is verified that the challenged acts are arbitrary, and all under the assumption that there is financial dependence and that there is affectation because "the communication and circulation of ideas and opinions" is impeded, then the acts, in principle, would become injurious to the freedom of expression of the journalists.
However, as I have explained in the dissenting vote—and it seems to me it will become even clearer in the final epigraph on the reflections regarding the case file and the judgment—the examination of the challenged acts should not be carried out in this forum. Therefore, if the declaration of the arbitrariness of these was made without the necessary procedural safeguards, then the declaration of the injury to freedom of expression by indirect means suffers from the same procedural defect.
But why did I just point out that "then such acts, in principle, would become injurious to the freedom of expression of the journalists"? Because, from my perspective, even if the acts were arbitrary, an injury to freedom of expression by indirect means would not necessarily occur. But the reflections on this point will be the subject of a later epigraph.
Now what should be emphasized is that, as has been seen, in the present case there was no affectation of freedom of expression in the terms indicated in Article 13.3 of the CADH and that, even if it had occurred, it would only have been protectable if the declaration of the arbitrariness of the acts had been made with the proper procedural safeguards.
It is appropriate now to dwell on the jurisprudence invoked, both by the appellants and by the majority of the Chamber to support the violation of Article 13.3 of the CADH.
D. Considerations on the jurisprudence invoked in the case file As is known, the appellants and the majority invoke Article 13.3 of the CADH to affirm that a sanitary order and its related official letter issued regarding the property of Parque Viva injure the freedom of expression of the journalists working at the newspaper La Nación—that is, in another business unit distinct from the Parque Viva business. As part of their arguments, they invoke jurisprudence, both from the Inter-American Court of Human Rights and from the Constitutional Chamber.
I will immediately make some considerations in this regard to show that rather those judgments support my thesis.
1. The jurisprudence of the Inter-American Court of Human Rights From my perspective, the jurisprudence issued by the Inter-American Court of Human Rights that is brought up to argue that in the present matter an infringement of Article 13.3 of the CADH occurred is very valuable, but the mentioned cases bear no factual similarity to the one examined in the sub lite. Therefore, the rationes on which those judgments are based do not fit nor can they be validly invoked. Moreover, the appellants invoke some cases resolved by the Inter-American Court of Human Rights that, as will be seen, the majority of the Chamber logically does not incorporate into the judgment, since doing so would highlight a weakness in the argumentation. I will illustrate this immediately.
First, the appellants—but not the majority of the Chamber in the judgment—cite the case "Ríos et al. vs. Venezuela," decided in a context of continued aggression and threats against journalists, camera operators, photographers, and other workers of social communication media. In that resolution, the Inter-American Court of Human Rights develops the content of Article 13.3 of the CADH as follows:
"340. A literal interpretation of this provision [Article 13.3 of the CADH] allows considering that it specifically protects the communication, dissemination, and circulation of ideas and opinions, so that the use of 'indirect methods or means' to restrict them is prohibited. The enumeration of restrictive means made by Article 13.3 is not exhaustive nor does it prevent considering 'any other means' or indirect methods derived from new technologies. Furthermore, Article 13.3 of the Convention imposes guarantee obligations on the State, even in the sphere of relations between private individuals, since it not only covers indirect governmental restrictions, but also 'private controls' that produce the same result. For a violation of Article 13.3 of the Convention to be configured, it is necessary that the method or the means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions.
360. Regarding the purpose pursued by those official letters, in the sense of indirectly influencing and pressuring the directors regarding the content of the information disseminated, the Court notes that the Commission and the representatives have not provided evidence or elements evidencing that the issuance of the official letters affected the freedom to seek, receive, and impart information of the alleged victims. Nor have they provided evidence to refute the content of the official letters, issued based on regulations in force in Venezuela (…).
380. As has been indicated (supra para. 340), this Court considers that for a violation of Article 13.3 of the Convention to be configured, it is necessary that the method or the means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions.
381. The Court observes that although the presence and demonstrations of DISIP or Casa Militar agents at the 'Los Mecedores' station, where RCTV's transmission antennas were located, could have been perceived as threats and cause some intimidating effect in the alleged victims, the Court does not have sufficient evidence demonstrating that the threat to intervene the channel's signal had materialized in concrete acts affecting the rights of the alleged victims to receive and impart information, under the terms of Article 13 of the Convention (…).
394. Ultimately, it has not been proven before the Court that the three official letters issued by CONATEL relating to the content of a program broadcast by RCTV and the interventions to its broadcasts constituted undue and indirect restrictions on the right of the alleged victims to seek, receive, and impart information, that constituted a violation of Article 13.1 and 13.3 of the American Convention, to their detriment" (emphasis not in original).
From the transcribed text, it is appropriate to highlight the following: "for a violation of Article 13.3 of the Convention to be configured, it is necessary that the method or the means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions." That is, the indirect mechanism used by the authorities must have a direct effect on freedom of expression and the free circulation of ideas and opinions. The Inter-American Court of Human Rights declared that it was not established that the State had violated the right to seek, receive, and impart information, under the terms of Article 13.3 of the CADH. Surely, because the infringement of said provision was rejected, the majority of the Chamber did not invoke this judgment as support for its decision. However, I consider that the ratio indicated is extremely important, and it is subsequently repeated in later votes on the matter, the noted condition remaining unaltered: "that the method or the means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions." Second, the majority opinion relies on the provisions in the "Ivcher Bronstein Case vs. Peru." In this resolution, the Inter-American Court of Human Rights did declare an infringement of Article 13.3 of the CADH, since it verified that through indirect pressures exerted against Mr. Baruch Ivcher Bronstein—leaving without legal effect the title of Peruvian nationality, without which he could not continue as owner of a company holding a television channel concession in Peru—his freedom of expression was injured. In that case, when declaring the violation of that provision, it indicated:
"162. In the context of the indicated facts, this Court observes that the resolution that left without legal effect Mr. Ivcher's title of nationality constituted an indirect means to restrict his freedom of expression, as well as that of the journalists who worked and investigated for the Contrapunto program of Channel 2 of Peruvian television.
163. By separating Mr. Ivcher from the control of Channel 2, and excluding the journalists from the Contrapunto program, the State not only restricted their right to circulate news, ideas, and opinions, but also affected the right of all Peruvians to receive information, thus limiting their freedom to exercise political options and develop fully in a democratic society.
164. For all the foregoing, the Court concludes that the State violated the right to freedom of expression enshrined in Article 13.1 and 13.3 of the Convention, to the detriment of Baruch Ivcher Bronstein" (emphasis not in original).
Thus, in that judgment it was determined that—as a consequence of the editorial line assumed by Channel 2—Mr. Ivcher was subjected to intimidating actions of various types, which culminated in concrete restrictions on freedom of expression: he was suspended in the exercise of his rights as majority shareholder and president of the television company, and his appointment as director thereof was revoked; and, therefore, the circulation of ideas that the protected person promoted was restricted. That is, a certain restriction of the right to circulate news, ideas, and opinions was verified.
The majority of this Chamber then alludes to the case "Ricardo Canese vs. Paraguay." In that resolution, the Inter-American Court of Human Rights generically protected Article 13 of the CADH, declaring the following:
"[T]he State violated the right to freedom of thought and expression enshrined in Article 13 of the American Convention on Human Rights, in relation to Article 1.1 of said treaty, to the detriment of Mr. Ricardo Nicolás Canese Krivoshein." The factual framework of that case shows that a certain injury was caused to Mr. Canese's ability to exercise his freedom of expression. This because it was verified that, following his statements in the context of an electoral process, he was subjected to a criminal proceeding and to restrictions on his freedom of movement. In summary, the Inter-American Court of Human Rights concluded the following:
"[T]he Court considers that, in this case, the criminal proceeding, the consequent conviction imposed on Mr. Canese for over eight years, and the restrictions on leaving the country for eight years and almost four months constituted indirect means of restricting Mr. Canese's freedom of thought and expression." In relation to this case, it must be said that there were direct consequences for the person making the statements, who, by virtue thereof, was criminally punished with restrictions on his free movement.
Next, reference must be made here to the case "Perozo et al. vs. Venezuela," which was also invoked by the appellants, but not by the majority of the Chamber. Said judgment concerns a convulsed political situation and a context of "threats [and aggressions] to social communicators." The Inter-American Court of Human Rights protected the situation of the communicators pursuant to Article 13.1, but not Article 13.3, both of the CADH, in the following terms:
"The effective exercise of freedom of expression implies the existence of conditions and social practices that favor it. It is possible that this freedom may be illegitimately restricted by normative or administrative acts of the State or by de facto conditions that place, directly or indirectly, at risk or in greater vulnerability those who exercise it or attempt to exercise it, by acts or omissions of state agents or private individuals. Within the framework of its obligations to guarantee the rights recognized in the Convention, the State must refrain from acting in a manner that propitiates, stimulates, favors, or deepens that vulnerability and must adopt, when pertinent, necessary and reasonable measures to prevent or protect the rights of those who find themselves in such a situation, as well as, as the case may be, investigate facts that harm them (…).
367. (…) A literal interpretation of this provision [Article 13.3 of the CADH] allows considering that it specifically protects the communication, dissemination, and circulation of ideas and opinions, so that the use of 'indirect methods or means' to restrict them is prohibited. The enumeration of restrictive means made by Article 13.3 is not exhaustive nor does it prevent considering 'any other means' or indirect methods derived from new technologies. Furthermore, Article 13.3 of the Convention imposes guarantee obligations on the State, even in the sphere of relations between private individuals, since it not only covers indirect governmental restrictions, but also 'private controls' that produce the same result.
368. This Court considers that for a violation of Article 13.3 of the Convention to be configured, it is necessary that the method or the means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions.
369. The indicated statements, examined in the context in which they arose, contain opinions regarding the supposed action or participation of Globovisión, or of persons linked to it, in events that unfolded under circumstances of high political polarization and social conflict in Venezuela, which falls outside the object of the present case (supra paras. 72 to 74). Regardless of the situation or motivation that generated those statements, in a state governed by the rule of law, conflictive situations must be addressed through the established channels in the internal legal system and in accordance with applicable international standards. In the context of vulnerability faced by the alleged victims, certain expressions contained in the statements sub examine could have been perceived as threats and cause an intimidating effect, and even self-censorship, in them, due to their relationship with the alluded communication medium. However, the Court considers that, in consideration of the criteria indicated in the preceding paragraph, those other effects of such pronouncements were already analyzed supra, under Article 13.1 of the Convention, in relation to Article 1.1 thereof" (emphasis not in original).
After reading that passage, one understands why the majority did not allude to that judgment of the Inter-American Court of Human Rights. It is worth highlighting the Court's ratio, to the effect that for a violation of Article 13.3 of the CADH to be configured, it is necessary that the method or the means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions. This, as is public and notorious, has not happened in the present case, since, after the issuance of the administrative acts, the journalists have been able to express their ideas and opinions without any difficulty, and the impossibility or certain difficulty of doing so in the future—due to the existence of such acts—was not duly proven.
Finally, reference must be made to the "Granier et al. (Radio Caracas Televisión) vs. Venezuela Case," which was indeed invoked by the appellants and the majority of the Chamber, in which the violation of freedom of expression by indirect means was declared. It is framed within the political and social crisis occurring in Venezuela, in which "since 2002, officials of the Venezuelan State, including President Chávez, made various statements regarding that the concessions to some private social communication media in Venezuela would not be renewed and later "starting in December 2006, State officials began to announce the official decision not to renew RCTV's concession." In that judgment, the following considerations of interest were made:
"1.3. Indirect restrictions – scope of Article 13.3 of the Convention 161. (…) This Court considers that the scope of Article 13.3 of the Convention must be the result of a joint reading with Article 13.1 of the Convention, in the sense that a broad interpretation of this provision allows considering that it specifically protects the communication, dissemination, and circulation of ideas and opinions, so that the use of 'indirect methods or means' to restrict them is prohibited.
162. In this regard, the Court points out that what this subsection seeks is to exemplify more subtle forms of restriction of the right to freedom of expression by state authorities or private individuals. Indeed, this Court has had the opportunity to declare in previous cases the indirect restriction produced, for example, by a decision that left 'without legal effect the title of nationality' of the majority shareholder of a television channel" or by 'the criminal proceeding, the consequent conviction imposed […] for over eight years and the restrictions on leaving the country for eight years' against a presidential candidate.
163. Furthermore, the enumeration of restrictive means made by Article 13.3 is not exhaustive nor does it prevent considering 'any other means' or indirect methods derived from new technologies. In this sense, Article 13 of the Declaration of Principles on Freedom of Expression indicates other examples of indirect means or methods, stating that '[t]he use of State power and public treasury resources; the granting of customs prebends; the arbitrary and discriminatory allocation of official advertising and official credits; the granting of radio and television frequencies, among others, with the aim of pressuring and punishing or rewarding and privileging social communicators and communication media based on their informational lines, violates freedom of expression and must be expressly prohibited by law. Social communication media have the right to carry out their work independently. Direct or indirect pressures aimed at silencing the informational work of social communicators are incompatible with freedom of expression.'" Similarly, during the public hearing, expert García Belaunde referred to other possible forms of indirect restriction related to: i) "advertising, [since] States are important advertising agents and […] giving a lot of publicity or removing it can be important and, in some cases, there can be a kind of suffocation for media that basically live off advertising," or ii) "taxation [when there are] cases [in] which [companies] […] have been burdened with taxes" in order to cause inconvenience or send messages to the media outlet" (emphasis not in the original).
The most relevant point up to this point in that passage is that the IACHR Court affirms that restrictions on freedom of expression through indirect means are more subtle, then it alludes to its own jurisprudence and underscores that the enumeration of these contained in Article 13.3 of the ACHR is not exhaustive and, finally, it mentions other possible examples, including those mentioned by the expert. In this regard, it should be borne in mind that these measures –advertising and taxes– fall directly on those media outlets. It then states:
"164. Likewise, the Court recalls that for a violation of Article 13.3 of the Convention to be established, it is necessary that the method or means effectively restrict, indirectly, communication and the circulation of ideas and opinions. Furthermore, the Court reiterates that Article 13.3 of the Convention imposes obligations of guarantee on the State, even in the sphere of relations between private individuals, since it not only covers indirect governmental restrictions, but also private controls that produce the same result. In this regard, the Court highlights that indirect restriction can generate a deterrent, frightening, and inhibiting effect on all those who exercise the right to freedom of expression, which, in turn, prevents public debate on issues of interest to society" (emphasis not in the original).
As can be observed, this paragraph is especially significant because it reiterates that for a violation of said norm to be established, the indirect method or means must effectively restrict communication and the circulation of ideas and opinions. In other words, for conduct to be considered an indirect means of restriction, such restriction must occur. If the restrictive effect does not occur, the means alleged to be restrictive is not such, precisely because it lacks an essential condition: that of effectively impacting freedom of expression, that is, the communication and circulation of ideas and opinions. This, which seems obvious, is precisely what leads to the conclusion that here in the present case, the alleged violation of Article 13.3 of the ACHR has not occurred.
In that same passage, it is stated that such restriction can manifest in several ways: it can have a deterrent, frightening, and inhibiting effect on all those who exercise the right to freedom of expression, which, in turn, prevents public debate on issues of interest to society. And it is a public and notorious fact that the appellant journalists, after the issuance of the sanitary order and the related official communication, have continued to carry out their work according to their own criteria and position, as is proper in a democratic society. Furthermore, they did not reliably demonstrate – not even by indicia – that, due to those challenged administrative acts, they would not be able to continue doing so in the future.
In that judgment, after referring to the content and importance of freedom of expression in a democratic society, the IACHR Court affirms:
"171. Bearing in mind the foregoing, the Court emphasizes the need for States to clearly and precisely regulate the processes concerning the granting or renewal of concessions or licenses related to broadcasting activity, through objective criteria that prevent arbitrariness. Specifically, it is necessary to establish the general safeguards or guarantees of due process, which each State determines as necessary in these processes in light of the American Convention, in order to avoid the abuse of official controls and the generation of possible indirect restrictions (…).
189. Having said that, both the Inter-American Commission and the representatives have asserted that this was not the real purpose, as there would be evidence demonstrating an intention to punish RCTV for its editorial line critical of the Government. In this regard, in the present case, the Court considers it necessary to take into account that the motive or purpose of a particular act by state authorities becomes relevant for the legal analysis of a case, because a motive or purpose different from that of the norm granting powers to the state authority to act can demonstrate whether the action can be considered an arbitrary act or a misuse of power. In relation to this, the Tribunal takes as its starting point that the actions of state authorities are covered by a presumption of lawful behavior. And therefore, irregular action by state authorities must be proven in order to rebut this presumption of good faith. For this, the Court will proceed to: a) recount the evidence in the case file regarding the alleged undeclared purpose, and b) examine said evidence." That is, it admits that it is appropriate to conduct an examination to determine whether or not there was misuse of power, and for this, it considers it unavoidable to analyze the evidence. On this point, the IACHR Court states:
"197. The Court concludes then, as it has done in other cases, that the facts of the present case involved a misuse of power, since a permitted power of the State was used with the objective of editorially aligning the media outlet with the government. The foregoing statement derives from the two main conclusions this Tribunal can reach from what was described above, namely, that the decision had been made previously and that it was based on the annoyance generated by RCTV's editorial line, added to the context regarding the 'deterioration of the protection of freedom of expression' that was proven in the present case (supra para. 61).
198. Likewise, this Tribunal considers it necessary to emphasize that the misuse of power declared here had an impact on the exercise of freedom of expression, not only on the workers and directors of RCTV, but also on the social dimension of said right (supra para. 136), that is, on the citizenry that was deprived of having access to the editorial line that RCTV represented. Indeed, the real purpose sought to silence voices critical of the government, which constitute, together with pluralism, tolerance, and a spirit of openness, the demands inherent in a democratic debate that, precisely, the right to freedom of expression seeks to protect. It is proven, consequently, that in the present case an indirect restriction on the exercise of the right to freedom of expression was established, produced by the use of means aimed at impeding communication and circulation of ideas and opinions, when the State decided to reserve the spectrum portion and, therefore, impede participation in the administrative procedures for the awarding of titles or the renewal of the concession to a media outlet that expressed critical voices against the government, which is why the Tribunal declares the violation of Article 13.1 and 13.3 in relation to Article 1.1 of the American Convention to the detriment of Marcel Granier, Peter Bottome, Jaime Nestares, Inés Bacalao, Eladio Lárez, Eduardo Sapene, Daniela Bergami, Miguel Ángel Rodríguez, Soraya Castellano, María Arriaga, and Larissa Patiño" (emphasis not in the original).
From the underlined text, it clearly follows that there was conduct aimed at impeding freedom of expression resulting from the state decision not to renew the concession to a journalistic media outlet that appeared contrary to the government's interests. This concerns, as highlighted, a measure that "had an impact on the exercise of freedom of expression." Furthermore, a highly relevant fact must be emphasized: that this measure fell directly upon the communication company.
It is worthwhile to recapitulate the judgments in which the IACHR Court did declare the violation of Article 13.3 of the ACHR: In the case “Ivcher Bronstein vs. Peru,” the arbitrary deprivation of the title of nationality by the Peruvian State against Mr. Ivcher Bronstein was verified, with the object of depriving him of editorial control of the television channel he directed, since the Peruvian legislation in force in 1997 required Peruvian nationality to be an owner of television channel concessionaire companies in Peru. In the case “Ricardo Canese vs. Paraguay,” the conviction and restrictions on leaving the country, imposed on engineer Ricardo Canese as a consequence of statements made while he was a presidential candidate, were examined; and, as a result of the criminal proceeding against him, Mr. Canese was subjected to a permanent restriction on leaving the country which, in the IACHR Court's view, did not meet the requirements of legality, necessity, and proportionality demanded in a democratic society. Finally, in the case “Granier et al. (Radio Caracas Televisión) vs. Venezuela,” the concession to RCTV was not renewed, and the corresponding transmission ceased.
The lines of the IACHR Court are reiterative in the sense that "for a violation of Article 13.3 of the Convention to be established, it is necessary that the method or means effectively restrict, indirectly, communication and the circulation of ideas and opinions." Ultimately, what is sought is to prevent the existence or generation of obstacles to the free flow of information or opinion. Therefore, if it is not demonstrated that this free circulation was impeded, then the injury to Article 13.3 of the ACHR is not established. Furthermore, all the cases have another common denominator: they involve measures that fell directly upon the person or the media outlet. The logic of that norm is that conduct that indirectly causes a direct injury to freedom of expression is harmful.
In the case at hand, by contrast, it was not possible to demonstrate what impact the issuance of a sanitary order and its related official communication, which fall upon a property of another business unit unrelated to the newspaper, has had on the freedom of expression of the appellants. In other words, what the IACHR Court requires for a violation of Article 13.3 of the Convention to be established has not been fulfilled: that the indirect method or means effectively restricts communication and the circulation of ideas and opinions. I highlight the word effectively, that is, that in effect or truly, the circulation of ideas and opinions is restricted. In other words, the rationes of the IACHR Court judgments cannot be invoked in the present case, because the factual framework held as proven prevents it, because there is no verification that the administrative acts accused of being arbitrary (the sanitary order and the related official communication) have effectively impacted the freedom of expression of the appellants.
In summary, the IACHR Court judgments just analyzed here (which were those invoked by the appellants and/or by the majority of the Chamber) allow the conclusion that a violation of Article 13.3 of the ACHR was declared only when the indirect methods or means had a direct incidence on the exercise of freedom of expression. In the case at hand, by contrast, said jurisprudence cannot be validly applied to support the granting of the appeal, because these are acts that have a direct incidence on the business unit that also belongs to the group that owns the newspaper, but which were not demonstrated to have had a direct impact on the exercise of freedom of expression by the appellants.
2. The jurisprudence of the Constitutional Chamber It is now appropriate to examine the constitutional jurisprudence that the majority of the Chamber invokes to show that in the present matter, the line of those judgments is followed, in which it was proven that, through indirect means, a direct injury to freedom of expression was caused.
The first case that the majority brings up refers to an appeal in which the conduct of a Deputy of the Republic was examined, who sent letters to public institutions with the apparent purpose of requesting that advertising be withdrawn from the media outlet. The appellant alleged that this should be considered influence peddling, abuse of power, and prior censorship. The existence of the notes addressed to public institutions was verified, with the following statements: "I urge you to assess, as a responsible precautionary measure, the possibility of taking off the air the institutional advertising you pay for on this radio program, while we resolve in the courts the complaint we are about to file." In its decision, this Chamber adopted the ratio of the IACHR Court judgments and concluded:
"In this sense, censorship can be direct –for example, the direct prohibition of a certain publication– or indirect (also called soft censorship, subtle, veiled censorship) –for example, the use of various means to intimidate and thereby prevent a publication–. The Convention provides a non-exhaustive list of cases of censorship through indirect means (controls on paper, frequencies, etc.) and concludes with the general rule, which would be '…or by any other means aimed at impeding communication and the circulation of ideas and opinions' (…).
The exhortation sent to public institutions so that they would withdraw advertising from the protected person's radio program falls within the cases of indirect censorship of freedom of expression for several reasons.
First, advertising provides the main financial support that allows the transmission of radio programs and, ultimately, the economic sustenance of the people who work on said program. It is evident that if the program's economic income is limited, it can also be harmed or –even– eliminated, all to the detriment of both freedom of expression and freedom of information. The described situation is even more serious when it involves small media outlets, such as local newspapers or small radio stations, whose financial stability may depend largely on state advertising." Note that the mentioned advertising was that which was broadcast on the appellant media outlet. It was an economic income derived from the operation of the program, not from the activity of a business unit unrelated to it.
The judgment continues:
"Second, a Deputy of the Republic is not just any citizen; rather, he holds particular political power due to his influence in the approval of bills, regarding which there are many interests, both private and public. Ergo, a recommendation or withdrawal of advertising from a radio program, issued by a public official in a particular position of political power and having as its leitmotif his disagreement with the criticisms against him broadcast by a certain media outlet, constitutes a veiled form of intimidation that not only affects the radio program directly alluded to, but also sends an intimidating message to the rest of the media, fostering a hostile environment for the freedoms of expression and information essential in a democratic system. In the sub iudice case, such a threat even came to have concrete effects, to the extent that, according to the evidence provided by the plaintiff, the advertising schedule of ICAA, programmed for the period from October 15 to November 15, 2014, was suspended while the defendant's official communication was being answered (…).
In that sense, the sending of a note to the program's sponsors indicating that they consider withdrawing their sponsorship due to the negative content thereof against his image, constituted indirect censorship –in the terms indicated in the jurisprudence of the Inter-American Court cited supra– of the radio program 'Rompiendo El Silencio'. In the assessment made, specific weight is given to the fact that the defendant holds a position of political power by virtue of his position as Deputy of the Republic, and that his missive effectively caused a negative effect beyond a simple complaint, since it was proven in the record that it produced effects on one of the sponsors, who temporarily suspended advertising (ICAA). Consequently, this point is granted" (decision 2015-1782; the underlining is from the original; the underlined bold is not from the original).
If said decision is carefully examined, it is observed that the majority of the Chamber that granted the appeal emphasized the fact that the threat had concrete effects, since an advertising schedule planned for the protected person's program was suspended. So the conduct of the defendant legislator had a direct incidence on the income and advertising of the radio program. However, in the dissenting vote, the following was recorded:
"The only factual circumstance, from which the majority of this Tribunal deemed that censorship occurred, is that the Costa Rican Institute of Aqueducts and Sewers suspended the schedule from October 15 to November 15, 2014, pending the response to be offered to co-defendant Oscar López, when the truth of the matter is that the radio program continued on the air and being broadcast, because it had other sponsors. In any case, the Communication Director of that public entity reported that the schedule resumed on November 1, 2014. I consider that such factual circumstances are absolutely and categorically insufficient to deem direct or indirect censorship as proven, which, as noted, never occurred. It must be taken into consideration that to accept or grant an amparo proceeding, according to Article 29 of the Law of Constitutional Jurisdiction, there must be a violation or threat of violation of the invoked fundamental right, which did not happen in the case at hand. Additionally, it is necessary to point out that prior censorship has its origin in active or omissive conduct by public powers that deploy some type of control or fail to do so in order to impede the dissemination of ideas, thoughts, and opinions, which did not happen in the case at hand. The foregoing becomes evident, by way of example, in two emblematic cases of the Inter-American Court of Human Rights on the matter, which are the cases 'The Last Temptation of Christ vs. Chile' and 'Ivcher Bronstein vs. Peru' in which, respectively, the cinematographic production could not be exhibited between 1988 and 2003, due to an administrative resolution based on a constitutional norm, and the Peruvian citizenship of the owner of a television channel broadcasting a program critical of the government was revoked by administrative decision, causing it to stop transmitting. Ultimately, we are not facing any illegitimate suppression, radical or otherwise, of freedom of expression. Nor is it possible to infer, from the pointed-out factual circumstance, an illegitimate indirect or veiled control or means of censorship of an effective nature" (dissenting vote of Magistrate Jinesta Lobo to decision 2015-1782; emphasis not in the original).
That dissenting position is closer to the jurisprudence of the IACHR Court, in the sense that it maintains that for an injury to Article 13.3 of the ACHR to exist, a direct and certain impact on the freedom to disseminate ideas, thoughts, and opinions is required. But, in any case, it does meet another of the conditions of that jurisprudence: that the conduct falls directly on the appellant.
Secondly, in the present matter, the majority of the Chamber invoked the judgment of an appeal in which it was questioned that the National Bank gradually reduced its advertising schedule in the newspaper La Nación. In proven fact e) of said judgment, the following was recorded as duly demonstrated:
"e) In the first half of 2016, the National Bank of Costa Rica ordered the gradual reduction of the advertising schedule in the pages of Diario La Nación. From the US$732,402.54 invested in 2014 and the US$696,373.73 invested in 2015, in the cited period of 2016, the advertising schedule dropped to US$123,347.47 (see documentation and report rendered under oath)" (decision 2016-15220).
In this regard, after these facts were proven, the following considerations were made:
"In conclusion, on this issue it must be considered proven that even though there could have been technical or objective reasons pointing to a reduction in the Bank's advertising schedules to Periódico La Nación, the truth is that these reasons were not taken into account when ordering, as was effectively done, a pause in the advertising contracted to said media outlet, following the publication of the first news at the end of February, and particularly during the months of June and July, which it is proven occurred with the aim of 'achieving a change in attitude' from Periódico La Nación, regarding the manner in which the issues related to the National Bank had been addressed for several months. In summary, it is possible to prove in the case, as will be stated, that indirect censorship has occurred by a public official against a media outlet, as a reaction to its editorial line, with the sole purpose of 'motivating' a change, that is, manipulating the media outlet to align it with his purposes, whether to secure a meeting with one of the owners of the medium, or greater space for the Bank's version in response to the questions raised. All of which is undoubtedly injurious to Article 13.1 of the American Convention on Human Rights and Articles 28 and 29 of the Political Constitution (…).
The problem in this case rather arises when public companies depart from that course to manage their advertising schedule according to purposes unrelated to objective and technical reasons, and incompatible with the constitutional framework of fundamental rights. It is at that point where this Chamber's participation is fully justified, and that is what is sought to be confirmed or dismissed through this amparo appeal (…).
It is constitutionally reprehensible that the General Manager of a public Bank, that is, a public official, issued an order to withdraw an advertising schedule from a particular written newspaper, without a valid objective and technical basis, but rather on account of his disagreement with the way in which the news and reports issued regarding the activities and situation of the banking entity he represents were being prepared. The Tribunal understands that the foregoing constitutes indirect censorship, a clear way of attempting to influence the informative content of the media outlet, and also sends an intimidating message to the rest of the media that fosters a hostile environment for the freedoms of expression and information essential in a democratic system (…).
That is precisely what has been demonstrated in this amparo, that the withdrawal of advertising during the first half of 2016, but particularly in the months following the publications at the end of February, occurred in a context of confrontation with the media outlet, where it is proven that the strategy did not obey objective criteria, but rather occurred, in the words of the manager himself, with the aim of 'motivating' the newspaper to change its editorial line and news focus, instead of using existing legal mechanisms such as the right of rectification and reply if the information was considered to be inaccurate or offensive" (decision 2016-15220; emphasis not in the original).
In the aforementioned case, there are conducts that directly impact the media outlet. Indeed, it was demonstrated that there was a manifest intention to reduce the advertising schedule, which is one of the sources of income that sustain the protected newspaper. Here it is worth noting that it is true that the Chamber properly protected the income the media outlet receives from advertising, but it is also true that such protection does not extend to protecting any and all commercial activities of the media outlet's owners, by the mere fact that they also belong to them.
The majority of the Chamber in the present matter also refers to a case in which the appellant argued that the interview entitled "La violencia doméstica contra el hombre" was conducted on the program "Café Nacional" of the public company Radio Nacional de Costa Rica, and that subsequently, the director of Radio Nacional published an article entitled "Amarga vergüenza," in which he warned that he would pre-censor the topic of aggression against men and would prevent it from being spoken about again on Radio Nacional. This resulted in the interview being completely deleted from the internet portal of the National Radio and Television System (Sinart) and from the Facebook page. In said judgment, the following was stated:
"In application of the foregoing to the case at hand, the Chamber notes sufficient elements to conclude that the statements of the protected persons were censored and, thereby, their fundamental rights were injured. Such a conclusion derives from the express statements of the Director of Radio Nacional when stating that the repetition of interviews like that of the tutelage petitioners 'of course is not going to happen,' and that he 'would never have allowed this interview to air...', but '...a situation like this will not happen again...' The Chamber observes that the respondent party warns with absolute clarity the censorship that will exist regarding future interviews like the questioned one and the regret for not having censored the one that took place. For this Tribunal, there is no doubt that the transcribed expressions constitute censorship, especially because they come from the director of the medium that served for the transmission of the interview in question" (decision 2018-8396).
From what was reviewed, there is also no doubt that there was an explicit purpose to suppress the content that the protected person sought to make known, which justifies the protection of his freedom of expression. Furthermore, it seems, rather, to be an example of injuries by threat of censorship and by subsequent censorship, carried out by direct means, making it somewhat debatable whether the norm applicable to that case is Article 13.3 of the ACHR. But, again, note that the arbitrary acts fall directly upon the one who communicates.
Then, the majority of the Chamber refers to another judgment that declared an intrusion by Prodhab into the freedom of expression of the protected media outlet, since said agency had ordered the elimination of a person's image in a specific news event that, in the Chamber's view, was of public interest and justified the use of the image of that investigated person. In the pertinent part, the following was decided:
"In this sense, censorship of press freedom can be direct –for example, the direct prohibition of a certain publication– or indirect (also called soft censorship, subtle, veiled censorship) –for example, the use of various means to intimidate and thereby prevent a publication–. The Convention provides a non-exhaustive list of cases of censorship through indirect means (controls on paper, frequencies, etc.) and concludes with the general rule, which would be '…or by any other means aimed at impeding communication and the circulation of ideas and opinions' (2015-1782).
The Chamber considers that the exercise of Prodhab's powers for the purposes of the Law for the Protection of the Person regarding the Processing of their Personal Data cannot be used as a censor of the legitimate exercise of press freedom, because that would be indirect censorship, under State control, of a fundamental, essential right for the sustenance of the democratic regime.
In that sense, the Chamber considers that if the use of the image (passport page photograph) as in this case, occurs within a context of a news event of public interest, inserted in a public document, directly related to the content of the news, –since it concerns a border migration issue–, the use of which, furthermore, does not denigrate or affect the image of its holder, it is not valid to separate or decontextualize that image from its news, much less to attempt to eliminate it, because it forms an integral part of it" (decision 2020-10961).
The granting of said amparo appeal is justified precisely because there was a direct restriction on the media outlet, and, for that reason, I concurred with the unanimous vote on the matter. Note that here too, the arbitrary act fell directly upon the newspaper.
The majority of the Chamber also invokes another judgment that I also signed. In said matter, it was verified that there were statements or instructions from the then executive president of the Costa Rican Institute of Aqueducts and Sewers, directed to servants of said institution, not to give statements to two concrete media outlets.
Synthetically, the Chamber concluded the following:
“On this point, the Court finds that in the *sub examine* there is sufficient evidence that the executive president of the ICAA spoke the phrase transcribed above, which, by all accounts, constitutes an infringement of the constitutional rights to freedom of thought and expression, freedom of the press, and equality, all in relation to the constitutional principles of democracy, accountability, and transparency in public administration, given that it is a kind of veiled censorship, since the practical result of such a call is to prevent the affected media from having access to public information” (judgment 2020-016167; emphasis not in original).
From this citation, a direct impact in relation to the media can be inferred. That is, the employees of the aforementioned institution were urged to refrain from “feeding” or providing information to two specific newspapers.
The majority of the Chamber also cites what was recently decided in judgment 2022-23107, in which I also participated, by which an alleged communication was brought to the attention of this Court that the then-Minister of Communication, Patricia Navarro Molina, sent via WhatsApp to all ministers and executive presidents of the Government. It was alleged that, in the referred communication, the minister instructed all heads of institutions to suspend, with urgent character, all types of state advertising to the media outlets Amelia Rueda, La Nación, CRHoy, and Canal 7. Likewise, that they were simultaneously urged “with urgent character not to participate in interviews on Hablando Claro and Amelia Rueda.” Nevertheless, that appeal was dismissed with respect to that point, since this Chamber could not consider it proven that the order or directive challenged by the appellant had been issued. However, as a considerative framework, judgment 2015-1782 was invoked, which was already referenced at the beginning of this section.
Finally, it should be noted that, although it was not invoked by the majority, it is pertinent to refer to the recent judgment issued on September 30, 2022, whose operative part was adopted on the following terms:
“The appeal is partially granted. Consequently, official letter No. MS-DM-6218-2022 of July 22, 2022, is partially annulled, with respect to the prohibition on providing statements or information without first having the respective approval from the heads of the Ministry of Health. Said official letter remains intact with respect to the management of inquiries through an institutional email (institutional spokesperson's office). The respondent authorities are warned that, in accordance with the provisions of Article 71 of the Law of Constitutional Jurisdiction, imprisonment of three months to two years or a fine of twenty to sixty days shall be imposed on anyone who receives an order that must be obeyed or enforced, issued within an amparo appeal, and fails to obey it or enforce it, provided the crime is not more severely punished” (judgment 2022-23075; emphasis not in original).
In that matter, the Chamber proved that the official letter established a prohibition directed at Ministry of Health employees from providing statements or information without first having the respective approval from the heads of that ministry. It was considered that this implied a restriction on freedom of information, and said official letter was partially annulled. It could also be debatable whether Article 13.3 of the CADH applies to this case, but if it did, note that the arbitrary act is aimed at directly restricting the free circulation of information that nourishes the media.
In any case, all of the judgments cited by the majority have in common that, in some way, a restriction on the freedom of flow of communication and ideas was verified, whether through the reduction of advertising that supports the media outlet itself, through specific directives aimed at eliminating news content, or through restrictions on public employees making contact with certain media outlets. The rationes that grounded those judgments, from my perspective, are not applicable to the present matter. Indeed, in this one, as has been stated throughout these pages, a specific conduct intended to restrict the free circulation of information and the fundamental rights of the protected journalists could not be proven. That is, there is no record of any data by which it could be affirmed that the challenged acts had prevented the appellants from carrying out their journalistic work, that is, the exercise of their freedom of expression. Therefore, since a specific restriction has not been proven, the precedents invoked up to this point are not applicable. If there had been an injury to such freedom, it would be appropriate to examine whether the indirect means effectively restricted it, but here the injury as such is not noticed. Furthermore, and this is particularly relevant, in all the cases where the Chamber declared that the acts infringed freedom of expression, these fell directly upon the communicator or the media outlet.
These insights provided by that jurisprudence, from both the Inter-American Court of Human Rights and the Constitutional Chamber, are a starting point to resume the reflections that were being made in the section heading regarding the non-existence of the injury.
E. Additional Reflections on the Non-Existence of the Violation As I have said, from the moment it is verified that there is no standing, it is not appropriate to examine the merits of the matter to determine whether the alleged injury occurred. But, if there were standing, this would not be enough to grant the appeal, as at least two conditions must be met: that there is an infringement of freedom of expression and that the acts are arbitrary.
With the jurisprudence previously discussed, I believe that it has become even clearer that in the present case, the infringement of freedom of expression did not materialize, because there was no impediment to “the communication and circulation of ideas and opinions.” Regarding the acts, it has already been indicated that, in principle, an act must be arbitrary for the possibility of it being formally injurious to arise. If the acts are legitimate in themselves, one could not speak of an infringement of freedom of expression but rather of a harm, which is not wrongful. As the judgment says in a passage that was transcribed in its entirety and which is cited here in the pertinent part:
“[N]ot every act that has a negative impact on the sphere of a financial structure constitutes an alteration of the freedom under examination” (Considering VIII).
Now then, what would happen if the act were legitimate in itself, but it has real and harmful repercussions on the financial stability of the newspaper, which would make freedom of expression impossible or severely difficult, in the sense that independent journalism would not be possible?
To answer this question, it would be appropriate to invoke Article 3 of the LJC:
Article 3. The Political Constitution shall be deemed infringed when this results from comparing the text of the challenged norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles. (Emphasis not in original).
The norm is more applicable in constitutionality control processes, but being in the preliminary part of the law and referring to the “challenged act,” nothing prevents its use in guarantee processes for fundamental rights, such as the amparo appeal.
So, according to that norm, acts that are legitimate in themselves could gravely and formally injure freedom of expression, which is why for that reason it could be understood that their annulment would proceed.
However, I believe that the application of Article 3 of the LJC has a limit. Or rather, perhaps that same article applied vigorously is the key to clarifying its own limits.
In the first place, it will be necessary to examine whether those injurious effects are wrongful, because, although harmful, the acts that cause such effects are not necessarily arbitrary. But, moreover, it is not just about assessing the specific effects of the acts on their direct recipient (Parque Viva), but on other spheres (the newspaper La Nación and, therefore, the appellants). That is, it would be necessary to attend to the effects that the challenged acts have on the other business unit (the newspaper). Even so, everything points to the need to go further. It is appropriate to consider what the effects would be of considering that arbitrary acts are injurious because they affect another business unit and, presumably, by leaving it without economic support, they curtail the freedom of expression of the appellants.
In the present matter, one must keep very much in mind the coordinates of the issue: it involves two business units –Parque Viva and the newspaper La Nación– that belong to Grupo Nación, but that are not part of a production process. Each one has distinct and fully independent commercial activities, both by their object (what they do) and by the subjects involved in them. Each business unit is subject to different rules in the various regulatory and management planes.
Well then, as has been seen, Article 13.3 of the CADH states that injury to freedom of expression by indirect means occurs when these are “aimed at impeding the communication and circulation of ideas and opinions.” Furthermore, per jurisprudence from both the Inter-American Court of Human Rights and the Constitutional Chamber, the acts must fall upon the subject who communicates (natural or legal person). So, the question is: are those acts that fall upon a business unit (Parque Viva) distinct from the newspaper injurious to freedom of expression because they affect its financial health?
If one were to answer yes, that is, that the acts are arbitrary and are injurious to freedom of expression because they affect the financial stability of the newspaper, what one would be affirming is that the cause of the violation of freedom of expression is that impact on that stability. If this were truly so, it would be almost irrelevant whether the acts are arbitrary in themselves or not, as it would suffice that they affected financial stability for them to be considered wrongfully injurious, because what would matter is whether, due to their effects, the acts are wrongfully injurious. From my perspective, holding that would have counterproductive consequences for society and, paradoxically, for the owners of Grupo Nación.
Again, the question is: Do the challenged acts that fall upon Parque Viva (which is a business unit dedicated to a commercial activity unrelated to the media) affect the freedom of expression of the journalists of La Nación (which is the dependent business unit) by leaving the newspaper without financial support, and are they, therefore, arbitrary?
The answer this time adds another piece of information: If the answer were yes, then one would have to admit that any act that harms the financial health of Parque Viva would injure the freedom of expression of the journalists of La Nación, by leaving the newspaper without financial support. Ultimately, as has been advanced, the cause of the wrongful injuriousness would be the impact on the financial health of the newspaper. However, that does not seem reasonable for several concatenated reasons:
To facilitate the analysis, it will be understood that business unit A is the one with a commercial activity unrelated to the media (Parque Viva) and business unit B is the newspaper.
First. Any natural or legal person would wish to have a business unit like B, in order to have a sort of impunity regarding the Administration in their business unit A, because this unit must always be unharmed, protected, from any financial impact proven to affect the activity of business unit B.
Second. There would be the danger that any legitimate act of the Administration that falls upon business unit A, but which is proven to have a financial impact on business unit B, would be considered illegitimate due to its effects on the freedom of expression of those who work there. That is, the Administration would have serious limitations in enforcing compliance with the specific norms of each commercial activity, because once the financial dependence of B on A is proven, everything would be redirected to an injury to freedom of expression, even those acts that are legitimate in themselves.
Third. That danger could even entail a risk for the owner of business unit A itself, because if they carry out a legitimate act upon it that affects the financial health of business unit B, they would be committing an act injurious to the freedom of expression of the journalists who work in business unit B. The alleged impunity that business unit A would enjoy vis-à-vis the Administration becomes a source of its own horizontal and boundless responsibility toward the journalists who work in business unit B.
The foregoing would be so because what would make the act wrongfully injurious to freedom of expression would not be the lack of any of the requirements of validity (substantial and formal) and effectiveness, but its effects on the financial health of the dependent unit; and that such an impact would be understood to necessarily affect freedom of expression. That is, it would be considered that this freedom would be injured by any financial impact on business unit B originating from business unit A. So that, under that logic, any act falling upon unit A (not just the one arbitrary in itself) that affects the financial health of B impedes “the communication and circulation of ideas and opinions” (Article 13.3 of the CADH). This regardless of the nature of the act, its legitimate nature or not, or the intensity of the impediment.
I ask myself if that thesis withstands universal application. It seems that sooner rather than later it would lead to absurdity.
Furthermore, it must be borne in mind that holdings or business conglomerates are composed of parallel business units that are subject to rules specific to the commercial activity to which they are dedicated. Therefore, the same financial root does not allow extrapolating rules from one business to another: neither the prohibitions, nor the protections, nor the benefits.
So much so that, in the event of bankruptcy of one of the units (that are not part of the same production process, but are dedicated to distinct commercial activities), the workers of the unit in crisis could not claim against the assets of the other solvent unit, precisely because they are two different business units and their responsibilities and rights are not interchangeable.
In this regard, the judgment states:
“[I]t should be noted that like any administered person, these structures are bound and subject to the legal norms that regulate, specify, and delimit the exercise of their respective economic activities. In that sense, their operation must satisfy and comply with the regulations specific to their activity, which includes having the respective administrative authorizations for the deployment of the commercial matter” (judgment, Considering VIII; emphasis not in original).
This is also so due to the requirements of the principle of equality, since otherwise, equals would be treated unequally. That is, owners of media outlets who are, at the same time, owners of another company with a different commercial activity would have, in this other activity, advantages over other competitors, as just explained.
So, it appears that the application of an administrative act to one of the business units, even if it has a financial impact on another business unit that is parallel and independent (by its object and by the subjects involved, and not part of the same production process), is not enough to understand that it is an indirect means to wrongfully injure any right of those linked to the other unit, not even if it concerns freedom of expression. Moreover, as has been pointed out, Article 13.3 of the CADH clearly indicates that it will be deemed injurious if that indirect means or method impedes “the communication and circulation of ideas and opinions.” There is one last element worth discussing. Although it is not possible to give a univocal answer, as the topic has many facets, it is worth asking whether the format is part of the core of freedom of expression, at least, of that which is exercised through a media outlet. For this, it must be remembered that freedom of expression entails by definition the duty of non-action on the part of the State: not to impede its exercise. And, under Article 13.3 of the CADH, it must be added that there is also an obligation to guarantee that this exercise is not impeded by indirect means. But what is it that must be protected? That norm says “the communication and circulation of ideas and opinions.” It says nothing about the way of doing it. That is, it does not seem that protecting freedom of expression necessarily means that the State must absolutely guarantee that someone continue exercising that freedom through a format freely chosen by the communicator, especially if one is in the presence of other equally or more effective communication options. That is why it is not obvious that this obligation to guarantee extends to the duty to “foster” or protect at all costs “the communication and circulation of ideas and opinions” in a format that, for various reasons (caused or suffered), becomes unviable. Such reasons can be logistical, financial, or even technical. This is an issue open to debate.
F. Grounds for Granting the Appeal Regarding Freedom of Expression The appellants recount a set of facts to prove the link between the challenged object and the alleged injury. It seems that for them, the importance of some of these is that they reflect the context that allows for evaluating that link. However, I believe that some facts are significant in themselves. They will be analyzed here to determine if they constitute direct violations of freedom of expression.
1. Normative and Jurisprudential Framework There are two norms that must be taken into consideration. On one hand, Article 29 of the Political Constitution, which establishes:
Article 29. Everyone may communicate their thoughts by word or in writing, and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law.
On the other hand, in the pertinent part, Article 13 of the CADH, which states:
Article 13. Freedom of Thought and Expression 1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law and be necessary to ensure: a) respect for the rights or reputations of others; or b) the protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
4. Public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence, without prejudice to the provisions of paragraph 2.
5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to violence or any other similar illegal action against any person or group of persons on any grounds, including those of race, color, religion, language, or national origin shall be prohibited by law. (Emphasis not in original).
The Constitutional Chamber has a robust jurisprudence that underscores that respect for freedom of expression is one of the indispensable conditions of the Rule of Law and the exercise of democratic life. Among many other judgments, the following can be partially transcribed:
“VIII.- Freedom of expression as an indispensable requirement of democracy. Freedom of expression is without a doubt one of the conditions –although not the only one– for democracy to function. This freedom is what allows the creation of public opinion, essential for giving content to several principles of the constitutional State, such as, for example, the right to information, the right of petition, or rights regarding political participation; the existence of a free and consolidated public opinion is also a condition for the functioning of representative democracy. The possibility for all persons to participate in public discussions constitutes the necessary prerequisite for the construction of a social dynamic of exchanging knowledge, ideas, and information, which allows for generating consensus and decision-making among the components of the various social groups, but also constitutes a channel for the expression of dissents, which in a democracy are as necessary as agreements. For its part, the exchange of opinions and information that originates from public discussion contributes to forming personal opinion, both of which shape public opinion, which ends up manifesting itself through the channels of representative democracy” (judgment 2006-5977; emphasis not in original; these considerations have been many times reiterated by the Chamber, for example, in judgments 2015-1782, 2018-8396, 2019-8263, and 2020-16167).
This judgment continues with a passage particularly relevant for the analysis that will be made immediately:
“The consequence of freedom of expression is the prohibition of all forms of censorship, in a double sense: one cannot censor the interlocutors, on one hand; and one cannot, in general, censor in advance the possible contents of the discussion either: in principle, in a democracy, all topics are debatable. The non-censorability of subjects has a practically universal character, as established by our Constitution, no one can be deprived of the freedom to speak and express themselves as they best see fit; the non-censorability of contents, although it does not occur in advance, finds some limitations, however, these must be such that freedom continues to have meaning or is not emptied of its content, basically, like all freedom, it must be exercised responsibly, in order to pursue legitimate ends within the system” (ibid.; emphasis not in original).
That is, it speaks of censorship –understood as the act of reproving– as an act contrary to freedom of expression. Said another way, it affirms that the consequence of that freedom is the prohibition of all kinds of censorship. So, prior censorship does not exist alone, expressly prohibited by Articles 29 of the Constitution and 13 of the CADH, but rather a subsequent censorship may occur, which has the purpose of inhibiting certain informative or opinion content. It is also said that protection against censorship reaches not only the subjects (who communicates) but also the content (what is communicated).
Furthermore, although it does not emerge from those jurisprudential lines, I believe that other criteria could be incorporated to complete a typology of censorship. Thus, by its appearance, it can be veiled or manifest; by the means to exercise it, it can be direct or indirect (for example, as provided in Article 13.3 of the CADH); by its effects, it can be absolute (if the reprobation goes concomitantly with suppression) or relative.
Finally, synthetically, it has said:
“The Chamber recalls that the defense of freedom of expression is vital for the functioning of a democratic regime” (judgment 2017-014977; emphasis not in original).
Naturally, I fully concur with that jurisprudence, and I have participated in many other subsequent judgments that strengthen that line (see judgments 2021-15417, 2022-4244, 2022-5915, 2022-9856, 2022-23107, among others).
2. Factual Framework When reading the allegations, it is noted that the appellants consider that the administrative acts are the last link in a chain of threatening demonstrations against freedom of expression. As I have said, they allude to these to reflect a context and show the link between the sanitary order (and the related official letter) and the injury to freedom of expression. However, in my judgment, it is necessary to pause and examine which manifestations of the President of the Republic –not only those alleged, but those that have the character of a public and well-known fact and that can undoubtedly be considered part of that context– could constitute in themselves direct injuries to freedom of expression.
This examination must be measured by procedural requirements: temporality, standing, passive legitimation, etc. Therefore, it is only appropriate to analyze the facts that occurred from the moment the President assumed power (as he was not a public official before then), until the moment this amparo appeal was filed (July 29, 2022).
That is the reason why two particularly significant manifestations are excluded: that of January 29, 2022, in which he refers by their names to the directors of media outlets, and that of August 3, 2022, which calls journalists “fauna,” and states that one of the species is that of the “rats.” Special mention deserves the term “prensa canalla” (vile press). In this regard, the appellants state:
“In our case, as is public and well-known, in addition to the constant use of the word ‘canalla’ [vile], an insult to delegitimize, intimidate, and stimulate repudiation of the press among government followers, which is in itself dangerous” (filing brief, p. 6).
However, it is a verified fact that from the moment he assumed power, the President has not used that word, at least in public. Therefore, this point must also be excluded from the examination.
Nevertheless, it is appropriate to make two considerations. In the first place, it has certainly not been said that a specific person is canalla, but when saying “press,” it alludes not only to the company or medium as such but to those who practice journalism within it. In the second place, it is difficult to find a more insulting term than that. The Dictionary of the Royal Spanish Academy says:
canalla: From It. canaglia, and this der. from cane ‘dog’.
1. f. colloq. Low, despicable people.
2. f. disused. pack of dogs.
3. m. and f. Despicable person of bad behavior.
It is obvious that no one deserves that epithet.
Nor are the statements made in the press conference of July 9 or that of July 20, 2022, taken into account, which refer to the owners of Grupo Nación, not properly to the appellants.
However, it is sufficient for this analysis to confine oneself to the press conference of July 13, 2022. On that occasion, the President stated the following:
1:13:26 “Freedom of the press in Costa Rica is in good health. You have a Government that will defend it at all costs. Is there any medium closed? Any journalist detained? Any rotary press stopped? Obviously not.” In this regard, it must be pointed out that the President seems to forget that those are not the only ways to injure the freedom of expression of journalists. Not only closing a newspaper or unjustifiably arresting a journalist are conducts that violate freedom of expression. This is so not only because direct injuries can occur through indirect means, per Article 13.3 of the CADH, but because direct injuries through direct means can occur in many ways.
In that press conference, the President also made other statements about which a preliminary warning is appropriate. At many moments, he alludes to Grupo Nación and at others to the journalists who work at the newspaper La Nación. Sometimes it is not possible to distinguish if he is addressing one or the others, because he refers to them as a whole. However, a selection of statements that are undoubtedly directed at the newspaper La Nación was made here, although it could also be understood that he is simultaneously referring to Grupo Nación as such.
Therefore, seeing that the appellants work for that media outlet, it must be understood that these statements are directed at them:
1:16:46 “Article 50 of the Political Constitution, which I swore to defend (…), obliges me to make public officials do what La Nación says mendaciously, falsely, it is an attack on freedom of the press” [the italicized portion with voice inflection, in a mocking and ironic tone].
1:17:25 “In 2017 a media outlet that is not part of this category, of this species, of this group, published internal e-mails from Parque Viva saying (…) ‘here we have a serious problem and we have to get to fixing it’” [the italicized portion with voice inflection, in a mocking and ironic tone]. 2017 to 2022: what has happened? Nothing. Where is the remedial plan?” 1:18:08 “Not only has the La Nación group lied to the population. It has defamed the homeland, it has defamed Costa Ricans before the international press and community, (…) asking little favors from its partners and friends in the Inter-American Press Association to defend petty interests”.
1:18:50 “What La Nación should have done instead of having defamed this blessed homeland, where freedom of the press is guaranteed, was to get to work hard and honestly to prepare a viable and honest plan. They have had five years since they themselves recognized that there were unacceptable risk levels and that they had to be fixed”.
1:19:49 “Did you hear the barefaced lie that La Nación published? (…) that it has been requesting access for route 27 for two years (…) La Nación says: We accuse you!: This is against freedom of the press because they move quickly. Is that what we have come to in Costa Rica?” 1:23:56 “Whom does the La Nación Group defend?… freedom of the press or its own interests?” 1:28:00 “Because they believe themselves above the law…” 1:28:26 “I would give my last blood to protect the freedoms of our people, including the freedom to lie and to misinform that these media outlets allied with the caste that thinks itself monarchical in this country have exercised with pleasure, frequently”.
1:29:50 “You, La Nación, have the freedom to work. You should be ashamed to defame your country (…)”.
I would have liked to have a normal press conference (…), but the amount of ink, the amount of minutes on television channels that have been dedicated to misinforming you madam, you sir, you young person, in your home, in your car, wherever you are hearing this, was too much (sic), and this is my right of reply, because the right of reply those media outlets (You know the word, I am going to keep quiet about it) I do not believe they would have given me, because they denied it to me in the past (…).
I know it is a series of passionate, strong expressions and meditations. I know that the people of Costa Rica are not accustomed to seeing a president telling the La Nación Group that they think they are kings with crowns, Costa Ricans with crowns. But this is a new era. Here we are all equal in freedom, in respect, with absolute freedom of expression, even if they are lies, but freedom of expression does not mean that someone can lie barefacedly and that the government and the offended persons have to remain silent”. (The highlighted portions are what is deemed relevant).
3. Considerations regarding the statements These statements reflect the context of tension, following the temporary closure of Parque Viva, between the president and Grupo Nación and the newspaper La Nación. They allude to determinable persons, some of whom are the appellants in this amparo.
Those statements were public and made in his capacity as president of the Republic, that is, of whoever holds the highest office. That means that his conduct in and of itself has a very great projection and relevance.
Vehement style is not injurious per se. However, words and an extremely belligerent tone can be, for they destroy the peaceful climate that is necessary for the free exchange of ideas in a democratic society. Even more so when the statements discredit specific persons or a line of reporting.
As was stated in one of the transcribed judgments, this Chamber has pointed out:
“Freedom of expression has as a consequence the prohibition of all forms of censorship, in a double sense: on the one hand, interlocutors cannot be censored; and, on the other hand, the possible contents of the discussion cannot, in general, be censored beforehand either: in principle, in a democracy, all topics are debatable. The non-censorability of subjects has a practically universal character, as our Constitution establishes, no one can be deprived of the freedom to speak and express themselves as they see fit” (judgment 2006-5977; the highlighting is from the original).
This means that any statement that entails censorship, even if due to its effects it is only relative and not absolute, since it did not prevent the subsequent dissemination of the disapproved ideas, constitutes a direct injury to freedom of expression, because freedom of expression demands respect for those who dissent and entails facilitating the communication of ideas without any discrediting, neither of the subjects nor of the contents.
The appellants deserve respect in the first place due to the dignity inherent in their condition as persons. Precisely, the safeguarding of that dignity is the goal of every Rule of Law. They also deserve respect for the very fact of being journalists, whose work is of particular importance in a pluralistic and democratic society.
Certainly, the president of the Republic also has freedom of expression, but due to his character as a public official, it is limited by the duties inherent to his office: respect for the Constitution and the laws, and for the dignity of others, and for expressions of criticism and dissension.
In that sense, the Political Constitution states:
Article 140. The following are duties and attributions that correspond jointly to the President and the respective Minister of Government:
To maintain the order and tranquility of the Nation, to take the necessary measures for the protection of public liberties.
Therefore, protecting public liberties—and within these lies freedom of expression—is a task constitutionally assigned to the president. The norm also refers to order and tranquility, necessary not only in the realm of public security, but also in the peaceful coexistence characteristic of a democratic regime. For that reason, provoking or contributing to a level of verbal violence directed against journalists who dissent from his viewpoints appears to be an affront to the atmosphere of social peace that he should promote.
It is a different matter whether that climate of violence is magnified by other social actors, but that exceeds the scope of these pages.
It is now appropriate to distinguish and analyze three especially relevant passages:
First. Those in which he calls the journalists liars.
It is not appropriate to rule on who is right on the merits of the matter (I have already stated ad nauseam, in the dissenting opinion, that in my view it should have been heard in the contentious-administrative jurisdiction), but it is clear that within the framework of a democratic and pluralistic society, it is not acceptable to call someone who dissents a liar, since that—in addition to being denigrating—stifles public debate, discourages the free circulation of ideas and opinions. Therefore, if it is believed that a person or group of persons lacks truthfulness and that this has relevant consequences—in addition to stating it publicly, but without censoring—, one can very well use the channels that the legal system offers to settle the matter. But discrediting persons in such a belligerent manner is not a solution, much less so in a democratic society.
What is proper to journalism is to communicate what is understood to be truthful and fair. For that reason, calling journalists liars means describing them as lacking a quality that by their condition they should possess. That is to say, when directed at journalists, that adjective acquires a particularly pejorative connotation and is, without a doubt, censorship.
Second. Those in which he states that La Nación, and therefore the journalists who work at that media outlet, have defamed the homeland and Costa Ricans.
The context of this is as follows. The closure of Parque Viva was a news event that was picked up in prestigious Latin American newspapers, under the following headlines:
“Government of Costa Rica closes Parque Viva after Rodrigo Chaves's attack on the newspaper ‘La Nación’”.
“Government of Costa Rica closes Parque Viva amid attacks by the president on the newspaper ‘La Nación’”.
“The government of Costa Rica attacked one of the country's main media outlets and then closed a stadium belonging to that company”.
Therefore, the president believes that the fact that such media outlets and others reported on the closure of Parque Viva with an approach coinciding with that of La Nación, and its journalists, is due to their efforts before such media outlets. If that were the case, why would that be reprehensible? Both the journalists of La Nación and those of other media outlets are entirely free to communicate the news from their own angle. And why is it despicable for the newspaper La Nación and its journalists to seek alliances beyond the borders? This course of action is natural, logical, understandable, and it does not seem that in and of itself it entails “defamation” of the homeland and of Costa Ricans, among other things, because neither “homeland” nor “Costa Ricans” are categories or terms that identify with “government”. Again, that very damaging discrediting of the appellants constitutes censorship that curtails the exercise of their freedom of expression.
Third. That in which he says that what was stated in that press conference responds to his right of reply, which he believes would have been denied him.
It is worth noting that in that passage he does not utter “the word”: “You know the word, I am going to keep quiet about it”; but it is not risky to assert that he alludes to that word he has avoided saying since he became president of the Republic. This for three reasons: the suppression does not mean he does not allude to it; he suppresses it because it is denigratory; the word seems to unequivocally evoke a word that the others know is the one that at the time he said also referred to the newspaper La Nación. But since the foregoing is only a triad of conjectures, it suffices to refer to another aspect of that passage: the presumption that the newspaper would not accommodate his right of reply. In this regard, it is obligatory to state that under that logic the foundations of a Rule of Law are undermined, because it is taking justice into one's own hands. It is another thing that in the press conference the president deems it opportune to make clarifications and show the reasons for the divergence with the newspaper, but it is not legally appropriate for the justification of that to be based on the presumption of non-compliance, on the part of the newspaper and of those who work there, with what is established in articles 66 and following of the LJC, concerning the right of rectification and reply.
Those hostile and delegitimizing statements about the media outlet where the appellant journalists work, and therefore about them themselves, do not contribute to creating a climate of free exchange of ideas. On the contrary, as I have said, they constitute censorship, which constitutes direct injuries to the appellant journalists.
Of course, any authority, and certainly the president, may use the forums at his disposal to clarify, contrast, and deny what is said by journalists; but what is appropriate is to do so within the framework of respect, characteristic of a pluralistic society and consonant with our democratic tradition.
Regarding this last point, it is striking that there is practically no case law on this subject. Perhaps this is due to the fact that the prevailing tone in this country to date has never been for public officials to exercise censorship of this nature, neither with journalists from La Nación nor with those from other media outlets.
Given that for procedural reasons it is not possible to hear the other statements, which are public and notorious facts and are part of the already-mentioned context of tension, it is also not legally feasible for me to rule on the existence or not of a pattern of conduct on the matter.
4. Conclusion It is possible to conclude that the president's statements made on July 13 in the press conference, which are part of the context referred to by the appellants, constitute examples of direct, manifest, albeit relative, censorship, and therefore they are direct injuries to the freedom of expression of the appellants, which is why I find that it is appropriate to grant the amparo appeal with respect to this aspect.
Given that I do not rule on the challenged administrative acts, that is, the sanitary order and the related official letter, since I find that this Chamber lacks competence to hear them within the framework of this amparo appeal, I will not refer to those administrative acts in and of themselves, that is, whether or not they are arbitrary. However, I find it pertinent to make some considerations regarding the case file and the judgment. This will confirm what was stated in the dissenting opinion, in which I hold that the amparo appeal was not the ideal process to resolve this matter.
The dilemma: “ordinariar” the amparo or respect its summary nature The present case placed the Constitutional Chamber in a dilemma: denature the amparo appeal, transforming it into an ordinary process—what is colloquially called “ordinariar” the amparo—or resolve without all the necessary elements. Apparently, the majority wished to preserve, as far as possible, the summary nature of the amparo. Indeed, although this judgment is voluminous, there are grounds to believe that regarding the examination of the challenged acts, two types of deficiencies occurred: one on the evidentiary level and another referring to the parties brought into the process. This is what I will immediately proceed to show.
1. On the evidentiary aspects It is necessary to recall that the amparo appeal is summary by nature. In the words of the Chamber, which, incidentally, it uses every week in its summary dismissals, this means the following:
“[The purpose of the amparo appeal is to provide timely protection against infringements or threats to fundamental rights and freedoms, not to serve as a generic instrument through which it is possible to take action against any other kind of constitutional or legal violations. Consequently, the admissibility of the amparo appeal, in general, is conditioned not only on proving the existence of a disturbance—or threat of disturbance—to one or more of the rights or guarantees contemplated in the Political Charter or in the international human rights instruments subscribed to by the country, but also that the alleged grievance entails a direct and gross threat or violation of those rights, which endangers that part of their content that is essential and connatural to them, that is, the core that gives them their peculiarity and makes them recognizable as rights of a specific nature. The foregoing, in legal doctrine, is known as the minimum essential content of the right, which is violated, for example, when the exercise of any right is conditioned upon the fulfillment of conditions, assumptions, or requirements of such a nature that, in practice, make its use materially impossible or nugatory. In this regard, constitutional case law has specified that the problem of direct and indirect violations of the Constitution also involves a necessary assessment of the suitability and expedited nature that must characterize the amparo channel. It has been said that ‘…in essence, the basic idea may lie in the distinction between a direct and an indirect injury to fundamental rights. In sound constitutional doctrine, the criterion is based on the fact that any infringement of legality, in matters related to those rights, may eventually cause injury to those fundamental rights, but when it is a merely indirect injury, because there exist within the state apparatus bodies that can and must protect those rights and repair their violation, it falls to them to hear the matter and not to this Chamber...’ (Judgment N° 1610-90 of 3:03 p.m. on December 9, 1990). This latter point highlights the reason why the amparo process is of an eminently summary nature—that is, brief and simple—and its processing is not compatible with the practice of slow and complex evidentiary proceedings, or with the need to previously examine—with declaratory effect—whether the infra-constitutional rights that the parties cite as part of the factual catalogue of the amparo appeal or of the statutory report, as the case may be, actually exist” (judgment 2021-001965; the highlighting is not from the original; these jurisprudential lines are constantly repeated by this Tribunal, and to cite some examples, vid. judgments 2018-18079, 2019-17891, and 2020-12053).
However, due to the characteristics of the acts challenged here, a rigorous analysis and contrasting of extensive technical evidence and criteria from the respondent authorities was necessary, namely: the permits granted by the Permits Unit of the Dirección General de Ingeniería de Tránsito of the MOPT; the conditions under which the sanitary operating permit MS-DRRSCN-DARSA2-RPSF-0177-2019 was granted by the Ministry of Health; the capacity authorizations given by the Área Rectora de Salud Alajuela 2 of the Ministry of Health—official letters MS-DRRSCN-DARSA2-4070-2021 of December 16, 2021, and MS-DRRSCN-DARSA2-0163-2022 of January 20, 2022—; the inspection record MS-DRRSCN-DARSA2-1639-2022 and the report resulting from the inspection MS-DRRSCN-DARSA2-1641-2022 of July 5, 2022, issued by the Área Rectora de Salud de Alajuela 2; the official letter DVT-DGIT-2022-339 from the MOPT, which referred to the road conditions in the area and was categorical in ensuring that, at the time mass gathering events are held, the road that provides access to Parque Viva does not have sufficient capacity to manage the generated traffic; the technical criteria of the experts from the Comité Asesor Técnico de Concentraciones Masivas, which is composed, among others, of representatives from the Comisión Nacional de Emergencias, the Benemérito Cuerpo de Bomberos, and the Cruz Roja Costarricense.
In passing, it is worth recalling that initially the sanitary order was issued “until such time as the technical criteria issued by the Benemérito Cuerpo de Bomberos de Costa Rica and the Benemérita Cruz Roja Costarricense regarding the capacity of the access road to said establishment for the first-response units of those institutions are available for analysis and the taking of respective actions, the same being processed by the Ministry of Health”.
Furthermore, it was necessary to assess diverse technical criteria gathered by the competent authorities. Thus, among others, the following that appear to have relevance: the official letter MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 of July 10, 2022, signed by the regional subdirector of the Dirección de la Fuerza Pública de Alajuela, from which it follows that the Fuerza Pública “has been facing a situation of obstruction in attending police-type incidents, in the immediate external perimeter of Parque Viva, located in Rincón Chiquito in the district of La Guácima de Alajuela, at times when activities are being held at that location. This zone is classified by the Fuerza Pública as a sensitive area; since different criminal actions converge there”; the official letter CBCR-027150-2022-OPB-00741 from the Benemérito Cuerpo de Bomberos, in which it was concluded that “due to the situations raised previously, as a consequence, several communities such as Rincón Chiquito, Rincón Herrera, Guácima centro, as well as the facilities of Parque Viva itself, could be affected because the response time of Fire Department units increases considerably, and furthermore, when road blockages occur, access to the communities is impossible, a situation that endangers lives and properties”; the technical reports CRC-GG-SO-OF-074-2022 and CRC-GG-OF-012-2022, signed respectively by the deputy operational manager and by the general manager of the Asociación Cruz Roja Costarricense; the official letter 911-DI-2022-2202 of July 11, 2022, rendered by the director of the Sistema de Emergencias 9-1-1; the technical criterion DM-2022-3121 of July 11, 2022, signed by the Minister of Obras Públicas y Transportes.
All of these are reports mentioned in the judgment, but it does not show a detailed assessment of them, as would surely have been appropriate in view of what the majority set out to do when hearing the challenged acts: determine whether they were arbitrary and lacking in foundation. This as a premise without which it was not possible to declare an injury to freedom of expression. Indeed, as has been seen, if the act was not arbitrary, even if an impact on the appellants derived from said act were proven, there would be no basis to grant the appeal for injury to freedom of expression. For that reason, it can be stated that, if an examination on the merits was to be carried out, the analysis of the technical aspects was entirely pertinent.
2. On the parties brought into the process From reading the judgment, the absence of many subjects involved in some way in the challenged administrative acts is evident. Certainly, this matter was processed exclusively against the president of the Republic and the minister of Health; however, the judgment refers to a series of conducts, competencies, and criteria of other authorities that were not joined to this process and whose considerations were necessary to reach a well-founded conclusion. For example, the minister of the MOPT was not joined, nor the heads of the Consejo Nacional de Vialidad, the Dirección General de Policía de Tránsito, the Dirección General de Ingeniería de Tránsito, the Consejo Nacional de Concesiones, and the Comisión de Carreteras de Acceso Restringido; other authorities from the Ministry of Health, namely: those from the Área Rectora de Salud Alajuela 2 and the Dirección Regional Rectoría de Salud Central Norte; the members who issued criteria on the Comité Técnico de Concentraciones, in which there are representatives from the Cruz Roja Costarricense, the Comisión Nacional de Emergencias, the Benemérito Cuerpo de Bomberos, the Sistema de Emergencias 9-1-1, and the Gestión de Riesgo of the Ministry of Health. Nor was the Municipalidad de Alajuela joined to the process—an authority to which the majority of this Chamber attributes part of the problem examined here and which could well have provided guiding criteria to solve the situation underlying this dispute.
Many of those authorities could have been joined as respondents, since, as is known, in the processing of an amparo, the jurisdictional body has the power to expand the process, with respect to the parties and the subject matter. It also has the power to request evidence for better decision-making, both regarding reports rendered that merit clarification, and regarding evidence that is on file—official letters, for example, that were issued by persons outside the process—and, naturally, regarding data that is not yet on file. Much of that additional evidence can also be requested from authorities that it is not appropriate to treat as parties.
Therefore, many of the mentioned authorities could have been present as respondents or as simple informants—in the context of evidence for better decision-making. The latter even in cases where official letters signed by those authorities were on file.
In that sense, there are other authorities that could also have nourished the analysis of the matter. For example, the Contraloría General de la República, which rendered a report on the effectiveness and efficiency in the use of cantonal road network resources in the Municipalidad de Alajuela; the Ministerio de Seguridad Pública and, particularly, the Dirección General de la Fuerza Pública, given their very forceful technical reports. The same could be noted regarding the Instituto Nacional de Vivienda y Urbanismo (INVU), which issued a report, and even the Secretaría Técnica Nacional Ambiental, which stated that the Parque Viva premises had an environmental viability (viabilidad ambiental) only for improvements to the racetrack.
In order to carry out a thorough analysis of the situation raised, it would have been necessary to examine aspects that are not proper to an amparo appeal, for example: the legitimacy of an anonymous complaint; the alleged irregularity in the diligence and haste of the administrative actions; the necessity, timeliness, and advisability of issuing a sanitary order in the interest of protecting human life and health, also subject to the collection of more technical elements to confirm the decision; the scope of the sanitary order and the related official letter; the validity of the sanitary permits and compliance with the capacities established by the Ministry of Health authorities; the competence of those authorities to order the submission of a proposal for improving road flow for holding mass events; the responsibility of private companies in resolving the road collapse problems derived from commercial activities carried out by them. Also, surely, to assess the adequate control of urban development and the issuance of sanitary and construction permits in the area in question. Additionally, to determine the objective causes that provoke traffic congestion and the remedial projects of the Municipalidad de Alajuela and other competent authorities in the matter; and to address the possible response scenarios in an emergency situation together with a severe traffic congestion scenario. Likewise, and in light of the petitioners' questions, it would have been appropriate to weigh the reasonableness and proportionality of the issued order in relation to the material possibilities and the scope of the responsibility of the company owning the property to solve the road problem attributed to them.
It must be borne in mind that the appellants argue that the sanitary order was executed arbitrarily, despite the fact that technical criteria from the Cruz Roja and the Cuerpo de Bomberos, concerning the capacity of the access road to the establishment, were not yet available, and that these were provided and communicated days after the issuance of that order and that, furthermore, they are questionable. Those assertions confirm that what was alleged and sought required a plenary trial in which, by evacuating all pertinent evidence, it would be possible to also analyze the questions raised regarding the technical reports subsequent to the order, which came to confirm the road problem examined by the Ministry of Health and other technical instances. In an appropriate venue and process, not only would an adequate reception and assessment of the evidence have been possible, but the opportunity would have been granted to contrast the criteria of the competent technical authorities. On the contrary, for example, it can be observed that the judgment attempts to counter the criterion of the executive presidency of the INVU with a publication made by the mayor of the Municipalidad de Alajuela on a social network. Naturally, I do not rule on whether one authority or the other is correct, but rather on the manner chosen by the majority of the Chamber to contrast opinions of authorities that are contradictory to each other. In that sense, it could be said that it does not appear to have been the most accurate from a procedural legal standpoint.
Everything I have set down here, as follows from the title of this section, highlights the severe dilemma this tribunal was subjected to: “ordinariar” the amparo appeal, to evacuate and examine all pertinent evidence, or resolve without all the elements necessary to carry out a rigorous and detailed analysis of the matter, as it demanded. The latter, because not only was the protection of the freedom of expression allegedly infringed at stake, but also the right of the inhabitants to have their health, their physical integrity, and their lives protected.
In my dissenting opinion, I have shown that this dilemma was resolved if only the Chamber had respected the summary nature of the amparo process, thus continuing with its solid case law on the matter. In that way, it would have declared that this conflict should have been brought in the ordinary channels of legality. Well then, now, a careful reading of the judgment leads me to confirm that to determine with certainty whether the challenged acts were arbitrary, unfounded, or disproportionate—as the majority of the Chamber affirms—what was appropriate was for this matter to be decided in the ordinary channel, after a comprehensive examination of the situation and of all the evidentiary elements outlined here. Having analyzed the challenged subject matter in a summary process such as the amparo, unfortunately, various elements are absent, on the evidentiary and argumentative level, that would have been necessary to reach the conclusion the judgment presents.
As I have stated, it is notably absent that at least all of the involved parties were integrated into the technical basis of the questioned health order and that the technical arguments invoked in said administrative act were precisely refuted.
It is pertinent to emphasize that, according to the majority's criterion, the respondent authorities—upon issuing the health order—should have "carried out an adequate balancing and adopted the least burdensome measure for fundamental rights, fostering their equilibrium and limiting their impact to a minimum." However, the judgment does not previously demonstrate to what specific extent the health order had affected the fundamental rights of the protected journalists, that is, whether there was a real impact on their freedom of expression.
Finally, it is fully justified that the appellants and the judgment take into account statements made by the President when he was a candidate, as this helps contextualize the grievances alleged. However, it is striking that the judgment evaluates statements by the President made after the date the amparo action was filed.
B. The consequences of the annulment of the challenged acts The majority of the Chamber ordered the annulment of health order MS-DRRSCN-DARSA2-OS-0368-2022 of July 8, 2022, as well as what was ordered in official letter MS-DRRSCN-DARSA2-1724-2022 of July 15, 2022, which confirmed it.
This causes the situation regarding the access problem at Parque Viva, which is a matter of public knowledge, which neither the appellants nor the property owners have denied, and which is reflected in the large number of technical reports cited, to return to the moment when the complaint was filed before the Ministry of Health authorities. Consequently, should any incident occur affecting public health or the integrity of persons, it would appear that liability will be shared by the majority of the Chamber.
I reiterate that both the examination of the legitimacy of the challenged acts and the balancing of the legitimate rights and interests of the neighbors and users could well have been carried out before the administrative litigation jurisdiction (jurisdicción contencioso-administrativa). This is also because there, through the exercise of precautionary justice, measures could have been ordered to modulate the effects of the act's suspension and impose conditions aimed at protecting third parties. In the case sub lite, the annulment of the administrative acts was ordered outright, omitting any condition that would somehow safeguard such rights and interests.
In the judgment, on one hand, reference is made to the progress of a plan to solve the traffic congestion, and on the other, by annulling the challenged acts, no prevention whatsoever is indicated regarding the need to complete the execution of measures that definitively resolve said problem. Recording that prevention, at least, would have had symbolic value: reflecting that the Chamber is aware that a risk truly exists for the neighbors and users of Parque Viva.
C. Regarding the scope of the award of damages and losses Finally, I will allow myself to make a few comments on the award of damages and losses. As will be recalled, in the initial writ the appellants stated that they waived these. It is clear that if the amparo action was granted, the Chamber is not legally authorized to omit that award. But, certainly, the claim for these damages and losses is waivable. On the other hand, in light of the initial writ and the logic of the judgment, it must be understood that the award is only for the benefit of the appellants and only for the injury to freedom of expression that was declared to derive from the challenged administrative acts. It is not to be understood that such damages and losses include potential patrimonial situations related to the commercial activity of Parque Viva. A separate matter, and I am revealing nothing new, is that the owners of Parque Viva are authorized to file a claim for State liability in the administrative litigation jurisdiction based on the annulment of those administrative acts. As these acts have now legally ceased to exist, it is not appropriate there to evaluate whether the nullity was proper or not. It will no longer be necessary to allege the reasons for which they were considered arbitrary, nor will there be an evidentiary phase regarding this aspect. There, it will only be necessary to prove the existence and unlawful nature of the damages and losses suffered in their commercial activity, and the causal link of these with the annulled acts. This is one more reason to reflect on whether it was appropriate for the Chamber to hear the challenged acts. The truth is that in a summary proceeding, a ruling was made on acts—of great complexity and enormous consequences, including in the patrimonial sphere—whose annulment expedites the claim for damages and losses for a business unit that was not a party to the amparo action nor is dedicated to journalistic activity.
Based on the arguments set forth above, I rule on this amparo action as follows: I grant it with respect to freedom of expression, since statements by the respondent were proven that constitute acts of direct, manifest, though relative, censorship, which harm that freedom of the appellants. I deny it with respect to the annulment of the health order and the related official letter because, besides not proving active legal standing, it is not appropriate to hear those acts in this jurisdiction.
Anamari Garro Vargas VCG02/2023 ... See more Res. No. 2022025167 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, at one thirty in the afternoon of October twenty-first, two thousand twenty-two.
RESULTANDO:
Amparo action filed by ARMANDO MANUEL GONZÁLEZ RODICIO, identity card 0800490965, ARMANDO MAYORGA AURTENECHEA, identity card 700740035, DANIELA CERDAS ESPINOZA, identity card 0113180033, DIEGO DE JESÚS BOSQUE GONZÁLEZ, identity card 0401930351, ESTEBAN ENRIQUE OVIEDO ÁLVAREZ, identity card 0109830215, FABRICE LE LUOS, identity card 801050436, GUISELLE MORA MORALES, identity card 0302890790, HARLEN NATASHA CAMBRONERO JIMÉNEZ, identity card 0112870182, JUAN FERNANDO LARA SALAS, identity card 0108810870, KIMBERLING TATIANA HERRERA SALAZAR, identity card 0114490425, KRISIA LORENA CHACÓN JIMÉNEZ, identity card 0115180868, ÓSCAR GERARDO RODRÍGUEZ ARGUEDAS, identity card 0205380773, RONALD ARTURO MATUTE CHARPENTIER, identity card 0107430460, and VANESSA AUXILIADORA LOAIZA NARANJO, identity card 0109700875, all journalists, against the PRESIDENCIA DE LA REPÚBLICA and the MINISTERIO DE SALUD.
RESULTANDO:
1.- By written submission filed with the Chamber, the appellants file an amparo action and state that on January 29, 2022, the then-presidential candidate, Rodrigo Chaves Robles, made the following promise before a group of followers gathered in Tibás: "(…) We are a tsunami and yes, we are going to cause destruction. We are going to cause the destruction of the corrupt structures of La Nación and Canal 7. Listen Ignacio Santos, listen the other one (...) René Picado, listen Armando González. Here we are. Keep making us invisible in the new, in the good, and accusing us injuriously in the bad, because you no longer appoint presidents in Costa Rica (…)." They note that, less than two months after being sworn in, on July 6, 2022, President Chaves began to materialize the threat. They indicate that after weeks of violent verbal attacks against the press and journalists, whom he described as "scoundrels (canallas)," he took advantage of the press conference after the Governing Council to cast doubt on the financial health of Grupo Nación. They point out that he cast uncertainty on the ability of the referred corporation to pay the bonds purchased by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social, CCSS) and even insinuated a weakening of the debt guarantee due to the future transfer of some company lands to a trust to carry out a promising real estate development. They add that on July 5, 2022, the Minister of Health received an "anonymous complaint" concerning Parque Viva, for which reason said official requested an urgent opinion from the Ministry of Public Works and Transportation (Ministerio de Obras Públicas y Transportes, MOPT) regarding the access road to the park, which is a public road. They relate that, the next day, the Minister of Health received a response and immediately an extraordinary session of the Technical Advisory Committee on Mass Gatherings was held, solely to hear the case and withdraw the operating permit. They argue that the report was issued on the public roads outside the park, not on the facilities or its accesses. They assert that the report by the Ministry of Health inspectors, dated July 5, 2022, did not demonstrate any non-compliance in the Parque Viva facilities, a document in which an opinion on the neighboring public roads was omitted, as it was not within their competence. They contend that on July 8, 2022, the Ministry of Health dealt a new blow to the "structure" by issuing health order No. MS-DRRSCN-DARSA2-OS-0368-2022 concerning the temporary suspension of the sanitary operating permit for Parque Viva. They question that said measure was ordered without prior notice and without the possibility of exercising the right to a defense; furthermore, it was executed while technical opinions were being gathered from the Fire Department (Cuerpo de Bomberos) and the Red Cross (Cruz Roja) regarding the capacity of the access road to said establishment for the first response units of those institutions. They state that the health order executed on Friday, July 8, 2022, required the company to provide a remedial plan that encompasses "the solution to the problem of the accesses." However, they affirm that, according to the record, the Ministry of Health inspectors did not find any problem with the accesses. They assert that, at the time of the closure, Parque Viva had all its permits up to date and a renewed approval of capacities issued by the Ministry of Health on December 16, 2021. Even, last January 20, the capacity was expanded, by means of an official letter from the Ministry of Health. They point out that in statements published on July 13, 2022, by La Nación, the Mayor of Alajuela affirmed that the permits granted in 2014 coincide with the beginning of rapid residential development in the area and that the cause of the traffic congestion cannot be attributed to Parque Viva. They mention that at a community assembly held on July 13, 2022, the council member and resident of La Guácima, Alonso Castillo, pointed out that traffic jams in the area occur "(…) with Parque Viva and without Parque Viva (…)" and said he was "(…) very happy that what happened with Parque Viva happened, because today the entire national press is talking about a problem that La Guácima has every day (…)." They explain that on July 15, 2022, after criticisms were made publicly and in an appeal for reversal (recurso de revocatoria) filed by the company, the Ministry of Health issued a new administrative act, with the same consequences as the first and with a clear intention to rectify its most obvious deficiencies, especially regarding the technical criteria. They detail that document No. MS-DRRSCN-DARSA2-1724-2022 confirmed health order No. MS-DRRSCN-DARSA2-05-0368-2022 and sought to give the appearance of pursuing legitimate public ends. They consider that what has been described has entailed a clear purpose to limit freedom of expression through indirect means. They argue that the threat to destroy the companies is more than evident, as retaliation for the editorial lines of the media they own and the actions of their journalistic directors, mentioned by full name in the speech of January 29, 2022, given by the current President of the Republic. They indicate that the promise, as verified in the video submitted as evidence, is to destroy the "structures" recklessly labeled as corrupt, to punish the supposed making invisible of the good and the dissemination of the bad. The threat is directed at the journalistic directors of the media, whose function is limited to the editorial. They add that on that occasion, a shareholder of Canal 7, René Picado, was mentioned, whom the President rebuked for an editorial line, whose independence the owners of professional media have committed to respect. They detail that the then-candidate's displeasure was due to the publication of information of evident public interest about the sanctions he had received at the World Bank for sexual harassment, as well as criticism of other proposals and statements, such as governing by referendum. They assert that the President's anger later increased due to information published about the parallel financing structures of his party's political campaign and other issues, such as references to electoral fraud that Costa Rican democracy would not tolerate. They state that the foregoing concerned serious, well-documented, and pertinent journalistic publications, such that failing to disseminate them would have directly affected citizens' right to be informed on matters of public interest, as well as the principle of the informed voter. They affirm that as a consequence of the fulfillment of that duty and the exercise of that right, the journalistic directors and collaborators were warned of the destruction of the structures that allow independent journalism to be practiced. They maintain that Parque Viva was one of the structures of independent journalism of Grupo Nación that was affected as a result of the threat issued by the current President. In this regard, they detail that Parque Viva was created to diversify the company's income sources and compensate for the loss of revenue experienced by media outlets worldwide, due to the migration of advertising to internet giants. This fact is public and is stated in various statements by the company and its representatives since at least 2013. They mention that Parque Viva was created as a complementary source of income, less dependent on advertising sales. Therefore, important resources and efforts were invested in the creation of said Park. They indicate that the President knows this perfectly well and, as an economist, also knows the damage that can be caused to a company by casting doubt on the payment capacity to investors. They affirm that this was precisely what the President did at the press conference held two days before the closure of Parque Viva with the evident purpose of fulfilling his promise to destroy the structures that allow the appellants to freely practice journalism. In this case, the blow was directed at the financial structure of Grupo Nación, and he confessed to having been the one who personally asked the Executive President of the CCSS to formulate questions to Grupo Nación through the General Superintendency of Securities (Superintendencia General de Valores, SUGEVAL), instead of going directly to the issuer of the bonds purchased by that institution on the securities market; the foregoing, without Grupo Nación's knowledge, contrary to what the law stipulates. They add that later, without waiting for the response to the questions, he dedicated a press conference to informing that he had formulated them in defense of "grandma's" pension. They allude that when the executive president of the CCSS acknowledged the compliance with payments, the President described him as "diplomatic" and took the floor to insist on the disinformation and insinuations. They state that the novelty of the press conference was the announcement of the submission to SUGEVAL of questions that the CCSS could have formulated without intermediaries to the company. They declare that it was clear that the President's actions had no other purpose than to harm Grupo Nación, by casting doubt on its finances, to curtail freedom of expression because "the common practice of institutional investors" is to consult the issuer directly and use the information published by legal mandate. In this regard, they point out that it must be considered that SUGEVAL replied to the CCSS that it had to formulate its queries directly to La Nación S.A.; furthermore, it was recalled that information on the legal, financial, and business situation of an authorized issuer, as well as the securities they offer, can be accessed in the National Registry of Securities and Intermediaries. They reveal that never before has a president personally concerned himself with the fate of investments of a public institution that no financial authority has questioned. Neither has any president ever devoted a good part of a presidential press conference to reporting that questions were formulated to the issuer through SUGEVAL, instead of doing so directly. They describe that the closure of Parque Viva, two days after the conference, was ordered to see "if La Nación's cash flow is strangled." They expound that in the case of Ríos et al. vs. Venezuela, the Inter-American Court of Human Rights dealt with similar expressions, pronounced from the platform of power, to directly or indirectly limit the expression and dissemination of thought, in the following terms: "(…)139. In a democratic society, it is not only legitimate, but sometimes constitutes a duty of state authorities, to pronounce on matters of public interest. However, in doing so they are subject to certain limitations in that they must verify in a reasonable manner, though not necessarily exhaustively, the facts on which they base their opinions, and should do so with even greater diligence than that employed by private individuals, due to their high office, the wide reach, and potential effects that their expressions can have on certain sectors of the population, and to prevent citizens and other interested persons from receiving a manipulated version of certain facts. Furthermore, they must take into account that, as public officials, they have a position as guarantors of the fundamental rights of persons and, therefore, their statements cannot deny these rights nor constitute forms of direct or indirect interference or harmful pressure on the rights of those who seek to contribute to public deliberation through the expression and dissemination of their thought. This duty of special care is particularly accentuated in situations of greater social conflict, alterations of public order, or social or political polarization, precisely because of the set of risks they can entail for certain persons or groups at a given time. (…)." They allege that in their case, as is public and notorious, in addition to the constant use of the word "scoundrel (canalla)," which constitutes an injury to delegitimize, intimidate, and stimulate repudiation of the press among government followers, the irresponsible references to the financial health of Grupo Nación involve statements that have proven contrary to the criterion issued by the Inter-American Court of Human Rights, as noted above. They affirm that the President, according to what the Court said, must make these references "(…) with even greater diligence than that employed by private individuals, due to their high office, the wide reach, and potential effects that their expressions can have on certain sectors of the population, and to prevent citizens and other interested persons from receiving a manipulated version of certain facts (…)." They maintain that the proof of arbitrariness lies in the statements themselves: they unusually announce the raising of a series of questions and, without waiting for a response, launch affirmations, speculations, and unfounded, false, and reckless insinuations into the air. On the other hand, they accuse that in this case there is a clear deviation of power (desviación de poder) and the suspension of the sanitary permit granted to Parque Viva becomes arbitrary. They expound that the adopted measures do not seek the satisfaction of public interests, but rather spurious interests consisting of intimidating a media outlet so that it does not freely exercise its right to inform. They note that these acts not only economically affect the company that owns Parque Viva, but also the media outlet for which they work, thus harming their right to inform. They affirm that this is the true purpose of the adopted acts. They indicate that the actions are arbitrary, rash, discriminatory, and absurd and are far from protecting public ends. They point out that the closure of Parque Viva was carried out based on an "anonymous complaint" against facilities opened more than four decades ago to house the La Guácima racetrack. They clarify that Parque Viva has now been operating on the site for more than seven years, without any incident, under the protection of permits and licenses duly granted by the competent authorities based on studies required at the time. They even confirm that the most recent inspection concluded that the facilities are suitable for the events held at the location; however, the Minister of Health requested an "urgent" opinion on the capacity of the public road leading to the park and "preventively" canceled the site's operating permit in record time. They mention that the haste of the actions with direct and insistent intervention by the Minister in response to an anonymous complaint, with requests for urgent opinions, instantaneous inspections, and emergency meetings, draws attention as unusual. Regarding the public roads, they point out that the surrounding roads are the same as those from the initial studies required years ago to process Parque Viva's permits, which shows that the establishment was already on the site when the real estate explosion in the area began. They specify that, since 2014, the construction of 44 condominiums and other buildings has been approved. They note that the State created the problem by consenting to the area's vertiginous urban expansion without providing the necessary public infrastructure. They narrate that a few days ago, the Office of the Comptroller General of the Republic (Contraloría General de la República) published an "operational audit on the effectiveness and efficiency in the use of resources of the cantonal road network in the Municipality of Alajuela," in whose report the following, among other things, was concluded: "(…) Regarding the execution of resources for the attention of the cantonal road network (RVC), it was identified that in the period 2019-2021 the Municipality executed on average 36.48% of the allocated resources per year; in other words, a total of ₡4,870.61 million, ₡4,874.56 million and ₡7,947.83 million remained idle per year, respectively. The foregoing shows the inefficiency in the use of resources despite the existing needs regarding the improvement of road surface, attention to bridges, and sidewalks. (…)." Likewise, the report stated: "(…) In addition to the above, the average execution percentage for the period 2019-2021 reflected by the Municipality (36.48%) reaches levels far below the average execution of the eight municipalities consulted by the Office of the Comptroller General, which is 85.47% (…)." Given this panorama, they question: How much more does the under-execution amount to since 2014, when Parque Viva was established and the Mayor marks the beginning of accelerated development? They comment that during the times when the La Guácima racetrack operated on the site, multiple mass events were held and there was only one exit, without any problem occurring. They note that currently Parque Viva has four exits. They affirm that, in September 2014, when the Mayor places the beginning of the area's residential development, the Ministry of Public Works and Transportation (MOPT) approved Parque Viva's road planning study. The park obtained all other permits, without missing a single one, and on that basis, the company invested more than $40 million, protected under the principle of legitimate expectations (principio de confianza legítima) and the legal certainty guaranteed by the constitutional order. They argue that, despite the above, suddenly, the State proceeds to cancel the operating permit, annul the legitimate returns on the investment, after two years of closure due to the pandemic, and demands from a private party a remedial plan for the defects in the public road under penalty of closure or serious damage to its income. They assert that it is obvious that what the respondent authorities intended is to destroy "(…) without reason or right, the 'structures' that prevent dozens of journalists from exercising a function indispensable to society and an inviolable human right (…)." They mention that on December 16, 2021, the same Ministry of Health official who recently suspended the sanitary operating permit of Parque Viva was the one who approved the capacities of the various sectors of the establishment. Between that moment and the present, the only change in the Ministry has been the political leadership that now processes anonymous complaints urgently, executes permit suspensions without process or right to a defense, and demands remedial plans from private parties—and not from all, just from one—for the bottlenecks on the public road. They explain that there are few occasions when traffic jams occur in the sector because of Parque Viva, since most events do not attract that much traffic and take place at night or on weekends. They specify that in 2022 there have only been nine concerts, and of those, only two attracted more than 7,000 people. On the other hand, they allude that at Parque Viva there is an advanced project to contribute to remedying the problem at Grupo Nación's expense, for its own benefit and that of the entire community. They expound that the idea is to build a four-lane access for which the land has already been acquired and most of the permits have been processed; however, that proposal is paralyzed in a MOPT permit commission, while the government alleges the need for a remedial plan prepared by the very entity that has precisely proposed a solution that does not cost the government a cent. However, they illustrate that at a press conference on July 13, 2022, the President of the Republic raised an argument full of falsehoods to announce opposition to the project, stating: "(…) Did you hear the shameless lie published by La Nación that it has been requesting an access to Route 27 for two years to fix Parque Viva? Ah no, well, if we score one goal, let's score four more because it's four times the volume of area they wanted to get the permit for. Aren't you ashamed to collapse Route 27 risking all of the West, Grecia, Naranjo, Atenas, San Carlos, all of Guanacaste, and all of Puntarenas? (…)." They consider absurd the warnings about the collapse of the entire West, Guanacaste, and Puntarenas due to the construction of an access that would dramatically and immediately improve traffic throughout La Guácima to Parque Viva and, yes, to a future urban development that Grupo Nación has announced for years. Precisely, they clarify that the improvement in circulation is necessary for that project to be viable. They elucidate that the projected development would be executed over fifteen or twenty years, but the beneficial impact of the access will be felt immediately throughout the community and will undoubtedly facilitate access to Parque Viva. By predicting the collapse of half the country due to the construction of an eventual urban project, the President seems to have forgotten his own government's promise to expand Route 27. Furthermore, the General Directorate of Traffic Engineering (Dirección General de Ingeniería de Tránsito), the National Road Council (Consejo Nacional de Vialidad), the National Concessions Council (Consejo Nacional de Concesiones), and the Restricted Access Roads Commission (Comisión de Carreteras de Acceso Restringido) expressed their non-objection. However, the President, in an outburst before microphones, annulled those opinions and erased the years of processing and planning invested in the project. They express that the sudden refusal to even consider the possibility of allowing the access and the reasons alleged by the President demonstrate his persecutory intent and his intention to fulfill the threat to destroy the "structures" of their journalism. They affirm that only a remedial plan pleases him: a capacity low enough to make Parque Viva unviable and thus strike the "structures" of the journalism that so bothers him and which he promised to destroy. They expound that Grupo Nación is not obligated to provide that remedy nor can a remedial plan be demanded from it as ordered by the government. The park was built with all the necessary permits before the real estate explosion in the area that was permitted by the State without providing the necessary infrastructure and, furthermore, by under-executing the resources for that purpose. They point out that the State knew about the large investment required to erect the project and gave, on several occasions, its consent. The Ministry sent to carry out an inspection at the park with the intention of finding a problem, but they found everything in order. So, they decided that the defect was in the public road, where it is not up to private parties, but to the State, to provide the remedy. They argue that the purpose of the "remedial plan" demanded by the government is to "remedy" critical journalism through a deviation of power to exert pressure on the company, consistent with the campaign threat, and not to address the problem of the bottlenecks.
That is why, in his July 13 press conference, the President already expressed his refusal to allow the construction of the access road that, in good faith, Grupo Nación is willing to finance. Everything is ready to execute the four-lane project, but the administration has already made clear its intention not to allow it. They recount that the technical studies produced *a posteriori* by government-dependent institutions say nothing about the true origin of the problem. Nor do they state at what time the traffic jams occur, on what days, or how they form. They state that the initially adopted measure was so arbitrary and the technical criteria so weak that the government was forced to issue another measure, based on new criteria, which are equally questionable, to disguise its intentions and attempt to rectify the obvious defects of the initial act. They describe that in an official communication issued by the Costa Rican Red Cross (Cruz Roja Costarricense), it was recorded that emergency response times have been affected by traffic congestion in various parts of the national territory, a situation which also occurs in La Guácima. Furthermore, they maintain that the meritorious institution admitted to not providing services at Parque Viva events, because the organizers hire private companies. They add that the Fire Department (Cuerpo de Bomberos) also emphasized the problem of the narrowness of the streets, without referring to any problem specific to Parque Viva; while the 9-1-1 report did nothing more than enumerate reports of the most diverse incidents in the area, without establishing causal relationships with Parque Viva. They allege that the MOPT report made a strange comparison with some site in the United Kingdom, with "three similar events" that it did not describe; however, it asked to limit the capacity to 2400 people, not because of the park's conditions but due to assumptions related to the public road. They outline that, to justify its actions, the government sought to obtain, *a posteriori*, community complaints by distributing a form letter to the development association, according to the testimony of Hellen Espinoza, a community leader from La Guácima, who said, "they want us to clean up the mess they made." They indicate that at a community meeting held on July 13, 2022, the councilor and resident of La Guácima, Alonso Castillo, delivered an illuminating speech to his neighbors, pointing out: "(...) There is an inescapable reality, from 2010 to date, in La Guácima, 48 urban development projects have been approved in the Municipal Council of Alajuela, not counting Parque Viva, not counting commercial developments, not counting Automercado, not counting shopping centers (...) each of those projects implies (...) many cars. That gives us a vehicular reality that was not suited for the roads we had (...) There are traffic jams here every day, at seven in the morning and at five in the afternoon, with or without a concert. If an accident happens here today, La Guácima collapses because there is nowhere else to go. (…)". They question why Parque Viva was selectively chosen if there are traffic jams every day, in several time slots, and, for its part, the most heavily attended activities at this site usually take place at night and on weekends. They affirm that the government addressed an anonymous complaint about the park with the urgency of a national catastrophe. In addition, it held emergency meetings, requested immediate "technical criteria," ordered inspections, and issued resolutions. All this, supposedly, to prevent traffic jams two or three times a month, at night and on weekends. They question whether this same requirement will be imposed on businesses and condominiums established in the area after Parque Viva and whether it will also close them. They indicate that the intent to single out and discriminate against Grupo Nación, as retaliation for its journalism, could not be more obvious; it also involves the abuse of power (desviación de poder) against the right to free expression of Grupo Nación's journalists. They maintain that the problem is not Parque Viva, but rather the public infrastructure, which has barely advanced to adapt to the housing density developed after its existence. They point out that it would not be difficult to produce similar "technical studies" about the daily bottlenecks near the Forum office complex, attribute them to the buildings, and cancel their operating permits. The same could be said of the large number of shopping centers and offices that attract traffic to Lindora, where it is impossible to transit at certain times of the day, or of the entrance to Multiplaza Escazú in December. They argue that the examples are infinite, but the Executive Branch focuses exclusively on Parque Viva. They expound that, in summary, access problems to La Guácima exist "with or without Parque Viva," due to omissions and excesses on the part of the State. They note that no study proves that the situation will change with the closure of Parque Viva or the reduction of its activity below authorized levels; on the contrary, there is evidence of the continuity of the problem when there is no activity at all at Parque Viva. They record that if the community celebrates anything, it is that the government's abuse of power shed light on a long-standing problem that is not resolved by the arbitrary administrative actions indicated. They reiterate that the ineffectiveness of those acts undermines their intended public purpose and demonstrates that the sole purpose is to affect Grupo Nación's finances, in retaliation for the free exercise of journalism. They contend that, with the intent to continue persecuting and intimidating through the impact on economic interests, on July 20, 2022, in a press conference, the president cited, among the reasons for canceling the electric train plan, the existence of a branch line that passes by Parque Viva, which "concerns" him and apparently is among the foundations of such a momentous decision. In this regard, they point out that the park has the fortune, or perhaps the misfortune, of being located near the railroad right-of-way that has existed for quite some time; therefore, if the intention is to build a train making use of that right-of-way, it will have to pass through there, and it would be useful if it did so, because further on is the El Coyol free trade zone (zona franca) where 16,000 people work, in addition to another 16,000 citizens in the surrounding area. They state that, for this reason, the branch line has been in the electric train plans since 2016 and, according to INCOFER's explanation, it does not cost ₡150,000,000.00 as the president seeks to make people believe. They argue that the president is the one who should least harbor "concern" because it was he, as Minister of Finance, who signed the credit project for the electric train that, as he said now, will be replaced by a previous project, much more expensive, that will only be built between San José and Paraíso de Cartago, which constitutes the segment with the least traffic, according to the studies. They consider that the arbitrary actions pointed out leave no doubt about the persecutory purpose against the newspaper for which they work, as well as the retaliatory nature, with abuse of power, against the news and editorial line, with serious injury to the right to free expression. They refer to the fact that the pressure exerted on the company's finances endangers future journalistic practice and invites understandings that compromise it. They assert that the described actions violate Article 29 of the Political Constitution, in that they seek to curtail freedom of expression. Likewise, the foregoing is contrary to the provisions of Article 13.3 of the American Convention on Human Rights, integrated into the constitutionality block, which contemplates the prohibition of using indirect mechanisms to curtail freedom of expression and the public's right to know information of interest to society. They sustain that these indirect mechanisms disguise themselves to appear as legitimate actions, but their effects on such a fundamental human right can be devastating. They add that the Inter-American Court of Human Rights has developed an extensive jurisprudential line on indirect mechanisms of repression and has long established that it is contrary to the Convention "(...) any act of public power that implies a restriction on the right to seek, receive, and impart information and ideas, to a greater extent or by means other than those authorized by the same Convention (…)." (Advisory Opinion No. OC-5/85 of November 13, 1985, Series A No. 5, para. 55). It also held that "(…) [in] evaluating an alleged restriction or limitation on freedom of expression, the Court must not confine itself solely to the study of the act in question, but must equally examine said act in light of the facts of the case in their entirety, including the circumstances and context in which they arose. (…)." (Case of Baruch Ivcher Bronstein vs. Peru, Judgment of February 6, 2001. Series C No. 74, para. 154). In a similar vein, Case of Perozo et al. vs. Venezuela, Judgment of January 28, 2009. Series C No. 195. They add that the Inter-American Court of Human Rights established that "(…) the enumeration of restrictive means provided in Article 13.3 is not exhaustive nor does it preclude consideration of 'any other means' or indirect channels derived from new technologies (…)" (The Compulsory Membership of Journalists. Advisory Opinion No. OC-5/85 of November 13, 1985. Series A No. 5, para. 48. Cf.). Likewise, Case of Ríos et al. vs. Venezuela. Judgment of January 28, 2009. Series C No. 194, para. 340. They elaborate that the high court has stated that freedom of expression has an individual dimension and a social dimension. On that aspect, they describe that it requires, on the one hand, that no one be arbitrarily impaired or prevented from expressing their own thoughts and represents, therefore, an individual right, and, on the other hand, it implies a collective right to receive any information and to know the thoughts of others (cases The Compulsory Membership of Journalists, The Last Temptation of Christ, Herrera Ulloa vs. Costa Rica, Judgment of July 2, 2004, Series C no. 107, para. 108). They challenge that the actions challenged in this appeal are also discriminatory against La Nación and its journalists. They conclude that what is at stake are not only the economic interests of La Nación or even those of other, more fragile and smaller media, but the right of all to freely inform and opine, as well as the right of the citizenry to receive that information and those opinions from a plurality of sources, in accordance with the guarantee established in Articles 28 and 29 of the Magna Carta. By virtue of the foregoing, they request that the appeal be granted and the temporary suspension of the sanitary operating permit for Parque Viva be annulled, as well as the administrative acts supporting it. Furthermore, they request that the President of the Republic be ordered to refrain from executing acts aimed at directly or indirectly injuring freedom of expression.
2.- By resolution at 16:06 hrs. on July 29, 2022, the proceeding was commenced and reports were requested from the respondent authorities.
3.- By brief filed with the Chamber on August 8, 2022, Joselyn María Chacón Madrigal, in her capacity as Minister of Health, renders her report and expressly states the following: “(…) Pursuant to the foregoing, and in compliance with this legal report based on Official Communication No. MS-DM-5756-2022, Administrative File related to Parque Viva (attached as evidence), which states, in summary, the following: To provide context, the existence of a complaint dated July 5, 2022, forwarded for its attention by this Ministerial Office via Official Communication No. MS-DM5756-2022 2, to Dr. Karina Garita Montoya, Director of the Regional Directorate of Health Governance of Central Norte (Dirección Regional de Rectoría de la Salud Central Norte), a complaint filed against “Parque Viva”, located in La Guácima de Alajuela, a complaint specifically referring to structural conditions and access and egress from said place. I quote: “…This venue is commonly used to hold mass concerts, where a large number of people gather. The problem with this place is its access points and the low capacity of the roads, which belong to a rural community, to receive a huge number of vehicles at the same time. All the roads leading to Parque Viva are roads with one lane in each direction, very narrow, without bus bays, nor conditions for high traffic. Whenever there is a concert, the community’s streets collapse absolutely, to the point that people take hours to travel short distances or leave the parking lot. The situation is extremely serious, because during a potential emergency, the response of rescue services could be compromised. We are talking about situations as risky as fires, earthquakes, structural collapses, among other tragic events that could occur at mass events. The streets of La Guácima de Alajuela cannot withstand the massive influx of vehicles, as its neighbors could also see their rights impaired by this type of event, since, in the face of emergencies in their homes or communities, the response of rescue authorities would take much longer than normal, due to the enormous traffic jams this place generates. In view of the foregoing, and given the seriousness of the reported facts, the definitive closure of the place is requested, until a solution to the problem is found. The request is made in order to protect public health and the common interest. PARQUE VIVA DOES NOT MEET THE CONDITIONS TO HOST MASS GATHERING EVENTS. I conclude by indicating that it is the responsibility of the State, in accordance with Article 50 of the Political Constitution, to ensure that the rights of the inhabitants of the Republic are protected and grant them the greatest degree of well-being. As evidence, I attach (sic) eight photographs of the only 2 accesses to the place, which demonstrate the conditions of the surrounding streets. In addition, 2 media notes are attached exposing the problem of traffic jams caused by mass events.” In response to the complaint, the authorities of the Health Governing Area of Alajuela 2 (Área Rectora de Salud de Alajuela 2), at 13:50 hours on July 5, 2022, carried out a physical-sanitary inspection of the referenced property, including the corresponding assessment of its access roads, concluding, according to report No. MS-DRRSCN-DARSA2-1641-2022, the following: “…that the Parque Viva Facilities meet adequate physical-sanitary and structural conditions internally; the emergency plans will be forwarded to the Regional Officer of Occupational Health (Encargado Regional de Salud Ocupacional) for in-depth assessment and review; furthermore, it is recommended that the complaint be forwarded to the Ministry of Public Works and Transport (Ministerio de Obras Públicas y Transporte) for them to assess the reported conditions that fall under the purview of this agency (roads in poor condition, one lane in each direction of travel, difficulty of access for emergency services via public roads, among others...”) Thus, via official communication No. MS-DM-5754-2022, this Ministerial Office, on an urgent basis, requested Mr. Luis Esteban Amador Jiménez, in his capacity as Minister of Public Works and Transport (Ministro de Obras Públicas y Transportes), and Ms. Laura Ulloa Albertazzi, Vice Minister of Transport and Road Safety, for a technical opinion regarding the access roads to the private commercial venue called “Parque Viva,” located in La Guácima de Alajuela, in order to clarify structural and human safety aspects, specifically regarding the capacity aspects of its access roads, in the scenario of the enormous number of vehicles and people attending the mass events scheduled at said location, in relation to aspects of potential emergencies, response and access of rescue and risk services, among others. Under this perspective, via official communication No. DVTSV-2022-0341 dated July 6, 2022, Ms. Laura Ulloa Albertazzi, Vice Minister of Public Works and Transport, sends official communication No. DVT-DGIT-2022-339, signed by Eng. Junior Araya Villalobos, an official of the General Directorate of Traffic Engineering (Dirección General de Ingeniería de Tránsito), which issues an opinion stating: “…the establishment called “Parque Viva” began operating in 2015, for the holding of various events (motor sports, congresses, fairs, as well as mass gathering events, such as concerts and festivals) which is located opposite the cantonal road called “Calle Rincón Chiquito,” it being noted that the granting of access permits corresponds to the Municipality of Alajuela, indicates that Calle Rincón Chiquito is a two-lane urban street -one lane per direction of travel-, where that type of road could reach a maximum capacity of around 1,200 vehicles per hour per direction and, according to the road conditions, a detailed study could yield a capacity lower than the aforementioned, it being certain that at the moment mass gathering events are held, the access road to Parque Viva does not have sufficient capacity to handle the generated traffic. It states that, under a conservative scenario, without considering peripheral parking lots to the park, nor the use of the racetrack, there would be a generation of 4,900 vehicles per hour, which represents more than double what the road could support…” For its part, the Technical Advisory Committee on Mass Gatherings (Comité Asesor Técnico de Concentraciones Masivas), according to Minutes No. 28643-S-MOPT-SP of July 7, 2022, indicated: “…In view of the aforementioned official communications, and the recommendation of the Minister of Public Works and Transport on taking a course of action as a result of the situation presented concerning the capacity of the access road to the venue called Parque Viva, it is agreed to propose to the corresponding authorities a Sanitary Closure Order for mass events, for the establishment called Parque Viva, and the corresponding measures with other pertinent authorities. A remedial plan for the reported conditions must be requested, which must be brought to the attention of this Technical Advisory Committee on Mass Gatherings…”, which was duly communicated through official communication No. MS-DM-5838-2022 of July 8, 2022, to Dr. Karina Garita Montoya, Director of the Regional Directorate of Health Governance of Central Norte, and on July 8, 2022, authorities of the Health Governing Area of Alajuela 2 proceeded to issue sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022, to Mr. Maykol Gómez Trejos, legal representative of “Parque Viva”, with the legal entity “Grupo Nación GN Sociedad Anónima”, ordering, to the extent relevant: “… in accordance with the precautionary principle and in response to official communications: MS-DM5814-2022, which forwards Technical Report DVT-DGIT-2022-339 issued by the General Directorate of Traffic Engineering of the Ministry of Public Works and Transport, and official communication MS-DM-5838-2022 which forwards Minutes No. 28643-SMOPT-SP of the Technical Advisory Committee on Mass Gatherings, the temporary suspension of Sanitary Operating Permit MS-DRRSCN-DARSA2-RPSF-0177-2019 (theme park, racetrack, amphitheater, sporting, cultural events, fairs and various exhibitions) is ordered by means of the following administrative act, until such time as the technical opinions issued by the Meritorious Fire Department of Costa Rica (Benemérito Cuerpo de Bomberos de Costa Rica) and the Meritorious Costa Rican Red Cross (Benemérita Cruz Roja Costarricense) are available for analysis and the taking of the respective actions, regarding the capacity of the access road to said establishment for the first response units of those institutions, which are being managed by the Ministry of Health… Likewise, your represented entity must submit a remedial plan covering the solution to the access problems and the consequent risk to Public Safety and Health in the event of Mass Gathering Activities, and the occurrence of a potential emergency during said activities…”. Subsequently, in response to the request made by this Ministerial Office pursuant to official communication No. MS-DM-5870-2022 to rescue services, in relation to the situation of “Parque Viva,” institutions such as the Meritorious Fire Department, the Costa Rican Red Cross, and the 911 Emergency System, sent to this Ministerial Office report No. CRC-GG-SO-OF-074-2022 of July 11, 2022, signed by Mr. Jim Batres Rodríguez, Deputy Operational Manager of the Costa Rican Red Cross; report No. CRC-GG-OF-012-2022 of July 12, 2022, signed by Mr. José David Ruiz Piedra, General Manager of the Costa Rican Red Cross Association; Technical Report No. CBCR-027150-2022-OPOB-00741 of July 10, 2022, signed by Mr. Alexander Araya Mico, of Fire Operations; Report No. 911-DI-2022-2202 of July 11, 2022, signed by Ms. María Elena Amuy Jiménez of the 9-1-1 Emergency System, where the Costa Rican Red Cross, in summary, indicate: “…that there must indeed be preventive measures to reduce risks, such as emergency plans that define sufficient access routes, with the necessary width to allow an effective response in the event of emergencies, that depending on the type of incident that occurs, inter-institutional participation will be required, including the Costa Rican Red Cross, the Meritorious Fire Department, Police, private companies providing Ambulance Services, among other actors, where the public roads of the community of La Guácima and surrounding areas are insufficient for the rapid access of emergency units, a situation that can be aggravated during mass gathering events, which can be affected by high traffic congestion caused by the large number of vehicles parked along the sides of the road, generating delays of up to 30 minutes for their arrival, where they attend traffic accidents, structural fires, and medical cases, where in all cases people's lives are at risk, therefore requiring rapid and timely access of specialized rescue units; for their part, fire department personnel indicate that the fire trucks have an approximate length of 11 meters and a width of 3 meters, which precisely means that sufficient space is required for their entry to places where incidents occur (emergencies such as fires, traffic accidents, others), it being the case that specifically the entry to “Parque Viva” becomes difficult when two vehicles must pass, in opposite directions, at the same time, which makes entry impossible, or when there are vehicles parked on the road, the response time being much longer than what can be achieved under suitable accessibility conditions…”. For its part, it is noteworthy from what was reported by the 911 system, that there indeed exist a countless number of complaints entered into the system, in greater numbers when mass gathering events are taking place at the location, as well as for poorly parked vehicles, crowding of people, vehicle traffic jams, fights due to being unable to leave, collisions, complaints about disturbances caused by Parque Viva’s own activities, such as races at the La Guácima racetrack, vehicular traffic problems, among others, it being notable that a potentially risky situation does exist at the location, due to the lack of safe and fluid access to the site, which affects the communities surrounding the property and which the Ministry of Health must diligently address, where the administrative act precisely seeks to avoid—in the face of future mass gathering activities—putting at risk the health, safety, and lives of the people who attend the events, as well as those who live in the surroundings of Parque Viva, and who require fluid access to their communities (homes) and, if necessary, adequate access for rescue services, therefore making it essential to submit the requested Remedial Plan, which must include in its content the solution to the access problems in the communities of La Guácima de Alajuela, in the event of mass gathering activities. It is worth mentioning that the administrative acts carried out by this Ministerial instance were appealed and resolved in accordance with time and form, thus respecting due process and the right of defense of the administered parties who felt their rights were affected, appeals declared without merit upon considering that the challenged administrative acts must be maintained, as derived from the assessment carried out by the Ministry of Public Works and Transport and the first response institutions (Red Cross, Fire Department, Public Force (Fuerza Pública), and others). Likewise, it was resolved that said measure of temporary suspension of mass gathering activities will be maintained until it is guaranteed, through the submission, approval, and implementation of a remedial plan, that the holding of mass gathering activities at Parque Viva does not lead to the collapse of the access roads, does not generate nuisances for neighboring communities, and allows the prompt and safe entry of vehicles and personnel from first response institutions. Now, regarding what was stated in the sense that there are other activities authorized for the establishment that do not cause the collapse of the roads, the legal representatives of the establishment must indicate, in the remedial plan requested from the health authority of the Health Governing Area of Alajuela 2, what those activities are, as well as the number of people per activity so that they do not exceed what is stated in the technical opinion issued by the authorities of the Ministry of Public Works and Transport, to assess, authorize, and monitor their execution (…) LEGAL BASIS Political Constitution, in its Articles 21 and 50, the right to life and health of persons is a fundamental right, as is the well-being of the population, which become public interest legal assets, and before this, the State has the inexorable obligation to ensure their protection. Derived from this duty of protection, is the need to adopt and generate immediate safeguard measures when such legal assets are under threat or danger, following the constitutional mandate stipulated in numeral 140, subsections 6) and 8) of the Fundamental Text. Law 6227 entitled General Law of Public Administration (Ley General de la Administración Pública), in its Article No. 214, I quote: “…-1 The administrative procedure shall serve to ensure the best possible fulfillment of the Administration's purposes; with respect for the subjective rights and legitimate interests of the administered party, in accordance with the legal system…(o)…-2 Its most important objective is the verification of the real truth of the facts that serve as grounds for the final act...”. General Health Law No. 5395, in its Articles 1, 2, and 341, I quote: “…. The health of the population is a public interest asset protected by the State, it being an essential function of the Ministry of Health to ensure the health of the population… They may also, within the mentioned attributions and jurisdictions, order and take the special measures that this law enables to avoid risks or damage to the health of persons or that these spread or worsen, and to inhibit the continuation or recurrence of the infraction by private parties …” The Constitutional Chamber of the Supreme Court of Justice has reiterated that the protection and preservation of the integrity of the natural environment, health, and life of persons is a fundamental right, so that in the face of private interests, the right to enjoy a healthy and ecologically balanced environment undoubtedly prevails, which makes it evident that there is no doubt that when the environment, health, and life of persons are at stake, and as it concerns public order regulations, it is impossible to claim the existence of acquired rights or consolidated legal situations, when these are in opposition to the fundamental right to a healthy and ecologically balanced environment. CONCLUSION Starting from the basis that Law No. 5395, General Health Law, establishes that the health of the population is a public interest asset protected by the State and that it is the function of the same State—through the Ministry of Health—to ensure its effective protection and that every person—natural or juridical—is subject to what it establishes, its regulations, and the orders issued by the Health Authority within its competence (Articles 1 and 4). This legal asset “health,” a direct derivative of the right to life, enshrined in Article 21 of the Political Constitution, has been protected since “early rulings” of Our Constitutional Chamber, and the Ministry of Health, in its condition as Rector of the nation's Health, must guarantee that its social production is carried out efficiently and contributes to maintaining and improving the quality of life of the population, in an equitable, supportive, and universal manner. Now, the Ministry could not fulfill this function of supreme organization and coordination if it did not concern itself with addressing, monitoring, regulating, and correcting those situations or circumstances that affect or put at risk the health of the population.
Therefore, in its governing role, it issues health measures and standards, and through its operational programs and its bodies and agents, applies and monitors compliance with them, reporting or sanctioning, as the case may be, those who fail to comply with the requirements or ignore the health orders issued by a Health Authority (Articles 1 and 2, Organic Law of the Ministry of Health). As is apparent from the factual analysis in the approach of the Alajuela 2 Health Governing Area to Confidential Complaint No. 243-2022, in compliance with and adherence to the Constitutional principle of obtaining Speedy and Fulfilled Justice in proceedings submitted to the administration, I take the liberty of mentioning, as relevant, resolution No. 2008-013962, issued by the Constitutional Chamber at 9:31 AM on September 19, 2008, regarding the right to speedy and fulfilled justice: "…speedy and fulfilled justice. Article 41 of the Political Constitution stipulates: 'Occurring to the laws, all must find reparation for the injuries or damages they have received in their person, property, or moral interests. Justice must be rendered to them promptly, fulfilled, without denial, and in strict conformity with the laws.' In the same vein, Article 8 of the American Convention on Human Rights, signed in San José on November 22, 1969, states: 'Every person has the right to be heard, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation filed against him, or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.' From the foregoing, it is inferred that the Administration of Justice is obliged to resolve matters brought before it within a reasonable time. Article 41 of the Political Constitution—previously transcribed—has not constitutionalized a right to specific timeframes, but rather the fundamental right of every person to have their case resolved within a reasonable time, which must be determined in each specific case, taking into account the complexity of the matter, the conduct of the litigants and the authorities, as well as the particularities of each type of process…" Therefore, the Ministry of Health is not exempt from fulfilling the duty to conclude the proceedings submitted, in this case, the complaint before us, making it necessary to reinforce legal certainty for the complainant, the accused, and the administration itself, in knowing that the described facts have their pertinent follow-up and an approach adjusted in time and law, within a specific timeline. Based on the existence of environmental and health public order, proper to a Social State of Law such as ours, where the environmental and health public interest, as a general rule, prevails over private interests, acquired rights, and consolidated legal situations, these find no place when they conflict with and may affect environmental and health rights of collective incidence. The appellants are lacking in demonstrating their otherwise reckless assertions, since in light of the facts presented, it is shown that the Ministry of Health's actions are adjusted to law and that they are trying to use their employer relationship with well-known media outlets as a coercive means of "attack on the press," given that the burden of obligations and commercial situations must be borne regardless of whether the appellants hold any position of public interest, such as being owners of a media outlet, seeking differentiated or privileged treatment compared to another business facing such Health Orders, as they link this to an attack on or coercion of the interest of information by seeing their commercial activities and economic income impaired, which is entirely contradictory to the constitutional principle emanating from Article 33: "Every person is equal before the law and no discrimination contrary to human dignity may be practiced." The Public Authorities are in compliance with the law in applying the Precautionary Principle in Health matters, in the sense that they must take the preventive measures necessary to avoid serious or irreparable harm to the health of the inhabitants. The aforementioned right being the culmination of complaints or any proceeding brought before this Ministry, since these cannot remain without final resolution indefinitely, and it is in application of Article 41 of the Political Constitution, Article 264 of the General Law of Public Administration, and Executive Decree No. 37045 of 02/22/2012, called "Reglamento a la Ley de Protección al Ciudadano del Exceso de Requisitos y Trámites Administrativos," that this Ministerial representation acted in accordance with the principle of legality it is called upon to fulfill. I take this opportunity to mention the press release of Tuesday, July 12, 2022, from the Colper (Colegio de Periodistas y Profesionales en Ciencias de la Comunicación Colectiva de Costa Rica), which states in summary: "…The Board of Directors of Colper met with the President of the Republic and the President of Grupo Nación; from both conversations we conclude that: 1. Freedom of the press is a fundamental pillar of democracy and both parties recognized it as such. 2. Above any individual interest, the interest of the majority must prevail. 3. The situation of Parque Viva must be addressed from the principle of legality under which the public administration operates, for which the appeal route exists to challenge the administrative act that orders the suspension of the Sanitary Operating Permit and it is resolved with the presentation of a remedial plan, therefore it is not related to nor does it affect freedom of the press, since it corresponds to an activity that conforms to commercial law and the public law that governs us in the relationship between the administered parties and the public administration, especially since Article 50 of the Political Constitution orders the state to guarantee the greatest well-being to all the inhabitants of the country. 4. The Presidency of the Republic reiterated its commitment to respect the collective media, regardless of their line and editorial stance or the interests of the business group they represent, and reaffirmed the commitment to build a protocol governing press-government relations to guarantee access to sources, information, and mutual respect with journalists and media… The Board of Directors of Colper will be vigilant in respecting freedom of the press and freedom of expression to safeguard our institutionality (…)".
4.- By written submission provided to the Chamber on August 9, 2022, Rodrigo Chaves Robles, in his capacity as President of the Republic, renders a report and expressly states the following: "(…) The Political Constitution of Costa Rica is absolutely clear that it constitutes an unavoidable obligation of the State to guarantee, defend, and preserve the greatest well-being of all the country's inhabitants. Furthermore, every person has the right to claim a healthy environment. Likewise, our Magna Carta protects the freedom to say what one thinks, when this does not constitute an excess that illegitimately violates or harms a third party, or when what is said finds no support in reality. This guarantee encompasses not only the freedom of the media to report truthfully, but also that of individuals to exercise their full right to express themselves. You, magistrates of the honorable Constitutional Chamber, more than anyone, know of the duty conferred upon me when I swore before the people of Costa Rica as President of the Republic, where the protection and safeguarding of the citizenry represent a fundamental pillar within the Social State of Law. Without astonishment, but with much concern, I receive the amparo appeal filed by persons affiliated with Grupo Nación, in which they expose situations that have little or no relation to curtailing the freedom of the press of this media outlet, and rather it seems that, shielded by that mistaken discourse, they demand—without any objection—that the State must allow them to operate as they wish, even when this is contrary to law and detrimental to public well-being. The appellants state that the financial capacity of Grupo Nación has been called into question by the correct procedure of a group of CCSS officials in posing a consultation before SUGEVAL (Official Communication GP-1193-2022/GF-575-06-2022), given the concern generated by the financial statements reported by Grupo Nación, and by movements of real estate to a trust constituted by this company, which will possibly negatively impact the capacity of Grupo Nación regarding the payment of bonds purchased by the CCSS, and that this could eventually grossly affect the Fondo de Seguro de Invalidez Vejez y Muerte and the Fondo de Retiro de Empleados de la CCSS. The payment they must make is 5,950 million colones. The concern of the CCSS officials is absolutely valid and justified: at the close of the first quarter of 2022, Grupo Nación shows a net loss of 350 million colones, almost 35% higher than the loss reflected in March 2021. On the other hand, it is very concerning that the largest asset Grupo Nación possesses, that is, the property in Llorente de Tibás, is being transferred to a trust, along with other properties that this group has been acquiring, even when they have been reporting losses for several years. Magistrates, is it a threat to freedom of the press to be concerned and pose consultations about the fate of the funds of thousands of Costa Ricans invested in these bonds? Grupo Nación, like any other debt issuer participating in the national securities market, is obligated to provide truthful information that supports its financial health, and not to shield itself in its supposed core activity as a 'media outlet' to allege attacks on freedom of the press when it is required to conform to legality. Today, despite the fact that the CCSS sent a missive to Grupo Nación on July 20, 2022, with the same consultations posed before SUGEVAL, there is no response whatsoever (see documentary evidence). The appellants' allegation regarding the temporary lifting of the sanitary operating permit for Parque Viva finds the same discourse, that is, Grupo Nación cannot be required, like any other Costa Rican business, to adjust to the parameters of the law, because immediately, in their view, it becomes an attack on freedom of the press. Strangely, Grupo Nación alleges that the complaint about Parque Viva was addressed with speed and celerity by the health authorities, a situation that is commendable and correct. We are talking about the lives of thousands of people; this cannot be delayed, it cannot wait any longer, it must be resolved as quickly and diligently as possible; there is no basis whatsoever to come and criticize that the government acted with due diligence to protect the citizenry; the actions were executed correctly, and this is precisely what the population expects: a government that responds swiftly, not with delays or obstacles. How is it possible, magistrates, that Grupo Nación comes to say that they pin all their economic hopes on what the economic activity of Parque Viva can generate in order to pay their employees, and that temporarily closing that venue for holding mass events due to non-compliance with minimum health conditions is a direct attack on freedom of the press? That only demonstrates that the financial health of La Nación is not as they want to make it seem, and that they depend on this venue to survive financially. Regarding the specific case of Parque Viva, neighbors of La Guácima de Alajuela filed an anonymous complaint before the Ministry of Health, where they explain what they have suffered for years with this venue, and the consequences that could occur if the necessary measures are not taken urgently. A clear example of what was denounced was evidenced in the note published by the media outlet CRhoy.com on June 22, 2017, where a neighbor of La Guácima de Alajuela reported that 'You have to be fighting so they don't park in front of us. Sometimes, they send someone to arrange the cars, but when the disorder is too much, they disappear (...) Everyone shuts themselves in. People (neighbors) don't go out when there's a concert. The streets have to be made wider, Tuesday (Ed Sheeran Concert, June 6) was tremendous.' Faced with that situation, the main fear is that one of those concert nights an emergency might arise requiring a neighbor's quick exit. 'The person dies! If they got cut, slipped (...) This gets blocked on all sides. Not only here, also in Ciruelas and in the sector known as El Bajo (...) It's that there are weeks with even 3 concerts.' (See evidentiary file attached as documentary evidence). Another example of the situation experienced by the neighbors of Parque Viva occurred on July 9, 2017, according to a note published by the media outlet Am Prensa on July 9, 2017, where it was reported that, during a concert held that afternoon at Parque Viva, severe traffic congestion was reported in the surroundings of the venue, but the most serious event occurred when an alert was received about a terrorist attack threat that led to the arrest of one person. (See evidentiary file attached as documentary evidence). Once the anonymous complaint was received, the Ministry of Health convened the Technical Advisory Committee on Mass Gatherings to analyze the case. In that session, officials participated from the Ministry of Health, the Ministry of MOPT, the Costa Rican Red Cross, the Traffic Police Directorate, the National Emergency Commission, and the Benemérito Cuerpo de Bomberos. This committee, acting within permitted parameters, and analyzing report DVT-DGlT-2022-339 (see documentary evidence) from the Dirección General de Ingeniería de Tránsito (previously requested by the Ministry of Health), where it concludes that at the time mass gatherings are held at Parque Viva, the access road does not have sufficient capacity to handle the traffic generated, therefore, this commission agreed to propose a closure order for mass events to the health authorities and to request a remedial plan for the reported conditions. Having received the recommendation of the specialized committee, the Health Governing Area Directorate of Alajuela 2 issued health order MS-DRRSCN-DARSA2-OS-0368-2022 (see documentary evidence), where it temporarily suspended the sanitary operating permit for mass events until the appellant entity presents a remedial plan covering the solution to the problem with the accesses. Today, Grupo Nación has not presented the remedial plan. It bears recalling that the authorities have required other commercial groups to construct access entrances to large-scale commercial centers when it is projected that the start of operations of these venues will represent an increase in vehicular flow in the area where they were built; examples of this are the cases of EPA in Desamparados and City Mall in Alajuela, who made substantial investments to adjust to the vehicle entry and exit requirements. Furthermore, there is the opinion of the Regional Directorate of the Fuerza Pública of Alajuela, via official communication MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-08272022 (see documentary evidence), where they indicate that the area of La Guácima de Alajuela is classified as sensitive since different criminal activities converge there, and that the impact generated by agglomerations of vehicles and people outside Parque Viva reduces police mobility and produces an increase in calls from neighbors to 911 due to incidents of breach of the public order. The Fuerza Pública refers to a specific case that occurred during a concert at Parque Viva on May 7, 2022, where in a medical emergency, the relief forces required police assistance to be able to transport the patient since the quantity of vehicles and people in the area prevented the ambulance from moving with the required speed; for this reason, the intervention of twelve police officers was necessary, clearing a path on foot among the vehicles for 40 minutes. They conclude that the impact on police service during mass events at Parque Viva is evident, noticeable, frequent, and repetitive, by virtue of the impact of criminal incidence and the impact on the response times of emergency authorities. The Benemérito Cuerpo de Bomberos issued its opinion via official communication CBCR-0271502022-0PB-00741 (see documentary evidence), where they conclude that the communities of Rincón Chiquito, Rincón Herrera, Guácima centro, as well as the facilities of Parque Viva, are affected because the response time of Fire Department units increases considerably due to the conditions of the roads surrounding the venue, coupled with the blockages that would be generated on the roads during mass events, and this would make access to the communities impossible during emergencies, a situation that endangers lives and property. Faced with the disbelief generated by the fact that the local government granted operating permits to Parque Viva, even with all the evidence that its operating conditions are harmful to the surrounding communities, the INVU requested the project file from the Municipalidad de Alajuela, where very concerning situations were found that were set forth in official communication PE-243-07-2022 (see documentary evidence), namely: 1) The municipal land-use permits for the fairgrounds, amphitheater, hotel, and food service do not respect the current regulatory plan. 2) The property where Parque Viva is located is in a green zone and is not a medium-density residential subzone, as was indicated in the land-use certificate that was issued by the Municipalidad de Alajuela and used as the basis for issuing construction permits. 3) The environmental viability granted was given for improvements to what was the Autódromo La Guácima; at no point does it follow from the procedure before SETENA that the activity to be developed was for a fairgrounds, which shows that the permits were processed separately, with the intention of circumventing minimum requirements that should have been requested. 4) There is no record of submission to the MOPT or the Municipalidad de Alajuela of any road impact study (estudio de impacto vial) measuring the impact of vehicular flow associated with the activities carried out at Parque Viva. 5) The project did not have authorization from the Benemérito Cuerpo de Bomberos at the time it was approved. 6) No improvement was requested to the cantonal roadways that provide access to Parque Viva at any stage. The local government thereby disregarded the provisions of Article 70 of the Urban Planning Law, which allows it to request contributions given the impact of the Parque Viva project on the canton's public roadways (cases of Epa Desamparados, City Mall Alajuela). As has been stated, the actions have the opinion of several specialized public institutions, some of them beneméritas de la patria, which enjoy total credibility in their actions. This is not about arbitrary actions, as the appellants want to portray them; it is about responsible officials who are doing their duty, with the due legal competence to do so, and who seek to protect the lives of Costa Ricans. For the reasons stated, the act of protecting the lives of hundreds of families who are neighbors of Parque Viva has no relationship whatsoever with attacking, limiting, or censoring the freedom of the press of Grupo Nación. I will not sleep with a clear conscience if during the next concert there is an emergency and a girl or an elderly person dies, or homes of humble people are lost during a fire, simply for the economic benefit of a group that shields itself in freedom of expression every time they are asked to conform to the law. As a relevant aspect in support of the actions of the health authorities, there is the pronouncement of the Colegio de Periodistas de Costa Rica itself, which indicated that, after analyzing the issue, they reach the conclusion that freedom of the press in Costa Rica enjoys good health, and that this right is not being attacked at any time. In this regard, the Colegio de Periodistas stated in its official release: '(...) The situation of Parque Viva must be addressed from the principle of legality under which the public administration operates, for which the appeal route exists to challenge the administrative act that orders the suspension of the sanitary operating permit and it is resolved with the presentation of a remedial plan, therefore it is not related to nor does it affect freedom of the press, since it corresponds to an activity that conforms to commercial law and the public law that governs us in the relationship between the administered parties and the Public Administration, especially since Article 50 of the Political Constitution orders the State to guarantee the greatest well-being to all the inhabitants of the country (…)' (see attached evidentiary file of documentary evidence). Grupo Nación itself, in a note published on April 27, 2021, accepts that the access conditions to the Parque Viva facilities are not the best. They expressly state that 'While Parque Viva has different public access routes, they present limitations in assimilating the fluid movement of a large number of vehicles, such as those produced when full-house shows have been presented at the Anfiteatro Coca-Cola' (see attached evidentiary file of documentary evidence). To this we must add the note from the media outlet El Guardián titled 'Parque Viva reconoced problems of vehicular chaos since 2017 and waited until 2021 to seek a solution,' where an official of Parque Viva accepts that mass events negatively impact the area's own vehicular flow, and that at an event on June 6, 2017, where 18 thousand people were convened, a collision collapsed the entire sector of La Guácima de Alajuela, which worsened the exit of the attendees from the event. (See attached evidentiary file of documentary evidence). The appellants' need to feel persecuted in defending the interests of Grupo Nación goes to the point of asserting, according to the amparo appeal, that the cancellation of the electric train project promoted by the previous government stems from the fact that a branch of the route passed through the Parque Viva sector, hence the decision that was made and that was announced. This argument is absolutely false. The decision not to continue with the project was conceived for the common benefit of the citizenry, where a better-conceived and developed project would represent greater benefits for all. Grupo Nación, as a serious media outlet, should know that high-level decisions at the national level are not based—solely—on the colones and benefits that its company might receive, but encompass much more, the Costa Rican people, for example. Where the appellants do not delve into their allegation is that, according to the note published on August 20, 2020, by the media outlet CRhoy.com, in the exercise of its freedom of the press, the government in power and Grupo Nación signed an agreement that would increase the cost of the electric train by nearly 150 billion colones, so that the railway line would pass by the vicinity of Parque Viva. (See attached evidentiary file of documentary evidence). Due process has always been respected for Grupo Nación. In the first instance, they were granted the possibility of presenting a remedial plan (which they have not done) and, on the other hand, they have had the possibility of appealing the resolution administratively, with the appeal remedy pending resolution. It is not true that the Administration has definitively closed the venue. The newspaper La Nación continues to operate and will continue to do so without any type of interference from the State; that does not mean they will not be required to conform to the law when it is evident and manifest that they are operating illegitimately and to the detriment of the rights of Costa Ricans. There is not, under any circumstance, an indirect attack on freedom of the press; at no time have I ordered the health authorities to act in a particular way; all decisions have been made according to technical parameters, acting based on a complaint filed by the citizenry itself. As a Costa Rican and a public official, I have the obligation and the right to speak out forcefully against situations that endanger the public health of the people; paradoxically, it is a constitutional right that assists me to freely express my thoughts, and I will do so most vehemently when it comes to protecting the rights of Costa Rican families, and even more so when it comes to the most vulnerable populations; recently, the Constitutional Chamber ruled on the right of public servants to express their opinions, this via Voto 09855-22, and the cited document states: '(...) one must not lose sight of the fact that freedom of expression, as well as freedom of the press, are essential elements of the democratic system, to the extreme that it is one of its core elements. This has been recognized by this Tribunal, the Inter-American Court of Human Rights, and the European Court of Human Rights in their ample jurisprudence. Based on the foregoing, and following the precedents of this Chamber, it is necessary to conclude that the amparo appeal must be granted. (...) Thus, taking into consideration the particularities of the factual framework of this case, the opening of the administrative procedure in itself does not constitute a reasonable or proportional means to require ulterior liability, as prescribed by Article 29 of the Fundamental Charter and Article 73 of the American Convention on Human Rights, but, on the contrary, it constitutes an intimidating instrument for the protected party and, in that way, prevents her from expressing what she thinks about the performance of a high official of the Judicial Branch, the restrictions on freedom of expression being greater than the benefits of the measure. Added to this, the compelling public interest to open said investigation was not convincingly demonstrated, and it was verified that the criticisms made in the opinion article were framed within what is expected of the inhabitants of the Republic when they exercise freedom of expression, whether to criticize or extol the management of a public official. It is important to point out that the limits between the power to discipline and the freedom of expression of judicial officials must be analyzed case by case (…)'. Likewise, in the very case of Ríos et al. vs. Venezuela before the Inter-American Court of Human Rights, referenced by the appellants and which contradicts their own position, it is mentioned that the case is related to Report on Scope and Conclusions No. 119/06 of October 26, 2006, when stating: '(...) the majority of the annexed pronouncements " (...) although they may have strong and critical content that could even be considered offensive, they constitute legitimate expressions of thoughts and opinions about the particular ways a media outlet may report that are protected and guaranteed under Article 13 of the American Convention, and the Commission does not find that they constitute any violation of that instrument."' On this point, it is essential to bring up the Chapultepec Declaration, specifically the ninth principle, which clearly states 'that the credibility of the press is linked to the commitment to truth, the search for accuracy, impartiality and equity, and the clear differentiation between journalistic and commercial messages. The achievement of these ends and the observance of ethical and professional values should not be imposed. They are the exclusive responsibility of journalists and media. In a free society, public opinion rewards or punishes.' From the preceding paragraph, it is inevitable to question whether Grupo Nación is acting in accordance with this precept, and whether, once all the criteria of specialized entities have been analyzed, their credibility and commitment to truth is not in question. In conclusion, I can affirm that no kind of censorship is being exercised, neither direct nor indirect, against Grupo Nación; the media outlet continues to operate normally, informing the Costa Rican people according to its editorial line, and this guarantee will never be transgressed. The right that the appellants claim has been violated finds no support in reality, as has been demonstrated, and therefore the amparo appeal must be declared without merit in all its aspects (...)".
4.- By written submission provided to the Chamber on August 9, 2022, Rodrigo Chaves Robles, in his capacity as President of the Republic, renders a report and expressly states the following: "(…) The Political Constitution of Costa Rica is absolutely clear that it constitutes an unavoidable obligation of the State to guarantee, defend, and preserve the greatest well-being of all the country's inhabitants. Furthermore, every person has the right to claim a healthy environment. Likewise, our Magna Carta protects the freedom to say what one thinks, when this does not constitute an excess that illegitimately violates or harms a third party, or when what is said finds no support in reality. This guarantee encompasses not only the freedom of the media to report truthfully, but also that of individuals to exercise their full right to express themselves. You, magistrates of the honorable Constitutional Chamber, more than anyone, know of the duty conferred upon me when I swore before the people of Costa Rica as President of the Republic, where the protection and safeguarding of the citizenry represent a fundamental pillar within the Social State of Law. Without astonishment, but with much concern, I receive the amparo appeal filed by persons affiliated with Grupo Nación, in which they expose situations that have little or no relation to curtailing the freedom of the press of this media outlet, and rather it seems that, shielded by that mistaken discourse, they demand—without any objection—that the State must allow them to operate as they wish, even when this is contrary to law and detrimental to public well-being. The appellants state that the financial capacity of Grupo Nación has been called into question by the correct procedure of a group of CCSS officials in posing a consultation before SUGEVAL (Official Communication GP-1193-2022/GF-575-06-2022), given the concern generated by the financial statements reported by Grupo Nación, and by movements of real estate to a trust constituted by this company, which will possibly negatively impact the capacity of Grupo Nación regarding the payment of bonds purchased by the CCSS, and that this could eventually grossly affect the Fondo de Seguro de Invalidez Vejez y Muerte and the Fondo de Retiro de Empleados de la CCSS. The payment they must make is 5,950 million colones. The concern of the CCSS officials is absolutely valid and justified: at the close of the first quarter of 2022, Grupo Nación shows a net loss of 350 million colones, almost 35% higher than the loss reflected in March 2021. On the other hand, it is very concerning that the largest asset Grupo Nación possesses, that is, the property in Llorente de Tibás, is being transferred to a trust, along with other properties that this group has been acquiring, even when they have been reporting losses for several years. Magistrates, is it a threat to freedom of the press to be concerned and pose consultations about the fate of the funds of thousands of Costa Ricans invested in these bonds? Grupo Nación, like any other debt issuer participating in the national securities market, is obligated to provide truthful information that supports its financial health, and not to shield itself in its supposed core activity as a 'media outlet' to allege attacks on freedom of the press when it is required to conform to legality. Today, despite the fact that the CCSS sent a missive to Grupo Nación on July 20, 2022, with the same consultations posed before SUGEVAL, there is no response whatsoever (see documentary evidence). The appellants' allegation regarding the temporary lifting of the sanitary operating permit for Parque Viva finds the same discourse, that is, Grupo Nación cannot be required, like any other Costa Rican business, to adjust to the parameters of the law, because immediately, in their view, it becomes an attack on freedom of the press. Strangely, Grupo Nación alleges that the complaint about Parque Viva was addressed with speed and celerity by the health authorities, a situation that is commendable and correct. We are talking about the lives of thousands of people; this cannot be delayed, it cannot wait any longer, it must be resolved as quickly and diligently as possible; there is no basis whatsoever to come and criticize that the government acted with due diligence to protect the citizenry; the actions were executed correctly, and this is precisely what the population expects: a government that responds swiftly, not with delays or obstacles. How is it possible, magistrates, that Grupo Nación comes to say that they pin all their economic hopes on what the economic activity of Parque Viva can generate in order to pay their employees, and that temporarily closing that venue for holding mass events due to non-compliance with minimum health conditions is a direct attack on freedom of the press? That only demonstrates that the financial health of La Nación is not as they want to make it seem, and that they depend on this venue to survive financially. Regarding the specific case of Parque Viva, neighbors of La Guácima de Alajuela filed an anonymous complaint before the Ministry of Health, where they explain what they have suffered for years with this venue, and the consequences that could occur if the necessary measures are not taken urgently. A clear example of what was denounced was evidenced in the note published by the media outlet CRhoy.com on June 22, 2017, where a neighbor of La Guácima de Alajuela reported that 'You have to be fighting so they don't park in front of us. Sometimes, they send someone to arrange the cars, but when the disorder is too much, they disappear (...) Everyone shuts themselves in. People (neighbors) don't go out when there's a concert. The streets have to be made wider, Tuesday (Ed Sheeran Concert, June 6) was tremendous.' Faced with that situation, the main fear is that one of those concert nights an emergency might arise requiring a neighbor's quick exit. 'The person dies! If they got cut, slipped (...) This gets blocked on all sides. Not only here, also in Ciruelas and in the sector known as El Bajo (...) It's that there are weeks with even 3 concerts.' (See evidentiary file attached as documentary evidence). Another example of the situation experienced by the neighbors of Parque Viva occurred on July 9, 2017, according to a note published by the media outlet Am Prensa on July 9, 2017, where it was reported that, during a concert held that afternoon at Parque Viva, severe traffic congestion was reported in the surroundings of the venue, but the most serious event occurred when an alert was received about a terrorist attack threat that led to the arrest of one person. (See evidentiary file attached as documentary evidence). Once the anonymous complaint was received, the Ministry of Health convened the Technical Advisory Committee on Mass Gatherings to analyze the case. In that session, officials participated from the Ministry of Health, the Ministry of MOPT, the Costa Rican Red Cross, the Traffic Police Directorate, the National Emergency Commission, and the Benemérito Cuerpo de Bomberos. This committee, acting within permitted parameters, and analyzing report DVT-DGlT-2022-339 (see documentary evidence) from the Dirección General de Ingeniería de Tránsito (previously requested by the Ministry of Health), where it concludes that at the time mass gatherings are held at Parque Viva, the access road does not have sufficient capacity to handle the traffic generated, therefore, this commission agreed to propose a closure order for mass events to the health authorities and to request a remedial plan for the reported conditions. Having received the recommendation of the specialized committee, the Health Governing Area Directorate of Alajuela 2 issued health order MS-DRRSCN-DARSA2-OS-0368-2022 (see documentary evidence), where it temporarily suspended the sanitary operating permit for mass events until the appellant entity presents a remedial plan covering the solution to the problem with the accesses. Today, Grupo Nación has not presented the remedial plan. It bears recalling that the authorities have required other commercial groups to construct access entrances to large-scale commercial centers when it is projected that the start of operations of these venues will represent an increase in vehicular flow in the area where they were built; examples of this are the cases of EPA in Desamparados and City Mall in Alajuela, who made substantial investments to adjust to the vehicle entry and exit requirements. Furthermore, there is the opinion of the Regional Directorate of the Fuerza Pública of Alajuela, via official communication MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-08272022 (see documentary evidence), where they indicate that the area of La Guácima de Alajuela is classified as sensitive since different criminal activities converge there, and that the impact generated by agglomerations of vehicles and people outside Parque Viva reduces police mobility and produces an increase in calls from neighbors to 911 due to incidents of breach of the public order. The Fuerza Pública refers to a specific case that occurred during a concert at Parque Viva on May 7, 2022, where in a medical emergency, the relief forces required police assistance to be able to transport the patient since the quantity of vehicles and people in the area prevented the ambulance from moving with the required speed; for this reason, the intervention of twelve police officers was necessary, clearing a path on foot among the vehicles for 40 minutes. They conclude that the impact on police service during mass events at Parque Viva is evident, noticeable, frequent, and repetitive, by virtue of the impact of criminal incidence and the impact on the response times of emergency authorities. The Benemérito Cuerpo de Bomberos issued its opinion via official communication CBCR-0271502022-0PB-00741 (see documentary evidence), where they conclude that the communities of Rincón Chiquito, Rincón Herrera, Guácima centro, as well as the facilities of Parque Viva, are affected because the response time of Fire Department units increases considerably due to the conditions of the roads surrounding the venue, coupled with the blockages that would be generated on the roads during mass events, and this would make access to the communities impossible during emergencies, a situation that endangers lives and property. Faced with the disbelief generated by the fact that the local government granted operating permits to Parque Viva, even with all the evidence that its operating conditions are harmful to the surrounding communities, the INVU requested the project file from the Municipalidad de Alajuela, where very concerning situations were found that were set forth in official communication PE-243-07-2022 (see documentary evidence), namely: 1) The municipal land-use permits for the fairgrounds, amphitheater, hotel, and food service do not respect the current regulatory plan. 2) The property where Parque Viva is located is in a green zone and is not a medium-density residential subzone, as was indicated in the land-use certificate that was issued by the Municipalidad de Alajuela and used as the basis for issuing construction permits. 3) The environmental viability granted was given for improvements to what was the Autódromo La Guácima; at no point does it follow from the procedure before SETENA that the activity to be developed was for a fairgrounds, which shows that the permits were processed separately, with the intention of circumventing minimum requirements that should have been requested. 4) There is no record of submission to the MOPT or the Municipalidad de Alajuela of any road impact study (estudio de impacto vial) measuring the impact of vehicular flow associated with the activities carried out at Parque Viva. 5) The project did not have authorization from the Benemérito Cuerpo de Bomberos at the time it was approved. 6) No improvement was requested to the cantonal roadways that provide access to Parque Viva at any stage. The local government thereby disregarded the provisions of Article 70 of the Urban Planning Law, which allows it to request contributions given the impact of the Parque Viva project on the canton's public roadways (cases of Epa Desamparados, City Mall Alajuela). As has been stated, the actions have the opinion of several specialized public institutions, some of them beneméritas de la patria, which enjoy total credibility in their actions. This is not about arbitrary actions, as the appellants want to portray them; it is about responsible officials who are doing their duty, with the due legal competence to do so, and who seek to protect the lives of Costa Ricans. For the reasons stated, the act of protecting the lives of hundreds of families who are neighbors of Parque Viva has no relationship whatsoever with attacking, limiting, or censoring the freedom of the press of Grupo Nación. I will not sleep with a clear conscience if during the next concert there is an emergency and a girl or an elderly person dies, or homes of humble people are lost during a fire, simply for the economic benefit of a group that shields itself in freedom of expression every time they are asked to conform to the law. As a relevant aspect in support of the actions of the health authorities, there is the pronouncement of the Colegio de Periodistas de Costa Rica itself, which indicated that, after analyzing the issue, they reach the conclusion that freedom of the press in Costa Rica enjoys good health, and that this right is not being attacked at any time. In this regard, the Colegio de Periodistas stated in its official release: '(...) The situation of Parque Viva must be addressed from the principle of legality under which the public administration operates, for which the appeal route exists to challenge the administrative act that orders the suspension of the sanitary operating permit and it is resolved with the presentation of a remedial plan, therefore it is not related to nor does it affect freedom of the press, since it corresponds to an activity that conforms to commercial law and the public law that governs us in the relationship between the administered parties and the Public Administration, especially since Article 50 of the Political Constitution orders the State to guarantee the greatest well-being to all the inhabitants of the country (…)' (see attached evidentiary file of documentary evidence). Grupo Nación itself, in a note published on April 27, 2021, accepts that the access conditions to the Parque Viva facilities are not the best. They expressly state that 'While Parque Viva has different public access routes, they present limitations in assimilating the fluid movement of a large number of vehicles, such as those produced when full-house shows have been presented at the Anfiteatro Coca-Cola' (see attached evidentiary file of documentary evidence). To this we must add the note from the media outlet El Guardián titled 'Parque Viva recognized problems of vehicular chaos since 2017 and waited until 2021 to seek a solution,' where an official of Parque Viva accepts that mass events negatively impact the area's own vehicular flow, and that at an event on June 6, 2017, where 18 thousand people were convened, a collision collapsed the entire sector of La Guácima de Alajuela, which worsened the exit of the attendees from the event. (See attached evidentiary file of documentary evidence). The appellants' need to feel persecuted in defending the interests of Grupo Nación goes to the point of asserting, according to the amparo appeal, that the cancellation of the electric train project promoted by the previous government stems from the fact that a branch of the route passed through the Parque Viva sector, hence the decision that was made and that was announced. This argument is absolutely false. The decision not to continue with the project was conceived for the common benefit of the citizenry, where a better-conceived and developed project would represent greater benefits for all. Grupo Nación, as a serious media outlet, should know that high-level decisions at the national level are not based—solely—on the colones and benefits that its company might receive, but encompass much more, the Costa Rican people, for example. Where the appellants do not delve into their allegation is that, according to the note published on August 20, 2020, by the media outlet CRhoy.com, in the exercise of its freedom of the press, the government in power and Grupo Nación signed an agreement that would increase the cost of the electric train by nearly 150 billion colones, so that the railway line would pass by the vicinity of Parque Viva. (See attached evidentiary file of documentary evidence). Due process has always been respected for Grupo Nación. In the first instance, they were granted the possibility of presenting a remedial plan (which they have not done) and, on the other hand, they have had the possibility of appealing the resolution administratively, with the appeal remedy pending resolution. It is not true that the Administration has definitively closed the venue. The newspaper La Nación continues to operate and will continue to do so without any type of interference from the State; that does not mean they will not be required to conform to the law when it is evident and manifest that they are operating illegitimately and to the detriment of the rights of Costa Ricans. There is not, under any circumstance, an indirect attack on freedom of the press; at no time have I ordered the health authorities to act in a particular way; all decisions have been made according to technical parameters, acting based on a complaint filed by the citizenry itself. As a Costa Rican and a public official, I have the obligation and the right to speak out forcefully against situations that endanger the public health of the people; paradoxically, it is a constitutional right that assists me to freely express my thoughts, and I will do so most vehemently when it comes to protecting the rights of Costa Rican families, and even more so when it comes to the most vulnerable populations; recently, the Constitutional Chamber ruled on the right of public servants to express their opinions, this via Voto 09855-22, and the cited document states: '(...) one must not lose sight of the fact that freedom of expression, as well as freedom of the press, are essential elements of the democratic system, to the extreme that it is one of its core elements. This has been recognized by this Tribunal, the Inter-American Court of Human Rights, and the European Court of Human Rights in their ample jurisprudence. Based on the foregoing, and following the precedents of this Chamber, it is necessary to conclude that the amparo appeal must be granted. (...) Thus, taking into consideration the particularities of the factual framework of this case, the opening of the administrative procedure in itself does not constitute a reasonable or proportional means to require ulterior liability, as prescribed by Article 29 of the Fundamental Charter and Article 73 of the American Convention on Human Rights, but, on the contrary, it constitutes an intimidating instrument for the protected party and, in that way, prevents her from expressing what she thinks about the performance of a high official of the Judicial Branch, the restrictions on freedom of expression being greater than the benefits of the measure. Added to this, the compelling public interest to open said investigation was not convincingly demonstrated, and it was verified that the criticisms made in the opinion article were framed within what is expected of the inhabitants of the Republic when they exercise freedom of expression, whether to criticize or extol the management of a public official. It is important to point out that the limits between the power to discipline and the freedom of expression of judicial officials must be analyzed case by case (…)'. Likewise, in the very case of Ríos et al. vs. Venezuela before the Inter-American Court of Human Rights, referenced by the appellants and which contradicts their own position, it is mentioned that the case is related to Report on Scope and Conclusions No. 119/06 of October 26, 2006, when stating: '(...) the majority of the annexed pronouncements " (...) although they may have strong and critical content that could even be considered offensive, they constitute legitimate expressions of thoughts and opinions about the particular ways a media outlet may report that are protected and guaranteed under Article 13 of the American Convention, and the Commission does not find that they constitute any violation of that instrument."' On this point, it is essential to bring up the Chapultepec Declaration, specifically the ninth principle, which clearly states 'that the credibility of the press is linked to the commitment to truth, the search for accuracy, impartiality and equity, and the clear differentiation between journalistic and commercial messages. The achievement of these ends and the observance of ethical and professional values should not be imposed. They are the exclusive responsibility of journalists and media. In a free society, public opinion rewards or punishes.' From the preceding paragraph, it is inevitable to question whether Grupo Nación is acting in accordance with this precept, and whether, once all the criteria of specialized entities have been analyzed, their credibility and commitment to truth is not in question. In conclusion, I can affirm that no kind of censorship is being exercised, neither direct nor indirect, against Grupo Nación; the media outlet continues to operate normally, informing the Costa Rican people according to its editorial line, and this guarantee will never be transgressed. The right that the appellants claim has been violated finds no support in reality, as has been demonstrated, and therefore the amparo appeal must be declared without merit in all its aspects (...)".
Requests that the appeal filed be dismissed.
5.- By written submission provided to the Chamber on August 17, 2022, the appellant González Rodicio addressed the report rendered by the appealed authorities. He alludes to the haste with which, on July 5, 2022, the alleged complaint filed against Parque Viva was processed before various instances and in less than six hours (that is, from presumably 8:00 a.m. to 1:50 p.m.). On this particular point, he expressly argues the following: "(…) 1 -In the copy of the case file provided by the appellants, folio 2, the anonymous complaint form received at 12:41 on July 5 in Alajuela appears. However, if we are guided by the Official Letter in which the Minister forwards it to Dr. Karina Garita Montoya, Regional Director, the complaint was received in San José, on that same July 5. We CANNOT know the time, because the document does not have a received stamp at the Ministry's central offices, contrary to the usual rules for receiving and handling documents in public administration, but it could not have been filed before 8 a.m., because the offices open at that time. 2- Between 8 a.m., assuming the complainant was there when the doors opened, and 12:24:14 when the Minister requests urgent technical criteria from the heads of the Ministry of Public Works according to official letter MS-DM-5754-2022 visible at folio 26 of the copy of the case file provided by the respondents, there was time to formulate and receive the complaint, decide that it was of urgent attention by the Minister personally, elevate it to her office, and draft the official letter sent to MOPT. There does not appear to have been time to stamp a received mark that would allow us to know the time the complaint was filed in order to assess the true speed of the procedures, which may be much greater. 3- In the copy of the case file provided by the respondents, folio 1, official letter MS-DM-5756-2022 appears, signed electronically on July 5 at 12:38:24, by which the Minister forwards the complaint form to Dr. Karina Garita Montoya, Regional Director. This occurs 2 minutes and 36 seconds before the received stamp placed on the form in Alajuela. Most extraordinary is that the Central North Regional Directorate, which comprises Alajuela and Heredia, is located in the latter city, from which the physical transfer of the document in a couple of minutes would be impossible. If the transfer was electronic, it was also done in record time. In 2 minutes and 36 seconds the email was received, the content was read, it was dispatched to Alajuela where the complaint was printed and a physical received stamp was placed, which would have been unnecessary if the electronic route had been documented. If the speed with which anonymous complaints are apparently now processed would have advised sending a copy of the document to Alajuela while notifying the head in Heredia, disregarding chains of command, it bears asking why the only copy appearing in the case file—which we must therefore understand as the Original—is the one with the Alajuela received stamp. 4- In the copy of the case file provided by the respondents, the already cited Official Letter MS-DM-5754-2022 appears, signed on July 5 at 12:24:14, by which the Minister requests urgent technical criteria from the heads of MOPT, more than 14 minutes before the transfer of the anonymous complaint to the Regional Directorate, in Heredia, and almost 17 minutes before the complaint was received in Alajuela. 5- In the copy of the case file provided by the respondents, folio 19, the inspection report signed at 1:50 p.m. on July 5 at Parque Viva appears. That is, between the receipt of the complaint in Alajuela and the conclusion of the on-site inspection, 69 minutes would have elapsed. Apparently, the inspectors were ready, at lunchtime, to depart like a flash toward La Guácima moments after the anonymous complaint was received in central Alajuela and carry out their task at extraordinary speed, moving through every corner of the park (…)". He mentions that, in her report, the Minister of Health suggests that, by virtue of the inspection conducted by authorities of the Alajuela 2 Health Governing Area on July 5, 2022, a subsequent request for criteria was made to MOPT. However, he notes that this criteria had been requested almost an hour and a half before that inspection concluded. He adds that the official report of the Alajuela 2 inspectors (which recommends forwarding the complaint to MOPT so that they may assess the reported conditions under their competence), was signed outside office hours, on that same July 5, 2022, at 5:26:59 p.m. (when more than five hours had passed since the Minister of Health had requested urgent technical criteria from MOPT). On this last aspect, he expressly states the following: "(…) We do not know at what time the complaint was received nor how it reached the Minister's office without going through the usual document receipt process. It is a sheet that anyone could have filled out at any time, but it triggered extraordinary activity. A few hours on the morning of July 5 were enough to deploy all the actions recorded in the Official Letters. What did the Minister transfer to Dr. Ramos's office, in Heredia, if 2 minutes and 36 seconds later the received stamp was being placed on the complaint in Alajuela? Why is that the only record of receipt on the complaint form and why does only that form appear in the case file? Why did the Minister make the transfer to Heredia and why was the complaint sent to Alajuela if MOPT had already been consulted about the roads adjacent to Parque Viva and it is known that the Ministry of Health has no jurisdiction over that matter? How did the Alajuela inspectors arrive at Parque Viva with such speed? This chronicle of what happened in less than six hours (perhaps much less, depending on the time the complaint was filed) in three Ministry of Health offices and the Parque Viva facilities, precedes the rest of the frenetic activity that culminated in the suspension of the sanitary permits. This is not how complaints, especially anonymous ones, are processed in any sector of public administration. The arbitrariness, the excessive severity (ensañamiento), and the deviation of power leave no room for doubt (…)". Furthermore, he indicates that, as part of the custom of requesting documents from public institutions to retroactively justify the arbitrary actions in this case, the National Institute of Housing and Urbanism (INVU), weeks after the closure, issued a report of irregularities allegedly committed eight or nine years ago. He mentions that the Municipality of Alajuela refuted it that same day, but that did not matter for the President to present it as part of his report rendered to the Chamber. He maintains that each of the arguments stated in the report by INVU lack veracity and, in that regard, asserts the following: "(…) 1-According to INVU, the municipal land-use permits (permisos de uso de suelos) disregard the regulatory plan. As the Municipality of Alajuela correctly stated in an official communiqué dated August 3, 2022, Article 60 of the Urban Regulatory Plan provides that if, five years after the publication of said plan, the Municipality does not acquire the lands destined for green zones, these shall acquire the nearest zoning that least affects the user, and that is what happened. The land-use permits, duly authorized at the time, fully comply with the current Regulatory Plan. They are provided as Evidence # 1. As stated in the land-use permits authorized by the Municipality of Alajuela in June 2013, the zoning of the property where Parque Viva is located (real folio registration number 198873-000, Alajuela district) was a zone classified as medium-density residential. 2- According to INVU, the property where Parque Viva is located is situated in a green zone and not in a medium-density residential subzone, as indicated in the land-use certificate (constancia de uso de suelo) issued by the Municipality of Alajuela to issue the construction permits. False, as we have just explained and proven. The truth is not only accredited by the duly issued land-use permits, but also by the regulations of the Regulatory Plan. There is no argument to cast doubt on the validity of the land-use permits granted to Parque Viva. (The approved land-use permits are provided as evidence.) 3- According to INVU, the environmental viability (viabilidad ambiental) was granted for improvements to the Autódromo La Guácima. At no time does it emerge from the proceeding before SETENA that the activity to be developed was a fairground, which demonstrates the separate processing of permits to bypass minimum requirements. The assertion is absolutely false; to verify this, one need only read the resolution granting viability to the project. That resolution, provided as Evidence #2, was issued by the National Environmental Technical Secretariat SETENA, # 3088-2013 dated December 19, 2013, for the Project then known as "Mejoras al Autódromo La Guácima". Clause 5 of the operative part (por tanto) enumerates the works to be carried out on what was the Autódromo La Guácima. The thorough general description of the approved project is that contained in resolution number 3088-2013 of SETENA, attached as evidence. Those were the authorized works and those were the works constructed. As should be obvious, SETENA grants environmental viability to the works, not to the present or future commercial name. At that time, Grupo Nación had not decided on the name Parque Viva and to identify the project it used the name of the previous activity. Tomorrow, it could decide to call it any other name without violating the environmental viability granted by SETENA almost nine years ago. The municipality's communiqué states in this regard "REGARDING ENVIRONMENTAL VIABILITY, the resolution approving the environmental viability reviewed by the Municipality of Alajuela for processing the construction permit for the Parque Viva Project, is correct and describes the works in a general manner, which coincide with the plans submitted and duly approved by the other institutions previously and by the Federated College of Engineers and Architects, as recorded on the APC platform. The project title, that is, the name by which it is known in the file, was what varied over time, which did not affect the nature of what was analyzed, much less the nature of the works (trade name). Not because the company changed the project name does the nature of the Works change." 4- According to INVU, there is no record of submission to MOPT or the Municipality of Alajuela of any traffic impact study measuring the impact of the vehicular flow associated with the activities of Parque Viva. Grupo Nación timely submitted a traffic study, delivered to the Ministry of Public Works and Transport for its review and analysis. Proof of this is Official Letter DGIT-ED-5935-2014 dated December 1, 2014, where the General Directorate of Traffic Engineering issues formal approval of the study (See evidence). 5- According to INVU, the project did not have authorization from the Fire Department (Cuerpo de Bomberos) when approved. False. The plans have the approval of the competent institutions, namely the Fire Department, the Ministry of Health, and the Municipality of Alajuela. The approval in question is visible on the digital platform of APV, where all documents related to Real Estate developments whose procedures are reviewed by the Federated College of Engineers and Architects (sic) are stored (See evidence). In this regard, the municipality declared: "The Municipality of Alajuela does not substitute other institutions in their duties, which may review the file and conduct the respective on-site inspections for compliance. It is important to indicate in any case that, as observed in the file, each notation was corrected by the respective institution, which generated approval by the CFIA. According to the file, contract OC626867, dated 11-13-2013, determines that 'the project is approved with the institutional observations corrected by the professional'." The involvement of the Fire Department in the project's development is demonstrated by official letter dated June 16, 2014, where the elimination of hydrants is accepted and correction of minor defects is requested. 6- According to INVU, no improvements to the cantonal roadway providing access to Parque Viva were requested at any stage. The local government thereby ignored the provisions of Article 70 of the Urban Planning Law, which allows it to request contributions given the project's impact on the canton's road network. It is NOT true. Parque Viva developed improvements on half of the cantonal roadway corresponding to investments for road widening and paving, construction of curb and gutter, sidewalks, bus stop, and bus bay, among others (…) MOPT, through official letter DVT-DGlT-ED-2015-4056, accepts the completion of the construction project and records the receipt of the works. (…)". Furthermore, he asserts that what the President reported regarding the train is not true. He maintains that this authority knows there is no branch line valued at 150 billion to benefit Parque Viva, because he himself actively participated in the financial structuring and legislative presentation of the project. He indicates that the agreement signed between Grupo Nación and Incofer amounts to a letter of intent by virtue of which Grupo Nación undertakes to promote among private companies the rehabilitation of the existing line, to extend the current service to El Coyol, where more than 32,000 people work in the free zones and related companies in the surrounding areas. He recounts that the benefit for those companies and the attraction of investments, as CINDE has stated, is to improve access to the area, especially for workers. He likewise asserts that the benefit for Parque Viva is also obvious, as much as it is for the community of La Guácima and its surroundings. He clarifies, therefore, that "(…) Grupo Nación expresses its intention to seek collaboration from companies that could benefit from the rehabilitation of the railway line laid out by don Rafael Yglesias at the end of the 19th century. Incofer, for its part, could extend its service without investing in the track and would collect valuable information on service demand. The agreement makes no reference whatsoever to the fantasy incorporated into the President's report, and the only mention of the electric train is to describe it as one of the government's priorities and to clarify, immediately thereafter, that 'while those processes advance, Incofer expresses its interest in reopening railway services on those sections of the railway line that may gradually be rehabilitated, and which allow promoting the use of railway services and yield important data about the demand for railway services (…)'" and he adds that "(…) the President does not even need to see the agreement to acknowledge the falsehood incorporated into his report. In Scope No. 112 to La Gaceta No. 110, May 14, 2020, page 83, his signature appears, as Minister of Finance, on the bill approving the loan from the Central American Bank for Economic Integration to finance part of the electric train. On page 9 of the Scope, attached to this submission as evidence, it is stated: 'Ultimately, the Passenger Electric Train project consists of a substantial improvement of the railway transport service running between San José and the towns of Alajuela, Belén, and Paraíso on three respective lines, together with the extension from Belén to Ciruelas and two new sections from Alajuela to Ciruelas and from Ciruelas to El Coyol, respectively.' On the same page one reads, among the Specific objectives of the project: 'Design and build new railway infrastructure in the GAM on the rights-of-way currently owned by INCOFER...' 'Further down, it says: 'The approximate investment for the project is US$1,550,000,000 (…) As is demonstrated, the President has always known that the ₡150 billion branch line never existed, that there is no agreement between Incofer and Grupo Nación that contemplates it, that the total cost was US$1,550,000,000 (without the supposed additional ₡150 billion), and that the work would be developed on the existing rights-of-way. He supported all of that, moreover, with his signature and solemn statements before the deputies. (…)". He asserts that the persecutory intent and the purpose of fulfilling the campaign threat to destroy the structures that sustain our journalism, departing from the truth if necessary, is confirmed by the statements in the report related to the train case which, initially, was cited as one of the elements of pressure aimed at restricting his freedom of expression in the terms prohibited by Article 13.3 of the American Convention on Human Rights. Regarding what the President stated concerning the bonds purchased by the State, he expressly states the following: "(…) In another part of the report, the President states: 'The appellants claim that I have called into question the financial capacity of Grupo Nación due to the correct proceeding by a group of CCSS officials in posing a query before Sugeval… given the concern generated by the financial statements reported by Grupo Nación, and by movements of real estate assets to a trust constituted by this company.' We never said such a thing, but neither was the proceeding by the Caja officials correct nor did they act, without more, on their own initiative. The incorrectness of the procedure is evidenced by Sugeval's response, which tells them to contact the issuer directly. The President's participation in the procedure is demonstrated by the recording of the press conference where he confessed to having been the one, personally, who asked the executive president of the Caja to formulate the questions to Grupo Nación through Sugeval. The President seems to have realized the unusual nature of that call and added that the official responded that they were already doing so. What we appellants did say is that these actions only served to set up a press conference where, without waiting for the answers to the questions, the President disclosed the procedure and questioned the solvency of Grupo Nación with the evident purpose of fulfilling his campaign threats to punish our journalism by destroying the structures that make it possible. According to what he said, with evident intent to appeal to emotion, the questions were formulated in defense of 'grandma's' pension. (See video on electronic evidence medium). We also said that no financial authority has expressed the same doubts, Grupo Nación maintains an 'A' rating, granted by the rating agency Fitch, and the company's assets double its liabilities. The financial statements are public, because Grupo Nación is registered on the stock exchange, and they record the reserve of the necessary resources to pay the next maturity, after having punctually paid the two previous ones and their interest. As is clear, we said, 'the spectacle had no other purpose than to harm Grupo Nación, casting doubt on its finances, in order to curtail our freedom of expression, because "the usual practice of institutional investors" is to consult the issuer directly and rely on the information published by mandate of law.' 'Magistrates, is it a threat to press freedom to be concerned and pose queries about the fate of thousands of Costa Ricans' funds invested in these bonds?', the President asks. Evidently not, but when the president who swore to destroy the structures of our journalism sets up a press conference to publicize, from his high platform, a query posed at his request through the wrong procedure, which moreover had not been answered, which did not prevent him from sowing doubt about the company's finances and saying that it is all to defend grandma's pension, after calling the Caja president 'diplomatic' for stating that the issuer has always paid punctually, the answer is different. And when all these circumstances are added to the closure of Parque Viva two days later, in addition to what was said about the train and the subsequent summary denial of the remedy that Grupo Nación has proposed for transit in the area (…) there can be no doubt of the fulfillment of the threat announced since the campaign. It is worth noting that the day after the press conference on the bonds, the executive director of Grupo Nación, Pedro Abreu, gave extensive public explanations and mentioned the role of Parque Viva in the company's cash flow. One day later, the government precipitously closed Parque Viva (…)". He adds that the alleged objective of La Nación to claim to be above the law, as stated by the President, is a fallacy. He asserts that this was never alleged and that both Grupo Nación and they as individuals are subject to the laws. He indicates that they do not seek a hateful or undemocratic exception. He notes that, in this case, a deviation of power occurred to indirectly restrict freedom of expression, thereby fulfilling the threat made during the campaign, to which, he clarifies, the presidential report made no reference at any time. He adds, regarding the fallacy of the claims about the duty to protect social interests by closing Parque Viva, that "(…) It is NOT that we appellants use freedom of expression as a pretext to exempt Grupo Nación from complying with the law; it is that the President and the Minister of Health use the fulfillment of duty as a pretext to materialize the purpose of silencing us expressed during the electoral campaign and duly documented. That is, precisely, the definition of deviation of power. As is evident from their arbitrariness, precipitation, excessive severity (ensañamiento), discriminatory character, and propagandistic use, the measures adopted do not pursue the satisfaction of public interests, but rather spurious interests consisting of retaliating against a news medium, threatening and intimidating it so that it does not freely exercise its right to inform. This is the true purpose of the administrative acts adopted. They have nothing to do with defending grandma's pension, preventing the ₡150 billion branch line of the 'little train,' or improving access for emergency services to an area where traffic collapse occurs every day, as in so many other places, at least twice a day, with or without a concert, according to residents' testimony and the experience of anyone who has transited the site (…)". Likewise, he refers to the fallacy of the remedial plan. He indicates in this regard that both the President and the Minister of Health insist in their reports on the temporary nature of the suspension of the sanitary operating permit for Parque Viva and the requirement for a remedial plan "that encompassed the solution to the problem with the accesses" and add that Grupo Nación has not submitted it. He maintains that the recklessness of the argument becomes obvious when it is verified that the inspection reports find no problem with the accesses to the park (which are four, not two as the Minister's report says), nor with the facilities. The problem is the streets outside the park, and reference has already been made to the State's permissiveness regarding the urban development of the area, without providing the necessary infrastructure. He argues that a good part of that development occurred after the installation of Parque Viva and decades after the Autódromo La Guácima where massive, even larger, activities were held with all permits. He asserts that it is not up to Grupo Nación to build the necessary infrastructure to adapt the roads to current and future development, but it has proposed a plan to do so on its own. The initiative has the necessary letters of no objection and is pending approval by the instances that the president has criticized in other cases for slowness. He reiterates that, despite the foregoing, the president, at a press conference on July 13, without any study and against the criteria already expressed by experts, announced his opposition to the idea with the absurd notion that it would collapse Ruta 27 "risking the entire West, Grecia, Naranjo, Atenas, San Carlos, all of Guanacaste, and all of Puntarenas." He expressly states that "(…) Thus, the problem is external to Parque Viva, but the solution proposed by Grupo Nación is, suddenly, unacceptable, and the only remedial plan is inside the facilities, where the Ministry of Health found no problem, but only in this way can it demand a remedial plan that makes the park's operation unviable through a drastic reduction in capacity. That is the true objective. The position is so irrational that the President maintains a different one in his report. 'It bears recalling that the authorities have required other commercial groups to construct access routes to large-scale shopping centers, when it is projected that the entry into operation of these venues will represent an increase in the vehicular flow in the area where they were built; examples of this are the cases of EPA in Desamparados and City Mall in Alajuela, which made substantial investments to adjust to the vehicle entry and exit requirements,' the report says. Wonderful! Let us ignore pointing out that the examples are of establishments that were required to build access works in order to permit construction. That is not the case of Parque Viva, built more than eight years ago with all the necessary permits. Let us also ignore that the same requirement was not imposed on the establishments and housing projects that arrived in La Guácima afterward. Grupo Nación, far from placing itself above the law, seeks the same treatment, albeit belated and discriminatory in relation to other establishments in the area. It wants the opportunity to make 'substantial investments to adjust to the vehicle entry and exit requirements,' but the President considers it, at the same time, necessary in the report to the Chamber and impossible at the podium of his press conferences. The contradictions are so evident that the President submits as evidence a news article from a media outlet aligned with his administration with the headline 'Parque Viva acknowledged traffic chaos problems since 2017 and waited until 2021 to seek a solution.' The solution to which the publication refers is the construction of the modern four-lane access that the President declares impossible at a press conference and, at the same time, demands, according to him, to apply the law as was done with EPA in Desamparados and City Mall in Alajuela. Despite his declared opposition to the access, he cites a news article that reproaches Grupo Nación for having waited four years to resolve the public infrastructure problem. The news article is imprecise regarding dates. As verified in the text, La Nación reported on the access on April 27, 2021. That does not mean it waited until 2021 to seek a solution. By that date, the designs were already ready, and the purchase of land had begun in early 2020. The 'master plan' designed with the help of U.S. advisors was made in 2019, but there is no reason to dwell on the falsehood of waiting until 2021 'to seek a solution.' If we take it as true, we have that Grupo Nación proposed a 'remedial plan' not only for Parque Viva but for the entire community, one year before the suspension of the operating permits. What is the government waiting for, regarding the supposed application of the law as was done 'with EPA in Desamparados and City Mall in Alajuela'? 'What is it waiting for to act with the same urgency applied to "Evolution Free Zone"?' In that case, the president stated, at a press conference: 'I am going to tell an anecdote. One of the most important companies in the world, literally: wants to build 80,000 square meters of plant space in Costa Rica to hire 5,000 Costa Ricans in the western zone, in positions of very high added value and salaries. 24 months stuck trying to see if they would let them build an exit from Ruta 1 to that enormous plant!' (See news article titled 'Middle managers keep getting in the way,' La Nación, June 4, 2022). By June 18, La Nación was headlining: 'Free zone in Grecia will begin works after being stuck for 24 months due to rejection of access to Ruta 1.' After severe public criticism of the Restricted Access Roads Commission and intervention by the Minister of Public Works and Transport, the problem was resolved. The free zone will attract 5,000 people daily in its first stage, but the plan is to create 18,000 jobs. That is, per day, the number of people who exceptionally attend, a couple of times a year, a concert at Parque Viva. The news article cited by the President as evidence only demonstrates that Grupo Nación is willing to resolve on its own a community problem that the State has not wished to solve, that the company has been transparent in its assessment of the surrounding public road, and that the 'remedial plan' has been proposed since 2021.
But the true purpose of the "remedial plan" demanded by the government, as we stated in the appeal, is to "remedy" critical journalism through a misuse of power to exert pressure on the company, consistent with the campaign threat, and not to face the problem of traffic jams (…)”. He reiterates that they are a group of professionals whose freedom of expression is being limited through arbitrary actions against the “structures” that sustain their free exercise of journalism, just as the President promised. He points out that this is an indirect attack, which is prohibited by Article 13.3 of the Convention and the jurisprudence of the Inter-American Court. He affirms that it has never been said that the payment of their salaries depends on Parque Viva, as was stated in the Presidency's press release. He mentions that, to verify everything said, one need only read the appeal, but it is worth noting the insistence on the supposed demonstration that they "depend on this place to survive financially." He argues that the unfounded obsession with the company's finances extends to the interpretation of what they have not said. He indicates that “(…) if the wishes made transparent by the passage were true, the closure of Parque Viva would put an end to the bothersome journalism that we, the appellants, produce and that motivated the threat uttered during the campaign (…)”. He adds that, as if he were an unquestionable authority, the President cited the president of the Colegio de Periodistas to refute that we are dealing with an abuse against freedom of expression. He points out that the only thing this section of the report demonstrates is that the president of the aforementioned colegio, to which a large number of journalists are not affiliated and who has never condemned the well-known attacks by the President on the "despicable" press, also does not want to contradict him on this matter or is ignorant of the provisions of the American Convention and the jurisprudence of the hemispheric court. He affirms that it must be taken into account that six former presidents of the aforementioned colegio have expressed positions contrary to what was said by the current president of that corporation. In summary, he expressly states that “(…) The report rendered to the chamber by the President lacks factual grounds; it is based on a series of reports that, far from having served as a legitimate basis for the closure of Parque Viva, were used after the fact to justify it; it distorts a series of facts with a frivolity incompatible with judicial proceedings, and, therefore, at no time does it justify the action against which we, the appellants, have sought protection. The foregoing demonstrates beyond a shadow of a reasonable doubt that we are, simply and plainly, faced with an illegitimate use of the State's administrative powers to violate the exercise of a fundamental right, such as freedom of expression. This, in turn, constitutes a violation of elementary rules of democratic coexistence (…)”.
6.- By resolution at 12:55 p.m. on September 1, 2022, the Instructing Magistrate of this matter asked the Minister of Health to provide the Chamber with a legible physical copy of the documentation sent along with the report, namely, 164 folios related to the complaint filed against Parque Viva and the sanitary order ultimately issued.
7.- On September 5, 2022, the respondent Minister complied with what was required by the resolution of September 1, 2022.
8.- By written submission filed with the Chamber on October 13, 2022, Joselyn María Chacón Madrigal, in her capacity as Minister of Health, expressly states the following: “(…) ADDITION TO THE CONCLUSIONS: I request that it be considered proven that the authorities of the Área Rectora de Salud de Alajuela 2, in response to a complaint filed on July 5, 2022, at 1:50 p.m. on July 5, 2022, carried out a physical-sanitary inspection of the aforementioned property “Parque Viva”, located in La Guácima de Alajuela, including the corresponding assessment of its access roads, with it being evident from report No. MS-DRRSCN-DARSA2-1641-2022, for relevant purposes, that the complaint was transferred to the Ministerio de Obras Públicas y Transportes, so that they could assess the reported conditions, as they fall under the purview of that agency (roads in poor condition, a single lane per direction of travel, difficulty of access for emergency services via public roads, among others). Having as a logical consequence the drafting of official communication No. MS-DM-5754-2022, by this Ministerial Office and with urgent character, Mr. Luis Esteban Amador Jiménez, in his capacity as Minister of Obras Públicas y Transportes, and Ms. Laura Ulloa Albertazzi, Viceministra de Transportes y Seguridad Vial, were asked for a technical opinion regarding the access roads to and adjacent to the private commercial venue, called “Parque Viva”, in order to elucidate structural and human safety aspects, specifically regarding the capacity aspects of its access roads, among others. As a result of the foregoing, by means of submission No. DVTSV-2022-0341 dated July 6, 2022, Ms. Laura Ulloa Albertazzi, Viceministra de Obras Públicas y Transportes, forwards official communication No. DVT-DGIT-2022-339, signed by Eng. Junior Araya Villalobos, an official of the Dirección General de Ingeniería de Tránsito, which issues an opinion stating, for relevant purposes for the attention of this matter, the following: “…Rincón Chiquito Street is an urban two-lane street – one lane per direction of travel –, where this type of road could reach a maximum capacity of around 1,200 vehicles per hour per direction and, according to the road conditions, a detailed study could yield a lower capacity than mentioned, with it being certain that at the time mass gathering events are held, the access road to Parque Viva does not have sufficient capacity to handle the generated traffic. It states that, under a conservative scenario, without considering the parking lots peripheral to the park, nor the use of the race track, there would be a generation of 4,900 vehicles per hour, which represents more than double what the road could support…” It is worth noting that the Comité Asesor Técnico de Concentraciones Masivas, by means of Record No. 28643-S-MOPT-SP of July 7, 2022, indicates to this Ministerial representation the following: “…it is agreed to propose to the corresponding authorities a Sanitary Closure Order for mass events, of the establishment called Parque Viva, and the corresponding measures with other pertinent authorities. A remedial plan must be requested for the reported conditions, which must be brought to the attention of this Comité Asesor Técnico de Concentraciones Masivas…” Thus, given the observations and recommendations of specialists in the field, on July 8, 2022, as was extensively mentioned in Report No. MS-DM-AU-3985-2022, the authorities of the Área Rectora de Salud de Alajuela 2, issued sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022, all under the precautionary principle and in response to official communications: MS-DM-55814-2022, through which Technical Report DVT-DGIT-2022-339, issued by the Dirección General de Ingeniería de Tránsito of the Ministerio de Obras Públicas y Transportes, is forwarded; official communication MS-DM-5838-2022 through which Record No. 28643-SMOPT-SP of the Comité Asesor Técnico en Concentraciones Masivas is forwarded, wherein it was ordered, as pertinent, the following: “…the temporary suspension of Sanitary Operating Permit MS-DRRSCN-DARSA2-RPSF-0177-2019 (theme park, autodrome, amphitheater, sporting events, cultural events, fairs, and various exhibitions) until such time as the Technical Criteria issued by the Benemérito Cuerpo de Bomberos de Costa Rica and the Benemérita Cruz Roja Costarricense are available for its analysis and taking of respective actions, regarding the capacity of the access road to said establishment for the first-response units of those institutions, which are being processed by the Ministerio de Salud… Likewise, your represented entity must present a remedial plan that encompasses a solution to the problem of the accesses and the consequent risk to Public Safety and Health given the holding of Mass Gathering Activities, and the generation of an eventual emergency during said activities…” In addition to this, it is necessary to recall that there was report No. CRC-GG-SO-OF-074-2022 of July 11, 2022, signed by Mr. Jim Batres Rodríguez, Sub-Gerente operativo of the Cruz Roja Costarricense; report No. CRC-GG-OF-012-2022 of July 12, 2022, signed by Mr. José David Ruiz Piedra, Gerente General of the Asociación Cruz Roja Costarricense; Technical report No. CBCR-027150-2022-OPOB-00741 of July 10, 2022, signed by Mr. Alexander Araya Mico, from Operaciones de Bomberos; Report No. 911-DI-2022-2202 of July 11, 2022, signed by Ms. María Elena Amuy Jiménez from the 9-1-1 Emergency System, where the Cruz Roja Costarricense, in summary, affirms that: “…the public roads of the community of La Guácima and surrounding areas are insufficient for the rapid access of emergency units, a situation that can be aggravated during mass gathering events, which can be affected by high traffic congestion caused by the large number of vehicles parked on the sides of the road, generating delays of up to 30 minutes for their arrival, where they attend traffic accidents, structural fires, and medical cases, where in all cases people's lives are at risk, therefore requiring fast and timely access for specialized rescue units…” explained in detail through report MS-DM-AU-3985-2022. Important details such as the reports also provided by 9-1-1 where there are effectively a countless number of complaints entered into the system, in greater numbers when mass gathering events are taking place at the site, as well as for badly parked vehicles, crowds of people, vehicle jams, fights over not being able to leave, collisions, complaints about scandals caused by activities of “Parque Viva”. On behalf of this Ministerial representation, attention was given to each and every one of the appeals filed against the Sanitary Order reported herein, always responding in a timely manner and within the required principle of legality, leaving no doubt that given the Constitutional mandate and the considerations and recommendations of the Institutions involved, this Ministerial representation had to act immediately in application of the regulatory framework that governs it, all in adherence to the Mission and Vision of improving the quality of life and social development of the population. ADDITION TO THE PETITION: In light of the facts manifested and the existing evidence presented through Report No. MS-DM-AU-3985-2022 and this document, I respectfully request the honorable Sala Constitucional to DECLARE THIS AMPARO APPEAL WITHOUT MERIT, as it is evident from what has been reported, that the undersigned, in compliance with the Constitutional mandate and the application of the precautionary principle, cannot and must not ignore the existing technical recommendations and the complaints filed before this Ministry. It is for this reason that, by not violating any of the constitutional rights that the petitioners have, and acting in accordance with our legislation, I respectfully request that THE UNDERSIGNED MINISTER OF HEALTH AS WELL AS THE MINISTERIO DE SALUD BE EXEMPTED FROM ALL RESPONSIBILITY AND THAT THIS AMPARO APPEAL BE DECLARED WITHOUT MERIT (…)”.
9.- In the substantiation of the proceedings, the prescriptions of law have been observed.
Drafted by Magistrate Araya García; and,
WHEREAS:
I.- PURPOSE OF THE APPEAL. The appellant, in his capacity as Director of Diario La Nación and other journalists from that outlet, claim that on July 8, 2022 – as a way of materializing the threats publicly issued by the President of the Republic weeks earlier against said newspaper –, the Ministerio de Salud ordered the closure of Parque Viva (acquired by Grupo Nación S.A. to diversify the company's sources of income and thus compensate for the loss of profits suffered due to the migration of advertising to internet sites), through an arbitrary act lacking any support, which, in turn, represents an indirect violation of freedom of expression and, therefore, contravenes the provisions of constitutional article 29 and Article 13.3 of the Convención Americana sobre Derechos Humanos.
II.- PROVEN FACTS. Of relevance for resolving this amparo appeal, the following are considered accredited:
A. FACTS RELATED TO THE SANITARY ORDER ISSUED TO PARQUE VIVA:
Likewise, in this first official letter, a request was made to render void official letter No. DVT-DGIT-2022-DVT-DGIT-2022-334 sent by email the previous afternoon (that is, July 5, 2022), with the objective of including more information in the analysis of the access to Parque Viva. Official letter No. DVT-DGIT-2022-339 expressly indicated the following: “(…) 1. Parque Viva is a venue that opened its doors in 2015 and is used to hold various types of events, such as: motor sports events, conventions, fairs, as well as mass gathering events like concerts and festivals. 2. According to the information provided on the Parque Viva website, the venue’s capacity is up to 20,000 thousand people. In addition, it has 4,900 private parking spaces, which can be expanded to up to 6,000 spaces by using the race track. 3. Currently, the Dirección General de Ingeniería de Tránsito has no application related to the existing access to Parque Viva. Nor has it conducted any functional study of the roads under the scenario of a mass event such as those held at the location. 4. Parque Viva is (sic) located across from a cantonal route called Calle Rincón Chiquito. As a cantonal route, the granting of access permits corresponds to the Municipalidad de Alajuela (…) 5. Calle Rincón Chiquito is a two-lane urban street, one lane per direction of travel. This type of road could reach a maximum capacity of around 1,200 vehicles per hour per direction. According to the conditions of the road, a detailed study could yield a capacity lower than the aforementioned. According to the data indicated above, it can be assured that at the time mass gathering events are held, the road providing access to Parque Viva does not have sufficient capacity to manage the traffic generated. Under a conservative scenario, without considering peripheral parking to the park nor the use of the race track, we would have a generation of 4,900 vehicles per hour, which represents more than double what the road could support (…)” (see report and evidence).
The content of this news item is as follows: “(…) Humberto Soto, mayor of Alajuela, stated that the traffic congestion occurring in La Guácima, Alajuela, is not caused solely by Parque Viva, but is also due to the significant residential growth in the district and the new condominiums built in the area. “There has been very significant growth in the district of La Guácima which, added to the activities and the large number of people entering the district, well yes, it is evident that it generates traffic congestion. “I am open to negotiating and putting the issue on the table; viable solutions must be generated for the district, they should not be blamed on X or Y, nor generalized,” explained Soto. “We must look at reality. The venue has been built for almost ten years and, in these ten years, there has been a substantial change in the urban development of the district of La Guácima, that is, there is more population and more condominiums,” he added. Since 2014, 44 condominiums have been approved in the district, for example. Likewise, the municipal official said that, although the municipality has invested nearly 1,000 million in that district and construction of a bridge leading to the community of San Antonio de Alajuela will soon begin, that is not enough and they need more resources for the entire canton. “The municipality has made some investments, but perhaps not enough. Why? Because as a local government we have limited resources and 14 districts, with a network of more than 421 kilometers at the cantonal level to attend to. For that network, in a municipality like Alajuela, there are not sufficient resources and we must attend to the 14 districts of the canton, not just one. Improvements must be made; as mayor I am aware of that,” Soto reported. In September 2014, the Ministry of Public Works and Transport (MOPT) approved the road planning study for Parque Viva and requested that access routes to the site be built from the different roads leading to the location and that vertical and horizontal signage be installed, which were to be ready one year later. In an inspection carried out by the Ministry in 2015, it was verified that the property had complied with what was requested. This Wednesday, President Rodrigo Chaves stated at a press conference at Casa Presidencial that the permit should never have been granted and that he will request the file from the Municipality of Alajuela, while also requesting the intervention of the Ombudsperson for Inhabitants, Catalina Crespo. At that time, the current mayor was a council member and said regarding this: “The permit was granted under the competence of the municipal administration, which was the body competent for its approval; in the file there is a permit from Salud and from many institutions (…)” (see evidence).
B. OTHER FACTS OF INTEREST:
The yields have always been received punctually, admitted Álvaro Ramos himself, executive president of the CCSS. The rate is currently 8%. The CCSS invested ₡2.950 billion from the Invalidez, Vejez y Muerte (IVM) pension regime, while the complementary pension operator acquired another ₡750 million. At the time of placement, La Nación S. A. did not know who acquired the securities, since the transaction is carried out through a brokerage house, because stock market rules so provide. However, Chaves used the Wednesday press conference, following the Government Council session, to publicly call into question whether the company could repay the capital of the bonds that have not expired, which is provided for, from the outset, for the years 2024 and 2025. Hours before the press conference, reliable sources informed La Nación that the president had on his agenda an attack on this outlet. He would address it in response to a query that one of the journalists would formulate. Ultimately, the question was asked by Richard Molina, from the site El Guardián. Then, Chaves nodded: “Yes, we have a very serious issue with bonds that previous governments bought, issued by La Nación, and that were financed from two sources: your mother’s pension, your grandmother’s, your uncle’s, from the IVM; and the pensions of Caja employees, in the Fondo de Retiro de Empleados (FRE),” the president began. In this regard, Pedro Abreu, executive director of Grupo Nación, said he did not understand the concern, since interest has been paid punctually: two bond issues have already been fully paid, resources are available to settle a third, and work is underway on those of the last, which matures in three years. Moreover, he stated that the company’s equity far exceeds the value of the bonds. Abreu explained that, at this time, the company’s debt-to-equity ratio is 1 (debt) to 2 (equity) and that, by 2024, it will be 1 to 4 after canceling that year’s bond maturity. Chaves gave the order to Álvaro Ramos. Chaves confirmed that he himself was the one who asked the president of the CCSS to pose questions to Sugeval to review the financial conditions of the media company. “I gave him the obligation to do that (...) and well, he told me he was already doing it,” the president stated. During lapses in his speech, the president stared fixedly at this outlet’s journalist who covers Casa Presidencial. The ‘La Nación’ bonds. Between 2013 and 2014, La Nación S.A. made four bond issues, through transactions regulated by the Superintendencia General de Valores (Sugeval), for a total of ₡39.000 billion, mainly to finance the Parque Viva project, in La Guácima de Alajuela. Various investors decided to accept the offer. Two issues, that of 2013 and one from 2014, have already been fully canceled for a total of ₡18.000 billion. As for the other two issues, the company already has the ₡10.000 billion available to pay the one maturing in 2024. Verification can easily be made by the CCSS or anyone capable of reading financial statements because the information is public given the company’s participation in the Bolsa Nacional de Valores. To find it, one only needs to go to the La Nación site, then to “shareholder information,” then to “financial information,” and, finally, choose the statement of financial position. To pay the last issue, maturing in 2025, ₡9.015 billion remain. According to Abreu, the company already has, then, liquid resources to cover 72% of the outstanding obligation, three years in advance. Nevertheless, Rodrigo Chaves continued with his response: “We have great concern about the payment capacity that this outlet might have, which seems very, very slight, and, second, about some accounting actions and diversion of assets or contribution of assets to others, which weaken the probability that the people of Costa Rica, from our point of view, can recover resources that are substantial.” Chaves’s unfounded insinuations, he who during the electoral campaign promised to harm the company for its reporting, refer to the business group’s decision to promote a real estate project on a property located in Llorente de Tibás, as the company had made public in 2020 through a material fact communicated to Sugeval. Abreu related that the deal is being prepared through a co-development using the trust (fideicomiso) model with the company Portafolio Inmobiliario, which has executed enormous and successful projects such as Avenida Escazú or Escazú Village. In that business model, La Nación S. A. contributes the land and the developer its experience in real estate development. “We have been evaluating the project for many, many years and already, in 2020, we managed to sign the trust agreement (fideicomiso), which is like setting the field or establishing the rules of the game. In reality, we have not transferred our properties to the trust. The agreement we have with Portafolio Inmobiliario is that this will be done once we have all the permits and are ready to develop,” stated Abreu. “Now, if the concern lies there, we have very many properties. We are talking about five hectares in Tibás, but we have 35 hectares in La Guácima and, on those 35 hectares, we have buildings worth $30 million. We are talking about the remaining debt, that 28%, possibly being right now between $8 million and $9 million, depending on the exchange rate; so, in guarantees, we have more than enough,” noted the executive director. Payments are up to date. In the press conference, after giving his first response on this topic, President Chaves yielded the podium to Álvaro Ramos, executive president of the CCSS, so he could elaborate on the matter. The official stated that they posed a query to Sugeval to ascertain Grupo Nación’s financial reality to meet the investment payments scheduled for 2024 and 2025. Unlike the president, Ramos stated: “In no way are we indicating that, a priori, they will not be able to repay; we simply want to know how they are going to do it.” Furthermore, he insisted that interest payments are up to date. Years earlier, in 2008, La Nación S. A. placed two other issues for ₡5.700 billion that were fully canceled in 2015 and 2017. In interest alone, the company paid investors ₡13.130 billion for already-canceled placements, and has paid ₡14.050 billion for those maturing in 2024 and 2025. Chaves to president of the Caja: You are very diplomatic As soon as Ramos finished his intervention, Chaves retook the podium and indicated: “Let’s see, Don Álvaro is very diplomatic.” Immediately, he continued making his presentation on how, according to him, investment repayments are in danger. Each time the president gave a piece of data, he consulted with the head of the CCSS as to whether it was publicly accessible. During his intervention, Ramos indicated that “we at the Caja are not working with private information, we are working with public information and, based on public information, we cannot determine the effect of this trust.” Chaves went on: “La Nación’s profitability is public, right? Yes, La Nación’s profitability is public, it is in free fall and that means it is incurring constant, constant, constant losses. “And so one asks, I don’t know, maybe they have a magic wand and manage to lift cash flow. What happens? It is the duty to take care of your grandmother’s pension, what happens if La Nación’s cash flow gets strangled, and the property is not there, because it is somewhere else… that is the question.” The properties that will eventually pass to the trust to develop the project will not vanish into thin air. The company’s participation in the trust will be incorporated into its equity and will contribute to meeting its obligations. Moreover, 1.5 valuable hectares will not pass to the trust because the newsroom and the industrial production area will continue operating there. All this without mentioning the 35 hectares in La Guácima with their buildings valued at $30 million which, by themselves, represent several times the total 2025 maturity and not just the fraction of that maturity corresponding to bonds bought by the Caja. As for results, Abreu stated: “It is said that La Nación only accumulates losses. It is very important to distinguish between accounting loss and cash flow generation. We are accumulating accounting losses, true, but we are generating cash flow. This means that, between operations and financial investments, we are generating sufficient cash flow to pay the debt, to pay all interest, to pay all investments and, in addition, we are saving to meet future maturities. That can be seen in our financial statements, which are public.” The executive director of Grupo Nación recalled that Parque Viva returned to activity as of March 2022, after being two years without events due to the coronavirus pandemic. Likewise, he recalled that the health crisis caused a generalized impact worldwide. Despite that, he emphasized, the company managed to generate cash flow. “This year’s numbers are going to be much better than last year’s and that will be the trend from here to 2025,” he affirmed. Abreu concluded by inviting the CCSS to review all the data directly and ask whatever questions it deems appropriate to the company’s representatives. La Nación regularly receives other investors and would be delighted to speak with Caja officials (…)” (consultation made to the digital outlet La Nación www.nación.com).
III.- FACTS NOT PROVEN. Of relevance for resolving this recurso de amparo, the following are deemed unproven:
IV.- ON FREEDOM OF EXPRESSION. Freedom of expression is one of the pillars upon which the Rule of Law is founded and comprises both the fundamental and universal guarantee to manifest one’s own thoughts or opinions, and to know those of others. In other words, it refers to the freedom to seek, receive and disseminate information and ideas, whether orally or in writing. For this reason it is said that freedom of expression is characterized by being a right with a dual dimension: an individual dimension, consisting of the right of each person to seek information and express their own thoughts, ideas and information; and a collective or social dimension, consisting of society’s right to seek and receive any information, to know the thoughts, ideas and information of others and to be well informed. On this dual dimension of the freedom under study, the Inter-American Court of Human Rights (hereinafter I/A Court H.R.), in the case Herrera Ulloa vs. the State of Costa Rica (judgment of July 2, 2004), held the following:
“(…) 109. In this regard, the Court has indicated that the first dimension of freedom of expression ‘is not exhausted in the theoretical recognition of the right to speak or write, but also comprises, inseparably, the right to use any appropriate means to disseminate thought and allow it to reach the greatest number of recipients.’ In this sense, expression and dissemination of thoughts and ideas are indivisible, so that a restriction on the possibilities of dissemination represents directly, and to the same extent, a limit on the right to express oneself freely.
110. With respect to the second dimension of the right to freedom of expression, that is, the social one, it is necessary to point out that freedom of expression is a means for the exchange of ideas and information among persons; it includes their right to try to communicate their points of view to others, but it also implies the right of all to know opinions, accounts and news offered by third parties. For the ordinary citizen, knowledge of others’ opinions or of the information available to others is just as important as the right to disseminate one’s own.
111. This Tribunal has affirmed that both dimensions are of equal importance and must be fully guaranteed simultaneously to give complete effectiveness to the right to freedom of expression in the terms provided by Article 13 of the Convention (…)”.
For its part, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (Inter-American Legal Framework on the Right to Freedom of Expression, December 2009), referred to this right in the following terms:
“(…) it is one of the individual rights that most clearly reflects the virtue that accompanies –and characterizes– human beings: the unique and precious virtue of thinking about the world from our own perspective and of communicating with others to build, through a deliberative process, not only the model of life that each person has the right to adopt, but the model of society in which we want to live. All creative potential in art, science, technology, politics, in short, all our individual and collective creative capacity, depends fundamentally on respect for and promotion of the right to freedom of expression in all its dimensions. It is, then, an individual right without which the first and most important of our freedoms would be denied: the right to think on one’s own account and to share our thinking with others (…)”.
Our Political Constitution guarantees freedom of expression and thought in Articles 28 and 29, which state the following:
“ARTICLE 28.- No one may be disturbed or persecuted for the expression of their opinions nor for any act that does not violate the law.
Private actions that do not harm public morals or public order, or that do not harm third parties, are outside the purview of the law.
However, political propaganda may not be engaged in in any form by clergy or laypersons invoking religious motives or using religious beliefs as a means.” “ARTICLE 29.- All may communicate their thoughts by word or in writing, and publish them without prior censorship; but they shall be responsible for abuses committed in the exercise of this right, in the cases and in the manner established by law.” In the international sphere, freedom of expression has been enshrined in various instruments. Regarding the Inter-American system, the International Covenant on Civil and Political Rights provides in its Article 19 the following:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.” The Universal Declaration of Human Rights in its Article 19 also states:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” For its part, the American Convention on Human Rights, in its Article 13, records the following:
“1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law and be necessary to ensure: (a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or public health or morals. 3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. 4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. 5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.” In Article IV of the American Declaration of the Rights and Duties of Man, the following is stated:
“Every person has the right to freedom of investigation, of opinion, and of expression and dissemination of ideas, by any medium whatsoever.” Likewise, international soft law instruments have safeguarded this freedom. Thus, the Declaration of Chapultepec (adopted by the hemispheric conference on freedom of expression held in Mexico, D.F. on March 11, 1994), in its first principle states that:
“1. No people or society can be free without freedom of expression and of the press. The exercise of this is not a concession of authorities; it is an inalienable right of the people.” For its part, the Declaration of Principles on Freedom of Expression (approved by the Inter-American Commission on Human Rights in October 2000, at its 108th regular session), provides the following:
“1. Freedom of expression, in all its forms and manifestations, is a fundamental and inalienable right, inherent to all persons. It is, moreover, an indispensable requirement for the very existence of a democratic society.” In another context, within the European legal order, the European Convention on Human Rights stands out, which in its Article 10 specifies the universal entitlement to this right, in the following terms:
“Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Similarly, the Charter of Fundamental Rights of the European Union, in its Article 11, cites the following:
“Article 11 Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected.” The right to freedom of expression has been widely developed in Costa Rican constitutional jurisprudence. Thus, in Judgment No. 8196-2000 of 15:08 hrs. of September 13, 2000, the Constitutional Court referred to the different forms in which freedom of expression can manifest, in the following terms:
“(…) IV.- On Freedom of Expression. Doctrine characterizes freedom of expression as a prerequisite freedom for the exercise of other freedoms, which operates as a legitimizer of the functioning of the democratic system and the effectiveness of its institutions and which legally adopts a plurality of forms. The clearest link is with freedom of thought, which is the prior and indispensable condition for the existence of freedom of expression. In the exercise of both freedoms, the individual can choose or elaborate the answers they intend to give to all those questions posed to them by the conduct of their life in society, conform their actions to these answers, and communicate to others what they consider true, without prior censorship. The scope of action of these freedoms is very broad, as it encompasses individuals’ manifestations on politics, religion, ethics, technology, science, art, economics, etc. Freedom of expression, then, implies the possibility for the subject to transmit their thoughts (ideas, volitions, feelings), and includes freedom of artistic or literary creation, freedom of speech, free cinematographic expression and also manifestations made through the written press, radio and television, as they are means of disseminating ideas. Also, from freedom of expression one infers the right to give and receive information and the right to communicate for diverse purposes, whether economic, political, recreational, professional, etc., without unreasonable restrictive measures being imposed. Freedom of expression not only protects the isolated individual, but the relationships among members of society and that is why it has great transcendence, since it contributes to the formation of public opinion. It is also a prerequisite for freedom of the press and freedom of information, since from freedom of expression historically derived freedom of the press (or of periodical writings directed to the general public) and freedom of information, which is how freedom of expression realized through social communication media is termed today. Freedom of information, then, encompasses the written, oral, and audiovisual press and by its nature is related to the right of chronicle, of criticism, to the press industry or trade, and to the phenomenon of advertising. This aspect has gained much importance in recent decades, because due to the high cost of installing and maintaining mass communication media, when privately owned they can only subsist through the intensive use of advertising. Also, there exists the phenomenon of the social right to information, which resides precisely in the community and in each one of its members, and which gives them the possibility of adjusting their conduct to the reasons and sentiments suggested by that information, for decision-making, and at the same time fulfills an integrative function, since it unifies a multitude of particular opinions into a great current of opinion, thus stimulating social integration (…)” (Emphasis not in the original).
Furthermore, in that same ruling, the Constitutional Court pronounced on the prohibition of prior censorship, as well as on the limits to which the freedom under study is subject:
“(…) V.- One of the principal guarantees protecting freedom of expression is the prohibition of prior censorship, meaning that any control must occur a posteriori. This Court understands prior censorship to be that control, examination or permission to which a publication, text or opinion is subjected, prior to its communication to the public, by which a preventive control is sought over the manifestations made by a mass communication medium, whether radio, television or print. This concept is not only embodied in our Political Constitution in Article 29, but was also incorporated into the Pact of San José, whose Article 13(2) provides that the exercise of freedom of expression may not be subject to prior censorship but shall be subject to subsequent imposition of liability, which must be expressly established by law and be necessary to ensure either respect for the rights or reputations of others, or the protection of national security, public order, or public health or morals. Article 29 of the Political Constitution enshrines what part of the doctrine classifies as freedom of the press, while another part designates as freedom of information, and provides:
"All may communicate their thoughts by word or in writing and publish them without prior censorship; but they shall be responsible for abuses committed in the exercise of this right, in the cases and in the manner established by law." This Court referred to this topic in judgment No. 1292-90 of the hours of nineteen ninety and stated:
"The freedom of expression contained in Article 29 of our Constitution allows the communication of thoughts by word or in writing and their publication without prior censorship, a guarantee reinforced by Article 28 of the same normative body by prohibiting persecution for the exercise of that freedom. However, like any right, that freedom is not absolute, and has its limit, such that any abuse made of it will cause its author to incur liability, according to the legislation governing the matter." (…)
Now, despite the great freedom enjoyed by the individual to form opinions based on personal criteria and in turn communicate them with complete openness, one must not think that the exercise of these freedoms has no limit whatsoever, for freedom of expression, like all other public freedoms, is not unrestricted: its limits are given by the Constitutional Order itself, and this Court so considered in judgment No. 3173-93, when indicating that “II.- The fundamental rights of each person must coexist with each and every one of the fundamental rights of others; therefore, for the sake of coexistence, it is often necessary to curtail the exercise of those rights and freedoms, even if only to the precise and necessary extent so that other persons may enjoy them under equal conditions. However, the principle of the coexistence of public freedoms - the rights of third parties - is not the only just source for imposing limitations on them; the concepts of ‘morality,’ conceived as the set of fundamental principles and beliefs prevailing in society, the violation of which gravely offends the generality of its members-, and ‘public order,’ also act as justifying factors for the limitations on fundamental rights.” VI- This Chamber is not oblivious to the difficulty of precisely defining the concept of public order (orden público) in a univocal manner, nor that this concept can be used both to affirm the rights of the individual vis-à-vis public power and to justify limitations on rights in the name of collective interests. It is not merely about maintaining material order in the streets, but also about maintaining a certain legal and moral order, such that it is constituted by a minimum of conditions for a convenient and adequate social life. Its foundation lies in the security of persons, of property, public health, and tranquility.” Likewise, in judgment No. 3550-92 of sixteen hours on twenty-four November nineteen ninety-two, this Court developed the issue of legitimate limits on public freedoms and referred to the principle of statutory reservation (principio de reserva de ley), emphasizing that “only by means of a formal law, emanating from the Legislative Power through the procedure provided in the Constitution for the enactment of laws, is it possible to regulate and, where appropriate, restrict fundamental rights and freedoms—all, of course, to the extent that the nature and regime of these permit it, and within the applicable constitutional limitations (…)”. (The highlighting is not part of the original).
Likewise, more recently, in Vote No. 9512-2020 of 13:02 hrs. of 22 May 2022, this Court ordered the following:
“(…) V.- ON FREEDOM OF EXPRESSION AND THE LIMITS THAT MAY BE IMPOSED.- This Court has understood freedom of expression and information as set forth in judgment No. 8109-98 of 14:21 hours on 13 November 1998, in which the following was indicated: “...IV.- The Right to Information is that which allows all persons to receive sufficiently broad information about certain facts and about currents of thought and, based on them, to choose and form their own opinions. This is achieved through two different avenues: through the objective exposition of facts and through the pluralism of ideological currents. Likewise, Freedom of Expression and of Thought constitutes a fundamental right that allows the individual, within a broad scope of freedom, to formulate personal criteria regarding what he or she considers adequate or not, to respond to certain situations; while also allowing him or her to communicate, without prior censorship, the result of his or her ideological approach. This right has great transcendence, since it contributes to the formation of public opinion, through the intellectual contributions of the individual who exercises established opinions or concepts, or critiques them. The scope of freedom is very broad, for it encompasses all manifestations that individuals make regarding politics, religion, ethics, technology, science, art, economics, etc., from which it follows that the exercise of Freedom of Expression and Freedom of Thought excludes prior censorship, with the existing control occurring a posteriori and over excesses subject to the abuse of such freedoms, excluding from that prohibition those considered public spectacles.” In addition, the same judgment stated that: “... Freedom of expression forms part of freedom of information and, in a State of Law (Estado de Derecho), implies an absence of control by public powers and administrative bodies at the moment of exercising that right, which means that no authorization whatsoever is necessary to make publications, and that prior censorship cannot be exercised, unless health, national security, morality, and good customs are at stake, as is the case with public spectacles. The exercise of freedom of expression cannot be unlimited, since if it were, the media or any subject of law could lend itself to propagating falsehoods, defaming, or promoting any type of disorders and scandals. That is why freedom of information carries with it an implicit limit, which functions as a kind of self-control for the citizen who exercises that right, in the sense that if he or she commits an abuse, he or she will be responsible for it, in the cases and in the manner established by law. Hence, in our legal system, there exist criminal figures such as slander, libel, or defamation, which may be the consequence of an abuse in the exercise of the right to information. (…)
The Inter-American Court of Human Rights in the case of Mauricio Herrera Ulloa vs. the State of Costa Rica, in its judgment of 2 July 2004, on freedom of expression, indicated that freedom of expression is a means for the exchange of ideas and information among persons; it comprises their right to try to communicate their points of view to others, but it also implies the right of all to know opinions, accounts, and news disseminated by third parties. For the ordinary citizen, knowledge of the opinion of others or of the information available to others is as important as the right to disseminate one’s own. (…)
Now, freedom of thought and expression in a democratic society is an issue that, as already mentioned supra, has been developed in the American Convention, specifically in its article 13.2, which provides for the possibility of establishing restrictions on freedom of expression.
The jurisprudence of the Inter-American Court of Human Rights has indicated that, through the application of subsequent liabilities (responsabilidades ulteriores) for the abusive exercise of the right to freedom of thought and expression, the full scope of said rights must not be limited in any way beyond what is strictly necessary.
It has been mentioned that the legality of restrictions on freedom of expression founded on article 13.2 of the American Convention will depend on whether they are oriented toward satisfying an imperative public interest, for which one must choose that which restricts the protected right to the least extent.
Furthermore, for them to be justified, it is necessary to weigh them against the social need for the full enjoyment of the right and not to limit the safeguarded right beyond what is strictly necessary. That is, the restriction must be proportional to the interest that justifies it and adjust closely to the achievement of that objective, interfering to the least extent possible in the effective exercise of the right to freedom of expression and information (see in this regard Advisory Opinion OC-5/85). (…)”. (The highlighting is not part of the original).
For its part, the IACHR Court in the case Moya Chacón et al. vs. Costa Rica (judgment of 23 May 2022), indicated the following:
“(…) b.3 Permitted restrictions on freedom of expression and the application of subsequent liabilities in cases affecting honor and dignity in matters of public interest 71. The Court recalls that, generally, the right to freedom of expression cannot be subject to prior censorship but, in any case, to subsequent liabilities in very exceptional cases and under the fulfillment of a series of strict requirements. Thus, article 13.2 of the American Convention establishes that subsequent liabilities for the exercise of freedom of expression must meet the following requirements concurrently: (i) be previously established by law, in formal and material sense; (ii) respond to an objective permitted by the American Convention; and (iii) be necessary in a democratic society (for which they must meet the requirements of suitability, necessity, and proportionality).
72. Regarding strict legality, the Court has established that restrictions must be previously set forth in law as a means to ensure that they are not left to the discretion of public power. For this, the criminalization of the conduct must be clear and precise, even more so if it involves criminal convictions and not civil ones. Regarding the permitted or legitimate aims, they are indicated in the aforementioned article 13.2 and are (a) respect for the rights or reputation of others, or (b) the protection of national security, public order, or public health or morals. Likewise, restrictions on freedom of expression must be suitable, that is, effectively conducive to achieving the legitimately permitted purpose. With respect to the analysis of necessity, the Court has held that, for a restriction on free expression to be compatible with the American Convention, it must be necessary in a democratic society, understanding “necessary” as the existence of a compelling social need that justifies the restriction. In this sense, the Court must examine the existing alternatives to achieve the legitimate aim pursued and determine the greater or lesser harmfulness of those alternatives. Finally, in relation to the proportionality of the measure, the Court has understood that the restrictions imposed on the right to freedom of expression must be proportional to the interest that justifies them and adjust strictly to the achievement of that objective, interfering to the least extent possible in the effective enjoyment of the right. In that sense, it is not sufficient that it has a legitimate purpose; rather, the measure in question must respect proportionality when affecting freedom of expression. In other words, “in this last step of the analysis, it is considered whether the restriction is strictly proportional, such that the sacrifice inherent in it is not exaggerated or disproportionate compared to the advantages obtained through such limitation.” The Court recalls that these restrictions are exceptional in nature and must not limit, beyond what is strictly necessary, the full exercise of freedom of expression and become a direct or indirect mechanism of prior censorship.
73. In this sense, the Court has established that such subsequent liabilities may be imposed insofar as the right to honor and reputation may have been affected. Thus, article 11 of the Convention establishes, in effect, that every person has the right to the protection of his or her honor and to the recognition of his or her dignity. The Court has indicated that the right to honor “recognizes that every person has the right to respect for it, prohibits any illegal attack against honor or reputation, and imposes on States the duty to provide the protection of the law against such attacks.” In general terms, this Court has indicated that “the right to honor relates to self-esteem and personal worth, while reputation refers to the opinion that others have of a person.” In this sense, this Court has held that “both freedom of expression and the right to honor, both rights protected by the Convention, are of utmost importance, for which reason it is necessary to guarantee both rights, so that they coexist harmoniously.” The exercise of each fundamental right must be done with respect for and safeguarding of the other fundamental rights. Therefore, the Court has indicated that “the resolution of the conflict that arises between both rights requires a balancing between them, for which each case must be examined, according to its characteristics and circumstances, in order to assess the existence and intensity of the elements on which said judgment is based.” 74. The Court recalls in this regard that, to determine the conventionality of a restriction on freedom of expression when it collides with the right to honor, it is of vital importance to analyze whether the statements made possess public interest, since in these cases the adjudicator must evaluate with special caution the need to limit freedom of expression. In its jurisprudence, the Court has considered as of public interest those opinions or information on matters in which society has a legitimate interest in remaining informed, in knowing what affects the functioning of the State, or affects general rights or interests, or entails important consequences. Determining the above has consequences in the analysis of the conventionality of the restriction on the right to freedom of expression, since expressions that deal with matters of public interest—such as, for example, those concerning the suitability of a person for the performance of a public office or the acts carried out by public officials in the performance of their duties—enjoy greater protection, so as to foster democratic debate.
75. Thus, the Court has indicated that, in a democratic society, those persons who influence matters of public interest are more exposed to public scrutiny and criticism. This different threshold of protection is explained because their activities leave the domain of the private sphere to insert themselves into the sphere of public debate and, therefore, they have voluntarily exposed themselves to this more demanding scrutiny. This does not mean, in any way, that the honor of persons participating in matters of public interest should not be legally protected, but rather that it must be protected in accordance with the principles of democratic pluralism.
76. On the other hand, in relation to the necessary character and the rigorous analysis of proportionality that must govern between the limitation on the right to freedom of expression and the protection of the right to honor, one must seek that intervention which, being the most suitable for restoring the damaged reputation, also contains a minimum degree of impact on the sphere of freedom of expression. In this regard, within the framework of freedom of information, the Court considers that there is a duty of the journalist to verify in a reasonable manner, although not necessarily exhaustively, the facts he or she disseminates. Now, this does not mean a strict requirement of truthfulness, at least with respect to matters of public interest, recognizing as a defense that the publication be made in good faith or justifiably and always in accordance with minimum standards of ethics and professionalism in the search for the truth. Likewise, the Court warns that, for investigative journalism to exist in a democratic society, it is necessary to leave journalists “room for error,” since without that margin of error there can be no independent journalism nor, therefore, the possibility of the necessary democratic scrutiny that emanates from it.
77. Additionally, the Court also considers that no one may be subjected to subsequent liabilities for the dissemination of information related to a public matter that is based on material that is accessible to the public or that comes from official sources.
78. Finally, it should also be highlighted that, should it be deemed appropriate to grant reparation to the person aggrieved in his or her honor, the purpose thereof must not be to punish the issuer of the information, but to restore the affected person. In this regard, States must exercise maximum caution when imposing reparations, so as not to dissuade the press from participating in the discussion of matters of legitimate public interest (…)”.
In addition to the foregoing, it is worth noting that freedom of expression, as provided in article 13.3 of the American Convention on Human Rights, cannot be restricted or curtailed through the use of indirect measures or means. However, this particular aspect will be developed further below.
V.- REGARDING PRESS FREEDOM AS A MANIFESTATION OF THE RIGHT TO FREEDOM OF EXPRESSION. Press freedom is founded on freedom of expression and, at the same time, is one of its natural vehicles. It is one of the main and most important manifestations of freedom of expression. The aforementioned Declaration of Chapultepec has been emphatic regarding the protection that press freedom particularly deserves, so much so that its first principle provides that “1. There are no free persons or societies without freedom of expression and of the press. The exercise of this is not a concession of the authorities; it is an inalienable right of the people.” It is a fundamental right that defends the ability of any person, on the one hand, to access information and, on the other, to disseminate it through any means of expression, be it printed media (newspaper publications, magazines, pamphlets, etc.), radio, television and, even more recently, using the internet and digital platforms, among others. Particularly, this Chamber has defined this right as that which the administered have “(…) to seek and disseminate information and ideas to an indeterminate number of persons regarding facts that by their nature are of interest to the general public because they are considered newsworthy (...)” (Judgments Nos. 5977-2006 of 15:16 hrs. of 3 May 2006 and 8396-2018 of 12:40 hrs. of 25 May 2018).
By virtue of the foregoing, this freedom allows persons the possibility of organizing and creating media outlets independent of governmental power, in which they have the right to express themselves freely, without censorship. All this, moreover, without fear of reprisals from the State or from other entities or individuals. The purpose of this right is to guarantee the population receives and disseminates information that is neither manipulated nor at the service of a person, entity, or particular interest.
From its earliest pronouncements, the IACHR Court, when resolving advisory opinion No. OC-5/85 on the mandatory licensing of journalists through judgment of 13 November 1985, alluded to this freedom from the journalistic practice and indicated that:
“(…) 72. (...) The profession of journalist—what journalists do—precisely involves seeking, receiving, and disseminating information. The practice of journalism, therefore, requires that a person engage in activities that are defined or encompassed within the freedom of expression guaranteed in the Convention (...)
74. (...) The practice of professional journalism cannot be differentiated from freedom of expression; on the contrary, both things are evidently interwoven, since the professional journalist is not, and cannot be, anything other than a person who has decided to exercise freedom of expression in a continuous, stable, and remunerated manner (...)”.
Likewise, in the Herrera Ulloa vs. Costa Rica case (judgment of 2 July 2004), the IACHR Court held, regarding the role of the media and journalism in relation to freedom of expression, the following:
“(…) 117. The social media play an essential role as vehicles for the exercise of the social dimension of freedom of expression in a democratic society, which is why it is indispensable that they gather the most diverse information and opinions. The referred media, as essential instruments of freedom of thought and expression, must exercise with responsibility the social function they carry out.
118. Within this context, journalism is the primary and principal manifestation of this freedom and, for that reason, cannot be conceived merely as the provision of a service to the public through the application of knowledge or training acquired at university. On the contrary, journalists, by reason of the activity they carry out, are professionally dedicated to social communication. The practice of journalism, therefore, requires that a person responsibly engage in activities that are defined or encompassed within the freedom of expression guaranteed in the Convention.
119. In this sense, the Court has indicated that it is fundamental that journalists who work in the media enjoy the necessary protection and independence to carry out their functions fully, since it is they who keep society informed, an indispensable requirement for it to enjoy full freedom and for public debate to be strengthened. (…)”. (The highlighting is not part of the original).
More recently, in the Moya Chacón et al. vs. Costa Rica case (judgment of 23 May 2022), the IACHR Court reiterated part of the above-cited and held, on this same topic, the following:
“(…) b.2 Importance of the role of the journalist in a democratic society 66. The Court has emphasized that the professional practice of journalism “cannot be differentiated from freedom of expression; on the contrary, both things are evidently interwoven, since the professional journalist is not, and cannot be, anything other than a person who has decided to exercise freedom of expression in a continuous, stable, and remunerated manner.” The Court has affirmed that social media play an essential role as vehicles for the exercise of the social dimension of freedom of expression in a democratic society, which is why it is indispensable that they gather the most diverse information and opinions. In effect, the Court has characterized social media as true instruments of freedom of expression and, furthermore, has indicated that “[i]t is the social media that serve to materialize the exercise of freedom of expression, in such a way that their operating conditions must adapt to the requirements of that freedom. For this, it is indispensable, inter alia, the plurality of media, the prohibition of any monopoly over them, whatever form it may attempt to adopt, and the guarantee of protection for the freedom and independence of journalists.” 67. The Court recalls that, for the press to be able to carry out its role of journalistic oversight, it must not only be free to impart information and ideas of public interest, but must also be free to gather, collect, and evaluate that information and ideas. In its 2012 report to the United Nations Human Rights Council, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression referred to the fact that persons who carry out journalistic activity “observe, describe, document, and analyze events and document and analyze statements, policies, and any proposal that may affect society, with the purpose of systematizing that information and gathering facts and analysis to inform sectors of society or society as a whole.” The foregoing implies that any measure that interferes with the journalistic activities of persons who are fulfilling their function will inevitably obstruct the right to freedom of expression in its individual and collective dimensions.
68. Additionally, within the framework of freedom of information, this Court considers that there is a duty of the journalist to verify in a reasonable manner, although not necessarily exhaustively, the facts he or she disseminates. That is, it is valid to demand equity and diligence in the confrontation of sources and the search for information. This implies the right of persons not to receive a manipulated version of the facts. Consequently, journalists have the duty to take some critical distance from their sources and contrast them with other relevant data. For its part, the European Court of Human Rights has indicated that freedom of expression does not guarantee unlimited protection to journalists, even in matters of public interest. In effect, said Court has indicated that, even when they are protected under the protection of freedom of expression, journalists must carry out their work obeying the principles of a “responsible journalism” and ethics, which is of particular relevance in a contemporary society where the media not only inform but can also suggest, through the manner in which they present the information, the way in which that information should be understood.
69. Furthermore, given the importance of freedom of expression in a democratic society and the high responsibility that this entails for those who professionally carry out social communication tasks, the State must not only minimize restrictions on the circulation of information but also balance, to the greatest extent possible, the participation of distinct information in public debate, promoting informative pluralism. Finally, the Court has indicated that it is fundamental that journalists who work in the media enjoy the necessary protection and independence to carry out their functions fully, since it is they who keep society informed, an indispensable requirement for it to enjoy full freedom and for public debate to be strengthened.
70. Within the framework of this protection that States must grant, the protection of journalistic sources is fundamental, a cornerstone of press freedom and, in general, of a democratic society, since they allow societies to benefit from investigative journalism in order to strengthen good governance and the Rule of Law. The confidentiality of journalistic sources is, therefore, essential for the work of journalists and for the role they fulfill in informing society about matters of public interest (…)”. (The highlighting is not part of the original).
Thus, press freedom in relation to freedom of expression refers to the right of every person, and of the media in particular, through their journalists, to investigate and inform, without unreasonable limitations or coercion.
The Colombian Constitutional Court has also alluded to this freedom, highlighting three of its most important characteristics. Particularly, in Judgment No. C-135/21 of 13 May 2021, it held that the press fulfills an educational role, is a mechanism that contributes to the construction of peaceful social dialogue, and, in turn, is a guardian of democracy. Moreover, it expressly explained the following regarding these characteristics:
“(…) 57.1. Role of educator. The media and the press act as disseminators of knowledge. This allows the general public to access information about facts, scientific knowledge, the laws that regulate them, and public information in a broad sense, which they could not otherwise know. It is a source that centralizes and then disseminates knowledge, which allows the citizenry to be educated and democracy to be strengthened.
57.2. Mechanism of contribution to social dialogue. The access to knowledge that the press and mass media allow, together with the investigative analysis adopted by the same, lead to greater dialogue and peaceful debate among the citizenry regarding matters of public interest.
57.3. Guardian of democracy. The press and the mass media have been called “the fourth estate” or the “guardian of democracy,” in allusion to the function they exercise of control over the Public Administration, and their designation as an instrument of accountability for those who hold power (…)”.
This constitutional body has likewise pronounced on this freedom. Thus, in Vote No. 5977-2006 of 15:16 hrs. of 3 May 2006, it stated:
“(…) Press freedom generically encompasses all types of printed matter, printing, editing, circulation of newspapers, pamphlets, magazines, and publications of all kinds. It is by its nature the natural vehicle of freedom of expression of citizens. It translates into the right for the administered to seek and disseminate information and ideas to an indeterminate number of persons regarding facts that by their nature are of interest to the general public because they are considered newsworthy. By its nature, it is subject to the same limitations as freedom of expression. Its functions in a democracy are: to inform (facts, newsworthy events), to integrate opinion (stimulating social integration), and to control political power, insofar as it is the permanent guardian of honesty and correct handling of public affairs. Given its symbiotic link with democratic ideology, an endless number of international instruments and practically all the Constitutions of the free world, since the French Declaration of 1789 (art.11), have recognized it.
Our Political Constitution, for its part, protects it through various norms: “Everyone may communicate their thoughts by word or in writing and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, under the conditions and in the manner established by law” (article 29) “No one may be disturbed or persecuted for the expression of their opinions nor for any act that does not infringe the law. Private actions that do not harm morality or public order, or that do not harm a third party, are outside the reach of the law. However, political propaganda may not be made in any form by clergy or laypersons invoking religious motives or using religious beliefs as a means” (article 28). Other constitutional norms related to this right are: “The freedom of petition, in individual or collective form, before any public official or official entity, and the right to obtain a prompt resolution are guaranteed” (article 27). “Free access to administrative departments is guaranteed for purposes of information on matters of public interest.
State secrets shall remain safeguarded" (Article 30).
Freedom of expression consequently prohibits all forms of censorship in a dual sense: on the one hand, interlocutors may not be censored; and on the other hand, in general, the possible contents of the discussion may not be censored beforehand either: in principle, in a democracy, all topics are subject to discussion. The non-censorability of subjects has a practically universal character, as established in our Constitution, no one may be deprived of the freedom to speak and express themselves as they best see fit; the non-censorability of contents, while it does not apply beforehand, encounters some limitations; however, these must be such that freedom continues to have meaning or is not emptied of its content, basically, like all freedom, it must be exercised responsibly, ultimately to pursue legitimate ends within the system (...)".
Likewise, in Voto No. 10961-2020 of 10:05 hrs. on June 16, 2020, this jurisdiction referred to freedom of the press and its intrinsic relationship with freedom of information, stating the following:
"(…) IV.- For its part, regarding freedom of information and of the press, there is also an extensive body of law that refers to this right as a preferential right, which is not only a fundamental right, but also serves as an essential guarantee for the functioning of the democratic system. As a reference, judgments 2004-08229 and 2007-017324 may be cited, which define it as:
"(...) The Right to Information, which is closely related to Freedom of Expression and the Right of the Press, consists of the power to seek, receive, and disseminate information and ideas of all kinds, and may be exercised through the printed word, radio broadcasts, and television. On this matter, in judgment number 2001–09250 of 10:22 hours on September 14, 2001, the Chamber stated the following:
"...freedom of information is a means of forming public opinion on matters of general interest. This preferential value reaches its highest level when the freedom is exercised by information professionals through the institutionalized vehicle for forming public opinion, which is the press, understood in its broadest sense. This, however, does not mean that such freedom can be understood absolutely, but rather each specific case must be analyzed to weigh whether the information was conveyed within the constitutionally protected scope, or conversely whether it has transgressed that scope, affecting the right to honor, privacy, or image, among other rights also constitutionally protected." Indeed, the doctrine on the subject states that Freedom of the Press protects the possibility of publishing news truthfully, with good motives, and for justifiable purposes. However, although the mission of the press in an open and democratic society is to inform public opinion objectively and truthfully, this should not be understood as an absolute requirement, since, in practice, there are clearly difficulties of all kinds that would make it completely irrational to demand such an achievement from the communication media. For this reason, it has been accepted that they are only obligated to seek the truth loyally and honestly, in the most impartial manner possible. In other words, the duty of truthfulness only imposes upon them the obligation to reasonably strive for the truth, and not the obligation to achieve that task absolutely. Consequently, the duty of truthfulness entails an obligation of means, not of results (…)
The democratic order requires the defense of freedom of expression as a basic and indispensable instrument for the formation of public opinion. And that defense leads to the possibility of expressing thought using the means chosen by the sender and also the power to disseminate it through those means. (…) the value of this defense reaches its highest level when the freedom is exercised by information professionals through the institutionalized vehicle for forming public opinion, which is the press. In that sense, it is understood that while the right to expression, provided for in Article 13 of the American Convention, is not absolute in character, the limits on its exercise and controls over its proper performance must in no way restrict its exercise beyond what is strictly necessary, to the point that they could become a direct or indirect mechanism that affects freedom of expression, information, and press and constitutes a violation of the right (…)". (Highlighting is not part of the original).
Likewise, in Sentencia No. 9512-2020 of 13:02 hrs. on May 22, 2022, this Constitutional Tribunal ordered the following:
"(…) it is clear that the exercise of freedoms of expression and information acquires distinctive characteristics when carried out through a communication medium, characteristics that will vary depending on each type of medium. These variations, in turn, affect the scope of the rights exercised, their content, and the possible limitations to which they are eventually susceptible. It is clear that the legal object of the protection of freedom of expression, within the framework of freedom of the press, is the possibility of obtaining information, as a necessary input to be informed and to be able to inform a community. That is to say, stricto sensu, freedom of expression protects the transmission of all kinds of thoughts, opinions, ideas, and personal information of the person expressing themselves, while freedom of information allows people to receive and possess information about facts, events, occurrences, persons, groups, and situations in general, in order for the receiver to learn what is happening. Freedom of information encompasses activities such as seeking information and research, through sources, where it can be found, processed, and transmitted through a specific medium. Therefore, the right to inform occupies a special place within the Costa Rican constitutional order, particularly when its exercise is coupled with that of freedom of the press, that is, when it is exercised through communication media. The different international human rights tribunals have recognized that the communication media hold an important social function in the construction and sustainability of democratic systems, and thus on numerous occasions it has been recognized that the mass communication media, as legal persons, can be holders of fundamental rights, according to their particular nature; consequently, it is clear that freedom of expression does indeed cover the communication media as legal persons, as well as those who express themselves through them. It is equally pertinent to highlight, in this area, the relationship between the freedom of expression of the communication medium as a "legal person," and the freedom of expression of the natural persons who form part of the organizational structure of such legal persons, for example, editors, writers, reporters, and other journalists or social communicators, who contribute to the transmission of third-party expressions, while simultaneously exercising their own freedom of expression. The existing relationship between both freedoms, and in turn between said freedoms and the freedom of expression of the person who is actually communicating a message through such media or persons, must be elucidated in each specific case with special attention to the different interests at play, to arrive at a solution that achieves the maximum level of specific harmonization among all of them, and in turn with the interests of the receiver and, especially, of the general public. The massive dissemination achieved by information transmitted through the media and its power of penetration, the profound impact they can have on people in general, guarantees the democratic development of a constitutional state and in turn, fosters the strengthening of freedom of expression.
In this sense, the Inter-American Court of Human Rights has indicated that it is fundamental that journalists who work in the communication media enjoy the necessary protection and independence to perform their functions fully, since they are the ones who keep society informed, an indispensable requirement for society to enjoy full freedom and for public debate to be strengthened, as the social communication media play an essential role as vehicles for the exercise of the social dimension of freedom of expression in a democratic society, which is why it is indispensable that they gather the most diverse information and opinions (Case Ivcher Bronstein vs Panama- I.A.C.H.R.-).
In turn, the European Court of Human Rights, when interpreting Article 10 of the European Convention, concluded that "necessary," without being synonymous with "indispensable," implies the "existence of a ‘pressing social need’ and that for a restriction to be 'necessary' it is not sufficient to demonstrate that it is 'useful,' 'reasonable,' or 'opportune' (21). This concept of “pressing social need” was adopted by the Court in its advisory opinion OC-5/85, The Compulsory Membership of Journalists (Articles 13 and 29 of the American Convention on Human Rights). (…)
It must be emphasized that it is through the communication media that freedom of expression contributes to the consolidation of democratic society. Therefore, the conditions of its use must conform to the requirements of this freedom, meaning that the freedom and independence of journalists and the communication media must be guaranteed (advisory opinion OC-5/85 IACHR, The Compulsory Membership of Journalists).
According to the jurisprudence of the Inter-American Court, freedom of expression is not complete in the theoretical recognition of the right to speak or write, but rather when it also includes, inseparably, the right to use any appropriate medium to disseminate information and guarantee that it reaches the widest possible audience (…) (Case Ivcher Bronstein vs Panama- I.A.C.H.R.-). However, like any other human right, freedom of expression is not an absolute right, and may be subject to limitations by any state authority or eventually by private parties, previously adopted by the legislator under strict conditions. (…)". (Highlighting is not part of the original).
VI.- CONCERNING FREEDOM OF EXPRESSION (AND OF THE PRESS) AS GUARANTORS OF THE DEMOCRATIC SYSTEM. Freedom of expression and, concomitantly, the exercise of freedom of the press, become fundamental pillars upon which a democratic society is built. The intrinsic relationship that exists between such freedoms and democracy is practically unquestionable; hence, the latter is weakened and arbitrarily eroded when said freedoms cannot be fully exercised nor are they respected and guaranteed in legal systems.
The Inter-American Democratic Charter (approved by the Member States of the OAS during an extraordinary session of the General Assembly held on September 11, 2001, in Lima, Peru), on this matter, provides in its Article 4 that: "Transparency in government activities, probity, responsibility of governments in public management, respect for social rights, and freedom of expression and of the press are essential components of the exercise of democracy." Furthermore, it must be remembered that the already issued Declaration of Principles on Freedom of Expression establishes in its first principle that freedom of expression is "(…) an indispensable requirement for the very existence of a democratic society." Freedom of the press (or what some call a free press), as a manifestation of freedom of expression, constitutes an essential element for scrutinizing –without reprisals– the actions of third parties, whether of a private nature or public officials, mainly those who hold high positions or aspire to them, thus allowing, consequently, accountability, combating corruption, transparency in the handling of public funds, among many other aspects that are fundamental for maintaining a democratic system. Part of that duty lies in investigating those in power, primarily the government, asking the difficult questions and thus attempting to reveal to the citizenry what is really happening, as a means, in turn, for them to make the correct decisions, mainly when voting and also later, when power is being exercised. As the so-called Liberties Union for Civil Liberties of Europe (a non-governmental organization that promotes civil liberties for all people in the European Union) has stated: "(…) A free press helps at every step of this process. It provides information to voters before they vote; it fosters dialogue and debate to enrich the understanding of this information; and then it informs the citizenry about the work of the government and whether they are truly carrying out their promises. In a democracy, the citizenry delegates decision-making power to their elected officials, and the press is a way of controlling them (…)". In essence, it is feasible to affirm, then, that freedom of the press is fundamental in democratic systems, as it allows citizens to form opinions and criteria regarding the reality in which they live. For this reason, it is unfortunate that independent communication media are precisely one of the main targets of anti-democratic political systems or, at least, of those that wish to take shape and are heading in that direction.
This Constitutional Chamber has specifically pronounced itself on freedom of expression and its function as a guarantor of democracy. Thus, in the emblematic Voto No. 5977-2006 of 15:16 hrs. on May 3, 2006, it stated the following:
"(…) VIII.- Freedom of expression as an indispensable requirement of democracy. Freedom of expression is undoubtedly one of the conditions –though not the only one– for democracy to function. This freedom is what allows the creation of public opinion, essential for giving content to several principles of the constitutional State, such as, for example, the right to information, the right of petition, or rights regarding political participation; the existence of a free and consolidated public opinion is also a condition for the functioning of representative democracy. The possibility for all people to participate in public discussions constitutes the necessary prerequisite for the construction of a dynamic social exchange of knowledge, ideas, and information, which allows for the generation of consensus and decision-making among the components of the various social groups, but which also constitutes a channel for the expression of dissent, which in a democracy is as necessary as agreements. For its part, the exchange of opinions and information that originates with public discussion contributes to forming personal opinion, both of which shape public opinion, which ultimately manifests itself through the channels of representative democracy. As the Spanish Constitutional Tribunal itself has pointed out, other rights that the Constitution enshrines would be emptied of real content, representative institutions reduced to hollow forms, and the principle of democratic legitimacy... which is the basis of our entire legal-political order (Judgment 6/1981) would be absolutely distorted, if there did not exist freedoms capable of allowing that exchange, which… presupposes the right of citizens to have broad and adequate information regarding the facts, enabling them to form their convictions and participate in the discussion relating to public affairs (Judgment 159/1986) (…)". (Highlighting is not part of the original).
In addition to this, strictly regarding the communication media and their responsibility when informing and thus contributing to democratic processes, that same ruling held the following:
"(…) XI.- The social responsibility of the communication media as holders of power vis-à-vis the citizen. The struggle for the defense of the fundamental rights of inhabitants traditionally arises against political power; however, it subsequently evolves to protect the person from other private subjects who have a power relationship with respect to the citizen, in cases where they harm a fundamental right. It must be clear that in democracies, the communication media do not have a simply passive role regarding the issue of freedom of expression; they are not limited to being victims of attacks against such an important freedom. On the contrary, they have a great responsibility and power as the natural vehicles for communicative freedoms (expression, printing, information, etc.) to become a reality, able to serve the development of democratic processes by forming a well-informed citizenry that knows its rights and obligations, that has the necessary tools to properly elect its governors. The social responsibility of the media and the place of freedom of expression in democratic development is what justifies that the legal status of the media and of the professionals who work in them is different from that of the rest of the people. But that status, as indicated, is not invocable against illegitimate ends, which include attacking fundamental freedoms in bad faith or with evident negligence. In light of these reasons and grounds, it must be concluded that the State, and specifically the legislator, has the right and the duty to protect individuals against the illegitimate use of this right, which, when misused, is as harmful to democracy as censorship itself, not only because its exercise in bad faith can harm the honor of the affected person, but also that of the entire society to receive adequate information capable of helping it form public opinion transparently. The danger that a misuse of this right represents for democracy is as serious as its non-exercise, and that misuse is determined not only by the evident negligence or bad faith that affects other freedoms, but also by other factors, such as the possibility that a lack of media pluralism affects the press's ability to generate a free and informed public opinion. Naturally, the requirement for that pluralism is not reduced to a purely quantitative aspect, but also entails some qualitative factor that is concretized in the 'presence of diversity of opinions and sources of information.' Without a doubt, because of their role in democracy and their dissemination capacity, the communication media are in a power relationship with respect to the citizen and society, and although their existence is fundamental for legitimate and essential purposes of democracy, they have the potential, like any power, to deviate occasionally, in the face of individual actions, in which case the State has the obligation to establish the necessary provisions for the protection of the system and the individual. Evidently, as indicated, the State's protection cannot occur through the right to previously censor information, as the Human Rights Court has stated, which would be clearly unconstitutional (Art. 28), but rather refers to its control a posteriori, in the event there was intent to inflict harm or actions taken with full knowledge that false news was being disseminated or conduct with manifest negligence in the search for the truth or falsehood thereof, and with it the honor and reputation of some person were affected. The Chamber shares the opinion of the Inter-American Court of Human Rights (advisory opinion 5/85) in the sense that:
33. ...It would not be legitimate to invoke society's right to be truthfully informed to substantiate a prior censorship regime supposedly aimed at eliminating information that would be false at the censor's discretion. Nor would it be admissible, based on the right to disseminate information and ideas, to establish public or private monopolies over the communication media to attempt to shape public opinion according to a single point of view.
Similarly, the jurisprudence established in the case New York Times vs. Sullivan of 1964 is recognized, in which it is pointed out that the protection the Constitution offers to freedom of expression does not depend on the truth, popularity, or social utility of the ideas and beliefs expressed, and recognizes that a certain degree of abuse is inseparable from the proper use of that freedom, based on which the government and the courts must allow a debate to develop that is 'uninhibited, robust, and wide-open,' which may include caustic, vehement expressions and sometimes severe, unpleasant attacks toward the government and public officials. Erroneous statements are inevitable in a free debate and must be protected to give freedom of expression air to breathe and survive. The rules must prevent a public official from being able to sue a communication medium or a private individual for damages caused by a false defamation relating to their official conduct, unless it is proven with convincing clarity that the expression was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This exception that is made is indispensable given the State's obligation to protect the reputation and honor of persons and, moreover, within the obligation it has to ensure that the misuse or deviation of this freedom is not used to violate equally essential purposes of the democratic system, among which is the system of fundamental rights. The interdependence that exists between fundamental rights and their systemic value is recognized in doctrine; in that sense, the protection of one freedom to the detriment of others due to a lack of a hermeneutical vision has a negative effect on the entire system of liberty (see judgment 2771-03 of this Chamber)". (…)". (Highlighting is not part of the original).
Likewise, in Sentencia No. 15220-2016 of 16:00 hrs on October 18, 2016, this constitutional body very aptly stated the following:
"(…) Freedom of expression is a fundamental pillar of the democratic State, as it permits the circulation of ideas and information –even those in opposition to the government in power–, the formation of public opinion, transparency, oversight, and denunciation of government actions, among others. It is not in vain that Bobbio points out that democracy is the exercise of power in public (…) in the case of public officials, and particularly those of high rank, the threshold of freedom of expression and the duty of tolerance to criticism increase. This is because a fundamental element of the democratic system, which distinguishes it from dictatorships, consists of the broad freedom enjoyed by both the general citizenry and the press in particular, regarding expressing their criticisms and questioning the suitability (technical or moral) of public officials and their decisions, without fear of censorship or reprisals, which evidently does not prevent the person who feels affected from resorting to the right of rectification or other ordinary judicial avenues in defense of their image and good name. In the specific case of public officials, they are more exposed to public scrutiny, since the exercise of their functions transcends the private sphere and, due to its impact on political and national development and events, enters the public sphere, that is, it has consequences of interest to the general citizenry. Furthermore, citizen control over the Public Administration and the duty of accountability of public officials (Article 11 of the Political Constitution) can only occur in a democratic system with broad freedom of expression and information. That is the relevance of the social dimension of the right to information, intimately linked to that of expression. In this regard, precisely, the Inter-American Court of Human Rights expressed itself in the Tristán Donoso case:
"115. Finally, regarding the right to honor, the Court recalls that expressions concerning the suitability of a person for holding public office or the acts carried out by public officials in the performance of their duties enjoy greater protection, so as to promote democratic debate. The Court has stated that in a democratic society public officials are more exposed to public scrutiny and criticism. This different threshold of protection is explained because they have voluntarily exposed themselves to more demanding scrutiny. Their activities leave the domain of the private sphere to enter the sphere of public debate. This threshold is not based on the quality of the subject, but on the public interest of the activities they perform (…)
122. As already indicated, international law establishes that the threshold of protection for the honor of a public official must allow the broadest possible citizen control over the exercise of their functions (supra para. 115). This differentiated protection of honor is explained because the public official voluntarily exposes themselves to society's scrutiny, which leads to a greater risk of suffering harm to their honor, as well as due to the possibility, associated with their position, of having greater social influence and ease of access to the communication media to give explanations or respond about matters that involve them." Similarly, in the Ricardo Canese case, the Court indicated: " 97. Democratic control, by society through public opinion, fosters the transparency of state activities and promotes the responsibility of officials for their public management, which is why there must be a greater margin of tolerance regarding statements and appraisals uttered during the course of political debates or on matters of public interest.
98. The Tribunal has established that it is logical and appropriate that expressions concerning public officials or other persons who exercise functions of a public nature must enjoy, under the terms of Article 13.2 of the Convention, a margin of openness to broad debate regarding matters of public interest, which is essential for the functioning of a truly democratic system. (…)". (Highlighting is not part of the original).
Furthermore, this Chamber, in Sentencia No. 12926-2017 of 09:30 hrs. on August 18, 2017, indicated, on the particular subject, that:
"(…) freedom of the press is a fundamental pillar of the democratic State to the point that the second cannot exist without the effective guarantee in favor of all inhabitants of the Republic of the exercise of the right to seek, receive, and disseminate information and ideas of all kinds, without consideration of frontiers, whether orally, in writing, or in printed or artistic form, or by any other procedure of their choice, without this right being able to be subjected to prior censorship (...)".
The Inter-American Court of Human Rights has also alluded to the close relationship that exists between democracy and freedom of expression, and has stated that it is a fundamental element upon which the existence of a democratic society is based. In this regard, in advisory opinion No. OC-5/85 regarding the compulsory licensing of journalists (judgment of November 13, 1985), it held that it is a conditio sine qua non for those who wish to influence the community to be able to develop fully, which is why it affirms that a society that is not well informed is not fully free. That is, within democratic systems the exercise of freedom of expression allows the development and projection of the human being, contributes to the functioning of democracy, and is a means or instrument for the exercise of other human rights. For its part, in the Herrera Ulloa vs. Costa Rica case, the Court held the following:
"(…) 113. In the same terms as those indicated by the Inter-American Court, the European Court of Human Rights has pronounced itself on the importance of freedom of expression in a democratic society, stating that '(…) freedom of expression constitutes one of the essential pillars of a democratic society and a fundamental condition for its progress and for the personal development of each individual. Such freedom must be guaranteed not only with respect to the dissemination of information or ideas that are received favorably or considered as inoffensive or indifferent, but also regarding those that offend, shock, or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance, and a spirit of openness, without which there is no democratic society.' (…) This means that (…) every formality, condition, restriction, or sanction imposed in this area must be proportional to the legitimate aim pursued (…)”. (Emphasis added, not part of the original).
Similarly, on that last occasion, the IACHR Court noted that the African Commission on Human and Peoples' Rights and the Human Rights Committee have also pronounced themselves to the same effect; hence, it concluded that there is a consensus in the different regional human rights protection systems and in the universal system regarding the essential role that freedom of expression plays in the consolidation and dynamics of a democratic society. Furthermore, it expressly stated that:
“(…) 116. (…) Without effective freedom of expression, materialized in all its terms, democracy vanishes, pluralism and tolerance begin to break down, mechanisms for citizen oversight and reporting begin to become inoperative, and, ultimately, fertile ground begins to be created for authoritarian systems to take root in society (…)”.
In the case of Ivcher Bronstein vs. Peru (judgment of February 6, 2001), the IACHR Court mentioned that, in turn, the European Court has emphasized that Article 10.2 of the European Convention, referring to freedom of expression, leaves a very narrow margin for any restriction on political debate or debate on matters of public interest, and explained that, according to said Court: “(…) 155. (…) the limits of acceptable criticism are wider with respect to the government than in relation to a private citizen or even a politician. In a democratic system, the actions or omissions of the government must be subject to rigorous scrutiny, not only by the legislative and judicial authorities, but also by public opinion (…)”.
Likewise, in the Moya Chacón et al. vs. Costa Rica judgment (judgment of May 23, 2022), the IACHR Court confirmed the foregoing, as follows:
“(…) b.1 Importance of freedom of expression in a democratic society (…)
63. (…) the Court has established that freedom of expression, particularly in matters of public interest, “is a cornerstone in the very existence of a democratic society”63. The Inter-American Court, in its Advisory Opinion OC-5/85, referred to the close relationship between democracy and freedom of expression, establishing that this right is indispensable for the formation of public opinion, as well as being a conditio sine qua non for political parties, unions, scientific and cultural societies, and in general, those who wish to influence the community to develop fully, and for, in short, the community to be sufficiently informed when exercising its options. This is because democratic control by society through public opinion fosters the transparency of state activities and promotes the responsibility of officials for their public management, which is why there must be a narrow margin for any restriction on political debate or debate on matters of public interest.
64. The Court recalls that, in a democratic society, the inherent rights and freedoms of the person, their guarantees, and the Rule of Law constitute a triad, each of whose components is defined, completed, and acquires meaning in relation to the others. In that sense, the Court notes that Articles 3 and 4 of the Inter-American Democratic Charter highlight the importance of freedom of expression in a democratic society, by establishing that “[t]ransparency in government activities, probity, responsible government in public management, respect for social rights, and freedom of expression and of the press are essential components of the exercise of democracy.” Likewise, it indicates that “[i]t is the right and responsibility of all citizens to participate in decisions relating to their own development. This is also a necessary condition for the full and effective exercise of democracy. Promoting and fostering diverse forms of participation strengthens democracy.” 65. Thus, without an effective guarantee of freedom of expression, the democratic system is weakened, and pluralism and tolerance suffer breakdown; mechanisms for citizen control and reporting can become inoperative, and, ultimately, fertile ground is created for authoritarian systems to take root. Consequently, a society that is not well informed is not fully free (…)”.
For its part, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (Inter-American Legal Framework on the Right to Freedom of Expression, December 2009), stated the following:
“(…) the IACHR and the Inter-American Court have underscored in their jurisprudence that the importance of freedom of expression within the catalog of human rights also derives from its structural relationship with democracy. This relationship, which has been described by the bodies of the Inter-American System of Human Rights as “close”, “indissoluble”, “essential”, and “fundamental”, among others, explains a large part of the interpretative developments granted to freedom of expression by the IACHR and the Inter-American Court in their various decisions on the matter. So important is the link between freedom of expression and democracy that, as the IACHR has explained, the very objective of Article 13 of the American Convention is to strengthen the functioning of pluralist and deliberative democratic systems through the protection and promotion of the free circulation of information, ideas, and expressions of all kinds (…) if the exercise of the right to freedom of expression not only tends toward the personal fulfillment of the person expressing themselves, but also toward the consolidation of truly democratic societies, the State has the obligation to generate the conditions so that public debate not only satisfies the legitimate needs of all as consumers of certain information (entertainment, for example), but as citizens. That is, sufficient conditions must exist so that a public, plural, and open deliberation can take place on the matters that concern us all as citizens of a given State (…)”. (Emphasis not part of the original).
Also, said Office of the Special Rapporteur stated the following:
“(…) in a democratic society, the press has the right to inform freely and criticize the government, and the people have the right to be informed about different views of what happens in the community (…)”.
Along the same lines of thought, the European Court of Human Rights, in the Lingens vs. Austria case (judgment of July 8, 1986), highlighted that “(…) freedom of the press provides the public with one of the best means of knowing and judging the ideas and attitudes of political leaders. More generally, freedom of political controversy belongs to the very heart of the concept of a democratic society (…)”.
Likewise, the Colombian Constitutional Court has addressed the subject under study on several occasions. Thus, in Judgment No. T-256/13 of April 30, 2013, it held that: “(…) the right to freedom of expression is a principle of the exercise of democracy because it is within the framework of a democratic state that citizen participation acquires special relevance, and in its development, the freedom to express different opinions and to manifest minority thoughts without fear of being repressed by state powers is guaranteed (…)” and explained that:
“(…) Therefore, the pronouncements of the Inter-American Commission and the jurisprudence of the Inter-American Court of Human Rights have highlighted that freedom of expression fulfills a triple function in the democratic system: a) it ensures the individual right of every person to think for themselves and to share their personal thought and opinion with others, b) it has a close, indissoluble, essential, fundamental, and structural relationship with democracy, and to that extent, the very objective of Article 13 of the American Convention is to strengthen the functioning of democratic, pluralist, and deliberative systems, through the protection and promotion of the free circulation of ideas and opinions, and c) finally, it is a key tool for the exercise of other fundamental rights, since “it is an essential mechanism for the exercise of the right to participation, to religious freedom, to education, to ethnic or cultural identity and, of course, to equality not only understood as the right to non-discrimination, but as the right to enjoy certain basic social rights (…)”.
Similarly, this constitutional body added that:
“(…) This Corporation, from very early on in its jurisprudence, recognized the value of this right within the framework of a democracy with the following words: “Although the freedom to express and disseminate one's own thoughts and opinions is a right of every person, it is not only an individual right, but also a guarantee of a fundamental political institution: 'free public opinion'. Free public opinion is indissolubly linked with political pluralism, which is a fundamental value and a requirement for the functioning of the democratic state. Without free public communication, other rights that the Constitution enshrines would be emptied of real content, representative and participatory institutions would be reduced to hollow forms, and the principle of democratic legitimacy would be absolutely falsified (…)”. (Emphasis not part of the original).
In Judgment No. T-543 of 2017 of August 25, 2017, the Colombian Constitutional Court indicated that freedom of expression fulfills the following functions in a democratic society: “(…) (i) it allows the search for truth and the development of knowledge; (ii) it makes the principle of self-government possible; (iii) it promotes personal autonomy; (iv) it prevents abuses of power; and (v) it is a 'safety valve' that stimulates peaceful confrontation of state or social decisions that are not shared (…)”. For its part, in Judgment No. C-135/21 of May 13, 2021, said Court mentioned that some of the contributions of the fundamental right to freedom of expression to democratic functioning are the following: “(…) i) it allows the search for truth and the development of knowledge; ii) it creates a space for healthy dialogue and protest for citizens, which consolidates pluralist and deliberative societies; iii) it allows the establishment of control and accountability mechanisms over rulers; iv) it promotes citizen self-government; and v) it contributes to better popular elections (…)”.
Also, in Judgment No. T-145/19 of April 2, 2019, the Colombian Court held that freedom of expression “(…) is a pillar of the Social State of Law and a fundamental principle of democratic regimes, where human dignity is respected and the participation of citizens and all sectors is valued, which allows for the consolidation of pluralist and deliberative societies (…)”. Likewise, on this last occasion, said body indicated that “(…) The main foundation of the legal protection of freedom of expression finds support in human dignity, in the autonomy of the person and in its instrumental character for the exercise of multiple rights, and in the different functions it fulfills in democratic systems (…)”.
VII.- ON THE PROHIBITION OF IMPOSING RESTRICTIONS ON FREEDOM OF EXPRESSION (AND FREEDOM OF THE PRESS) THROUGH INDIRECT MEANS. Freedom of expression and, therefore, freedom of the press, are not considered unrestricted and absolute rights, but rather – as analyzed supra – are subject to certain limits or subsequent controls. In this regard, Article 29 of our Political Constitution establishes that persons shall be responsible for the abuses they commit in the exercise of the right to freedom of expression and, for its part, Article 13.2 of the American Convention on Human Rights provides that the referred right is subject to subsequent responsibilities, which must be expressly established by law and be necessary to ensure respect for the rights or reputation of others or to protect national security, public order, public health, or public morals.
However, equally, these limitations, this Constitutional Court has said, are exceptional in nature and cannot restrict such rights beyond what is strictly necessary, emptying them of content and thus becoming a direct or indirect mechanism of censorship, which has no place in our system. These freedoms, consequently, cannot be subject to illegitimate direct restrictions (such as, for example, prior censorship, the murder of journalists due to the exercise of their functions, etc.) nor to restrictions of an indirect nature (also called soft censorship, subtle, veiled censorship). These latter measures – of an indirect nature – are characterized by being less evident, but which equally have the purpose of arbitrarily reducing or curtailing freedom of expression. They could be considered more subtle forms by which public authorities or private individuals seek to finally and effectively restrict freedom of expression. Authors García Ramírez and Gonza define them very aptly as those “(…) actions or omissions that bring about the inhibition of the subject, as a consequence of intimidation, the obstruction of channels of expression, or the 'planting' of obstacles that prevent or severely limit the exercise of that freedom (…)” (GARCÍA RAMÍREZ (Sergio) and GONZA (Alejandra). La libertad de expresión de la Corte Interamericana de Derechos Humanos. Mexico, Inter-American Court of Human Rights, Human Rights Commission of the Federal District, first edition, 2007, p. 42). For its part, the Office of the Special Rapporteur for Freedom of Expression explains that “(…) These measures (…) have not been strictly designed to restrict freedom of expression. In effect, they per se do not constitute a violation of this right. However, their effects generate an adverse impact on the free circulation of ideas that is often little investigated and, therefore, more difficult to discover (…)” (Annual Report of the Office of the Special Rapporteur for Freedom of Expression, 2004).
As examples of this type of indirect restrictions or veiled censorship, one can cite, among many others, the use of various means to intimidate and, in this way, prevent a publication, controls on newsprint or radio frequencies, restrictions on freedom of movement, the granting or suppression of state advertising, limitations on the economic income of media outlets, and the imposition of high and unjustified tax burdens. Regarding this type of indirect restrictions, the cited authors García Ramírez and Gonza explain that these can occur when “(…) a right different from freedom of expression itself is violated, in such a way that the latter is affected – for example, in a case, the deprivation of the subject's nationality –, undue or excessive investigations are carried out, access to certain means regularly used by the rights holder is prohibited, freedom of movement is restricted, the effects of a contract are disregarded, or the holders of certain assets are prevented from disposing of them (…)” (GARCÍA RAMÍREZ (Sergio) and GONZA (Alejandra). La libertad de expresión en la jurisprudencia de la Corte Interamericana de Derechos Humanos. Mexico, Inter-American Court of Human Rights, Human Rights Commission of the Federal District, first edition, 2007, p. 42). For his part, Magistrate Rueda Leal, in the additional reasons set forth in Judgment No. 15220-2016 of 4:00 p.m. on October 18, 2016, also referred to some modalities of this type of indirect or veiled censorship, listing the following: “(…) a) The denial of access to institutions and public information as retaliation for critical coverage, forcing the media to resort to jurisdictional instances. In this way, although an entity may finally be compelled to deliver certain information if its public nature is demonstrated, it is no less true that the Administration 'gains' time, thus achieving disclosure at a more favorable political 'timing'. b) The inequitable allocation of radio and television frequencies. c) The obstruction of access to elementary resources for the production of a media outlet (such as paper or telephone service) via the setting of arbitrary requirements or unreasonable tax impositions. d) The threat of filing judicial proceedings, conditioned on the disclosure or non-disclosure of critical reports (…)”.
Regarding these restrictions of a properly indirect nature, Article 13.3 of the American Convention on Human Rights expressly states the following:
“3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions”. (Emphasis not part of the original).
The Declaration of Chapultepec (adopted by the Hemispheric Conference on Freedom of Expression held in Mexico, D.F. on March 11, 1994), establishes that there must be no law or act of power that curtails freedom of expression or of the press, whatever the means of communication. Likewise, in the list of principles, it mentions the following:
“4. The murder, terrorism, kidnapping, pressures, intimidation, unjust imprisonment of journalists, material destruction of media outlets, violence of any kind, and impunity for aggressors severely curtail freedom of expression and of the press. These acts must be promptly investigated and severely punished.” “5. Prior censorship, restrictions on the circulation of media or the dissemination of their messages, the arbitrary imposition of information, the creation of obstacles to the free flow of information, and limitations on the free exercise and movement of journalists, directly oppose freedom of the press.” “6. Media outlets and journalists must not be subject to discrimination or favors because of what they write or say.” “7. Tariff and exchange policies, licenses for the importation of paper or journalistic equipment, the granting of radio and television frequencies, and the concession or suppression of state advertising must not be applied to reward or punish media outlets or journalists.” “10. No media outlet or journalist shall be sanctioned for disseminating the truth or formulating criticisms or complaints against public power”. (Emphasis not part of the original).
Similarly, the Declaration of Principles on Freedom of Expression (approved by the Inter-American Commission on Human Rights in October 2000, at its 108th regular period), provides, on this same topic, the following:
“5. Prior censorship, direct or indirect interference with or pressure upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law. Restrictions on the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the creation of obstacles to the free flow of information, violate the right to freedom of expression.” “9. The murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications media, violates the fundamental rights of individuals and severely curtails freedom of expression. It is the duty of the State to prevent and investigate such occurrences, to punish their perpetrators and ensure appropriate reparation for the victims.” “13. The use of the power of the State and the resources of the public treasury; the granting of tariff preferences; the arbitrary and discriminatory allocation of official advertising and official credit; the granting of radio and television frequencies, among others, with the aim of pressuring and punishing or rewarding and privileging social communicators and communications media based on their editorial line, attacks freedom of expression and must be expressly prohibited by law. The communications media have the right to carry out their work independently. Direct or indirect pressures directed at silencing the journalistic work of social communicators are incompatible with freedom of expression”. (Emphasis not part of the original).
As can be observed with crystal clarity, there are multiple ways in which the media can be manipulated indirectly. Even the American Convention on Human Rights is clear in indicating that the examples cited in Article 13.3 are not exhaustive, stating that this type of indirect restriction can also be configured “by any other means tending to impede the communication and circulation of ideas and opinions”.
Now, the Inter-American Court of Human Rights has pronounced itself on various occasions regarding veiled censorship or properly indirect restrictions, strongly condemning them. Thus, in the Ivcher Bronstein vs. Peru Judgment (judgment of February 6, 2001), the IACHR Court heard a case brought by Baruch Ivcher Bronstein, a naturalized citizen of Peru and majority shareholder of the company that then operated channel 2 of that country's television. Ivcher Bronstein, in that capacity, exercised editorial control over the programs, particularly one called Contrapunto (through which several journalistic reports were broadcast on tortures, an alleged murder, and cases of corruption committed by the Intelligence Services of the Peruvian Government), and it was demonstrated that, by virtue of the foregoing, he was subjected to several acts of intimidation that concluded with the issuance of a decree that revoked his Peruvian citizenship. On that occasion, the IACHR Court held that the resolution that legally nullified the nationality granted to Ivcher Bronstein precisely constituted an indirect means to restrict his freedom of expression, as well as that of the journalists who worked on said program. On that occasion, the IACHR Court expressed the following arguments of interest:
“(…) 158. It has also been demonstrated that, as a consequence of the editorial line adopted by Channel 2, Mr. Ivcher was subjected to acts of intimidation of various types. For example, after the broadcast of one of the reports mentioned in the preceding paragraph, the Joint Command of the Armed Forces issued an official communiqué denouncing Mr. Ivcher for carrying out a defamatory campaign aimed at discrediting the Armed Forces (supra para. 76.k). Furthermore, on the same day that the Army issued said communiqué, the Executive Branch of Peru issued a supreme decree regulating the Nationality Law, establishing the possibility of canceling the nationality of naturalized Peruvians (supra para. 76.l).
159. It has also been proven that days after Channel 2 announced the presentation of a report on illegal recordings of telephone conversations involving opposition candidates, the Director General of the National Police reported that the file processing Mr. Ivcher's nationality title had not been located, and that it had not been proven that he had renounced his Israeli nationality, for which reason, through a “directorial resolution”, the aforementioned nationality title was nullified.
160. As a consequence of the foregoing, on August 1, 1997, Judge Percy Escobar ordered the suspension of the exercise of Mr. Ivcher's rights as majority shareholder and President of the Company and the revocation of his appointment as Director of the same, the judicial convening of an Extraordinary General Shareholders' Meeting to elect a new Board of Directors, and the prohibition of the transfer of his shares. Furthermore, he granted the provisional administration of the Company to the minority shareholders, until a new Board of Directors was appointed, thus removing Mr. Ivcher Bronstein from the control of Channel 2.
161. The Court has verified that, after the minority shareholders of the Company took over its administration, the entry of journalists who worked on the Contrapunto program to Channel 2 was prohibited and the editorial line of said program was modified (supra para. 76.v).
162. In the context of the mentioned events, this Court observes that the resolution that legally nullified Mr. Ivcher's nationality title constituted an indirect means to restrict his freedom of expression, as well as that of the journalists who worked and investigated for the Contrapunto program of Channel 2 of Peruvian television.
163. By separating Mr. Ivcher from the control of Channel 2, and excluding the journalists from the Contrapunto program, the State not only restricted the right of these persons to circulate news, ideas, and opinions, but also affected the right of all Peruvians to receive information, thus limiting their freedom to exercise political options and develop fully in a democratic society.
164. For all the foregoing, the Court concludes that the State violated the right to freedom of expression enshrined in Article 13.1 and 13.3 of the Convention, to the detriment of Baruch Ivcher Bronstein (…)”. (Emphasis not part of the original).
Another clear example of this type of indirect restrictions is set forth in the Ricardo Canese vs. Paraguay case (judgment of August 31, 2004). Mr. Ricardo Canese, who was a presidential candidate during the electoral contest for the 1993 Paraguay elections, linked Juan Carlos Wasmosy (also a candidate) with illicit actions allegedly committed by the latter when he served as president of a consortium, which, in turn, were published in two Paraguayan newspapers. This caused Canese (who worked in a media outlet) to be criminally prosecuted for the commission of the crimes of defamation and slander, being convicted in the first instance in 1994 and in the second instance in 1997; at which time, in turn, he was sentenced to two months in prison and a fine. Furthermore, as a consequence of this proceeding, Canese was subjected to a permanent restriction on leaving the country (and also, in parallel, was dismissed from the media outlet where he worked). These judgments were subsequently annulled in December 2002 by the Criminal Chamber of the Supreme Court of Justice of Paraguay. The IACHR Court referred to the importance of guaranteeing freedom of expression during an electoral campaign and, after analyzing the case under study, held that the criminal sanction to which Canese was subjected was considered an indirect method of restricting said right. Expressly, on that occasion, the following was indicated:
“(…) 3) The importance of freedom of thought and expression within the framework of an electoral campaign.
88. The Court considers it important to highlight that, within the framework of an electoral campaign, freedom of thought and expression in its two dimensions constitutes a fundamental bastion for debate during the electoral process, because it becomes an essential tool for forming the public opinion of voters, strengthens the political contest among the different candidates and parties participating in the elections, and becomes an authentic instrument for analyzing the political platforms proposed by the different candidates, which allows for greater transparency and oversight of future authorities and their management. (…)
90. The Court considers it essential that the exercise of freedom of expression be protected and guaranteed in the political debate preceding the elections of the state authorities who will govern a State. The formation of collective will through the exercise of individual suffrage is nourished by the different options presented by political parties through the candidates who represent them. Democratic debate implies allowing the free circulation of ideas and information regarding the candidates and their political parties by the media, the candidates themselves, and any person who wishes to express their opinion or provide information. It is essential that everyone be able to question and inquire about the capability and suitability of the candidates, as well as dissent and confront their proposals, ideas, and opinions so that voters can form their criterion for voting.
In this regard, the exercise of political rights and freedom of thought and expression are intimately linked and mutually reinforcing. In this respect, the European Court has established that:
Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system (Cf. Judgment in the Case of Mathieu-Mohin and Clerfayt v. Belgium, of 2 March 1987, Series A no. 113, p. 22, para. 47, and Judgment in the Case of Lingens v. Austria of 8 July 1986, Series A no. 103, p. 26, paras. 41-42). The two rights are interrelated and reinforce one another: for example, as the Court has indicated in the past, freedom of expression is one of the necessary “conditions” to “ensure the free expression of the opinion of the people in the election of the legislative body” (see the aforementioned Judgment in the Case of Mathieu-Mohin and Clerfayt, p. 24, para. 54). For this reason, it is particularly important that opinions and information of all kinds may circulate freely in the period preceding elections.
91. The Court notes that, in his statements, the alleged victim made reference to the fact that the company CONEMPA, whose president was Mr. Juan Carlos Wasmosy, at that time a presidential candidate, “passed” “dividends” to the ex-dictator Stroessner. It has been demonstrated, and is also a public fact, that said consortium was one of the two companies responsible for carrying out the construction works of the Itaipú hydroelectric plant, one of the largest hydroelectric dams in the world and the main public work of Paraguay.
92. The Court considers that there is no doubt that the statements made by Mr. Canese in relation to the company CONEMPA pertain to matters of public interest, since in the context of the time when he made them, said company was responsible for the construction of the aforementioned hydroelectric plant. As is evident from the evidentiary record of the present case (supra para. 69.4), the National Congress itself, through its Joint Committee on the Investigation of Illicit Acts, was tasked with the investigation of corruption in Itaipú, which involved Mr. Juan Carlos Wasmosy and the referred company.
93. The Court notes that the Criminal Chamber of the Supreme Court of Justice of Paraguay, upon issuing the decision by which it annulled the condemnatory judgments handed down in 1994 and 1997 (supra para. 69.49), indicated that the statements that Mr. Canese made within the political framework of an electoral campaign for the Presidency of the Republic, “necessarily imply, in a Democratic Society geared toward a participatory and pluralistic construction of Power, a matter of public interest.” 94. In the present case, upon making the statements for which he was criminally charged and convicted, Mr. Canese was exercising his right to freedom of thought and expression within the framework of an electoral contest, in relation to a public figure such as a presidential candidate, on matters of public interest, by questioning the capacity and suitability of a candidate to assume the Presidency of the Republic. During the electoral campaign, Mr. Canese was interviewed about Mr. Wasmosy’s candidacy by journalists from two national newspapers, in his capacity as a presidential candidate. Upon publishing Mr. Canese’s statements, the newspapers “ABC Color” and “Noticias” played an essential role as vehicles for the exercise of the social dimension of freedom of thought and expression, since they collected and transmitted to the electorate the opinion of one of the presidential candidates regarding another, which contributes to the electorate having more information and different criteria prior to decision-making.
98. The Tribunal has established that it is logical and appropriate that expressions concerning public officials or other persons who exercise functions of a public nature must enjoy, under the terms of Article 13.2 of the Convention, a margin of openness to broad debate regarding matters of public interest, which is essential for the functioning of a truly democratic system. This same criterion applies regarding opinions or statements of public interest that are made in relation to a person who is running as a candidate for the Presidency of the Republic, who voluntarily submits themselves to public scrutiny, as well as regarding matters of public interest in which society has a legitimate interest in remaining informed, in knowing what affects the functioning of the State, affects general interests or rights, or entails important consequences. As has been established, there is no doubt that the statements made by Mr. Canese in relation to the company CONEMPA pertain to matters of public interest (supra para. 92).
99. In this sense, the Criminal Chamber of the Supreme Court of Justice of Paraguay, upon issuing on 11 December 2002 (supra para. 69.49) the decision by which it annulled the condemnatory judgments handed down in 1994 and 1997 and acquitted the alleged victim of guilt and penalty, referred to the character and relevance of his statements, by pointing out, inter alia, that “[t]he assertions of Mr. Canese, –within the political framework of an electoral campaign for the highest magistracy–, necessarily imply, in a Democratic Society geared toward a participatory and pluralistic construction of Power, a matter of public interest. Nothing is more important and public than the discussion and subsequent popular election of the First Magistrate of the Republic.” 100. The foregoing considerations do not mean, in any way, that the honor of public officials or public persons must not be legally protected, but rather that it must be protected in a manner consistent with the principles of democratic pluralism. Likewise, the protection of the reputation of private individuals who are involved in activities of public interest must also be carried out in accordance with the principles of democratic pluralism. (…)
103. Thus, in the case of public officials, persons who exercise functions of a public nature, and politicians, a different threshold of protection must be applied, one which is not based on the quality of the subject, but on the character of public interest that the activities or actions of a specific person entail. Those persons who influence matters of public interest have voluntarily exposed themselves to more demanding public scrutiny and, consequently, in that sphere they are subject to a greater risk of suffering criticism, since their activities leave the domain of the private sphere to enter the sphere of public debate. In this sense, within the framework of public debate, the margin of acceptance and tolerance for criticism by the State itself, by public officials, by politicians, and even by private individuals who carry out activities subject to public scrutiny, must be much greater than that for private individuals generally. In this hypothesis are found the directors of the company CONEMPA, a consortium to which the execution of a large part of the construction works of the Itaipú hydroelectric plant was entrusted.
104. Based on the foregoing considerations, it is for the Tribunal to determine whether, in this case, the application of subsequent criminal liability regarding the alleged abusive exercise of the right to freedom of thought and expression through statements related to matters of public interest may be considered to satisfy the requirement of necessity in a democratic society. In this respect, it must be recalled that criminal law is the most restrictive and severe means for establishing liability regarding an unlawful conduct.
105. The Tribunal considers that, in the proceedings brought against Mr. Canese, the judicial bodies should have taken into consideration that he made his statements in the context of an electoral campaign for the Presidency of the Republic and regarding matters of public interest, a circumstance in which opinions and criticisms are expressed in a more open, intense, and dynamic manner in accordance with the principles of democratic pluralism. In the present case, the adjudicator should have weighed respect for the rights or reputation of others against the value that open debate on issues of public interest or concern holds in a democratic society.
106. The criminal proceedings, the resulting conviction imposed on Mr. Canese for more than eight years, and the restriction on leaving the country applied for eight years and almost four months, facts that support the present case, constituted an unnecessary and excessive sanction for the statements that the alleged victim made within the framework of the electoral campaign, regarding another candidate for the Presidency of the Republic and on matters of public interest; as well as limited the open debate on issues of public interest or concern and restricted the exercise of Mr. Canese’s freedom of thought and expression to express his opinions during the remainder of the electoral campaign. In accordance with the circumstances of the present case, there was no compelling social interest that justified the criminal sanction, since the freedom of thought and expression of the alleged victim was disproportionately limited without taking into consideration that his statements referred to matters of public interest. The foregoing constituted an excessive restriction or limitation in a democratic society on the right to freedom of thought and expression of Mr. Ricardo Canese, incompatible with Article 13 of the American Convention.
107. Likewise, the Tribunal considers that, in this case, the criminal proceedings, the resulting conviction imposed on Mr. Canese for more than eight years, and the restrictions on leaving the country for eight years and almost four months constituted indirect means of restricting the freedom of thought and expression of Mr. Canese. In this regard, after being criminally convicted, Mr. Canese was dismissed from the media outlet where he worked and for a period did not publish his articles in any other newspaper.
108. For all the foregoing, the Court considers that the State violated the right to freedom of thought and expression enshrined in Article 13 of the American Convention, in relation to Article 1.1 of said treaty, to the detriment of Mr. Ricardo Canese, given that the restrictions on the exercise of this right imposed on him for approximately eight years exceeded the framework contained in said article (…)”. (The emphasis is not part of the original).
Likewise, of great and utmost interest is the case of Granier and others (Radio Caracas Televisión) v. Venezuela (judgment of 22 June 2015). In this matter, the IACHR Court found proven the existence of a conflictive and tense environment in Venezuela, resulting from the coup d’état suffered, which, in turn, caused political polarization (radicalization of the positions of the involved sectors) and contributed to the government accusing private media outlets, among them RCTV (Radio Caracas Televisión), of being enemies of the government, coup plotters, and fascists. The Court also found it proven that the State of Venezuela sought a way to silence said media outlet (given that it expressed ideas different from government policies, maintaining a critical line toward the Presidency of Hugo Chávez), through the non-renewal, in 2007, of the concession for use of the radioelectric spectrum (which it had held since its founding in 1953), which, evidently, indirectly or covertly curtailed its possibility of continuing to operate and to continue disseminating dissident information, in clear violation of freedom of expression. In this judgment, significantly, the IACHR Court held that said decision was preceded by various public statements made, both by the President of the Republic and by other officials, who generated an intimidating environment. Particularly, it was indicated that the then-President Chávez made, among others, the following statements:
“(…) 75. (…) a) the declaration of President Chávez of 9 June 2002 on his Program “Aló Presidente”, in which he stated: “the television stations and the radios, the broadcasters, even when they are private only make use of a concession, the State is the owner [...], and the State gives permission to a group of businessmen who so request it to operate, to launch the image through that pipeline, but the State reserves the permission. It is as if someone wanted to use a water pipeline to supply water to a town belonging to the State, and the State gives them permission. [...] Suppose that [...] we give them permission to use the water pipeline [and] they begin to poison the water. [...] [One must] immediately not only revoke the permission, but put them in prison. They are poisoning the people, that is what is happening, exactly the same is the case [and] the same logic, the same explanation with a television channel”; b) the declaration of President Chávez of 12 January 2003 on his program “Aló Presidente”, in which he expressed: “The same happens with these owners of television channels and owners of radio stations; they also have a concession from the State, but the signal does not belong to them. The signal belongs to the State. I want to make that very clear, I want to make it very clear because if the owners of these television stations and radio stations continue in their irrational determination to destabilize our country, to try to give rise to subversion, because it is subversion, without a doubt, […] it is subversion in this fascist case and is encouraged by the media, by these gentlemen I have mentioned and others I will not mention. So I announce it to Venezuela. I have ordered a review of the entire legal procedure through which the concession was given to these gentlemen. We are reviewing it and if they do not recover normality in the use of the concession, if they continue using the concession to try to break the country, or overthrow the government, then I would be under the obligation to revoke the concession that has been given to them to operate the television channels”; c) the declaration of President Chávez of 9 November 2003 on his program “Aló Presidente”, through which he stated: “I will not allow you to do it again, […] you: Globovisión, Televén, Venevisión and RCTV tomorrow or the day after [Minister] Jesse Chacón, I gave you an order, you must have a team of analysts and observers 24 hours a day watching all the channels simultaneously and we must be clear, I am clear, what is the line they must not cross, and they must know, it is the line of the law then. The moment they cross the line of the law they will be closed unfailingly to ensure peace for Venezuela, to ensure tranquility for Venezuela”, and d) on 9 May 2004, President Chávez declared on his program “Aló Presidente”: “[h]ere those who violate the right to information, the right to freedom of expression, are the owners of the private media, there are some exceptions, but above all the large television channels Venevisión, Globovisión, RCTV […] the owners of these media are committed to coup-mongering, terrorism and destabilization, and I could say at this point I have no doubt, that the owners of those media we can well declare them enemies of the people of Venezuela (…)
80. (…) a) the declaration of President Chávez of 28 December 2006, on the occasion of his end-of-year greeting to the Armed Forces, in which he expressed: “There is a gentleman over there, one of those representatives of the oligarchy, who wanted to be president of the oligarchy, and that later those Adeco-Copeyano Governments gave him concessions to have a television channel and now he is going around saying that that concession is eternal, his television concession ends in March, it ends in March, so he better start preparing his bags and go see what he is going to do as of March, there will be no new concession for that coup-plotting television channel that was called Radio Caracas Televisión, the concession ends, the measure is already drafted, so get ready, turning off the equipment then, no media outlet that is at the service of coup-mongering, against the people, against the nation, against national independence, against the dignity of the Republic will be tolerated here, Venezuela demands respect, I announce it before the date arrives so, so they do not continue with their little tale that no, that it is 20 more years, 20 more years I warn you chirulí, 20 more years if you are good, it’s over for you, it’s over for you (…)
Likewise, on this occasion and, in accordance with the following terms, the Court explained how, in this particular case, a violation of Article 13.3 of the American Convention on Human Rights occurred:
“(…) 148. In this regard, the Court has previously indicated that the media are true instruments of freedom of expression, that serve to materialize this right and that play an essential role as vehicles for the exercise of the social dimension of this freedom in a democratic society, which is why it is indispensable that they gather the most diverse information and opinions. Indeed, this Tribunal agrees with the Commission that the media are, generally, associations of persons who have come together to exercise their freedom of expression in a sustained manner, so it is unusual today that a media outlet is not registered in the name of a legal entity, since the production and distribution of the informative good require an organizational and financial structure that responds to the demands of the information market. Similarly, just as trade unions constitute instruments for the exercise of the right of association of workers and political parties are vehicles for the exercise of the political rights of citizens, the media are mechanisms that serve the exercise of the right to freedom of expression of those who use them as a means of disseminating their ideas or information. (…)
151. Consequently, the Inter-American Court considers that restrictions on freedom of expression frequently materialize through state actions or actions of private individuals that affect, not only the legal entity that constitutes a media outlet, but also the plurality of natural persons, such as its shareholders or the journalists who work there, who carry out acts of communication through it and whose rights may also be violated (…)
152. In this regard, it must be noted that nowadays an important part of journalism is exercised through legal entities and it is reiterated that it is fundamental that journalists who work in these media enjoy the protection and independence necessary to perform their functions fully, since it is they who keep society informed, an indispensable requirement for it to enjoy full freedom. Especially, taking into account that their activity is the primary manifestation of freedom of expression of thought and is specifically guaranteed by the American Convention (…)
1.3. Indirect Restrictions – Scope of Article 13.3 of the Convention 161. In the present case it has been argued that we would be facing a possible indirect restriction on the right to freedom of expression, which is why the Court emphasizes that Article 13.3 of the Convention makes express reference to such a situation by pointing out that “[t]he right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.” This Tribunal considers that the scope of Article 13.3 of the Convention must be the result of a joint reading with Article 13.1 of the Convention, in the sense that a broad interpretation of this norm allows for it to be considered that it specifically protects the communication, dissemination, and circulation of ideas and opinions, so that the use of “indirect methods or means” to restrict them is prohibited.
162. In this respect, the Court points out that what this paragraph seeks is to exemplify more subtle forms of restriction on the right to freedom of expression by state authorities or private individuals. Indeed, this Tribunal has had the opportunity to declare in previous cases the indirect restriction produced, for example, through a decision that “rendered without legal effect the nationality title” of the majority shareholder of a television channel or through “the criminal process, the consequent conviction imposed [...] for more than eight years and the restrictions on leaving the country for eight years” against a presidential candidate.
163. On the other hand, the enumeration of restrictive means provided by Article 13.3 is not exhaustive nor does it prevent considering “any other means” or indirect methods derived from new technologies. In this sense, Article 13 of the Declaration of Principles on Freedom of Expression indicates other examples of indirect means or methods (…)
Likewise, the expert witness García Belaunde during the public hearing made reference to other possible forms of indirect restriction related to: i) “advertising, [since] States are important advertising agents and [...] giving a lot of advertising or withdrawing it can be important and, as the case may be, there can be a kind of asphyxiation for media that basically live off advertising,” or ii) “taxation [when there are] cases [in] which [the] companies [...] have been burdened tax-wise” with the aim of generating annoyance or sending messages to the media outlet.
164. Furthermore, the Court recalls that for a violation of Article 13.3 of the Convention to be established, it is necessary that the method or means effectively restrict, indirectly, the communication and circulation of ideas and opinions. In addition, the Court reiterates that Article 13.3 of the Convention imposes obligations to guarantee on the State, even in the sphere of relations between private individuals, since it not only covers indirect governmental restrictions, but also private controls that produce the same result. In this regard, the Court emphasizes that indirect restriction can have a dissuasive, intimidating, and inhibiting effect on all those who exercise the right to freedom of expression, which, in turn, impedes public debate on issues of interest to society. (…)
170. (…) This Tribunal considers that, given that the radioelectric spectrum is a scarce asset, with a determined number of frequencies, this limits the number of media outlets that can access them, which is why it is necessary to ensure that a diversity of informative or opinion views or positions is represented within that number of media outlets. The Court stresses that pluralism of ideas in the media cannot be measured by the quantity of media outlets, but by whether the ideas and information transmitted are effectively diverse and approached from divergent positions without there being a single view or position. The foregoing must be taken into account in the processes of granting and renewal of broadcasting concessions or licenses. In this sense, the Tribunal considers that the limits or restrictions derived from the regulations related to broadcasting must take into account the guarantee of media pluralism given its importance for the functioning of a democratic society (…)
3. Alleged Indirect Restriction on Freedom of Expression Established in Article 13.3 of the American Convention (…)
193. Now, in order to carry out an analysis of the recounted series of statements described above, it is imperative to perform a joint reading of the declarations and remarks, since in isolation they could not autonomously constitute facts establishing a violation of the American Convention. This is because the fact that several officials made statements in the same vein during the same period demonstrates that they were not isolated declarations. Taking the foregoing into account, the Court will proceed to make an assessment of what was set forth therein in order to determine whether there existed reasons or motives for arriving at said decision other than the declared purpose, since, as it already pointed out, taking into account the motive or purpose is relevant for the legal analysis of a case, especially if it is sought to determine whether arbitrary action or a misuse of power was established (supra para. 189). In the first place, the Court emphasizes that since 2002 it had been warned that television channels that did not modify their editorial line would not have their concession renewed (supra para. 75) and that this type of statement increased as the expiration date of the concessions approached (supra paras. 76 to 78). As of 2006, in several of said statements that were prior to Communication No. 0424 and Resolution No. 002, it was announced that the decision not to renew RCTV’s concession had already been made and would not be re-evaluated or modified (supra paras. 79 to 86). Likewise, it is worth highlighting that it was not only statements by state officials in various media, but that publications were also made in national newspapers and even the dissemination of a book for the purpose of announcing and justifying the decision not to renew RCTV’s concession. For the foregoing reasons, the Tribunal can conclude, in the first place, that the decision was made quite some time before the expiration of the concession term and that the order was given to CONATEL and the Ministry of Telecommunications by the executive branch.
194. Regarding the real reasons that would have motivated the decision, in the statements and publications made by different members of the Venezuelan government, these are: i) the non-modification of the editorial line by RCTV after the 2002 coup d'état despite the warnings issued since that year, and ii) the alleged irregular actions in which RCTV would have incurred and which would have led to sanctions. Regarding the first reason put forward, the Court considers it imperative to state that it is not possible to restrict the right to freedom of expression based on the political disagreement that a particular editorial line may generate for a government. As was previously pointed out, the right to freedom of expression must be guaranteed not only with respect to the dissemination of information or ideas that are received favorably or considered inoffensive or indifferent, but especially with respect to those that are disagreeable to the State or any sector of the population (supra para. 140). Regarding the alleged irregular actions in which RCTV would have incurred and which would have led to sanctions, the Tribunal emphasizes that it is contradictory that remarks and accusations were made about the alleged sanctions and that Communication No. 0424 expressly indicated that these were not the justification for the decision. In particular, the Court emphasizes that despite the seriousness of the events related to the coup d'état, it was not proven before this Tribunal that domestic procedures aimed at sanctioning said irregular actions had been adopted, so it is not possible that what happened during the coup was used as an argument to support the decision, when said actions were not sanctioned at the time.
195. At this point, the Tribunal considers it necessary to reiterate the precedent established in another case related to this same media outlet, according to which in a democratic society it is not only legitimate, but on occasion it constitutes a duty of state authorities, to pronounce on issues of public interest. However, when doing so they are subject to certain limitations in that they must verify in a reasonable manner, though not necessarily exhaustively, the facts on which they base their opinions, and should do so with even greater diligence than that employed by private individuals, by reason of their high office, the broad reach and eventual effects that their expressions may have on certain sectors of the population, and to prevent citizens and other interested persons from receiving a manipulated version of certain facts.
Furthermore, they must bear in mind that, as public officials, they hold a position of guarantor of the fundamental rights of individuals and, therefore, their statements cannot disregard those rights or constitute forms of direct or indirect interference or harmful pressure on the rights of those who seek to contribute to public deliberation through the expression and dissemination of their thoughts. This duty of special care is particularly heightened in situations of greater social conflict, disruptions of public order, or social or political polarization, precisely because of the set of risks they may entail for certain persons or groups at a given moment.
196. Likewise, the Court notes that of the statements submitted in this contentious case, only one would have mentioned the purpose declared in Communication No. 0424 and Resolution No. 002, that is, the protection of media plurality, whereas the majority of the remaining statements coincide in invoking the other statements. The foregoing allows the Court to conclude, secondly, that the declared purpose was not the real one and was only given with the aim of giving an appearance of legality to the decisions.
4. Conclusion on the right to freedom of expression.
197. The Court thus concludes, as it has done in other cases, that the facts of this case entailed a misuse of power (desviación de poder), since a permitted state power was used for the purpose of editorially aligning the media outlet with the government. The foregoing assertion derives from the two main conclusions this Court can reach based on what has been described above, namely, that the decision had been taken beforehand and was founded on the annoyance generated by the editorial line of RCTV, added to the context of the “deterioration of the protection of freedom of expression” that was proven in this case (supra para. 61).
198. Likewise, this Court considers it necessary to emphasize that the misuse of power (desviación de poder) declared here had an impact on the exercise of freedom of expression, not only on the workers and directors of RCTV, but also on the social dimension of said right (supra para. 136), that is, on the citizenry that was deprived of having access to the editorial line that RCTV represented. Indeed, the real purpose sought to silence critical voices against the government, which, together with pluralism, tolerance, and a spirit of openness, constitute the very demands of a democratic debate that, precisely, the right to freedom of expression seeks to protect.
199. It is proven, consequently, that in this case an indirect restriction on the exercise of the right to freedom of expression was configured, produced through the use of means aimed at impeding the communication and circulation of ideas and opinions, when the State decided to reserve the portion of the spectrum and, therefore, prevent participation in the administrative proceedings for the awarding of licenses or the renewal of the concession to a media outlet that expressed critical voices against the government, which is why the Court finds a violation of Article 13.1 and 13.3 in relation to Article 1.1 of the American Convention to the detriment of Marcel Granier, Peter Bottome, Jaime Nestares, Inés Bacalao, Eladio Lárez, Eduardo Sapene, Daniela Bergami, Miguel Ángel Rodríguez, Soraya Castellano, María Arriaga, and Larissa Patiño. (…)”. (The highlighting does not form part of the original).
This Constitutional Court, for its part, has also had the opportunity to condemn this type of conduct. In Judgment No. 1782-2015 of 11:36 a.m. on February 6, 2015, this constitutional jurisdiction heard a writ of amparo (recurso de amparo) filed by a producer of a radio program involving criticism, opinion, and reporting, where, in turn, apparent acts of corruption carried out by a deputy were being denounced and investigated. The petitioner alleged on that occasion that the referenced deputy sent letterhead letters stamped with his signature from the Legislative Assembly to the institutions that placed advertising and made the existence of said program possible, threatening to sue them if they did not withdraw said advertising immediately, given that he considered it a smear campaign against him. After analyzing the cited case, this Chamber, on that occasion, held that the notes sent by said deputy to various public institutions with the aim of having the advertising withdrawn from the petitioner’s radio program (which also constituted the main financial support that allowed the transmission of the radio programs and, in turn, the economic sustenance of the people working on said program), constituted indirect or veiled censorship of freedom of expression. The foregoing, in the following terms:
“(…) Now, in the instant case, the respondent sent a missive to several public institutions, using paper with the letterhead and seal of the Legislative Assembly, in which he stated:
“(…) 4.- In my particular case, in clear right to protect my personal, professional, and moral integrity, I will base the criminal complaint (querella) against the producer of that radio space and jointly against its sponsors, since it is enough for you to monitor promptly at 8 p.m. on the 800 AM frequency and listen, within the same list of sponsors to which this institution belongs as a sponsor of the program in question, alongside the spot that you pay for with public money, another spot recorded with the voice of Mr. [Name 001] himself in which he asks citizens if they believe a lying Deputy, investigated for forger and swindler, aspiring to graduate as a lawyer irregularly, denounced by the TSE for attempting to extract millions in sums of money through the use of false documents and more unfounded accusations, taking advantage, the radio producer, under the shelter of his sponsors, to recklessly pressure the Attorney General to act against me, thus avoiding impunity, as if the Head of the Public Prosecutor’s Office were deliberately covering up a series of crimes committed by this public servant.
5.- Out of the consideration you deserve, I respectfully warn you of this matter and urge you to consider, as a responsible precautionary measure, the possibility of pulling off the air the institutional advertising you pay for on this radio program, while we resolve in the courts the criminal complaint (querella) we are about to file, with the purpose of not judicially tarnishing or harming the healthy image that Costa Ricans have of this noble institution, which must be protected and should not see itself embroiled in matters so deplorable and alien to the honorable work of you, whereupon my lawyers would immediately dismiss, at my request, the potential joint and several lawsuit against this public entity. (…)” (Excerpt from the note addressed to Correos de Costa Rica S.A., provided by the petitioner; the highlighting does not correspond to the original).
The exhortative sent to public institutions with the aim of having them withdraw advertising from the protected party’s radio program falls within the cases of indirect censorship of freedom of expression for several reasons.
First, advertising provides the main financial support that allows the transmission of radio programs and, ultimately, the economic sustenance of the people working on said program. It is evident that if the program’s economic income is limited, it can also be harmed or—even—eliminated, all to the detriment of both freedom of expression and freedom of information. The situation described is even more serious when it involves small media outlets, such as local newspapers or small radio stations, whose financial stability can depend heavily on state advertising. In the Tristán Donoso case, the Inter-American Court ruled regarding economic threats to freedom of expression:
“129. Finally, although the criminal sanction of days-fine does not appear excessive, the criminal conviction imposed as a form of subsequent liability established in this case is unnecessary. Additionally, the facts under the Tribunal’s examination show that the fear of civil sanction, given the former Attorney General’s claim for an extremely high civil reparation, can be, by all lights, as intimidating and inhibiting for the exercise of freedom of expression as a criminal sanction, in that it has the potential to compromise the personal and family life of whoever denounces a public official, with the evident and harmful result of self-censorship, both for the affected person and for other potential critics of a public servant’s conduct.” Second, a deputy of the Republic is not just any citizen, but holds particular political power due to his influence over the approval of bills, with respect to which there are a multitude of interests, both private and public. Ergo, a recommendation or withdrawal of advertising from a radio program, issued by an official in a particular position of political power and having as its leitmotif his disagreement with the criticisms against him disseminated by a certain media outlet, constitutes a veiled form of intimidation that not only affects the radio program directly alluded to, but also sends an intimidating message to the rest of the media, fostering an environment hostile to the freedoms of expression and information essential in a democratic system. In the sub iudice, such threat even came to have concrete effects, to the extent that, according to the evidence provided by the petitioner, the advertising placement (pauta publicitaria) of the ICAA, scheduled for the period from October 15 to November 15, 2014, was suspended while the respondent’s official communication (oficio) was being answered. If the other entities to which the respondent addressed his official communication (oficio) had acted in the same way, that would have resulted in a serious impact on the financial stability of said radio program, all having as its genesis the disagreement of a public official with the criticisms disseminated therein.
The foregoing does not imply that the alleged violation of the respondent’s honor and of those who could be eventually responsible for it is of little importance. Quite the contrary, what the respondent claims is so relevant that the legal system has established appropriate and reasonable procedural avenues both to defend the honor of the affected person (for example, through criminal proceedings) and to ensure the accuracy of the disseminated information (right of rectification and response).
Now, the clarifying notes sent by the respondent last October to public institutions do not affect this Chamber’s reasoning. On one hand, they are actions that occurred after notification of the commencement of this proceeding—the notes were delivered to said institutions on October 7 and 8, 2014; while notification occurred on October 6, 2014—. On the other hand, the Chamber observes that, although it was clarified through such notes that the “...previous letter sent regarding this matter did not seek to necessarily impose on you the obligation to withdraw your advertising from that program...”, a warning to the institutions was also indicated, once again motivated by the criticisms made of the respondent:
“5.- I do not omit to respectfully point out your duty of care, understood as exercising greater control over the resources that, regarding advertising, publicity, or information, you have available to place in media outlets, maintaining at least minimal monitoring that allows you to know, as in the case of the CD I am providing you [which contains an edition of the program 'Rompiendo El Silencio'], the quality of the statements uttered in the spaces in which you place ads.” (Excerpt from the note addressed to the Instituto Nacional de Aprendizaje, provided by the respondent).
Finally, it must be noted that public officials can indeed express themselves regarding matters of public interest. However, they are guarantors of fundamental rights, so the expressions they utter must avoid becoming a form of direct or indirect censorship. Again, the Inter-American Court of Human Rights is cited:
“139. In a democratic society, it is not only legitimate but at times constitutes a duty of state authorities to pronounce themselves on matters of public interest. However, in doing so, they are subject to certain limitations in that they must verify in a reasonable manner, though not necessarily exhaustively, the facts on which they base their opinions, and they should do so with even greater diligence than that employed by private individuals, due to their high office, the broad scope and eventual effects that their expressions can have on certain sectors of the population, and to prevent citizens and other interested persons from receiving a manipulated version of determined facts. Furthermore, they must bear in mind that, as public officials, they hold a position of guarantor of the fundamental rights of individuals and, therefore, their statements cannot disregard those rights or constitute forms of direct or indirect interference or harmful pressure on the rights of those who seek to contribute to public deliberation through the expression and dissemination of their thoughts. This duty of special care is particularly heightened in situations of greater social conflict, disruptions of public order, or social or political polarization, precisely because of the set of risks they may entail for certain persons or groups at a given moment.” (Ríos et al. Case) In conclusion, the Chamber considers that the respondent has every right to defend his honor and reputation through the legal mechanisms provided by the Constitution and the law, among them, the right of rectification and response and the criminal complaint (querella) for the crimes of slander and libel regulated in the Criminal Code. In that sense, the sending of a note to the program’s sponsors indicating that they consider withdrawing their sponsorship due to the content negative to his image constituted indirect censorship—in the terms indicated in the jurisprudence of the Inter-American Court cited supra—of the radio program “Rompiendo El Silencio”. In the assessment made, the fact that the respondent holds a position of political power due to his position as Deputy of the Republic carries specific weight, and that his missive indeed caused a negative effect beyond a simple complaint, it having been accredited in the record that it produced effects on one of the sponsors, which temporarily suspended the advertising (ICAA). Consequently, this point is declared with merit (…)”. (The highlighting does not form part of the original).
The following year, that is, during 2016, the Constitutional Chamber heard another writ of amparo (recurso de amparo) where reference was made to a distinct and indirect way of attacking freedom of expression, which, in turn, was resolved through Decision No. 15220-2016 of 4:00 p.m. on October 18, 2016. On this occasion, the petitioner, in his capacity as director of a national circulation newspaper, alleged that, by virtue of a series of news items published regarding several irregular actions carried out by a banking entity, the latter’s directors decided to manipulate, pressure, and try to silence the media outlet through the gradual reduction of the advertising placement (pauta publicitaria) in the newspaper’s pages. Once the arguments put forth by both parties were analyzed and studied, as well as the evidence provided, this constitutional body considered it proven that said media outlet was effectively the object of veiled or indirect censorship by a public official “(…) in reaction to its editorial line, with the sole purpose of 'motivating' a change, that is, manipulating the media outlet to align it with his purposes, whether to secure a meeting with one of the media outlet’s owners, or greater space for the Bank’s version regarding the questions raised. All of which, without doubt, is harmful to Article 13.1 of the American Convention on Human Rights and Articles 28 and 29 of the Political Constitution (…)”. Furthermore, this jurisdiction, on that occasion, emphasized the fact that advertising was considered the fundamental financial support in the operational scheme of media outlets, such that it was what allowed the publication or dissemination of their content and, therefore, also the sustenance of the people who work in them. Expressly, this Chamber, in the aforementioned judgment, set forth the following:
“(…) VII.- It is appropriate to delve into this topic of prior censorship, in order to provide a solution to the case under review, following the line already established in judgment 2015-1782. In this regard, the third paragraph of Article 13 of the American Convention clearly states:
“ 3. No one may restrict the right of expression by indirect means or methods, such as the abuse of governmental or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.” In this sense, censorship can be direct—for example, the direct prohibition of a certain publication—or indirect (also called soft censorship, subtle censorship, veiled)—for example, the use of various means to intimidate and thereby prevent a publication—. The Convention provides a non-exhaustive list of cases of censorship by indirect means (controls over newsprint, frequencies, etc.) and concludes with the general rule, which would be “…or by any other means tending to impede the communication and circulation of ideas and opinions.” It is worth mentioning the case Ivcher Bronstein by way of example, in which the Inter-American Court considered that a resolution to render legally ineffective the nationality title of Mr. Ivcher Bronstein—among other facts—constituted an indirect means of restricting his freedom of expression. Also, within comparative law, the ruling 'Editorial Río Negro v. Provincia de Neuquén' (9/05/07), in which the Supreme Court of Justice of the Nation (Argentina) ruled, because the Executive Branch of the Province of Neuquén temporarily deprived said media outlet of official advertising without demonstrating the reasonableness of such measure, and also ruled against the indirect violation of freedom of the press through economic means: 'The first choice for a State is to give or not give advertising, and that decision remains within the sphere of state discretion. If it decides to give it, it must do so complying with two constitutional criteria: 1) it cannot manipulate advertising, giving it to and withdrawing it from some media outlets based on discriminatory criteria; 2) it cannot use advertising as an indirect way of affecting freedom of expression. Therefore, it has many distribution criteria at its disposal, but whatever criterion it uses, it must always maintain a general minimum standard to avoid denaturalizations.' VIII.- Now, it is of the utmost importance for the specific case to indicate that advertising provides fundamental financial support in the current operational scheme of mass media, since it allows the publication or dissemination of their content and, ultimately, the economic sustenance of the people who work at said media outlet. It is evident that if the economic income of a media outlet (in this case, written) is limited, it can also be harmed or—even—eliminated, all to the detriment of both freedom of expression and freedom of information. (…)
A clarification must, however, be made to adapt what has been said to the particularities of this case. The manager of the respondent Bank argues that it would be incorrect for the Chamber to come to dictate the manner in which a vital aspect of the commercial business that the Bank operates, which is advertising, must be conducted, and on this point he is correct. The Chamber understands that the legal status of Banco Nacional de Costa Rica must be taken into account, within the state administrative framework, since it is an institution with constitutionally recognized autonomy and which has been tasked with carrying out an unquestionably commercial activity and, additionally, in a regime of competition with private entities. In that dynamic, the commercial advertising that state enterprises may carry out responds and must clearly respond to technical and objective decisions and assessments, and over such aspects, the interference of an organ for the protection of Fundamental Rights such as this Chamber is not appropriate. It is not there that the constitutional and Human Rights conflict analyzed here originates, as demonstrated by the general position expressed in the 2012 report of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights titled “Principles on the Regulation of Official Advertising and Freedom of Expression.” In said document, the need for different state institutions to have technically and objectively designed plans for their communication purposes is clearly established, and this is repeated in the legislative file of the investigation, where the Deputies and the petitioner himself assert that the particular condition of public enterprises must be taken into account and technical and objective decisions regarding advertising must be respected. In this regard, the petitioner himself precisely states that:
“the criterion for distributing the advertising placement (pauta publicitaria) must be market criteria, it must be media plans designed by professionals in the field and whatever money is needed to fulfill that media plan must be invested, so that what the state enterprise competing in the market wants to communicate is efficiently communicated.” (pp. 18-36 of Legislative File 20066) The problem in this case instead arises when public enterprises depart from that channel to manage their advertising placement (pauta publicitaria) in accordance with purposes alien to objective and technical reasons, and incompatible with the constitutional framework of fundamental rights. It is at that point that this Chamber’s participation acquires full justification, and that is what is sought to be confirmed or ruled out through this writ of amparo (recurso de amparo).
IX- The specific case.- The protected party states that the respondent used his influence and functions as General Manager of Banco Nacional de Costa Rica to attempt to pressure Diario La Nación to modify published articles and reports; he affirms that this pressure took the concrete form of the gradual reduction of the advertising placement (pauta publicitaria) and its virtual reduction to zero in recent months. From the proven facts and the consideration on analysis of evidence, the Chamber considers demonstrated both the reality of the reduction of the placement (pauta) of Banco Nacional in Periódico la Nación, starting from the publication made in late February, and particularly during the months of June and July, as well as the reasons that motivated it. In this latter sense, as indicated supra, the statements of the respondent official himself, issued before the various bodies that inquired into his actions, are sufficiently clear. In all of them, the official expressed the existence of disagreement with the way in which the media outlet reported during the months of February, March, April, and May 2016, on matters concerning the respondent banking entity in relation to the LATCO company case; actions of the Bank’s Board of Directors, as well as the participation of BNCR in the BICSA case. According to the petitioner’s account and confirmed by the respondent Manager, the dissatisfaction reached its peak with this last case, it being understood that the newspaper was setting aside the Bank’s responses and omitting important information, all of which could result (as it indeed occurred) in heavy economic expenditures for the Bank to maintain minimum levels of confidence in its situation. It is because of this case and its supposedly serious consequences for the Bank that the respondent Manager decided to publish, on May 13, 2016, a paid space (campo pagado) in two other national written media outlets, in order to respond to the cited publications of La Nación and make known what, in his judgment, was the real situation regarding the BICSA case. With this last action, the situation worsened, adding to the conflict bitter editorials from the media outlet and responses from the Bank in the same tone. It is at this point that the Manager decided to “have a conversation” with representatives of the media outlet, as a result of which he ordered, concomitantly and in the meantime, a pause he called an 'impasse' in the advertising placement (pauta publicitaria) to the newspaper La Nación; that pause concludes (in his own words) after he is met with by the Director of the media outlet. These narrated facts are repeated consistently both in the petitioner’s brief and in all the versions that the respondent himself gave before the Bank’s Board of Directors, before the Legislative Committee that investigated the case, and before the Chamber in the report rendered, and above all, it is clearly recorded in the audio provided by the petitioner. That said, the assessment of such facts, against the constitutional framework of freedom of expression and the right to information, by this Court cannot be positive for the respondent. It is constitutionally reprehensible that the General Manager of a public bank, that is, a public official, issued an order to withdraw an advertising placement (pauta publicitaria) from a particular written newspaper, without a valid objective and technical basis, but rather due to his disagreement with the way in which the news and reports issued regarding the activities and situation of the banking entity he represents were being prepared. The Court understands that the foregoing constitutes indirect censorship, a clear way of attempting to influence the informational content of the media outlet, and also sends an intimidating message to the rest of the media, fostering an environment hostile to the freedoms of expression and information essential in a democratic system. The foregoing, insofar as it comes from a public servant, is completely inadmissible in light of the necessary respect and adherence to what a Deputy appropriately defined as “the democratic logic” to whose realization institutions must contribute, including, of course, public enterprises (p. 383 of Legislative File 20.066). It demands the broadest possible realization of freedom of expression and the right to information, without this meaning the renunciation of using legally established means to combat news or opinions that may unjustly affect the work of the institutions.
X.- Indeed, if in the respondent’s judgment, the media outlet should have given him the due right of response at the moments when he requested to meet with the company’s representatives due to the relevance of what was published, he could and can file the judicial actions he deems pertinent, with the aim of determining the eventual violation of his honor, or damage to the banking entity he represents and the possible liability of those who may have exceeded the limits of freedom of expression. Moreover, he had the option provided in the legal system of resorting to the process of rectification or response, in favor of persons affected by inexact or injurious information issued to their detriment (Article 14 of the American Convention and Articles 66 et seq. of the Constitutional Jurisdiction Law). However, the respondent opted first for the publication of clarifying notes in paid spaces (campos pagados) in other written media outlets and did not do so with Diario La Nación. Thereby he set aside the formal mechanism of rectification and response before Diario La Nación, or any other press outlet of Grupo Nación, and he did so in an absolutely deliberate manner, as he expressed before the Committee that “…(…) some of you were talking about why I didn’t go to the judicial route. Am I going to file a remedy before the Constitutional Chamber to ask them to give me a right of response? We would still be in the admission process.” (p. 383 Legislative File 20.066).
These are unfortunate considerations, not only because they do not reflect the true reality of the rectification and response process—which, contrary to what is stated, has a very expeditious admission process—but also because they further seek to justify the use of de facto means or acts of pressure over legal channels in order to achieve a modification in the content of the newspaper's reports. On this subject, it bears emphasizing, as mentioned, that such attempts at censorship, whether direct or indirect, have no place in our environment, nor in the constitutional state of law.
XI.- Conclusion. Thus, this Chamber confirms an act of indirect censorship carried out by a state official, with the aim of limiting the freedom of information that the protected media outlet should enjoy, through a reduction in advertising placement (pauta publicitaria), without technical or objective reasons and rather with the clear intention of influencing the informative content of the press outlet regarding its reports concerning the Banco Nacional de Costa Rica and its subsidiaries.
The case confirms what doctrine has clearly termed indirect censorship, a form of illegitimate harassment of a media outlet by a public entity, which not only injures freedom of expression as stated above, but also the right of citizens to have mechanisms for truthful information in a democracy. It is a perverse and anti-democratic way of using the power of the State to direct opinion, according to a system of “reward or punishment,” toward those who exercise freedom of the press and free expression guaranteed constitutionally and conventionally. On this subject, the Human Rights Commission and the most authoritative doctrine have been emphatic in pointing out that “the right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means aimed at impeding the communication and circulation of ideas and opinions.” Direct or “indirect” censorship mechanisms are clearly prohibited by Article 13.3 of the American Convention and have been the subject of attention by various organs of the inter-American system. Interpreting the cited Article 13.3, the Declaration of Principles on Freedom of Expression approved by the Inter-American Commission on Human Rights (hereinafter, “IACHR”), establishes in its Principle 5 that “[p]rior censorship, interference, or direct or indirect pressure upon any expression, opinion, or information disseminated through any oral, written, artistic, visual, or electronic means of communication must be prohibited by law. Restrictions on the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the creation of obstacles to the free flow of information, violate the right to freedom of expression.” And in its Principle 13, it indicates that “the use of State power and public treasury resources; the granting of tariff preferences; the arbitrary and discriminatory allocation of official advertising and official credits; the granting of radio and television frequencies, among others, with the objective of pressuring and punishing, or rewarding and privileging social communicators and media outlets based on their informational lines, undermine freedom of expression and must be expressly prohibited by law.” For its part, the Inter-American Court has indicated that “any act of public authority that implies a restriction on the right to seek, receive, and impart information and ideas, to a greater extent or by means other than those authorized by the Convention itself, is illegitimate.
It is widely recognized in doctrine that indirect censorship is normally hidden behind apparently legitimate actions that are, however, carried out with the purpose of conditioning the exercise of individuals' freedom of expression. When this happens, a violation of Article 13.3 of the Convention is configured. As the Inter-American Court of Human Rights (hereinafter, the “Inter-American Court” or “Court”) has held, it is violative of freedom of expression.” (I/A Court H.R. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985, Series A No. 5, para. 55.)
These restriction mechanisms were also the subject of analysis by the Special Rapporteurship for Freedom of Expression of the IACHR, which in its 2003 Annual Report drew attention to these “obscure obstructions, imposed silently [that] do not give rise to investigations nor merit generalized censure.” The issue was also addressed by this office in its 2008 and 2009 Reports.
The jurisprudence of the Inter-American Court, for its part, has condemned on various occasions the adoption of state measures that constitute indirect means of restricting freedom of expression. Thus, for example, it has condemned the requirement of compulsory membership in an association for journalists, the arbitrary use of the State's regulatory powers when it has been used to initiate intimidating actions against the directors of a media outlet, or to revoke the nationality of the director of a media outlet as a consequence of the editorial line of the programs it transmits (Ivcher Bronstein v. Peru Case).
The rapporteurs for freedom of expression of the UN, the OAS, and the OSCE have also addressed the issue of indirect restrictions on freedom of expression by authorities. For example, in their 2002 Joint Declaration, they affirmed that “governments and public bodies should never abuse their custody of public finances to try to influence the content of press media information; advertising placement should be based on market reasons.” The arbitrary use of official advertising was one of the first mechanisms of indirect censorship addressed by the inter-American system. Indeed, the Special Rapporteurship for Freedom of Expression in its 2003 Annual Report dedicated a special chapter to studying the phenomenon and concluded that “indirect obstruction through state advertising acts as a strong deterrent to freedom of expression” (IACHR Annual Report OEA/Ser. L/VI.118. Doc 70, December 2003). As the Special Rapporteurship indicated at that time: “this issue merits special attention in the Americas, where media concentration has historically fostered the abuse of power by rulers in the arbitrary distribution of official advertising, like other mechanisms of indirect censorship, operates on different types of needs that media outlets have to function and interests that may affect them. It is a form of pressure that acts as a reward or punishment intended to condition the editorial line of a media outlet according to the will of the one exerting the pressure. As stated, indirect censorship mechanisms often hide behind the apparent legitimate exercise of state powers, many of which are exercised by officials in a discretionary manner. In the case of the distribution of official advertising, a case of indirect censorship is configured when it is carried out with discriminatory purposes according to the editorial position of the media outlet included in or excluded from that distribution and with the aim of conditioning its editorial position or informational line.
To determine whether or not there was a violation of freedom of expression on the grounds of the exercise of those powers, it is necessary to analyze the context. That is precisely what has been demonstrated in this amparo, that the withdrawal of advertising during the first half of 2016, but particularly in the months following the publications at the end of February, occurred in a context of confrontation with the media outlet, where it is proven that the strategy did not follow objective criteria, but rather occurred, in the words of the manager himself, with the aim of “motivating” the newspaper to change its editorial line and news focus, instead of using the existing legal mechanisms, such as the right of rectification and response if it was considered that the information was inaccurate or offensive.
In the Baruch Ivcher Bronstein v. Peru Case. Judgment of February 6, 2001. Series C No. 74, para. 154. Similarly, cf. I/A Court H.R., “Perozo et al. v. Venezuela Case”. Judgment of January 28, 2009. Series C No. 195, the Inter-American Court has held that “[w]hen evaluating an alleged restriction or limitation on freedom of expression, the Court must not limit itself solely to the study of the act in question, but must likewise examine said act in light of the facts of the case as a whole, including the circumstances and context in which they arose.” Following the same reasoning, it held that “the list of restrictive means provided in Article 13.3 is not exhaustive nor does it preclude considering 'any other means' or indirect methods arising from new technologies (…). For a violation of Article 13.3 of the Convention to be configured, the method or means must effectively restrict, even if indirectly, the communication and circulation of ideas and opinions” (OC-5/85 and Ríos et al. v. Venezuela Case). for its part, the Rapporteurship for freedom of expression has been reporting that this type of indirect censorship occurs frequently, and this is due to the absence of legal norms that regulate the distribution of advertising placement (pauta publicitaria) and reduce the discretion of public officials. In the same sense, it was pointed out by the Supreme Court of Justice of Argentina in the Editorial Río Negro S.A. v. Province of Neuquén case, in which the court indicated that the Province of Neuquén had violated the freedom of expression of a newspaper by eliminating the official advertising it had contracted there as a consequence of critical coverage. The Supreme Court indicated that the Province of Neuquén should establish an adequate legal framework that limits the discretion of public officials and prevents that type of arbitrariness.
Likewise, the Supreme Court of Chile resolved a claim presented by Punto Final Magazine against the distribution of official advertising carried out by some ministries. There, the court considered that the Chilean legal order grants officials “a broad margin of discretion” and recommended that state advertising investment be made “under transparent and non-discriminatory criteria” (case 9148/09). Cases have also occurred in countries such as the United States (El Día v. Rossello, the Federal Court of Appeals for the First Circuit), in which it was established that the withdrawal of official advertising by the administration of the governor of Puerto Rico, Pedro Rossello, from the newspaper El Día, as a consequence of criticisms the newspaper had made of the governor, constituted a clear violation of the right to freedom of expression guaranteed by the First Amendment to the United States Constitution. In that sense, the Court of Appeals understood that “using government funds to punish the political speech of members of the press and seek to coerce [media outlets into emitting] expressions favorable to the government is contrary to the First Amendment.” Furthermore, the Court understood that “clearly established law prohibits the government from conditioning the revocation of benefits [in this case, State advertising] on a basis that infringes constitutionally protected interests (First Circuit Court of Appeals, Puerto Rico, El Día v. Rossello Case, decision of January 25, 1999, 165 F.3d 106, p. 110).
It is clear from the foregoing and from the reports of the Rapporteurship for Freedom of Expression that the State has the right to establish and modify its advertising placement (pauta publicitaria), but that it must do so through objective and transparent criteria, established in a planned manner that ensures that the power of the State or its funds are not used to discriminate, manipulate, or censor directly or indirectly the freedom of expression and press guaranteed conventionally and constitutionally (sic). For the reasons set forth, the appeal is granted against the Banco Nacional de Costa Rica, with the effects that will be stated in the operative part (…).” (The emphasis is not part of the original).
In Judgment No. 8396-2018 of 12:40 hrs., of May 25, 2018, this Chamber stated:
“(…) I.- Object of the appeal. The appellant relates that the interview called ‘1.a domestic violence against men’ was conducted on the program “Café Nacional1” of the public company Radio Nacional de Costa Rica. It alleges that, in reaction to this program, the Director of Radio Nacional published an article titled “Bitter shame,” where he warned that he would censor in advance the topic of aggression towards men and prevent it from being discussed again on Radio Nacional. Likewise, it complains that the interview was completely deleted from the internet portal of SINART and from the Facebook page, which violates the right to freedom of expression and thought. Finally, it alleges that the respondent authority has carried out acts of reprisal against the protected party [Name 006], since he was separated from the program “Café Nacional” and his position was transferred to the Press Department, despite the fact that he belongs to the Production Department of Radio Nacional. (…)
V.- On the specific case. In the sub examine, the plaintiff claims it has been affected by censorship practiced by the public company SINART, since the respondents stated that radio programs like the one conducted by them would be prevented and, furthermore, said program was deleted from the internet and Facebook page. As part of the alleged censorship, the protected party Castro was separated from the program “Café Nacional” and transferred to the Press Department.
In this regard, the Chamber was able to establish as proven that on September 13, 2016, the president of the Fundación Instituto de Apoyo al Hombre and the administrative director of the Fundación Instituto de Apoyo al Hombre were received on the radio program “Café Nacional” of Radio Nacional. The program, produced by the protected parties [Name 005] and [Name 006], was transmitted on the radio frequency 101.5 FM and through the official page of Radio Nacional on the social network Facebook. Likewise, it was corroborated that the Director of Radio Nacional published the document titled "Bitter shame" on his personal Facebook page on September 14, 2016. In it, he expressed:
“Yesterday, Tuesday, September 13, on Radio Nacional de Costa Rica, the issue of domestic violence was dealt with in a very unfortunate manner, focusing it on the violence suffered by men in their homes. The editorialization (sic) of the space left no doubts about the personal position of the invited persons and of those who conducted (sic) the space. In it, femicides were incredibly (sic) justified, the violence suffered by women was placed on the same level as that suffered by men. the closure of INAMU was called for and it was proposed to do this type of program once every 15 days. which of course is not going to happen. I, as Director of Radio Nacional de Costa Rica, was not consulted so that this topic would be dealt with; those who know me know that I would never have allowed this interview to air. But that does not exempt me from responsibility. During my administration, I have realized that there is a great lack of training internally in the institution regarding Human Rights and their treatment in communication media, and unfortunately the workshops that we have been planning since yesterday with institutions such as INAMU', the Defensoría de los Habitantes, the Frente por los Derechos Igualitarios and the ACCEDER association, will be given as a reaction to the damage caused to society by the airing of that interview. It is my fault for not having acted in advance, for not having made clear the vision on Human Rights that we have in the current administration of SINART. and I can do nothing more than offer my most sincere apology and promise you, especially (sic) to the women who systematically suffer violence because they are women, that a situation like this will not happen again. In public service media, we have a great responsibility. Every time one of us, workers of public radio and television, open microphones or stand in front of a camera, we do not respond with a personal opinion based on our beliefs, principles, and values, but rather we speak from an institutionality governed by superior principles, public policies, and international treaties. It is not about whether I agree or not, it is not about what I think. We have THE RESPONSIBILITY, in capital letters, to inform ourselves and train ourselves on the pillar topics of the social construction of our times and that neither by action nor omission, anti-human rights or hate-inciting discourses have space in public media. We are managing what is pertinent so that next Monday at 9 in the morning, specialists in equal rights and gender violence will join us at the station and can explain to our audience why everything said last Tuesday is wrong in its focus and we can rather build permanent spaces for the promotion of human rights.” (The underlining is added).
That same day and on the Facebook page of Radio Nacional, SINART published its official position regarding what happened:
“In relation to the interview conducted yesterday, Tuesday, September 13, on the program Café Nacional, referring to different forms of domestic violence, the Directorate of Radio Nacional and General Directorate of SINART clarify: The expressions of the invited persons and conductors of said space that erroneously justified the situation of violence suffered by thousands of women in our country and questioned the pertinence of the Instituto Nacional de las Mujeres, INAMU, do not respond in any way to the position of these Directorates. We recognize that the issue of domestic violence must be addressed from various perspectives, but never disregarding that the root of this problem lies precisely in a patriarchal, sexist structure, and that women and girls are by far the main victims of violent conduct, without this meaning that we are unaware that some men also suffer violence and that there are gaps in the system or poor management that affect them. SINART recognizes the need for the existence of the Instituto Nacional de las Mujeres and we support its pertinence in the construction of an egalitarian and just society, and in the pursuit of the eradication of all forms of discrimination and violence suffered by women. We offer our most sincere apology to the audiences of Radio Nacional, to the people who have rightly complained about the focus of the interview, and we commit to rectifying by contributing in the adequate treatment of the topic with timely and truthful information from the microphones and screens of SINART in its public service mission. We are managing what is pertinent so that next Monday in the same space, specialists in equal rights and gender violence will join us at the station to refer to the topic from a Human Rights focus. As a State, and even more as a public service medium, we have the obligation to enforce the International Conventions against all forms of discrimination and violence against women, which our country has signed and committed to comply with, such as the Convention of Belém do Pará and CEDAW.” (The underlining is added).
Regarding the sub lite, the Chamber established as proven that the interview of the protected parties was deleted from the Facebook timeline of the station and also from the web portal of SINART.
It is clear that censorship of freedom of expression can occur openly, particularly in the case of a dictatorship or a weakened democracy. However, especially when acting within the framework of a democratic regime, it is common for censorship to manifest itself in a more subtle and veiled form, for example, affecting the inputs or resources that allow its exercise, through the issuance of restrictive guidelines, exerting indirect pressures, etc. This characteristic of veiled censorship—which is very dangerous, precisely because it is surreptitious or disguised—obligates the Courts to resort to the so-called circumstantial evidence in order to determine the act of censorship.
Applying the foregoing to the sub lite, the Chamber notes sufficient elements to conclude that the statements of the amparo petitioners were censored and, thereby, their fundamental rights were injured. Such conclusion follows from the express statements of the Director of Radio Nacional in pointing out that the repetition of interviews like that of the protected parties “is of course not going to happen,” and that he “would never have allowed this interview to air...," but “...a situation like this will not happen again...” The Chamber observes that the respondent party warns with absolute clarity about the censorship that will exist regarding future interviews like the one in question and the regret for not having censored the one conducted. For this Tribunal, there is no doubt that the transcribed expressions constitute censorship, especially because they come from the director of the medium that served for the transmission of the interview in question.
It is more subtle to say that “... the vision on Human Rights that we have in the current administration of SINART...” must be made “clear” and that “...everything said last Tuesday is wrong in its focus...” Equally surreptitious was the official communiqué from SINART: “We offer our most sincere apology to the audiences of Radio Nacional, to the people who have rightly complained about the focus of the interview, and we commit to rectifying by contributing in the adequate treatment of the topic with timely and truthful information from the microphones and screens of SINART in its public service mission.” In these quotes, it is observed that SINART intends to impose its “vision” of Human Rights or “rectify” the actions of the protected parties “with timely and truthful information,” assuming that the opinions of the amparo petitioners are the opposite: untimely and false.
Finally, it was proven that the recording of the interview was deleted from the Facebook timeline of the station and from the web portal of SINART. The Chamber considers that, with this fact, the threat of censorship materialized into full censorship, since both the freedom of expression of the amparo petitioners and the right of third parties to be informed and have access to the interview were prevented.
It is necessary to reiterate that the limits on freedom of expression must be clearly established by law, as set forth in the American Convention on Human Rights:
“Article 13. Freedom of Thought and Expression Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law and be necessary to ensure: respect for the rights or reputations of others, or the protection of national security, public order, or public health or morals. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means aimed at impeding the communication and circulation of ideas and opinions. Public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence, without prejudice to the provisions of paragraph 2. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to violence or any other similar illegal action against any person or group of persons on any grounds, including those of race, color, religion, language, or national origin, shall be prohibited by law” (The underlining is added).
As mentioned in the preliminary clarifications, the content of the message may have a link to the limitations on freedom of expression. Thus, it will be of relevance only when it is prohibited by law and constitutes “...propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to violence or any other similar illegal action against any person or group of persons on any grounds, including those of race, color, religion, language, or national origin.” However, this situation does not arise in the sub examine. Furthermore, if the respondents consider that the actions of the protected parties fall within one of these assumptions or those contemplated in paragraph 2 of that norm, the appropriate course would be to resort to the jurisdictional instances in order to claim the subsequent liability of the subjects (by application of a law, as established by the Convention), and not to seek to remedy the situation through prior censorship.
On the other hand, the Chamber recalls that the work of SINART, in its capacity as a public company created by law, has the legal duty to respect political, religious, social, and cultural pluralism as well as to allow the free expression of opinions, as is explicitly established in subparagraphs b) and c) of numeral 4 of the Organic Law of SINART:
“Article 4.- Principles. The activity of SINART, S. A., as a communication system, shall be inspired by the following principles: (...)
The separation between information and opinions, as well as the identification of those who sustain the latter and their free expression. Respect for political, religious, social, and cultural pluralism.” Therefore, except in the case of an express legal or conventional exception, SINART must respect the discussion of all opinions, including those that the management of the medium currently in office considers unpopular, minority, questionable, etc. Apart from the topic addressed in the interview subject to this amparo, note that there are innumerable matters that generate contrasting, passionate, and stubborn opinions and responses, some with indignation or repudiation, others rather with support and admiration, such as for example regarding the use of drugs for medicinal purposes, abortion, the rights of the LGTB community, the secularization of the State, the salary policy of the public sector, pension systems, the establishment of fiscal plans, etc. Reiterating the transcribed jurisprudence, “...Freedom of expression does not depend on the truth, popularity, or social usefulness of the ideas and beliefs expressed, and recognizes that a certain degree of abuse is inseparable from the proper use of that freedom, from which the government and the courts must allow a debate to develop that is 'uninhibited, robust, and wide-open,' which may include caustic, vehement, and sometimes unpleasantly sharp attacks toward the government and public officials.” In support of the foregoing, it is clarified that the interview of the protected parties also cannot be censored due to the journalistic approach or the conducting style employed, since none of those points constitutes a legal reason to limit freedom of expression.
The Chamber does not hesitate to reiterate that liability for the exercise of freedom of expression is subsequent and must be provided for by law. In this way, if any person considers themselves affected by the statements made in the interview subject to this appeal, whether by the moderators or by the interviewees, they could assert their rights before the ordinary courts of justice. However, it is absolutely improper for the Administration to depart from the principle of legality and seek to limit the exercise of freedom of expression through censorship, as occurred in the sub examine.
VI.- A second point related to the censorship is the transfer of the protected party Castro to the Contrapunto team. In the expediente, it was proven that he was transferred to said body, as was communicated to him through official communication PE-DG-052-2017 of February 24, 2017, and that there exists a notable temporal proximity to the other facts narrated in the previous point. Furthermore, the open dispute between the Administration and the protected party Castro was evidenced, who communicated his disagreement with the actions of the respondents through an email of September 20, 2016, where he stated:
Greetings Pablo.
Allow me to disagree with what is stated, since I personally consider that: CENSORSHIP: is our director Randall Vega affirming on his Facebook page: “those who know me are aware that I would never have allowed this interview to be aired” (...) CENSORSHIP: is the Director of Radio Nacional having “suggested” to us that we space out the invitations to attorney Alexandra Loria because of her thoughts regarding topics such as fertilizer and unions of the sexually diverse population, even though those topics were not addressed by her on our program.” Thus, there are sufficient indicia of existing censorship and a distancing between the Administration and the protected party. In this regard, although the responding party affirmed that it was a matter of a “complete reorganization of the resource,” the fact is that it omitted to attach evidentiary elements that would allow this Chamber to reach the same conclusion. The evidence it provided referred to the reassigned duties (which were within the profile of a journalist) and to proof of the petitioner’s salary.
This Chamber reiterates that, in matters of constitutionality control, once clear indicia of censorship are established ab initio, a burden of proof falls upon the counterparty that must lead to the conclusion that the actions were not of such a nature, especially when the respondent is in a better position to provide evidence to the case (dynamic burden of proof (carga dinámica de la prueba)), given that the Administration has volumes of information and public resources available to rule out any discrimination or violation of a fundamental right; despite which, in the sub examine, the respondent fails to discredit the grievance of the petitioners with reliable evidence. In this manner, taking into consideration the provisions of the already cited subsections b) and c) of numeral 4 of the Organic Law of SINART, which expressly obligate that public company to respect political, religious, social, and cultural pluralism as well as to permit the free expression of opinions, it is clear that in the instant case a form of veiled censorship has occurred through the relocation of a journalist to a position that comes to limit or eliminate his influence on the transmitted content, all of this after or as a result of the aforementioned statements in the exercise of his journalistic work.
The foregoing is even more relevant, because through veiled censorship, a kind of surreptitious intimidation or coercion is exercised over the rest of the journalistic staff of the public company SINART. In this way, their freedom of the press is threatened by the possibility of being a victim of reprisals derived from the exercise of journalism in freedom, when opinions not shared by the media outlet's management according to the government of the day are formulated; an environment that fosters the scourge of self-censorship to the detriment of journalists, given that their job stability could compel them to avoid reprisals. This likewise affects the final recipient of journalism services, the public, who by this means sees their capacity to form their own informed criteria diminished by not being able to listen to a diversity of informative content and points of view.
VII.- By virtue of the foregoing, the appeal is granted, with the effects to be stated. Since the harmful acts are attributable only to SINART, the condemnation covers only that instance. (…)
Por tanto:
The appeal is granted solely against SINART. Mario Alberto Al faro Rodríguez, in his capacity as Executive President of Sistema Nacional de Radio y Televisión S.A., or whoever occupies that position in his stead, is ordered to refrain from incurring again in the acts that gave grounds for the granting of this amparo appeal. Furthermore, said respondent is ordered, within a period of TWENTY-FOUR HOURS, counted from the notification of this judgment, to post the interview of September 13, 2016, of the program “Café Nacional” of Radio Nacional de Costa Rica, which is the object of this appeal, as well as the interview of September 19, 2016 (the one done with INAMU and ACCEDER), on the Facebook page of SINART, where it will remain pinned on the wall for at least one month, and on the main page of its Internet site, where it must be visible on the cover or “landing page” for the same period. On the other hand, it is ordered to immediately reinstate the protected party Castro to the position he held at the time of the events, should said protected party express his will to that effect; for the foregoing, the respondent is ordered to immediately communicate to the petitioner Castro what has been resolved by this Chamber. Magistrates Cruz Castro and Castillo Víquez provide different reasons. Magistrate Cruz Castro adds a note. The foregoing is issued with the warning that he could incur in the crime typified in Article 71 of the Constitutional Jurisdiction Law, which provides that imprisonment of three months to two years, or a fine of twenty to sixty days, shall be imposed on anyone who receives an order that must be complied with or enforced, issued in an amparo appeal, and does not comply with it or does not enforce it, provided the crime is not more severely punished. Sistema Nacional de Radio y Televisión S.A. is condemned to pay the costs, damages, and losses caused by the facts serving as a basis for this declaration, which shall be liquidated in the execution of the judgment of the contentious-administrative jurisdiction. Notify personally Mario Alberto Al faro Rodríguez, in his capacity as Executive President of Sistema Nacional de Radio y Televisión S.A., or whoever occupies that position in his stead. Magistrate Hernández Gutiérrez issues a dissenting vote and partially grants the appeal. (…). (The highlighting does not form part of the original).
For its part, in Voto No. 10961-2020 of 10:05 a.m. on June 16, 2020, this Court stated the following:
“(…) I.- Object of the appeal.- The petitioner appears in protection of the right to freedom of the press, since it considers that the respondent entity issued a resolution that illicitly restricts the freedom of information and the press of the protected journalistic medium, by ordering it to remove from its databases the image used in a news story of public interest. (…)
V.- This Chamber considers that when a collision occurs between these rights, as in the present case (image and freedom of the press), based on the institutional character of the right to information, and provided the use of the image that complements the news is accurate and does not affect the dignity of the holder of that right, it must lean toward giving a preferential value to the right to freedom of the press. In the same sense, we can find precedents in Spanish jurisprudence (STC 165/1988 and STC 59/1989) in which the Spanish Constitutional Court, in various cases, has weighed in favor of freedom of information when confronted with other fundamental rights, using as a central argument the institutional character of the right to information. In the same vein, the Spanish Supreme Court, regarding the weighing of these two rights, has stated:
“The technique of weighing requires assessing the abstract weight of the respective fundamental rights that come into collision, and from this point of view, the weighing must respect the preferential position held by both the right to freedom of expression and the right to freedom of information, as they are essential as a guarantee for the formation of a free public opinion, indispensable for the political pluralism required by the democratic principle. Moreover, this abstract weighing judgment must consider that the exercise of freedom of expression, according to its own nature, includes criticism of the conduct of another, even when it is unpleasant and may upset, disturb, or displease the person against whom it is directed, for that is what pluralism, tolerance, and a spirit of openness require, without which no democratic society exists.” Supreme Court Judgment, February 16, 2016.
In the same line of thought, the European Court of Human Rights highlighted the importance that “freedom of the press provides the public opinion with one of the best means for knowing and judging the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very heart of the concept of a democratic society” (case “Lingens vs. Austria,” judgment of July 8, 1986, Series A No. 103, para. 42).
Indeed, based on the jurisprudential context set forth and the arguments expressed in the cited precedents, this Chamber analyzes the considerations of the case and concludes that the petitioner is correct in its claim. The democratic order requires the defense of freedom of expression as a basic and indispensable instrument for the formation of public opinion. And that defense entails the possibility of expressing thought using the means chosen by the sender and also the faculty to disseminate it through them. As indicated in the cited precedent, the value of this defense reaches its highest level when the freedom is exercised by information professionals through the institutionalized vehicle for forming public opinion, which is the press. In that sense, it is understood that although the right to expression, contemplated in Article 13 of the American Convention, does not have an absolute character, the limits on its exercise and controls over its proper performance must in no way limit its exercise beyond what is strictly necessary, to the point that they could become a direct or indirect mechanism that affects freedom of expression, information, and the press and constitutes a violation of the right. Now, in the case under study, this Chamber considers that in the publication issued by the newspaper Diario Extra on June 24, 2015, where the image of Mr. Calderón was used, the news medium limited itself to disseminating information related to a newsworthy event of interest to the community, as it concerned the possible commission of a crime; therefore, the possibility of using a person’s image to refer to an event is based on its relevance to the public, without the consent for the use of their image in that context being necessary. The photograph used is part of a public document, not an image obtained in an intimate, family, or private context, and it is used as accessory to the news, as part of its complement. In the case of the news story under analysis, the photograph used is part of the contextualization of a news story that is, moreover, accurate (an undisputed fact) and serves as its accessory complement, as indicated, without the image being used in a way that affects the dignity of its holder, such that in those terms it functions as a valid limit to the exceptions that the right to image admits. Nowadays, a communication medium without images is inconceivable—text only, without illustrations—such that the analysis by PROHAB, in this Court's judgment, starts from a scenario of decontextualization of the use of the image in question, that is, as if it were not part of a newsworthy event of public interest being communicated at that moment. The respondent states that the news could have been communicated equally without using the alluded image, which is an illegitimate way of interfering with freedom of the press; it is equivalent to telling a medium what and how to communicate or disseminate, which is a flagrant violation of the essential content of freedom of the press. Its effect would be to annul what is known as Photojournalism and would generate a form of self-censorship by the communication media, which would have to self-limit themselves from illustrating their information as part of the news content, through the use of images of persons, to avoid complaints before a State office—which, in this context—seeks to operate as a kind of censor or editor of what and how it can be published, generating a mirror effect of permanent self-censorship, as indicated, clearly harmful to the right to freedom of the press, which of course includes the freedom to choose the content of what is published. Following the line already established in judgment 2015-1782, in accordance with Article 13 of the American Convention: “3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.” In this sense, censorship of freedom of the press can be direct—for example, the direct prohibition of a certain publication—or indirect (also called soft censorship, subtle, veiled censorship)—for example, the use of various means to intimidate and thereby avoid a publication. The Convention provides a non-exhaustive list of cases of censorship by indirect means (controls of paper, frequencies, etc.) and concludes with the general rule, which would be “…or by any other means tending to impede the communication and circulation of ideas and opinions.” (2015-1782) This Chamber considers that the exercise of PROHAB's powers for the purposes of the Law on the Protection of the Person Regarding the Processing of Their Personal Data cannot be used as a censor of the legitimate exercise of freedom of the press, because that would constitute indirect censorship, under State control, of a fundamental, essential right, for the sustenance of the democratic regime.
In that sense, this Chamber considers that if the use of the image (photograph from the passport page), as in this case, occurs within the context of a newsworthy event of public interest, inserted in a public document, directly related to the content of the news story—since it deals with a border migration issue—whose use, moreover, does not denigrate or affect the image of its holder, it is not valid to separate or decontextualize that image from its news story, much less to attempt to eliminate it, because it forms an integral part of it. The foregoing would imply censorship of the news itself—harmful to Article 13 of the American Convention on Human Rights. In the case Kimel vs. Argentina (FJ 54 et seq.), the Inter-American Court of Human Rights declared that restrictions on Freedom of Expression “(...) are exceptional in character and must not limit, beyond what is strictly necessary, the full exercise of freedom of expression and become a direct or indirect mechanism of prior censorship (...)”; that they “must be formulated expressly, precisely, exhaustively, and previously”; and that “the legal framework must provide legal certainty to the citizen,” limits which were clearly violated in this case, by attempting to restrict the content of accurate information of public interest.
Based on that reasoning, it is considered that in the concrete case, the decision of the respondent entity to order the petitioner to remove from its database the passport photograph of the complainant, contained in the news story repeatedly cited, turns out to be an action that affects journalistic, informative, and news reporting performance, and with it, the essential content of the freedom of the press of the protected communication medium. Consequently, it is concluded that the order issued by the Data Protection Agency (Agencia Protectora de Datos) upon GRANTING the complaint filed by Marco Tulio Calderón Quesada against Diario Extra, and in which it orders Diario Extra to proceed to remove from its database the passport photograph of the complainant, contained in the news story repeatedly cited, is violative of the freedom of information of the petitioner medium, and therefore, it is appropriate to grant the amparo under study, as so ordered. (…)” (The highlighting does not form part of the original).
This jurisdiction, in Voto No. 16167-2020 of 09:20 a.m. on August 28, 2020, stated:
“(…) I.- OBJECT OF THE APPEAL. The petitioner considers his fundamental rights violated, given that, in the face of the COVID-19 pandemic, the government has issued measures that restrict freedom of movement and commerce. Furthermore, he maintains that the respondent authorities violate freedom of the press, due to their actions regarding Diario Extra, given that the MTSS canceled its subscription to that medium and the ICAA ordered its officials not to speak with journalists from the aforementioned newspaper. (…)
IV.- REGARDING THE CONCRETE CASE. In the sub examine, the petitioner claims that the Ministry of Labor and Social Security violates fundamental rights, given that the subscription to Diario Extra was canceled. In this regard, in the report rendered under oath by the Minister of Labor and Social Security, it was indicated, regarding the cancellation by the MTSS of the subscription held with Diario Extra, that: “(…) that decision was due to the fact that as a result of the State of Health Emergency facing the country, which has caused economic impact not only nationally but also globally, the Executive Branch managed days ago a cut in public spending. Given that this budget cut obligated us as an Institution to free up costs in some specific items, taking care, of course, not to affect the service we as a Ministry provide to the citizenry. Therefore, by virtue of that budget cut we made, the decision was adopted to eliminate the subscription that the Institution maintained with some national circulation newspapers, such as: Diario Extra, La Nación, El Financiero, and La República. For the amount to pay the aforementioned subscriptions was credited from the same item with which paper and cardboard supplies were purchased, and this represented almost 50% of the budget for those purposes. And given that as a result of the pandemic produced by the COVID 19 virus, we must have paper towels available for the sinks we have installed for handwashing by employees and users of this Ministry; the purchase of the cited supplies was prioritized, with the consequence of eliminating the aforementioned subscriptions” (the boldface is not from the original).
Thus, the Court verifies that, on July 14, 2020, an official of the MTSS sent official letter DGAF-OF-383-2020 to the legal representative of Sociedad Periodística Extra Limitada, in which they stated: “In the kindest manner and within the framework of contract 2019CD-000045-0007000001, under the demand-based modality for the acquisition of copies of the newspaper La Extra, we inform you that in response to superior instructions and in compliance with the new directives issued by the Government of the Republic of Costa Rica, which urge mandatory budget cuts in order to focus on attention to the COVID-19 pandemic, we find it necessary to formally request the indefinite cancellation of the delivery of said newspaper starting from July 16, 2020.” In the same vein, official letters DGAD-OF-376-2020 addressed to the legal representative of Properiodicos Limitada and DGAD-OF-382-2020 sent to the legal representative of Grupo Nación GN S.A. are observed, through which information was provided regarding the cancellation of the subscription that the MTSS held with the newspapers La República, as well as La Nación and El Financiero, respectively.
In this way, contrary to what was alleged by the respondent, this Court considers that the action of the Ministry of Labor and Social Security does not violate fundamental rights. It should be noted that, in the sub iudice, the MTSS canceled the subscription not only of Diario Extra, but also of other communication media, such as La República, La Nación, and El Financiero. Furthermore, it is not verified that such a decision was arbitrary, but rather that it is due to a budget cut derived from the COVID-19 pandemic. In this regard, it is worth reiterating that the report rendered under oath by the Minister of Labor and Social Security recorded that “(…) the amount for the payment of the aforementioned subscriptions was credited from the same item with which paper and cardboard supplies were purchased, and this represented almost 50% of the budget for those purposes. And given that as a result of the pandemic produced by the COVID 19 virus, we must have paper towels available for the sinks we have installed for handwashing by employees and users of this Ministry; the purchase of the cited supplies was prioritized, with the consequence of eliminating the aforementioned subscriptions.” Ergo, given the conditions caused by the referred pandemic, that institution prioritized the purchase of paper towels, which entailed dispensing with the referred subscriptions. Consequently, as no violation of fundamental rights was verified, the appropriate course is to deny the appeal with regard to that claim.
V.- On the other hand, regarding the claim made by the petitioner concerning the actions of the ICAA, the Court observes that on June 29, 2020, “MINUTA GG-2020-02784” was issued, regarding a meeting held between ICAA officials and representatives of the SITRAA union, a document lacking signatures and in which it is recorded: “Objective: Miscellaneous SITRAA matters Location: Virtual Date: 06-29-20 Start time: 11:00 am End time: 12:40 pm (…) 1. Reinforcement campaign for AyA's work, action, SITRAA- AyA. operative crews, slogan ‘Héroes de la Higiene.’ Mario Rodríguez explains the proposal, SITRAA has carried out a communication campaign to improve AyA's image. They do not agree with the campaign and expenses planned by AyA. Slogan: ‘Héroes de la Higiene,’ they want to start a campaign with this slogan and carry it out with the support of operative workers throughout the country. Yamileth Astorga asks Mario what the objective of the AyA Advertising Contracting is, it seems he is not clear on it, therefore she provides a detailed explanation, the objective is the connectivity of homes to AyA's sewerage networks. She clarifies that the campaign is not to improve AyA's image, but to encourage the population to connect to the sewerage networks. She makes a call not to feed the Diarios Extra and CRHoy, since their objective is privatization. Mario comments that they do not give information to the press, rather he indicates that the press asks them for clarifications on matters they are not aware of. He clarifies that SITRAA takes to the press matters on which they do not receive a response from the Administration. Maritza Alvarado makes comments about the campaign, indicates that SITRAA's proposal seems good to her and can be done with own resources, recommends unity to improve AyA's image, points out some tasks carried out by the Dirección de Comunicación Institucional. The internal base must be reinforced before projecting ourselves externally. Marianela from SITRAA comments that it would be good if Ms. Yamileth carefully read the press releases that appear in the press, so she would realize that SITRAA is not damaging the image, but rather defends the institutional nature of AyA, due to its importance in water resource management. Yamileth indicates that the media only publish things that weaken AyA's image, requests forming an alliance with the unions to improve the Institution's image (…)” (the emphasis was supplied).
In this regard, the Executive President of the ICAA indicates in the report rendered under oath before this Constitutional Court that: “In accordance with the formality established at the institutional level, a draft minute of the meeting was drawn up, with number GG-2020-02784, which is associated with an official letter number; said draft does not bear any signature or rubric of the participants, and it is clarified at this time that even though the officials listed in the draft minute were summoned, Ms. Annette Henchoz Castro and Mr. Alejando Calderón Acuña did not attend the meeting that had been convened virtually; however, it was held in person. The draft minute was drawn up by official Andrey Vila Abarca, who records in the format customary for these meetings, the agenda and a succinct reference to the topics addressed. The minute was later communicated and shared via email by the SDI with Memorandum GG-2020-02784, signed by official Andrey Vila Abarca of the Gerencia General, who is responsible for following up on the topics and agreements of the meetings with the different unions formed in AYA. From the document called ‘minute,’ it is clearly evident that at no time did the undersigned express the fact being appealed; therefore, it is clear that the petitioner decontextualizes a phrase from a minute of a meeting held between the Senior Management and the SITRAA Union, where an internal motivational campaign for AyA staff is analyzed, especially directed at workers on the front lines of pandemic response. In that context and in the spirit of joining efforts, I made a call to the union groups so that if there are situations that concern them internally within the institution, they present their complaints to the Senior Management so they can be addressed, before going to the communication media. That is specifically what I was referring to when I said ‘do not feed the media,’ as the minute cites. I reiterate that neither from the minute nor from any other document does it ever emerge that an order was given ‘not to speak with Diario Extra’; I do not know on what basis the petitioner makes that reckless interpretation of freedom of expression. In fact, all press inquiries made by Diario Extra have been answered in a timely and proper manner; from May to date, 9 information requests posed by email have been received and answered. Diario Extra and Extra TV 42, during this year, have published at least 183 news related to the institution” (the boldface was supplied).
This Chamber also observes that, on July 21, 2020, the executive president of the ICAA sent official letter PRE-2020-01101 to the general manager of Diario Extra, in which she stated: “In exercise of the right of reply enshrined in Articles 29 of the Political Constitution and 14 of the American Convention on Human Rights, as well as 66 et seq. of the Constitutional Jurisdiction Law, in my capacity as Executive President of the Instituto Costarricense de Acueductos y Alcantarillados, I request the due space to rectify the news published by Diario Extra on July 21, 2020, titled ‘Presidenta AyA orders not to speak with DIARIO EXTRA’. I appreciate the publication of the following text: AyA has never ordered not to speak with Diario Extra. Regarding the news published in Diario Extra on July 21, 2020, titled ‘Presidenta AyA orders not to speak with Diario Extra,’ as Executive President of the Instituto Costarricense de Acueductos y Alcantarillados (AyA), I qualify as absolutely false that any official has been ‘ordered’ not to speak with Diario Extra. The journalist decontextualizes a phrase from a minute of a meeting held between the Senior Management and the SITRAA Union, where an internal motivational campaign for AyA staff is analyzed, especially directed at workers on the front lines of pandemic response. In that context and in the spirit of joining efforts, I make a call to the union groups so that if there are situations that concern them internally within the institution, they present their complaints to the Senior Management so they can be addressed, before going to the communication media. That is specifically what ‘do not feed the media...’ refers to, as the minute cites. Neither from the minute nor from anywhere does it ever emerge that an order was given ‘not to speak with Diario Extra’; I do not know on what basis the journalist makes that reckless interpretation of freedom of expression. In fact, all press inquiries made by Diario Extra have been answered in a timely and proper manner; from May to date, 9 information requests posed by email have been received and answered. Diario Extra and Extra TV 42, during this year, have published at least 183 notes related to the institution. At AyA, we are respectful of the right to information and freedom of expression; we would never agree to harm those rights. During this year, we have sent two rights of reply to Diario Extra, one regarding a publication of January 15 that was never published, and another that was published in the June 27 edition. We are aware of the vital role the press plays for our democracy. We are clear about how important it is for the country to strengthen communication media, since as a nation we cannot afford the interruption of the operations of a communication medium; that would be contrary to the public interest of being informed, especially in the midst of a pandemic that requires accurate and timely information daily. We have trusted and do trust in Grupo Extra to carry out our informational and public accountability campaigns, and we will continue to do so to the extent of our possibilities.” We could never allow ourselves to be accused of striking any blow against freedom of expression" (highlighting supplied).
That being the case, it is deemed appropriate to bring up the provisions of judgment No. 2014-011694 handed down at 9:05 a.m. on July 18, 2014, by this Constitutional Court, in which it ordered:
"III.– ON FREEDOM OF EXPRESSION AND THE STATUTORY RELATIONSHIP. Public officials or servants, by virtue of being subject to a statutory relationship, cannot see their freedom of expression and opinion diminished or limited, nor, in general, any of the fundamental rights they hold by intrinsic human dignity. Administrative organizations are not watertight compartments separated from the social conglomerate, and the existence of an administrative career or a statutory relationship does not justify the temporary deprivation or limitation of the fundamental rights that public officials enjoy in all facets of their lives. Certainly, freedom of expression within the scope of an employment or statutory relationship may suffer slight modulations due to the hierarchical relationship inherent in the administrative organization, the trust that must exist between superior and subordinate, the duties of loyalty of both to the institutional purposes, and the duty of confidentiality regarding matters that have been declared State secrets by law. On this point, it should be added that such nuance must be proportionate and reasonable, and that not even a public interest could limit or restrict the fundamental rights of a public official due to their stronger binding force, their direct and immediate effectiveness, and their hierarchical superiority. The concepts of good faith and loyalty cannot undermine a public official's freedom of expression when its exercise does not cause an unlawful injury to the public entity or body to which they belong and represent, or to third parties. Hierarchs or hierarchical superiors of a public entity or body, due to their special and pronounced responsibilities and exposure to the public, must be subject to and tolerate non-harmful or non-unlawful criticism from both users of public services, the administered public in general, and the officials themselves. The foregoing is also applicable regarding the forms and instruments of management or administration of a public entity or body. Criticism from users, the administered public in general, and public officials regarding the individual performance of any servant and the institutional performance of the public entity or body constitutes a powerful tool for the control and oversight of public management and, of course, for achieving higher levels of performance—results—, accountability, and administrative transparency. No public official may be unsettled, persecuted, recriminated, or sanctioned for expressing their opinions, ideas, thoughts, or value judgments about the management of the public entity or the actions of another public official.
IV.– ON THE CONTENT OF ARTICLE 13 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS Article 13 reads as follows:
Article 13. Freedom of Thought and Expression 1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, or in print, in the form of art, or through any other medium of one's choice.
The cited numeral seeks to maximize the possibilities of participating in public debate, especially when, in addition to protecting the expression of ideas, it recognizes the collective right to be duly informed and the right to reply. However, like any right, it is not absolute, but admits restrictions to harmonize its exercise with the rights of others, the security of all, and the demands of the common good in a democratic society (Art. 32 of the Convention). But these limitations cannot be other than those established in the same numeral or in the Political Constitutions (Art. 30 of the Convention). This right cannot be subject to prior censorship but to subsequent liabilities. The Political Constitution, in its Article 29, enshrines that postulate by establishing that: "Everyone may communicate their thoughts verbally or in writing and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law." Freedom of expression, in this sense, cannot be subjected to a priori control. The State, through any of its organs, is constitutionally and conventionally barred, with the exceptions for the protection of other rights set forth in Articles 13 and 27.1 of the Convention itself, from carrying out prior censorship. The Inter-American Commission on Human Rights has repeatedly pointed out the dual aspect of freedom of expression: the right of every person to disseminate ideas and information; and the collective aspect, constituted by the right of the entire society to receive such ideas and information. And when, through prior censorship, a violation of the right of expression occurs, a range of rights is injured, such as the right of the entire community to receive truthful information. Thus, the Inter-American Court, in Advisory Opinion OC-5/85, has stated: '...when the freedom of expression of an individual is illegally restricted, it is not only the right of that individual that is being violated, but also the right of all to "receive" information and ideas.' V.– ON THE SPECIFIC CASE. In the case under study, the respondent institution ordered, through circular number 211-2014, dated March 10, 2014, from the Director of Public Relations of the Ministry of Public Works and Transport, addressed to directors and heads of Departments of the MOPT, that they coordinate with the Public Relations Directorate when the media contact them directly, for timely attention to the media and to translate it into opportunities for institutional dissemination; likewise, to jointly define the topic of consultation to be addressed. The petitioner considers that said provision is contrary to the right of expression of MOPT workers, because what the Public Relations Directorate intends is to exercise prior censorship over the manifestations or expressions made by public officials. The respondent Director says that it is a matter of making officials aware when the press links them without having coordinated with Public Relations; it is a matter of giving officials an appropriate handling of the topic to respond to the media and not exercising prior censorship as the petitioner claims. But what is certain is that the fact that officials of the Ministry of Public Works and Transport have to adapt their statements, according to the rules of the Public Relations Directorate of this ministry, every time they face the mass media, is an interference, by way of prior censorship, that threatens or does not allow them to freely express their opinion on matters pertaining to their institutional work, which directly affects the community that receives filtered or censored information. It cannot be admitted that Circular 211-2014 of the Public Relations Directorate—falls within one of the presuppositions contemplated by our Constitution or by the international instruments that complement it (thanks to the integrating effect of Article 48 according to the 1989 amendment), to legitimize a restriction on freedom of expression. For these reasons, the petition must be granted with the consequences of law." (emphasis supplied).
Furthermore, for the purposes of resolving this amparo action, it is timely to cite the provisions of judgment No. 2015-01782 handed down at 11:36 a.m. on February 6, 2015: (...)
This Court considers that the transcribed precedents are applicable to the sub lite, since it finds no grounds to vary the criteria expressed or reasons to assess the situation presented differently.
Thus, in the sub iudice, the Chamber finds that an injury of constitutional relevance has occurred. Note that although the referenced minute lacks signatures, it is no less true that the executive president of the ICAA did not deny its content, but merely alleged that the phrase "Calls for not feeding Diario Extra and CRHoy, since their objective is privatization" was taken out of context, given that what she intended to express was "a call to union groups so that if there are situations that concern them internally within the institution, they present their complaints to the Senior Administration so that they can be addressed, before resorting to the media. That is what is specifically referred to as 'not feeding the media.'" On this point, the Court finds that in the sub examine there is sufficient evidence that the executive president of the ICAA spoke the phrase transcribed above, which, by all accounts, constitutes an impairment of the constitutional rights to freedom of thought and expression, freedom of the press, and equality, all in relation to the democratic, accountability, and transparency in public management constitutional principles, by virtue of being a kind of veiled censorship, given that the practical result of such a call is to prevent the affected media from having access to public information.
Indeed, contrary to what was argued by the respondent authority, the phrase in question exhorted officials of the Costa Rican Institute of Aqueducts and Sewers to refrain from sending information of public relevance to certain media outlets. Firstly, such action implies a serious threat to the freedom of thought and expression of those servants, given that the initiative comes, no more and no less, from the very executive president of the aforementioned institution, whereby the "call not to feed the media" takes on particular gravity by virtue of the hierarchical rank of the person who expressed it. Secondly, freedom of the press and the right to equality are violated, since it incites that two particular media outlets, CR-Hoy and Diario Extra, not receive information from ICAA officials, while in an absolutely unjustified manner placing the affected parties in a clear situation of disadvantage compared to the rest of the media. In addition, the situation described harms the population in general, given that "the call not to feed the media" prevents the public from accessing information concerning the provision of essential public services, which is unacceptable in a society governed by the democratic, accountability, and transparency in public management principles.
By virtue of the foregoing, it is appropriate to grant the amparo action, in the terms set forth in the operative part of this judgment. (...)
Therefore: The amparo action is partially granted only with respect to the Costa Rican Institute of Aqueducts and Sewers for violation of the constitutional rights to freedom of thought and expression, freedom of the press, and equality, all in relation to the constitutional principles of accountability, democracy, and transparency in public management. Yamileth Astorga Espeleta, in her capacity as executive president of the Costa Rican Institute of Aqueducts and Sewers, or whoever occupies that position, is ordered to refrain from incurring again in the acts that gave rise to the granting of this amparo action. The respondent authority is warned that failure to comply with such order shall incur the crime of disobedience and that, in accordance with Article 71 of the Law of the Constitutional Jurisdiction, whoever receives an order that they must comply with or enforce, issued in an amparo proceeding, and fails to comply with it or fails to enforce it, shall be punished with imprisonment of three months to two years, or a fine of twenty to sixty days, provided the crime is not more severely punished. The Costa Rican Institute of Aqueducts and Sewers is ordered to pay costs, damages, and losses caused, which shall be liquidated in the execution of the judgment of the contentious-administrative jurisdiction. In all other respects, the amparo action is denied. Let it be notified. (...)".
More recently, this constitutional body, in Judgment No. 23107-2022 of 09:30 hrs. on October 4, 2022, ordered the following:
"(...) VI.- Specific case. In the sub lite, the petitioner alleges as her first grievance that, in her capacity as a journalist, she directs the analysis, opinion, and self-criticism program called "Hablando Claro," which has been broadcast since February 1, 2007, on Radio Columbia, and she considers that in that capacity the respondent authorities violated her fundamental rights, specifically, the rights to free expression and freedom of the press, given that between July 8 and 9 last, she received calls from five public officials, who serve in hierarchical positions within the Government of the Republic or in the communication offices of ministries and decentralized institutions, who informed her, in their capacity as confidential journalistic sources, that they were alarmed by a communication that the then Minister of Communication, Patricia Navarro Molina, sent to them via WhatsApp to all Ministers and Executive Presidents of the Government. She alleges that, as her sources related to her, in the referenced communication, the Minister instructed all hierarchs to suspend, on an urgent basis, all state advertising to the media outlets 'Amelia Rueda, La Nación, CRHoy, and Canal 7.' Likewise, that in that communication they were urged 'on an urgent basis not to participate in interviews on Hablando Claro and Amelia Rueda.'
In this regard, from the report rendered by the respondent authorities—which is taken as given under oath with the consequences, even criminal, provided for in Article 44 of the Law governing this Jurisdiction—and the evidence provided for the resolution of the matter, this Chamber could not find it proven that the order or directive questioned by the petitioner was issued. Although it may be considered that, on this particular point, the reports received are succinct or laconic, the truth is that they clearly state that no order or indication in that sense was issued. The Chamber notes that such reports focus on the competencies and powers of the Ministry of Communication and on procedural aspects of the filing of this amparo action, but by denying the existence of the order, directive, or indication referred to by the petitioner, in this particular case there is no possibility of finding its existence proven, and therefore the appropriate course is to deny the amparo action on this point.
VII.- However, due to the importance of the issue and the gravity that issuing an order from public power in the terms claimed in this proceeding could entail, it is necessary to remind the authorities of the Ministry of Communication and the Ministry of the Presidency that, as expressed in the fifth recital of this judgment, freedom of expression and information entails a dual dimension, which is reflected not only in the possibility for journalists to report on matters of relevance to public opinion, but also the right of the country's inhabitants to learn of such information. Therefore, public bodies and entities have the duty to adopt the corresponding measures so that the inhabitants of the Republic can be informed about the actions and events that occur or develop within the national territory and that are of interest to the community. Especially given that the issues and decisions taken and dealt with by the central government and every institution, body, and administrative entity have transcendence and relevance for the proper functioning of the country and the exercise of the rights recognized to the population in general and to its members within their own spheres of action, all these issues must be treated with absolute publicity and transparency, with no possibility whatsoever of preventing citizens, public opinion, and any mass media outlet from having knowledge of them. Ergo, practices that hinder access to information, such as preventing reporting on certain events or decisions, refusing to grant interviews to various media outlets, not inviting them to be part of conferences or press briefings, limiting their advertising, preventing access to inputs necessary for dissemination, among other variables related to direct or indirect censorship, cannot and must not be endorsed by a Constitutional Court, for the elementary reason that access to and timely delivery of such information must be done through an easy, expeditious, and uncomplicated process that guarantees to the population, and in general to public opinion, the right to information and freedom of expression.
Having said the above, the respondent authorities are reminded that 'government and courts must allow a "uninhibited, robust, and open" debate to unfold, which may include caustic, vehement, and sometimes severely unpleasant attacks toward the government and public officials' (Cfr. judgment No. 2006-5977 at 3:16 p.m. on May 3, 2006). In other words, the respondents must bear in mind that, in the exercise of public offices such as those they hold, and in the current era, where technological advances have made it easier to cover and access news events, it is normal that some of the discussions generated in the heat of the press may be unfortunate and unpleasant for them; nonetheless, in a democratic country like Costa Rica, that exercise of freedom of expression and freedom of the press is what characterizes us as a Social State of Law and a free people. For these reasons, in order to guarantee freedom of the press and free expression that both journalists or mass media outlets and the population in general have, the respondent authorities must ensure that any directive, order, act, or instruction issued from the central government always adheres to the protection of these freedoms and of any fundamental right enjoyed in a democratic country like ours, in the terms that have been set forth in this judgment (...)".
As has been observed, it is clear that the use or application by State authorities or private parties of the indirect restrictions alluded to in this recital gravely and flagrantly violates freedom of expression and freedom of the press. Hence, the importance of the safeguard and protection provided to them by our Political Constitution and the American Convention on Human Rights, among other instruments; hence also the responsibility borne by this Constitutional Chamber to ensure that this is so fulfilled.
VIII.- CONGLOMERATES OR FINANCIAL STRUCTURES CREATED TO FINANCE OR DIVERSIFY THE SOURCES OF INCOME OF MEDIA OUTLETS AND, CONSEQUENTLY, ALLOW THE EXERCISE OF FREEDOM OF THE PRESS. Traditional media, primarily print media, have suffered in recent years a sharp economic decline due to the arrival of the internet, the drop in advertising investment and its migration to large digital platforms such as Google and Facebook, and the consequent change in information consumption habits. All this, combined, has caused users to prefer to access information primarily through digital means (i.e., through the use of smartphones, electronic tablets, computers, etc.) rather than by purchasing the printed newspaper or by accessing other platforms (radio or television), as was regularly and traditionally the case.
By virtue of the foregoing, media outlets have found it necessary to innovate and seek new formats, proposals, or mechanisms to generate new revenue (and audience) that allow, in turn, the financing of journalism and the medium as such, especially investigative journalism, which is costly. In other words, new commercial strategies have had to be implemented or mixed models put into operation in order to "make media outlets profitable," as some have called it. So much so that many media outlets today do not generate money through their main or traditional activity but through other activities that allow them to survive. By way of example, media outlets have modernly resorted, among others, to the following formulas or strategies: a) some print media have created their own digital platform and established subscription models or what has been called "pay-per-view"; a formula that large media outlets such as The New York Times or The Guardian have successfully employed. b) The creation of higher quality and exclusive content (on specific topics of interest to certain sectors) has been resorted to, making the search for and access to such content attractive. c) Use has been made of podcasts (a series of episodes on various topics recorded in audio and transmitted online, used for example by the medium The New York Times through its program The Daily). d) The organization of events, forums, or congresses on certain topics with the help of experts and personalities has been promoted, for which, in turn, a fee is charged to participate or to enter (the media outlets Texas Tribune or The Economist have been characterized by organizing events of this type). e) The sale of pieces to third parties is also resorted to (large media outlets, taking advantage of their enormous experience and the structural support they have, cover certain specialized information, process it, and sell it to others, even to their own competition). f) Use has been made of so-called brand licensing, which allows media outlets to license their brand so that third-party companies may use it in their products or services (e.g., National Geographic sells products related to travel and adventure, books, and has even installed stores related to its coverage line).
Likewise, it is noteworthy that, as part of those formulas that media outlets have had to resort to in order to diversify their sources of income and sustain themselves financially, recourse has also been had to the acquisition of, or affiliation with, other companies whose main activities are directly or indirectly related to journalism (thus forming what have been called holdings or economic interest groups). This particular type of phenomenon has manifested itself in other latitudes and also at the national level.
Thus, by way of example, there is the case of the newspaper The Boston Globe and other media (owned, in turn, by the U.S. newspaper The New York Times), which were acquired in 2013 by John Henry, owner of the Red Sox baseball team and the Liverpool FC soccer team, for the purpose of addressing the substantial economic losses suffered by the former, originating from the migration of readers and advertising to the internet. Similarly, it is noted that Warren Buffett, through his holding Berkshire Hathaway (a company wholly or partially owning the shares of several business groups in textiles, insurance, automobiles, beverages, etc.) in 2012, purchased sixty-three newspapers from the Media General Group in the southeastern United States, which were also suffering from low profitability. Among the newspapers acquired by Buffett are the Richmond Times of Virginia, the Winston-Salem Journal of North Carolina, and the Morning News of Florence of South Carolina.
Furthermore, there is the case of Jeff Bezos (founder and owner of Amazon, a giant e-commerce company), who in 2013 purchased The Washington Post in order to ensure its survival, after this media outlet likewise suffered the impacts of the emergence of new technologies, the decline in audiences, and advertising revenues. Note that, in this particular case, despite the fact that the media outlet—as reported, among others, by the Spanish newspaper El País—will not be integrated into or formally affiliated with Amazon, its acquisition is part of that same commercial strategy aimed at helping it continue operating (https://elpais.com/sociedad/2013/08/05/actualidad/1375736883_735938.html).
In Costa Rica, the use of these types of mechanisms or formulas is exemplified by Grupo Nación S.A. (the corporation of which the Newspaper La Nación is a part), which decided to purchase the facilities of what used to be the Autódromo La Guácima and converted them into the event center called Parque Viva, as a means to diversify the company's sources of income and thus compensate for the loss of earnings suffered due to the migration of advertising to internet sites.
It is understandable that within the current situation where written media outlets require financial support given the loss of some of their traditional sources of income, other types of companies or societies are created or established—under the protection of the legal order—that provide them with resources and economic or financial sustainability to maintain the former. The case of Grupo Nación S.A. and the acquisition of what is today called Parque Viva, referred to above, represents a clear example of this.
These types of financial structures, like the rest of the examples cited above, become a source of income or resources that contributes to or makes it possible for journalistic work to be exercised, given that the revenues generated by the former make it possible to defray or offset many of the expenses demanded by a media outlet. Therefore, it is a reality that, if these types of mechanisms or proposals are affected illegitimately or arbitrarily, the exercise of journalism is harmed in turn; in essence, freedom of the press, as a manifestation of freedom of expression.
Now, the indirect (or veiled) impairment that may materialize to freedom of the press, by virtue of measures adopted against such financing structures, is an aspect that must be weighed in each specific case, it being clear that not every administrative act or conduct that imposes a burden or establishes negative-effect content regarding those entities constitutes an indirect injury as indicated. Indeed, it should be noted that, like any administered person, these structures are affected by and subject to the legal norms that regulate, specify, and delimit the exercise of their respective economic activities. In that sense, their operation must satisfy and comply with the regulations specific to their activity, which includes having the respective administrative authorizations to carry out their commercial purpose. Hence, they must have the respective permits to prove compliance with urban-planning, building (including those pertaining to Law No. 7600), health, and safety regulations, as well as the commercial licenses and permits required in each case. Additionally, they must comply with the applicable tax regulations. Likewise, in the course of their activity, like any person, they are subject to oversight and control of the exercise of the activity, in order to verify that they maintain the level of compliance by virtue of which the commercial activity was authorized. In that dynamic, failure to observe the conditions of exercise imposed by those sectoral regulations could well lead to the imposition of administrative measures of restriction or sanction. The foregoing, provided that the specific exercise of that manifestation of the power of administrative police can be deemed legitimate, based on the due and timely accreditation of the non-compliance presuppositions that would give rise to each legal consequence, and that such decision is in accordance with the merits of the case's background and the applicable Legal System (the relationship between the objective material elements of motive-content) and that it is consistent with the protected public interest. In such cases, where the administrative function is established as the legitimate exercise of administrative powers seeking the protection of the public interest, a sort of indirect violation of freedom of the press could not be postulated, but rather, the lawful and foreseeable consequence of disregarding public order norms to which every administered person is subject.
By contrast, when those measures lack support in the various factual or legal predicates that, in each instance, the regulatory framework defines as a necessary prerequisite (conditioning prerequisite) for adopting a specific punitive or negatively-content decision, or when the content of the act adopted upon verification of those conditions is excessive, disproportionate, unreasonable in relation to those predicates, antagonistic to the public interest, or generally contrary to law (in the broad sense), one would be facing administrative conduct that may entail a deviation of power (art. 113 LGAP) and implies, as has been indicated, an indirect or reflexive injury to freedom of the press. This involves a careful analysis of the particularities of each case, as a parameter for a neutral, equitable, and objective assessment between fundamental freedoms and rights within a scheme of a Rule of Law and the exercise of administrative powers that have, by principle and purpose, the protection and satisfaction of the public interest. Ergo, not every act that negatively impacts the sphere of a financial structure constitutes an alteration of the freedom under review, just as not every administrative control function regarding those can be understood as legitimate without more. Thus, in cases such as the present one, where an indirect violation of freedom of expression and freedom of the press is alleged, resulting from control activities of the Health Administration, it falls to this jurisdictional body to weigh the particular nuances, in order to determine whether it constitutes a proper or improper exercise, as a sine qua non condition for a value judgment regarding the existence or not of the duty to validly tolerate those administrative impositions.
IX.- SPECIFIC CASE. The study of this matter is structured, for better comprehension, into the following four sections, namely: a) preliminary clarifications; b) closure of Parque Viva through an arbitrary, unfounded, and disproportionate action; c) closure of Parque Viva and indirect violation of freedom of expression; and d) final clarifications of interest.
A. PRELIMINARY CLARIFICATIONS. This amparo proceeding centrally addresses the matter of the sanitary closure order issued against Parque Viva on July 8, 2022, as well as the effects it generated or brought with it regarding the media outlet Diario La Nación, particularly concerning freedom of expression.
In this regard, it is important to clarify first that this Constitutional Court has been of the view that it does not fall to it, as it is a matter of mere legality, to rule on the technical aspects (requirements) that a given commercial establishment is required to meet, in light of the provisions of the legal system, in order for it to be granted a sanitary permit and thus begin operations. This Chamber has also stated that it falls outside the scope of its competence to assess and question the technical criteria issued to potentially render that permit ineffective, through, for example, the issuance of a sanitary order.
However, it is important to note that the foregoing position does not prevent this constitutional body from carrying out an analysis of a sanitary order and the circumstances under which it was issued, from a constitutional perspective, in light of aspects that this jurisdiction has traditionally addressed, analyzed, and guaranteed since its creation, as will be seen in the following sections. In that regard, it is worth emphasizing that this Chamber has also held that sanitary orders issued by the authorities of the Ministerio de Salud may be reviewable before this jurisdiction, in exceptional cases, determined specifically by their unavoidable direct relationship with fundamental freedoms or rights essential to the maintenance of the democratic system. Thus, in Judgment No. 21103-2022 of 09:20 hrs. on September 9, 2022, this jurisdiction stated:
“(…) this Court in reiterated jurisprudence has stated that, under the principle thesis and save for certain particular exceptions, determined specifically by their unavoidable direct relationship with fundamental freedoms or rights essential to the maintenance of the democratic system, sanitary orders issued by the authorities of the Ministerio de Salud are not challengeable in this jurisdiction. (…)” (The emphasis is not part of the original).
It is worth highlighting that through Ruling No. 1515-2021 of 10:00 hrs. on January 26, 2021, this Court ordered the annulment of a sanitary measure issued by the Ministerio de Salud against a claimant to the detriment of his right to freedom of expression, upon finding that said administrative act lacked technical grounds. On that occasion, this Chamber expressly ordered the following:
“(…) III.- SUBJECT OF THE RECOURSE. The claimants allege that the protected party, in exercise of his constitutional right to freedom of expression, has created a movement on social networks using his public profile https://www.facebook.com/rolandoarayamonge and his radio program “Cubaces Tiernos,” which is broadcast on radio on frequency 89.1 FM and, simultaneously, on the Facebook Live platform called “streaming,” referring to the supposed efficacy of chlorine dioxide (sodium chlorite), to combat covid-19. However, the Ministerio de Salud issued a sanitary order against him, considering that he incites the population to consume a substance that has not been authorized and, on the contrary, is contraindicated. (…)
V.- On the specific case. In its jurisprudence, this Court has not spared in positioning freedom of expression as a key element of the democratic system:
“VIII.- Freedom of expression as an indispensable requirement of democracy. Freedom of expression is undoubtedly one of the conditions—though not the only one—for democracy to function. This freedom is what enables the creation of public opinion, essential for giving content to various principles of the constitutional State, such as, for example, the right to information, the right to petition, or rights regarding political participation; the existence of a free and consolidated public opinion is also a condition for the functioning of representative democracy. The possibility for all persons to participate in public discussions constitutes the necessary prerequisite for the construction of a social dynamic of exchange of knowledge, ideas, and information, enabling the generation of consensus and decision-making among the components of the various social groups, but also constituting a channel for the expression of dissents, which in a democracy are as necessary as agreements. For its part, the exchange of opinions and information originating from public discussion contributes to forming personal opinion; both shape public opinion, which ultimately manifests itself through the channels of representative democracy. As the Spanish Constitutional Court itself has stated, other rights enshrined in the Constitution would be emptied of real content, representative institutions reduced to hollow forms, and the principle of democratic legitimacy... which is the basis of our entire legal-political order (Judgment 6/1981) would be absolutely falsified, if there did not exist freedoms capable of enabling that exchange, which… presupposes the right of citizens to have ample and adequate information regarding the facts, allowing them to form their convictions and participate in discussions relating to public affairs (Judgment 159/1986). (…)
Like other fundamental rights, freedom of expression is also subject to limitations, such as those derived from the protection of public health, among others.
The question the parties seek to elucidate in this proceeding refers to the possibility that the Ministerio de Salud may limit the freedom of expression of the protected party Araya. To answer that question, however, it is necessary to analyze the statements of the parties and the sanitary order itself, given that it was the means used to limit the rights of the protected person.
As a first point, the Chamber notes a discrepancy between what was stated by the respondent authority in this proceeding and the material evidence. Indeed, the report states that the sanitary order indicates:
“In videos published on his Facebook pages: https://www.facebook.com/arayamonge and https://www.facebook.com/rolandoarayamonge, on different dates, he refers to the efficacy of the product sodium chlorite and urges his followers to ingest it since it eliminates viruses and many other things. Furthermore, he affirms that the product is harmless. I transcribe part of what he states in his video: ‘…discovery or finding that some people made regarding the efficacy of a product called sodium chlorite, well particularly the active product chlorine dioxide that according to results they have obtained, eliminates all kinds of germs, scientifically proven because it is used on surfaces, it is generally used for cleaning and purification of water…’ ‘ … It turns out that if a person takes a little bit of that, a few drops of that, it removes viruses, bacteria, and many things like these…’ ‘…but we are not asking that they use it and accept it, what seems decent, logical, acceptable, reasonable to me, for a crisis like the one the world is experiencing, is that they try it, if nothing happens to people, there is total harmlessness…’ You are informed: (…) (The underlining is added).
However, the sanitary order that was provided lacks such transcriptions, as it textually reads in the relevant part:
“In videos published on his Facebook pages: https://www.facebook.com/arayamonge and https://www.facebook.com/rolandoarayamonge, on different dates, he refers to the efficacy of the product sodium chlorite and urges his followers to ingest it since it eliminates viruses and many other things. Furthermore, he affirms that the product is harmless and in other shared publications it is affirmed that sodium chlorite or chlorine dioxide in organisms, reacts against pathogenic germs, immediately oxidizes viruses, bacteria, fungi, parasites and even serves for cancer, diabetes, and other diseases.
You are informed: (…)” This Court observes a clear inconsistency between both texts regarding a core point for the proceeding: which are the expressions attributed to the protected party.
As was proper, the Instructing Magistrate warned the parties to provide the videos related to the sub iudice (resolution of 16:27 hrs. on September 18, 2020). However, such warning was not complied with by the respondent party. In this regard, the latter indicated:
“…In response to the request to provide the publications deleted by the Legal Team of Facebook regarding the case of Mr. Rolando Araya Monge, it is indicated that because this content was uploaded only to his personal pages and the Legal Team of Facebook proceeded to analyze them and subsequently delete them, the details of the same are not available. What is provided is official letter MS-DRPIS-UNC-2056-2020 addressed to the Legal Department of Facebook, indicating the urls of the links of the publications mentioning chlorine dioxide, referencing the sanitary alert named Products Containing Sodium Chlorite or Chlorine Dioxide, the Ley General de Salud in its articles 107, 111 and 112; and the Regulation for the authorization and sanitary control of advertising of products of sanitary interest No. 36868-S. In this document what was published on those Facebook pages is observed, backed by the url of each publication, however, due to the deletion by the legal team of this company, the details of the same are not available beyond what the document indicates…” Now, the consequences of such non-compliance are different for the claiming party and the respondent party, due to the principle of dynamic burden of proof and the procedural position of each of them.
In the constitutional venue, given that the claiming party has proven a limitation to the rights of the protected person (by written submission of August 10, 2020, complying with the Chamber’s warning and providing a copy of the sanitary order), the dynamic burden of proof obliges the respondent authority to justify such restriction. In the sub lite, the justification for the Administration's action and the administrative order issued lies in the supposed videos of the administrative procedure, such that the respondent should have safeguarded and provided them.
Precisely, from a procedural standpoint, the cited obligation falls on the Administration, given that it has the duty to collect and secure in the administrative file the evidence serving as the basis for its decisions in the proceedings, so that the affected person may access the administrative file opened against them and fully know the circumstances of the case, a sine qua non requirement for the effective exercise of their constitutional right to a defense.
However, the videos that served as the basis for the sanitary order issued, the object of this matter, are not found in the administrative file, a fact only attributable to the Administration. Such a situation prevents the amparo claimant from being able to question which expressions may have generated the state reaction and thus defend himself. Now, as with any procedural burden, the party that fails to comply with it in the sub examine, the State must face the procedural consequences of its omission.
The Chamber explains to the respondent authority that, when a person is reproached for the inappropriate use of freedom of expression and limitations are imposed on such a right, inexorably there must be certainty as to the reasons for such exceptional measures, which can only be imposed within the framework of cases permitted by the constitutional and conventional order. It is reiterated that freedom of expression is essential for the maintenance of democracy and, therefore, configures a cardinal aspect of our political system, such that any restriction upon it must not only have an adequate positive-legal basis, be it in domestic regulations or within the framework of international human rights law, but also, the competent authority is obliged to fully accredit the factual basis on which it rests.
Due to the summary nature of the amparo proceeding, this Chamber cannot assume an inquisitorial position and investigate which videos could eventually have served as the basis for the state action, especially because such activity would have the purpose of supplementing the omissions of state authorities, which borders on the nature of a Court that defends the individual against the State.
Finally, the Chamber notes that the foregoing would not have precluded a different assessment, if it had been proven that the statements of the protected party endangered people's health and the Administration's action had been based on precise and well-founded positive legal reasoning. The Chamber reaffirms that the respondent Ministry can and must safeguard public health. (…)
THEREFORE: The recourse is granted, and consequently, sanitary order No. MS-DRPIS-UNC-2001-2020 of July 30, 2020, issued by the Ministerio de Salud, is annulled. (…) (The emphasis is not part of the original).
Thus, it is evident that this Chamber's approach is to provide protection when a sanitary order violates other public freedoms directly related to the maintenance of the democratic system, such as, for example, freedom of expression.
From the above, it is of the utmost relevance to take into consideration that in this amparo we find ourselves before an absolutely exceptional situation, since one of the fundamental rights of greatest importance and significance for the people of Costa Rica and its precious democratic system is at stake, namely freedom of expression. Hence, the full justification for this Constitutional Court to hear the merits of this matter through amparo, and to rule on the alleged facts.
B. CLOSURE OF PARQUE VIVA THROUGH AN ARBITRARY, UNFOUNDED, AND DISPROPORTIONATE ACTION. The Director of Diario La Nación, Armando González Rodicio, together with other journalists of that media outlet, came before this Court and filed this amparo against the President of the Republic, as well as the Minister of Health, for having been issued to Parque Viva (a site owned by Grupo Nación S.A., to which said newspaper also belongs), a sanitary order for the total closure of its activities due to alleged problems related to the access roads to that site. Specifically, they argue that the order was executed arbitrarily, even though technical criteria from the Cruz Roja and the Cuerpo de Bomberos regarding the capacity of the access road to the establishment were not yet available, which were provided and communicated days later and are questionable. Moreover, they state that they were required to submit a remedial plan addressing the solution to the problem of the park's access routes, despite the fact that the inspectors of the respondent Ministry, during the inspection carried out, found no problem with them and despite the fact that the MOPT authorities issued a report exclusively about the public roads located outside that site. They mention that both the Mayor of Alajuela and community leaders have agreed that traffic congestion cannot be attributed solely to the activities held at Parque Viva, given that the rapid residential and commercial development that has occurred in the same area, i.e., La Guácima de Alajuela, must be concomitantly taken into account. They indicate that it was the State that created the problem with its acquiescence to the urban expansion of the area, without providing the necessary public infrastructure. They assert that Parque Viva, at the time of closure, had all the permits required at the time (among them, the road planning study approved in 2014), and that, even recently, it was affirmed that the facilities are suitable for carrying out the activities organized. They add that there is a road project to remedy the problem (construction of a four-lane access to Ruta Nacional No. 27), for which the majority of the permits were processed; however, to date, it has not been finally approved by the MOPT and, furthermore, the President of the Republic has publicly disqualified it, referring to his intention not to allow it, even though it would be financed by Grupo Nación. They state that since no deficiency could be found at Parque Viva, it was decided that the defects were in the public road, where it is not for private parties, but rather the State, to provide the remedy. They question that the problem is not Parque Viva, but the public infrastructure that has made little progress in these years to adapt to the residential density developed after it became operational. They affirm that all of the above also prevents them from exercising an adequate right to a defense. By virtue of the foregoing, they request that this amparo recourse be granted, and that the temporary suspension of the sanitary operating permit of Parque Viva be annulled, as well as the administrative acts supporting it.
In her defense, the Minister of Health referred in her report to the complaint filed on July 5, 2022, against the operation of Parque Viva and to the proceedings carried out on that occasion. Grosso modo, she stated that, by virtue of that complaint, an inspection was carried out by the authorities of the Área Rectora de Salud of Alajuela 2, in which they concluded that said establishment complies with physical-sanitary and structural conditions internally, so it was recommended to forward the complaint to the MOPT for it to carry out an assessment of the situation (condition of roads, difficulty of access, etc.). The Minister affirms that, “thus,” by official letter No. MS-DM-5754-2022, she requested from the MOPT authorities a technical criterion regarding the access roads to the commercial premises. Said authority mentions that this latter report was delivered by the MOPT authorities and that it indicated that it was for the Municipalidad de Alajuela to grant the access permits and that the access road to Parque Viva does not have sufficient capacity to handle the traffic generated. Likewise, the Minister points out that, subsequently, the Comité Asesor Técnico de Concentraciones Masivas agreed to propose issuing a sanitary closure order to Parque Viva for mass events, as well as requesting a remedial plan. Said authority indicates that, indeed, on July 8, 2022, the representative of Parque Viva was notified of sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022, which stated that, by virtue of what was indicated by the MOPT and the cited Comité de Concentraciones Masivas, the temporary suspension of the sanitary operating permit was ordered until the technical criteria requested from the Cuerpo de Bomberos and the Cruz Roja regarding the capacity of the access road to the establishment by first-response units, which were being processed by the Ministerio de Salud. Also, it states that they were requested to submit a remedial plan to solve the problem of park access. The Minister affirms that, subsequently, technical reports were issued by the Cuerpo de Bomberos, the Cruz Roja, and the Sistema de Emergencias 9-1-1, from which the following emerges: That there must be preventive measures to reduce risks, such as emergency plans defining sufficient access routes with the necessary width to enable an effective response in case of an emergency. That the public roads of the community of La Guácima are insufficient for the rapid access of emergency units, which can worsen during mass gathering events. That rapid and timely access by specialized rescue units is required, which is hampered by the length of firefighting units. Additionally, the Minister of Health points out that, as reported by the Sistema de Emergencias 9-1-1, when mass gathering events occur, a greater number of complaints are filed (for improperly parked vehicles, traffic jams, fights due to inability to leave, collisions, etc.). She affirms that, consequently, a situation of potential risk does exist at the site, due to the lack of safe and fluid access to the site, and that the administrative act in question seeks to avoid endangering the health, safety, and life of those attending the events, as well as that of those living in the surroundings of Parque Viva, who, in turn, require fluid access to their communities and, if necessary, adequate access for emergency services. For this reason, she affirms that it is essential to submit the requested remedial plan “which must encompass in its content the solution to the access problem in the communities of La Guácima de Alajuela, before the holding of mass gathering activities.” The Minister adds that the administrative acts were appealed and dismissed with respect for the right to a defense and that the temporary suspension measure of activities will be maintained until a remedial plan is presented, approved, and implemented that guarantees that mass gathering activities at Parque Viva do not lead to the collapse of access roads, do not cause disturbances to neighboring communities, and allow the entry of first-response vehicles and personnel promptly and safely. She also mentions that if there are other activities that do not collapse the roads, the legal representatives of the establishment must indicate in the requested remedial plan which those are, as well as the number of people per activity, so as not to exceed what is stated in the technical criterion issued by the MOPT. The Minister of Health argues that the actions taken have been carried out to protect and preserve the environment, health, and life of persons, so it is not possible to allege the existence of acquired rights or consolidated legal situations. Furthermore, she affirms that her actions are in accordance with the law and she cannot provide differentiated or privileged treatment to the media outlet, as is intended. Finally, she indicates that in this case the precautionary principle in health matters has been applied and that the complaint was attended to and resolved in strict adherence to the provisions of Constitutional Article 41.
For his part, the President of the Republic, on this particular issue, stated in the report rendered to this constitutional jurisdiction that the complaint filed against Parque Viva was attended to with the greatest speed and willingness possible in order to protect the citizenry. He explains that residents of La Guácima de Alajuela filed an anonymous complaint before the Ministerio de Salud where they explained what they have suffered for years with this place and the consequences that could occur if the necessary measures are not taken urgently. He refers to some news items published on the matter, which reflect the discontent of some residents with the operation of said establishment. He affirms that, once the complaint was received, the Ministerio de Salud convened the Comité Asesor Técnico en Concentraciones Masivas to a session to analyze the case and that said committee, after examining, in turn, the technical report rendered by the Dirección General de Ingeniería de Tránsito (which concludes that when mass gatherings take place at Parque Viva, the access road does not have sufficient capacity to handle the traffic generated), agreed to propose to the health authorities a closure order for mass events and concomitantly request a remedial plan for the reported conditions. Therefore, following said recommendation, he mentions that the Área Rectora de Salud of Alajuela 2 issued the sanitary order in question, temporarily suspending the sanitary operating permit for mass events until said remedial plan is provided, which has not been presented. He notes that the authorities have required other commercial groups to construct access routes to large-scale shopping centers when it is projected that the commencement of operations of these premises will represent an increase in vehicle flow in the area where they were built, as is the example of EPA in Desamparados or City Mall in Alajuela, which made substantial investments to comply with vehicle entrance and exit requirements. The President adds that there is the criterion of the Dirección Regional de la Fuerza Pública of Alajuela, which states that La Guácima is categorized as sensitive since different criminal activities converge there and that the agglomerations of vehicles and people outside Parque Viva reduce police mobility and produce an increase in calls to 911 from residents, due to incidents of public order disturbance. He states that the Fuerza Pública referred to an incident that occurred on May 7, 2022, where assistance had to be provided to the emergency services to transport a patient, since the number of people prevented the rapid movement of the ambulance. He adds that the Cuerpo de Bomberos, for its part, argued that the communities surrounding Parque Viva, as well as the site itself, are affected, since the response time of firefighting units increases considerably due to the conditions of the roads surrounding the site. He also alleges that given the disbelief generated by the fact that the local government granted operating permits to Parque Viva, the Instituto Nacional de Vivienda y Urbanismo requested the project file from the Municipalidad de Alajuela. He affirms that as a result of the analysis of said file, a series of very concerning situations were found related to the land-use permit and the environmental viability granted. Similarly, he indicates that it was shown that there was a failure to submit a traffic impact study (that would measure the vehicle flow impact associated with the activities held at Parque Viva), a lack of authorization from the Cuerpo de Bomberos, as well as that no improvement was required or requested to the cantonal road network providing access to the park. He argues that these are not arbitrary actions, but rather actions aimed at protecting the lives of Costa Ricans. He mentions that the Colegio de Periodistas de Costa Rica itself stated that the situation of Parque Viva must be addressed from the principle of legality, for which the recoursive route exists to challenge the administrative act ordering the suspension of the sanitary operating permit, which, moreover, is resolved by the submission of a remedial plan. He refers to a note published on April 27, 2021, where Grupo Nación acknowledged that the access conditions to the facilities of Parque Viva are not the best.
It argues that Grupo Nación was given the opportunity to submit a remedial plan and also had the opportunity to appeal the administrative resolution. It mentions that it is not true that the Administration definitively closed the venue. It affirms that the newspaper La Nación continues to operate, but this does not mean that they will not be required to comply with the law when it is evident and manifest that they are doing so illegitimately and to the detriment of the rights of Costa Ricans. Furthermore, it argues that all decisions have been made in accordance with technical parameters, pursuant to a complaint filed by citizens themselves.
Now, having set forth the arguments presented by both parties (the petitioners and the respondent authorities of the Ministry of Health and the Presidency of the Republic), it is appropriate to conduct a general review of the facts deemed proven in this amparo proceeding regarding this particular claim.
Thus, it should first be noted that it is deemed proven that Grupo Nación (of which Diario La Nación is a part and which is precisely the medium for which the petitioners work) acquired the facilities where the former Autódromo La Guácima operated and created Parque Viva.
It is also on record that Parque Viva obtained the required permits, and therefore, in 2015, it was granted the respective sanitary operating permit. That same year, said establishment was then re-inaugurated by Grupo Nación. As part of the fulfillment of these requirements, it is deemed proven that by official communication No. DGIT-ED-5935-2014 of September 1, 2014, an engineer from the Permits Unit and the Head of the Studies and Designs Department, both from the Dirección General de Ingeniería de Tránsito of the MOPT, stated the following:
“(…) REGARDING THE TRAFFIC IMPACT STUDY After reviewing the traffic impact study submitted (for the typical operating conditions of the Centro de Eventos La Guácima), this Unit indicates that from a functional standpoint, it has no objection to the project. The foregoing is because this Unit verified that with the implementation of the mitigation measures proposed from the capacity analysis performed, the level of service (NDS) and queue lengths remain at adequate levels. The approval of this traffic impact study (EIV) is valid for one year if traffic conditions and the surrounding road network do not change significantly and the project is built before this period ends; otherwise, this Dirección General reserves the right to request an update of the study. Furthermore, you are reminded that the authorization corresponds exclusively to the project submitted; therefore, any modification in size, use, or any other nature must be analyzed by the Dirección General de Ingeniería de Tránsito to evaluate the new conditions; otherwise, this authorization loses its validity (…)”.
Likewise, it is on record that, by official communication No. DVT-DGIT-ED-2015-4056 of October 8, 2015, engineers from the Permits Unit of the Dirección General de Ingeniería de Transito of the MOPT indicated the following:
“(…) You are hereby notified that the expansions and signage at intersection #3 with Ruta Nacional N° 124 for the Project: Centro de Eventos La Guácima, located in District N° 05: La Guácima, Canton NB 01: Alajuela, Province N° 02: Alajuela, on the property registered with the Catastro Nacional under number SJ-1244439-2007, whose permit was processed by this Department under expediente ED-AC-13-0081, are received, according to the design contained in sheets 01/10, 02/10, 03/10, 04/10, 05/10, 06/10, 07/10, 08/10, 09/10, 10/10 signed by the responsible professional, engineer Natalia Marín Villalobos, IC-16371. The foregoing is because an inspection confirmed that the interested party satisfactorily completed the respective vertical and horizontal signage, in accordance with the guidelines of the Departamento de Señalización Vial of this Dirección General, and in compliance with the Manual Centroamericano de Dispositivos Uniformes para el Control del Tránsito (SIECA). Based on the foregoing, this Technical Unit has no objection, from the functional and signage standpoint (does not include the quality of horizontal and vertical demarcation), to the use of the access in question (…)”.
Also, it is on record that the authorities of the Ministry of Health renewed the sanitary operating permit No. MS-DRRSCN-DARSA2-RPSF-0177-2019 for Parque Viva, valid until February 2024.
This Chamber also deems it proven that on December 16, 2021, by official communication No. MS-DRRSCN-DARSA2-4070-2021, the Director of the Área Rectora de Salud Alajuela 2 of the Ministry of Health granted Parque Viva approval for the declared occupant loads (aforos) for the amphitheater, halls, and grandstands of the autódromo facilities. In that regard, 18,203 occupants were permitted in the amphitheater, 12,450 occupants in the halls, and 2,901 occupants in the grandstands. In addition to that, it is on record that by official communication No. MS-DRRSCN-DARSA2-0163-2022 of January 20 of the current year, those same authorities ordered the expansion of the occupant load for the grandstands of Parque Viva to 8,841 occupants.
It is also deemed proven that at an unspecified time on July 5, 2022, an anonymous complaint was filed before the Office of the Minister of Health against the operation of Parque Viva, which was assigned number 243-2022. On that occasion, the complainant completed, in the template or form established for filing such a submission, the following aspects related to the reason for their complaint: “2.1. Complaints for matters related to structural conditions of buildings: a) Structural problems (state of walls, roofs, floors, among others) (…) c) Non-compliance with emergency plan for fire prevention and protection (…) f) Safety and hygiene conditions”. Additionally, the complainant expressly stated their disagreement regarding access to Parque Viva and the problems that arise on the streets leading to this site when mass concerts are held. Specifically, they stated:
“(…) This venue is commonly used to hold mass concerts, where a large number of people gather. The problem with this place is its access points and the limited capacity of the roads, which belong to a rural community, to receive a huge number of vehicles at the same time. All the streets leading to Parque Viva are single-lane roads in each direction, very narrow, without bus bays, or conditions for high traffic. Every time there is a concert, the community's streets collapse completely, to the point that people take hours to travel short distances or exit the venue's parking lot. The situation is extremely serious, because during a potential emergency, the response of emergency response agencies could be compromised. We are talking about situations as risky as fires, earthquakes, structural collapses, shootings, among other tragic events that could occur at mass events. The streets of La Guácima de Alajuela cannot support the massive influx of vehicles, and their neighbors could also see their rights undermined by this type of event, since, in the event of emergencies in their homes or communities, the response from aid authorities would take much longer than normal, due to the enormous traffic jams this place generates. In view of the foregoing, and given the seriousness of the reported facts, we request the definitive closure of the venue, until a solution to the problem is found. This request is made in order to protect public health and the common interest. PARQUE VIVA DOES NOT MEET (sic) THE CONDITIONS TO HOST MASS GATHERING EVENTS. I close by stating that it is the responsibility of the State, in accordance with Article 50 of the Constitución Política, to ensure that the rights of the inhabitants of the Republic are protected and to grant them the highest degree of well-being. As evidence, I attach 8 photographs of the only 2 accesses to the place, which demonstrate the conditions of the surrounding streets. In addition, I attach 2 media reports where the problem with the traffic jams caused by mass events is set out (…)”. (The emphasis is not part of the original).
It is on record that by official communication No. MS-DM-5754-2022, digitally signed at 12:24:14 p.m. on July 5, 2022, the Minister of Health, on an urgent basis, requested the Minister of Obras Públicas y Transportes and the Viceministra de Transportes y Seguridad Vial to provide a technical opinion regarding the access roads to the private commercial venue called Parque Viva. On that occasion, the following was expressly indicated: “(…) The technical opinion is required to elucidate structural and human safety aspects. Therefore, the capacity aspects of the roads must be considered in the scenario of the enormous number of vehicles and people simultaneously attending the mass events at said venue, in relation to aspects of potential emergencies, access responses of emergency response agencies, risks due to conflict situations, etc. (…)”. It was also determined that said Minister, through official communication No. MS-DM-5756-2022, digitally signed on July 5, 2022, at 12:38:24 p.m., forwarded said complaint for its attention to the Director of the Dirección Regional de Rectoría de la Salud Central Norte of that same Ministry (office located in Heredia). Furthermore, –according to the respective physical stamp–, it is on record that the aforementioned complaint was received at the Área Rectora de Salud de Alajuela 2 at 12:41 p.m. on that same July 5.
It is deemed proven that at 1:50 p.m. on July 5, 2022, authorities from the Área Rectora de Salud de Alajuela 2 carried out a physical-sanitary inspection at Parque Viva, as a result of which report No. MS-DRRSCN-DARSA2-1641-2022 dated July 5, 2022, was prepared, which recorded the following:
“(…) According to the ocular inspection record MS-DRRSCN-DARSA2-IT-1639-2022, on July 5, 2022, at 1:50 p.m., a specific on-site visit was made to assess what was stated by the complainant. Regarding the reported problem, in terms of the structural problems section, inside the venue's facilities during the tour conducted, no visual structural problems related to physical-sanitary aspects were noted; the state of the walls, floors, sanitary facilities, and other spaces for human coexistence did not present observable problems. In the section on non-compliance with the emergency plan, the presence of four emergency plans was evidenced on site, corresponding to the company's own sectorization of its facilities, with a specific plan for the Centro de Eventos, the Anfiteatro Coca Cola, the Circuito de Competencias, and the Áreas Comunes. On site, it was confirmed that the respective signage was installed, and the presence of firefighting equipment and respective implements (food, first aid kit, splints, among others) was evidenced. Regarding the safety and hygiene conditions, during the tour, no risks or unsafe conditions that could affect the integrity of the company's employees were evident.
Regarding what the complainant pointed out about the road problem, it should be noted that this is not within the competence of the Ministry of Health; however, an analysis of the access and exit points of the facilities was carried out, as shown in Annex 1. The facilities have four access points for vehicle entry and exit, with a capacity of 940 cars in the parking lot near access 2, in addition to space for 3,000 vehicles in the sector of the competition circuit that is near access 3 and 4 of Parque Viva. Furthermore, it is shown that the four accesses are interconnected throughout the facilities (a tour was made to verify this), which favors the exit of vehicles. 3. CONCLUSION. Based on the foregoing, it can be concluded that the Parque Viva facilities comply with adequate physical-sanitary and structural conditions internally. The emergency plans will be forwarded to the Encargado Regional de Salud Ocupacional for their in-depth assessment and review. Furthermore, it is recommended that the complaint be forwarded to the Ministerio de Obras Públicas y Transporte so that they may assess the reported conditions that fall under the competence of this agency (roads in poor condition, a single lane in each traffic direction, difficulty of access for emergency response agencies via public roads, among others) (…)”. (The emphasis is not part of the original).
This Court deems it proven that, by virtue of the request made on July 5, 2022, at 12:24:14 p.m. by the Minister of Health, the Viceministra de Obras Públicas y Transportes sent the latter official communication No. DVTSV-2022-0341 dated July 6, 2022, through which it was requested to render void official communication No. DVT-DGIT-2022-DVT-DGIT-2022-334 sent by email the previous afternoon (that is, July 5, 2022), with the objective of including more information in the analysis of access to Parque Viva. Likewise, on that occasion, official communication No. DVT-DGIT-2022-339 was attached, signed that same July 6, 2022, by the Director General de Ingeniería de Tránsito, which expressly indicated the following:
“(…) 1. Parque Viva is a venue that opened its doors in 2015 and is used for various types of events, such as: motor sports events, congresses, fairs, as well as mass gathering events like concerts and festivals. 2. According to information provided on the Parque Viva website, the venue capacity is up to 20,000 people. In addition, it has 4,900 private parking spaces, which can be expanded up to 6,000 spaces using the race track. 3. Currently, the Dirección General de Ingeniería de Tránsito has no request related to the existing access to Parque Viva. Nor has it conducted any functional study on the roads under the scenario of a mass event like those held at the venue. 4. Parque Viva is located in front of a cantonal route called Calle Rincón Chiquito. Being a cantonal route, the granting of access permits corresponds to the Municipalidad de Alajuela (…) 5. Calle Rincón Chiquito is an urban street with two lanes, one lane per direction of travel. This type of road could reach a maximum capacity of around 1,200 vehicles per hour per direction. According to the conditions of the road, a detailed study could yield a capacity lower than that mentioned. According to the data indicated above, it can be assured that at the time mass gathering events are held, the road providing access to Parque Viva does not have sufficient capacity to handle the traffic generated. Under a conservative scenario, without considering peripheral parking lots or the use of the race track, we would have a generation of 4,900 vehicles per hour, which represents more than double what the road could support (…)”. (The emphasis is not part of the original).
It is on record that by virtue of all the foregoing, the Comité Asesor Técnico de Concentraciones Masivas held an extraordinary session on July 7, 2022, at 2:30 p.m. with the presence of the Minister of Health in her capacity as coordinator, the Minister of Obras Públicas y Transportes, officials from the Cruz Roja Costarricense, the Dirección de la Policía de Tránsito, the Comisión Nacional de Emergencias, the Cuerpo de Bomberos, the Sistema de Emergencias 9-1-1, and Gestión de Riesgo of the Ministry of Health. In the minutes of said session No. 28643-S-MOPT-SP, the following was recorded:
“(…) Based on the powers established in Article 4 of Decreto Ejecutivo 28643, the case is heard. Mr. Keylor Castro Chacón from the Ministry of Health, at the request of the Minister, reads the document from the Área Rectora de Salud Alajuela number MS-DRRSCN-DARSA2-1641-2022, which relates to official communication MS-DM-5756-2022 from the Minister of Health. Mr. Luis Amador intervenes. He puts the situation of the access roads into perspective. Mr. Keylor Castro reads report DVT-DGIT-2022-339 (addressed to the Minister of Health with note DVTS-2022-0341). The Minister intervenes. Mr. Alexander Araya from the Cuerpo de Bomberos intervenes and notes the difficulties the fire department has entering, due to the type of emergency units they have, which are 11 meters long and 3 meters wide, making passage difficult in conditions with vehicles on both sides. The access roads must be widened or there must be another access where there is space for traffic and access by emergency units. Mr. Luis Amador intervenes. He points out the inappropriateness of the land use. The route must be expanded to guarantee adequate flow during events and in emergencies during events. That tertiary cantonal route must be improved. There is a risk to human life. Mr. Jorge Rovira from the Comisión Nacional de Emergencias intervenes. There is a current operating permit. Caution must be exercised and the country's reality must be seen. Mr. Keylor Castro Chacón intervenes. There are other places with similar situations. The Minister of Health intervenes, replying to what Mr. Keylor stated. Mr. Felipe Venegas intervenes. The venue has presented problems since it was the autódromo La Guácima. It only has one access road, and that presents a problem because one must pass through residential areas. There is still no regulation for mass events. In this case, Parque Viva is not suitable for mass events. Johnny Hidalgo González intervenes and (sic) indicates that since January 1, 2022, there have been 18 reports so far this year of traffic problems, more than 30 collisions, 4 reports of illegally parked vehicles, 5 brawls, 3 incidents of events against public order, among other reports. Mr. Jim Batres intervenes. He expresses concern about the number of ambulances attending each event, where sometimes it does not exceed a single unit.
AGREEMENT: Having seen the aforementioned official communications, and the recommendation of the Ministerio de Obras Públicas y Transportes to take a course of action as a result of the situation presented regarding the capacity of the access road to the venue called Parque Viva, it is agreed to propose to the corresponding authorities a sanitary closure order for mass events at the establishment called Parque Viva, and the measures that correspond with other pertinent authorities. A remedial plan must be requested for the reported conditions, which must be brought to the attention of this Comité Asesor Técnico de Concentraciones Masivas (…)”. (The emphasis is not part of the original).
The authorities of the Ministry of Health, the MOPT, the Cuerpo de Bomberos, the Comisión Nacional de Emergencias, and the Cruz Roja Costarricense, through their representatives before said Committee, voted in favor of said proposal.
It is also on record that, based on the foregoing, the authorities of the Área Rectora de Salud Alajuela 2 of the Ministry of Health, on July 8, 2022, issued sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022 (electronically signed at 12:37:21 p.m.), through which the closure of Parque Viva was ordered, under the following terms:
“(…) In response to anonymous complaint No. 243-2022, forwarded (sic) by official communication MS-DM-5756-2022 from the Office of the Minister of Health, for apparent structural problems, non-compliance with the emergency plan, and safety and hygiene conditions at Parque Viva, and as recorded in ocular inspection record MS-DRRSCN-DARSA2-1639-2022 of July 5, 2022, at 1:50 p.m., the respective on-site visit was made to assess what was stated in the complaint. Likewise, in accordance with the precautionary principle and in response to official communications: MS-DM5814-2022, by which Technical Report DVT-DGIT-2022-339 issued by the Dirección General de Ingeniería de Transito of the Ministerio de Obras Públicas y Transportes is remitted, and official communication MS-DM-5838-2022 by which Minutes No. 28643-SMOPT-SP of the Comité Asesor Técnico en Concentraciones Masivas is remitted, the temporary suspension of Sanitary Operating Permit MS-DRRSCN-DARSA2-RPSF-0177-2019 (theme park, autódromo, amphitheater, sporting events, cultural events, fairs, and various exhibitions) is ordered by this administrative act until such time as the technical opinions issued by the Benemérito Cuerpo de Bomberos de Costa Rica and the Benemérita Cruz Roja Costarricense, regarding the capacity of the access road to said establishment for the first response units of those institutions, are available for analysis and corresponding actions, which are being requested by the Ministry of Health. Furthermore, your represented entity must submit a remedial plan that addresses the solution to the problem of the accesses and the consequent risk to Public Safety and Health during Mass Gathering Activities, and the occurrence of a potential emergency during said activities (…)”. (The emphasis is not part of the original).
Additionally, it is deemed proven that in said administrative act, reference was made to the consequences of non-compliance with the order, and it was stated that the filing of appeals for reconsideration with a subsidiary appeal was possible within five business days following its notification. This sanitary order was notified to the representative of Parque Viva on July 8, 2022, at 12:40 p.m. (via email), indicating that “important annexes” were attached. Furthermore, personal notification took place that same day at 2:15 p.m.
Now, it is deemed proven in the case file that on that same July 8, 2022, the Minister of Health, by official communication No. MS-DM-5870-2022 digitally signed at 5:05:24 p.m., requested the Director of the Cuerpo de Bomberos and the President of the Cruz Roja Costarricense to provide “(…) detailed and comprehensive reports, from their respective fields of competence, regarding the situation of Parque Viva in La Guácima de Alajuela, within the context of holding mass events and risk situations for health and human life. The foregoing as a complement to the topic discussed in the meeting of the Comité Asesor Técnico en Concentraciones Masivas last Thursday, July 7, 2022. The foregoing as soon as possible (…)”.
It is on record that, in response to the above request, the following technical reports were submitted to the respondent Ministry:
“(…) Regarding the situation of Parque Viva, located in La Guácima de Alajuela, within the context of holding mass events and risk situations for health and human life, I stated (sic): The extinguishing units of the Benemérito Cuerpo de Bomberos de Costa Rica have an approximate length of 11 meters and a width of 3 meters; this means that sufficient space is required to maneuver, whether near the fire scene or during the journey to the emergency location. The width of the road normally used to reach Parque Viva measures approximately six meters over most of its length, as can be seen in this photograph; a bus and a light vehicle cannot travel normally; for one of them to pass, one must stop and give way (…) Likewise, there are sections where the measurements are reduced to almost four meters, meaning a Fire Department unit requires all the space to travel, taking the following photographs as reference (…) Due to the road width, there are sections where overtaking maneuvers cannot be performed (…) Due to the situations set forth above, as a consequence, several communities such as Rincón Chiquito, Rincón Herrera, Guácima center, as well as the Parque Viva facilities themselves, could be affected because the response time of Fire Department units increases considerably. Moreover, when road blockages occur, access to the communities is impossible, a situation that puts lives and property at risk (…)”.
“(…) As a first response institution, we have extensive experience in attending mass events at different events and locations; the Cruz Roja Costarricense has had to treat patients depending on the activities held there, due to the number of people attending the different activities, which, depending on the event, can be several thousand people. (…) In the case of events held at Parque Viva, it is necessary to clarify that the Cruz Roja Costarricense does not cover such activities; rather, the event organizing companies hire private ambulance companies that provide these types of services. It is necessary to indicate that there are approximately 70 private companies in the country that provide prehospital patient transfer services; consequently, it is clarified that the videos of several ambulances circulating on social media, linked to the care of emergency cases at Parque Viva, are not from Cruz Roja. That being the case, our recommendation in this Comité Asesor Técnico has historically been to express the importance of generating regulation for mass events. We know that the Ministry of Health has the Reglamento General para Autorizaciones y Permisos Sanitarios de Funcionamiento Otorgados por el Ministerio de Salud and that the Ministerio de Seguridad Pública has the Manual de Tramitación para la Aprobación de los Planes de Seguridad los Eventos Temporales con Asistencia Masiva de Personas. However, about 6 years ago it was suggested to work with the Maurer Algorithm, which they use in Germany. In general terms, according to the experience of the Cruz Roja Costarricense, any place where mass events are held must have an entrance and an exit for all the vehicles attending the events, allowing adequate circulation for emergency vehicles, both to attend incidents at the event location and in surrounding areas, as well as roads that allow massive evacuation of participants in case a threat is activated, and it must have an updated Emergency Plan that includes an adequate proportion of ambulances based on the number of attendees to the event (…)”.
“(…) In the specific case subject to this consultation, it is known that the public roads of the community of La Guácima de Alajuela and surrounding areas are insufficient for the rapid access of our emergency units in the ordinary care of incidents, which can be aggravated when mass events are held, since we have been aware of situations in which the simple mechanical failure of a private vehicle substantially delays the entry of our ambulances. Historically, response times for attending emergencies by the different institutions have been affected by traffic congestion in various parts of the national territory, a situation that also occurs in La Guácima de Alajuela, experiencing a variable increase in the travel time of emergency vehicles, generating delays ranging from 10 minutes to 30 minutes. In some specific cases, the arrival or departure time of our vehicles has been extended even longer, caused by the number of vehicles parked on the sides of public roads surrounding the event site, and even by people walking on public roads, which means driving with greater caution. For the specific case, the operational structure of the Benemérita Cruz Roja Costarricense has worked on three scenarios considered for an analysis of the situation that allows authorities to make decisions according to their competencies. 1. Traffic accidents: In attending a traffic accident, depending on its severity, the arrival of different resources is necessary, such as ambulances, rescue trucks, and even the presence of the Cuerpo de Bomberos de Costa Rica. It should be noted that cases may arise where patients are trapped as a result of the incident, requiring the specialized rescue team to join the scene according to needs.
In any of these cases, patients require immediate care, since in some cases life may be at imminent risk. 2. Structural fires: the Fire Department (Cuerpo de Bomberos) generally responds to structural fires to extinguish the fire, and the Costa Rican Red Cross (Cruz Roja Costarricense) arrives on scene to attend to patients; therefore, depending on the size of the incident, the amount of resources deployed could be affected by the difficulty of access to the facilities at risk and the evacuation of patients. 3. Medical cases: Depending on the severity of the case, it is required that the patient receive care expeditiously, since delays in response times have a negative impact on the person’s prognosis, potentially affecting their life. For example, in the case of cardiac arrest, access to the patient is ideally required in less than 10 minutes. On the other hand, depending on the circumstances, there is the possibility that the Advanced Life Support Unit (Unidad de Soporte Avanzado de Vida, USAV), on site, may require support from an Advanced Life Support Unit (USAV), given that this second ambulance has personnel with a higher level of training, more equipment, and therefore, a greater capacity to resolve situations, thus offering a better opportunity for the patient’s health. It should be noted that when there are two or more units at the scene of the incident, a large and safe space will be required so that rescuers can provide their care (...)”.
It is also recorded that other reports related to this same topic were submitted to the Minister of Health, namely, the following:
Technical report No. 911-DI-2022-2202 of July 11, 2022, through which the Director of the 9-1-1 Emergency System (Sistema de Emergencias 9-1-1) referred to events that occurred in areas surrounding Parque Viva during specific dates, namely, May 7, 14, and 21, and June 17 and 18, 2022 (e.g., situations related to traffic problems, improperly parked vehicles, fights, an unconscious person, and a missing person, etc.).
And also, official communication No. DM-2022-3121 of July 11, 2022, through which the Minister of Public Works and Transport (Ministro de Obras Públicas y Transportes) indicated the following:
“(…) In relation to the situation that has arisen with the temporary closure subject to remedial actions of Parque Viva, the Ministry of Public Works and Transport (Ministerio de Obras Públicas y Transportes) issues the following opinion considering that: Parque Viva contains multiple land uses that can produce mass gatherings, understood as temporary events that extraordinarily bring together a number of people under agglomeration conditions in open and/or closed physical spaces, which, due to their site characteristics, represent a risk or threat scenario that mandates preventive measures for controlling the use of the space. Parque Viva has 9000 m2 of industrial warehouse space, which has an estimated attraction of 6593 vehicles based on reference to 3 similar events in the United Kingdom (…) Parque Viva has a capacity of 20,000 people and using an occupancy rate of 3 people per vehicle (…) gives us 6667 vehicles per hour. It is estimated that the adjacent street has a maximum capacity of 800 vehicles per hour for a level of service E, since it is a road 4 m to 6 m wide with two-way traffic. IT IS RECOMMENDED: A maximum gathering of 2400 people at mass events according to the current situation of accesses and surrounding roads in order to guarantee an adequate flow of access and exit vehicles to the site (…)”.
Now, it was equally demonstrated that the previous five technical reports (No. CBCR-027150-2022-OPB-00741 from the Fire Department, No. CRC-GG-SO-OF-074-2022 and No. CRC-GG-OF-012-2022 from the Costa Rican Red Cross, No. 911-DI-2022-2202 from the 9-1-1 Emergency System, and No. DM-2022-3121 from the Ministry of Public Works and Transport) were brought to the attention of the legal representative of Parque Viva only on July 15, 2022, through official communication No. MS-DRRSCN-DARSA2-1724-2022. This latter official communication also confirmed what was ordered in the aforementioned health order, and expressly stated the following:
“(…) Once these documents were known and analyzed in accordance with what is indicated in the cited order, it is demonstrated that they point out that there is an evident problem for emergency response (traffic accidents, structural fires, medical cases, among others) by the First Response Agencies (Instancias de Primera Respuesta), both in the surrounding communities and for the attendees themselves at the mass gathering events held at Parque Viva, due to traffic and access problems to the site; therefore, in accordance with the precautionary principle and in order to guarantee compliance with Articles 21 and 50 of the Political Constitution, Articles 11, 152, 153, and 154 of the General Law of Public Administration (Ley General de la Administración Pública), and Articles 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357, and 364 of the General Health Law (Ley General de Salud), the Health Order MS-DRRSCN-DARSA2-OS-0386-2022 (sic) is confirmed in all its extremes and scopes (…)”.
Likewise, it has been taken as demonstrated that one day before this last official communication was notified, namely, on July 14, 2022, the representatives of Grupo Nación filed a motion for revocation and appeal in subsidy against what was ordered in health order No. MS-DRRSCN-DARSA2-OS-0368-2022 dated July 8, 2022. These motions, according to what was reported by the Minister of Health, have already been resolved and dismissed.
Additionally, it is important to take into account other facts that have been taken as demonstrated in this amparo, which are related to those previously set forth.
Thus, note that it is recorded in the case file that official communication No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 of July 10, 2022, reached the President of the Republic, through which the Regional Deputy Director of the Public Force Directorate of Alajuela (Dirección de la Fuerza Pública de Alajuela) informed the Vice Minister of Public Security about the obstruction that occurs in the handling of police-type incidents in the external perimeter of Parque Viva when activities are held at that establishment. In this official communication, it was affirmed that the referred activities generate enormous traffic jams, which represents a substantial increase in police response times to emergencies reported via 911 and which are the responsibility of the Public Force (Fuerza Pública). In addition, it was indicated that mass activities cause an increase in property crimes and there are more calls to the Public Force for disturbances of public order, fights, violence against women, reckless driving, consumption of alcohol and drugs on public roads, etc. Therefore, it was maintained that “(…) the impact on police service during mass events in the referred area is evident, notorious, frequent, and repetitive; given that the impact of diverse criminal incidence, which is generated by the enormous conglomerate of visitors, affects the normal development of activities of the population in the area, and the daily police actions (…)”. Likewise, it is recorded that through official communication No. PE-243-07-2022 of July 29, 2022, the Executive President of INVU informed President Rodrigo Chaves of a series of aspects related to the so-called Parque Viva, after having conducted a review of the file held at the Municipality of Alajuela (Municipalidad de Alajuela). Broadly speaking, on that occasion, it was indicated that the land uses granted are not in conformity with the regulatory plan approved in 2004; that the environmental viability (viabilidad ambiental) was granted only for improvements to the race track; that there is no record of the submission of a traffic impact study to MOPT or to the municipality that measured the impact of vehicular flow, since it was not requested, and that no improvement was required for the cantonal road viability that provides access to the complex. It was also demonstrated that the Municipality of Alajuela, on August 3, 2022, through its official Facebook page, spoke out and refuted what was stated by INVU. This, in the following terms:
“(…) IN RELATION TO THE PUBLICATIONS OF THE OPINION ISSUED BY INVU REGARDING PARQUE VIVA, WHICH HAVE CIRCULATED IN VARIOUS MEDIA OUTLETS TODAY. Regarding the information that has circulated in various media outlets about the PARQUE VIVA project based on a report issued by the Institute of Housing and Urbanism (Instituto de Vivienda y Urbanismo), INVU, as the first point, it must be stated that the Municipality of Alajuela has not been notified of said report, so our knowledge is limited to the publications made by those media outlets; likewise, these are assessments by said institution without consultation with this municipality. It is important to clarify some points. 1. LAND USE. The zoning of property 2-198873 was not modified, since according to the current Urban Regulatory Plan (Plan Regulador Urbano) applicable to the matter, said property is located in an area called a green zone, Regulated in Art 56, Urban Regulatory Plan. INVU overlooks in its analysis what is established in Article 60 of the Urban Regulatory Plan, which indicates that, if after 5 years from the publication of the Regulatory Plan the Municipality does not acquire these lands designated as green zones, they acquire the nearest zoning that least affects the user, which was applied in this case, as indicated in the land uses, it is a medium-density residential zone. Therefore, the land uses for the project are correct. 2. REGARDING ENVIRONMENTAL VIABILITY, the resolution approving the environmental viability reviewed by the Municipality of Alajuela for processing the construction permit for the Parque Viva Project, is correct, and describes the works in a general manner, which coincide with the plans submitted and duly approved by the other institutions previously and by the Federated College of Engineers and Architects (Colegio Federado de Ingenieros y Arquitectos), as recorded on the APC platform. The project title, that is, the name by which it is known in the file, was what varied over time, which did not affect the nature of what was analyzed, and much less the nature of the works (fanciful name). Not because the company changed the project name does the nature of the works change. 3. REGARDING THE “LACK OF UNIFORMITY IN LAND USES” The analysis was carried out in a coincident and consistent manner in all cases, under the principle of legality and the singular non-derogability of laws. The only thing that varied since 2014 and in the successive land uses was the way the information was presented. A minute of the land uses was attached to the file that can be corroborated to confirm what is indicated. 4. TRAFFIC IMPACT, The Urban Regulatory Plan of Alajuela in its article (sic) 12.7 requests the submission of a traffic impact study for the FINAL APPROVAL (sic) of the project, not for the granting of land uses, that is, it applies to the construction permit. On the subject, one can observe the requirements that the Municipality requests for this project or any other, and based on the regulations governing the matter. For the final approval of the construction permit, this local government reviews the Environmental Viability granted by SETENA, it being that said entity in its analysis always verifies the traffic impact of new projects. According to the review of the SETENA file, this entity considered that what was presented in the plans was sufficient, and with that gave the respective approval, therefore, what is indicated in Law 8220 and its amendments, and its Regulation, is respected, so that, in adherence to the principle of respect for competencies, SETENA’s criterion was respected. Furthermore, it is important to remember that the project had the due approval of the Traffic Impact Study by the Traffic Engineering Directorate of MOPT, through resolution No. DGIT-ED-5935-2014. 5. MINUTES ON THE CONSTRUCTION PROCESS, If the final permit was granted, it implies the correction of any situation that may have been notified. 6. REGARDING THE ANNOTATIONS OF OTHER INSTITUTIONS, The Municipality of Alajuela does not substitute other institutions in their tasks, which may review the file and carry out the respective field inspections for compliance with these. It is important to state in any case that, as observed in the file, each annotation was rectified by the respective institution, which generated (sic) the approval by the CFIA. According to the file, contract OC626867, dated 11-13-2013, determines that “the project is approved with the institutional observations rectified by the professional”. In short, this local government through the Construction Control Activity is in the best disposition to clarify any doubt that arises regarding this project; we ratify that all our actions have been consistent and in accordance with the regulations governing the matter (…)”.
Likewise, it is important to take into consideration that in this matter it has been demonstrated that Grupo Nación (since at least 2019, many months before the health order under study was notified to it), began a project to build, in the coming years, a four-lane access connecting Route No. 27 with Parque Viva (or with the future project called Ciudad Viva). This project, in 2021 and at the beginning of 2022, had preliminary approval from a series of governmental agencies. Thus, it is recorded that through official communication No. DVT-DGIT-ED-2021-1845 of September 21, 2021, an engineer and the deputy head of the Department of Studies and Designs of the General Directorate of Traffic Engineering (Dirección General de Ingeniería de Tránsito) of the Ministry of Public Works and Transport, stated the following: “(…) This Directorate maintains its non-objection criterion to the proposal made from a functional and road safety standpoint, issued on July 13th of this year through official communication DVT-DGIT-ED-2021-1347; therefore, it deems the approval of the preliminary project in question pertinent (…)”. Through official communication No. GCTT 34-2021-0340 of September 28, 2021, the Acting Manager of Contracting for Roads and Bridges of the National Road Council (Consejo Nacional de Vialidad) stated the following: “(…) In relation to the project indicated in the reference, once reviewed by the engineers of the different technical areas of the Directorate of Design of Roads and Bridges (Dirección de Diseño de Vías y Puentes), it is determined that: The requested information was complied with; however, it is clarified that, in the design stage, the minimum radii of roundabouts, turning radii, and geometric axes for the project's design vehicle must be respected. By virtue of the foregoing, it is recommended to approve this Preliminary Project (…)”. Through official communication No. CNC-APM-SJC-0608-2021 of October 12, 2021, the Project Manager of the National Concessions Council (Concejo Nacional de Concesiones), among other aspects, decided to grant “No objection” to the preliminary project for access from national route No. 27 to Ciudad Viva. Through official communication No. CCAR-2021-373 of October 28, 2021, the Secretary of the Restricted Access Roads Commission (Comisión de Carreteras de Acceso Restringido) of the National Road Council indicated that said commission had agreed “(…) to approve the preliminary project in accordance with the reports of the technical units (…)”. Through official communication No. DVT-DGIT-ED-2022-0088 of January 18, 2022, an engineer and the deputy head of the Department of Studies and Designs of the General Directorate of Traffic Engineering of the Ministry of Public Works and Transport stated the following: “(…) This Directorate has no objection to the proposal made from a functional and road safety standpoint, therefore it deems the approval of the project in question pertinent (…)”. This project, as is evident from the case file, has not been approved to date.
It is also recorded that, regarding this road project, the President, in a press conference held on July 13, 2022, stated the following:
“(…) Did you hear the barefaced lie published by La Nación that it has had for two years a request for an access to Route 27 to fix Parque Viva? Ah no, well, if we let one goal in, let's let four more in because the volume of area they wanted to get the permit for is four times as much. Aren't you ashamed to collapse Route 27, risking all of the West, Grecia, Naranjo, Atenas, San Carlos, all of Guanacaste and all of Puntarenas? (…)”.
For purposes of resolving this extreme of the appeal, it is equally important to take into account what was stated in the news item published on July 13th of this year, titled “Mayor of Alajuela: Parque Viva received permit before urban expansion in La Guácima”, the content of which is the following:
“(…) Humberto Soto, mayor of Alajuela, assured that the traffic congestion that occurs in La Guácima, Alajuela, is not caused solely by Parque Viva, but is also due to the large residential growth in the district and the new condominiums that were built in the area. “There has been very significant growth in the district of La Guácima which, added to the activities and the large number of people entering the district, well, yes, it is evident that it generates traffic congestion.” “I am open to negotiating and putting the issue on the table; that viable solutions must be generated for the district, we should not blame X or Y, nor generalize it,” Soto explained. “We have to see reality. The park was built almost ten years ago, and in these ten years, there has been a substantial change in the urban development of the district of La Guácima, that is, there is more population and more condominiums,” he added. Since 2014, 44 condominiums have been approved in the district, for example. Likewise, the municipal chief said that, although the city government has invested almost 1,000 million in that district and construction of a bridge leading to the community of San Antonio de Alajuela will soon begin, that is not enough and they need more resources for the entire canton. “The municipality has made some investments, but perhaps not enough. Why? Because as a local government we have limited resources and 14 districts, with a network of more than 421 kilometers at the cantonal level to attend to. For that network, in a municipality like Alajuela, there are not sufficient resources and we must attend to the 14 districts of the canton, not just one. We must make improvements; as mayor, I am aware of that,” Soto reported. In September 2014, the Ministry of Public Works and Transport (MOPT) approved the road planning study for Parque Viva and requested that accesses to the site be built from the different routes leading to the location and that vertical and horizontal signage be installed, which were to be ready a year later. In an inspection carried out by the Ministry in 2015, it was confirmed that the property had complied with what was requested. This Wednesday, President Rodrigo Chaves assured at a press conference at the Presidential House that the permit should never have been granted and that he will request the file from the Municipality of Alajuela, while also requesting the intervention of the Ombudsperson, Catalina Crespo. At that time, the current mayor was a councilor and said regarding the matter: “The permit was granted by competence of the municipal administration, which was the competent body for its approval; in the file, there are permits from Health and many institutions (…)”. (The highlighting is not part of the original).
In that same order of considerations, it is recorded that in an expanded district council session held on July 13, 2022, the councilor and resident of La Guácima de Alajuela, Alonso Castillo, referred to the problem related to urban growth in that area. It was demonstrated that, on that occasion, said councilor stated that, from 2010 to date, 48 urban projects have been approved in La Guácima “(…) not counting Parque Viva, not counting commercial developments, not counting Automercado, not counting shopping centers (…)”, which, in his opinion, reflects a vehicular reality that is not in accordance with roads designed thirty years ago. Expressly, said councilor, on that occasion, also pointed out the following:
“(…) Here there are traffic jams every day, at seven in the morning and at five in the afternoon, with a concert, or without a concert. If an accident happens here in Guácima center today, La Guácima collapses because there is nowhere to go. If today an accident happens or a post falls, as happened a few months ago (…) we have to go around through San Miguel, with the risk that the car we have does not have the conditions to be able to make that detour (…) That is the reality of the district, which has serious road limitations. When I arrived at the Municipal Council of Alajuela (Concejo Municipal de Alajuela), I promised that I would not vote for a single more urban project in the Municipal Council until alternate routes were approved (…) To this day (…) The municipality tells me it has no budget for alternate routes, so what does this mean? The reality continues under the same conditions that we are in today, with Parque Viva or without Parque Viva, because there is no budget, there is no money for these alternate routes (…) I honestly am very glad that what happened with Parque Viva happened (…) because today the entire national press is talking about a problem that La Guácima has every day. Because it was Parque Viva, because if (…) a bus had overturned or whatever had happened, nobody cares, the problem continues. Thank goodness it was Parque Viva, because Parque Viva has the voice to be able to say here there is a problem, but there is a real problem, that when there is an event we also collapse (…)”. (The highlighting is not part of the original).
Finally, concerning the evidentiary body, it is relevant to observe what was pointed out by the General Comptroller of the Republic (Contraloría General de la República) in the so-called Operational Audit Report on the Effectiveness and Efficiency in the Use of Cantonal Road Network Resources in the Municipality of Alajuela, dated July 14, 2022 (report No. DFOE-LOC-IF-00014-2022). Specifically, in the conclusions section, the following was stated:
“(…) 3.1. It was determined, based on the established indicators and criteria, that it is not possible to guarantee that the management of the cantonal road network service under the responsibility of the Municipality of Alajuela is effective in fulfilling its purposes and objectives related to mobility, road safety, and the resilience of this network, and that the use of the allocated resources is carried out in adherence to the principle of efficiency. 3.2. In this regard, although road conservation interventions have been carried out, mainly on the road surface and road safety activities, significant limitations persist in the coverage and improvement of the road surface, in the attention to other essential structures in the road infrastructure (bridges and sidewalks), and in addressing road safety and the resilience of the cantonal road network, supported by technical elements that reasonably guarantee the effectiveness of municipal actions in these matters. 3.3. Regarding efficiency, it was evidenced that the Municipality of Alajuela lacks minimum fundamental elements and sound practices necessary to implement management oriented towards compliance with this principle; a situation that reflects the need to generate an organizational culture that considers the use of management data and indicators as an indispensable mechanism for improving management to satisfy the public interest. 3.4. Finally, to meet the challenges facing our country, such as Sustainable Development Goal No. 11 (Sustainable Cities and Communities), and to advance the purpose of leaving no one behind, it is necessary to broaden the vision with which the cantonal road network is managed, so that this management has a comprehensive perspective of the problems and an inclusive and participatory vision of all the populations that inhabit the territory, with special emphasis on those populations with greater lags and more vulnerable (…)”.
In addition to the above, it is important to point out that in this matter it has not been taken as demonstrated that, prior to Parque Viva commencing operations, its representatives were required to build —outside the premises— access roads or to submit a plan to solve the road-related problems. Nor that the content of official communications No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 from the Public Force Directorate of Alajuela and No. PE-243-07-2022 signed by the Executive Presidency of INVU was notified to the representatives of Parque Viva.
Now then, having analyzed the arguments set forth by the petitioners, the reports rendered under oath by the respondent authorities, and the evidence provided by both parties, this Constitutional Chamber (Sala Constitucional) finds that, indeed, as alleged, the issuance of health order No. MS-DRRSCN-DARSA2-OS-0368-2022 dated July 8, 2022 (electronically signed at 12:37:21), constitutes an openly arbitrary administrative act, lacking certain grounds, hasty, and absolutely disproportionate. This conclusion is reached based on the following considerations of interest:
MS-DRRSCN-DARSA2-1724-2022 referred to the aforementioned technical criteria, and, on this occasion, several provisions of our legal system were even cited; however, this in no way remedies the serious omissions and deficiencies with which the health order was originally issued, which, as already stated, constitute a violation of the fundamental rights to a defense and to due process. Furthermore, for the reasons that will be indicated below, the criteria cited by the respondents cannot serve as an instrument to close Parque Viva.
In that same line of reasoning, it is important to note that the closure of Parque Viva could not be compared either to closures that have been recently carried out for other establishments that host or gather large numbers of attendees (e.g., the Gimnasio Nacional or the Estadio Ricardo Saprissa). It should be noted that, although this Chamber fully understands the attention that the Ministry of Health and other institutions competent in the matter must maintain and do maintain over venues intended for the realization of activities that bring together a large number of people, the truth is that in those cases, there are particular circumstances of approach and attention that fully distinguish them from the case now being heard. This, inasmuch as these latter closures—whether total or partial—have been based on alleged irregularities or deficiencies found in such facilities or properties themselves, that is, within each of these sites, for reasons related, among others, to electrical systems, emergency exits, lighting systems, etc., which are never mentioned in the case of Parque Viva.
Additionally, it should be noted that on July 7, 2022, the Technical Advisory Committee on Mass Gatherings was already in session, composed of the Minister of Health as coordinator, the Minister of Public Works and Transport, officials from the Costa Rican Red Cross, the Traffic Police Directorate, the National Emergency Commission, the Fire Department, the 9-1-1 Emergency System, and Risk Management of the Ministry of Health, who, that same day –without having, as has been said, mostly conclusive criteria–, proposed issuing the health order to close Parque Viva for mass events. This last measure, as has been stated, was finally notified to the legal representative of that establishment on July 8 of the current year. In view of the foregoing, it must be said that the Public Administration –as this Constitutional Court has repeatedly indicated through abundant case law– is certainly obligated to act under the principles of effectiveness and efficiency and, furthermore, to process and resolve complaints filed by individuals promptly and within reasonable timeframes, in accordance with the provisions of constitutional article 41. However, it is important to note that, not even in pressing situations, has the Public Administration been seen to act with the speed with which it acted in this particular case. This, without a doubt, sets an important precedent and, therefore, it is to be expected that, subsequently, and in the face of any complaint filed by individuals, the Ministry of Health and the rest of the competent public institutions will act with that same urgency and diligence, thus providing a prompt response to the petitioners and interested parties.
On the other hand, the news reported on July 10, 2022, in Diario La Nación (days after Parque Viva was closed) should not be overlooked, whereby a resident of La Guácima stated that an official from a public institution contacted her and provided her with a template letter addressed to the Minister of Health for the purpose of speaking in favor of the closure of the aforementioned establishment, which, moreover, only needed to be signed by her. It draws this Chamber's attention that said resident exclaimed, at the time of being interviewed by the journalist, that, from her perspective, "the Government wants to 'clean up' what they 'messed up,' with the closure of the event center." Additionally, and as a point of interest, it is worth noting that the President of the Republic, in the report rendered to this Court, properly maintained that the "anonymous" complaint filed on July 5, 2022, against Parque Viva, was presented by residents of La Guácima de Alajuela, when, precisely, being anonymous, it would not necessarily have to be persons from that place who filed the petition. Note that said complaint could have been filed by, for example, an attendee of the event center who resides in another part of the country and who was dissatisfied with the operation of this site, or any other person.
Now, it should also be noted that the aspects indicated above, in the strict sense, do not amount to a violation of any fundamental right. However, this jurisdiction considered it important to mention them, so that they may be assessed and analyzed, together with the rest of the considerations set forth in this judgment.
Now then, based on the foregoing, this Chamber considers it pertinent to analyze the question that is the subject of this amparo in accordance with the principles of reasonableness and proportionality. In essence, to examine whether the above-cited action –that is, the issuance of the health order to close Parque Viva for any type of activity– passes or fails the so-called test of reasonableness and proportionality, which, according to the provisions of, among other rulings, Judgment No. 1276-2013 of 2:50 p.m. on January 29, 2013, includes conducting an analysis of the aspects of legitimacy, suitability, necessity, and proportionality in the strict sense. In this last ruling, the scope of such examination was explained as follows: "(…) Legitimacy refers to the fact that the objective intended with the challenged act or provision must not be, at least, legally prohibited; suitability indicates that the questioned state measure must be apt to effectively achieve the intended objective; necessity means that among several equally apt measures to achieve such objective, the competent authority must choose that which affects the legal sphere of the person as little as possible; and proportionality in the strict sense provides that even if a measure is suitable and necessary, it will be unreasonable if it injures the essential content of another fundamental right, if it empties it of content (…)" (in a similar sense, see Rulings Nos. 3951-2012 of 4:31 p.m. on March 21, 2012, and 27601-2021 of 12:15 p.m. on December 8, 2021). For its part, it should be noted that in Judgment No. 3564-2015 of 9:20 a.m. on March 13, 2015, this Court clarified, on this matter, that "(…) This protocol is applied in phases, so that if the examination of a first phase is unsatisfactory, it is unnecessary to continue with the study of the rest of the aspects, although, in some cases, for greater forcefulness of the decision, one may delve into them (…)".
In application of said test and, as indicated above, it is clear that the health measure under study is not legitimate, because, despite arguing for its issuance the protection of the life and integrity of persons, the truth is that it was issued, as already explained, in a disorderly manner, openly arbitrarily, and without any certain basis, thereby contravening the provisions of the legal system. The challenged conduct alludes to factual and legal assumptions that, on the one hand, are not solely attributable to Parque Viva, as the health order intends to focus and establish, but, furthermore, were not duly accredited or supported at the time of adopting that formal act. That is, the antecedent on which that decision seeks to rely is based on a conclusion or value judgment that lacks the technical evidentiary support which is fundamental and unavoidable to sustain that result. Therefore, a non-existence of the element of motive of the act is observed, in the terms imposed by canon 133 of the LGAP and with it, by derivation, the adopted content, which imposes a burdensome, disproportionate, and unreasonable consequence, is illegitimate, by establishing a legal consequence that finds no support in the legal system. In sum, on this point, the questioned act contravenes the necessary relationship between the objective material elements of motive and content, incorporating an insurmountable deficiency that, in no way, can be understood as overcome by the subsequent generation of opinions from other administrative instances, which sought to accredit aspects that should have been established as the legitimate basis of the challenged health order. A previous state of affairs which, therefore, does not allow it, either, to be considered a suitable measure. Likewise, this measure does not satisfy the criterion of necessity, since there are less harmful or less drastic alternatives to achieve the alleged purpose (protection of the life and health of persons) and that could be adopted in the exercise of the powers that the Ministry of Health has for the protection of health and integrity without needing to affect the exercise of other fundamental rights. However, the respondent, that is, the Ministry of Health, chose to impose –without any valid justification– the most harmful option on the Parque Viva establishment, as it categorically prevents it from holding any type of event indefinitely, until such time, as has been explained, a remedial plan is presented and executed for a problem that is not only caused by the activities organized there, and which, in turn, since it involves cantonal roads, the municipality of Alajuela is responsible for addressing. In addition to this, it should be noted that the measure under study adopted by the Administration also fails the examination of proportionality in the strict sense, since it injures the essential content of other fundamental rights, thus emptying it of its protective content. In this regard, it has already been demonstrated that the measure under study becomes arbitrary, lacks motivation or support (as it refers to technical criteria that have not been accepted by this Court), and consequently and flagrantly violates the fundamental rights to defense and due process.
Thus, in the opinion of this Constitutional Court, the respondents should have carried out an adequate weighting and adopted the least burdensome measure for fundamental rights, promoting their balance and limiting their impact to a minimum. Note that while, it is worth highlighting, this constitutional body has repeatedly indicated that life, health, and the integrity of persons are legal assets of utmost relevance, and therefore clearly deserve protection, it is not for this reason, and in their name, that other fundamental rights can be trampled indiscriminately, untimely, and arbitrarily, through a clear misuse of power that constitutes, in turn, a violation of the constitutional principle of legal certainty.
Measures to safeguard such essential assets must always and obligatorily be taken, but under no circumstances can they be issued lightly, hastily, in a disorderly manner, without greater foundation, and gravely violating other fundamental rights. Much less can such drastic measures as those analyzed in this matter be issued, when other possibilities exist –less harmful ones– that can be adopted in order to safeguard the life and health of persons.
Certainly, it is a fact that in the vicinity of Parque Viva, improvements must be made to the cantonal road network to allow the expeditious transit of emergency vehicles; however, as has also been said, this problem cannot be attributed or blamed entirely on Parque Viva, much less can the responsibility of ending it be transferred to the representatives of this venue through the imposition of such a burdensome and extreme measure as the absolute closure of its facilities.
For these described considerations, this Chamber deems it pertinent to uphold this part of the appeal, with the consequences that will be stated in the operative part of this judgment.
C. CLOSURE OF PARQUE VIVA AND INDIRECT VIOLATION OF FREEDOM OF EXPRESSION. The Director of Diario La Nación, as well as the rest of the appellants, also allege to this Court that the closure order of Parque Viva (ordered through health order No. MS-DRRSCN-DARSA2-OS-0368-2022) translates into an indirect violation of freedom of expression. In this regard, they explain firstly that Parque Viva is part of Grupo Nación S.A. (of which said newspaper is also a part) and was created as a complementary source of income, less dependent on the sale of advertising in the media outlet. Specifically, they state that said event center was put into operation to diversify the company's sources of income and compensate for the loss of revenue or earnings experienced by media outlets worldwide, due to the migration of advertising to internet giants. The plaintiffs explain that the referred newspaper carried out a series of publications of evident public interest concerning the then-candidate for the Presidency of the Republic, Rodrigo Chaves Robles, related to sanctions imposed on him for sexual harassment at the World Bank and to the parallel financing structures of his party's political campaign, among other topics. They affirm that these were serious, well-documented, and pertinent journalistic publications, such that the fact of not publishing them would have directly affected the right of citizens to be informed about matters of public interest, as well as the principle of the informed voter. They also state that, by virtue of the foregoing, the president threatened publicly to destroy "the corrupt structures of La Nación and Canal 7," and has launched verbal attacks against the press and journalists, whom he has described as "canallas." Then, they accuse that the president began to materialize the threat made against them, through the issuance, on July 8, 2022, of the already cited and arbitrary health order No. MS-DRRSCN-DARSA2-OS-0368-2022, by means of which the closure of Parque Viva was ordered. Therefore, they maintain that this venue (created to diversify the company's sources of income) was one of the structures of independent journalism of Grupo Nación that was affected as a consequence of the threat issued by the current president. They state that with the measures adopted against Parque Viva, the satisfaction of public interests is not pursued, but rather that of spurious interests consisting of intimidating a media outlet so that it does not freely exercise its right to inform. They point out that these acts not only economically affect the company that owns Parque Viva, but also the media outlet where they work, therefore, their right to inform is harmed. They affirm that this is the true purpose of the adopted acts. They state that the pressure exerted on the company's finances puts future journalistic practice at risk, and invites understandings that compromise it. They accuse that the above described has implied a clear purpose of limiting freedom of expression by indirect means. They add that on July 6, 2022, days before said order was issued, the president publicly sowed doubts about the financial health of Grupo Nación, by making inquiries related to the bonds issued by said company and acquired by the CCSS and its pension operator. They even affirm that, on that occasion, he insinuated the weakening of the debt guarantee due to the future transfer of some company land to a trust to undertake a promising real estate development. They mention that the actions of President Rodrigo Chaves, on that occasion, had no other purpose than to harm Grupo Nación, casting doubt on its finances, in order to curtail freedom of expression. Concomitantly, they maintain that the president has made other public statements against Grupo Nación (in order to continue persecuting and intimidating it), as was the case on July 13, 2022, when he expressed his opposition to the project to build a four-lane access to National Route No. 27. Furthermore, they point out that on July 20 of the current year, the President cited, among the reasons for canceling the electric train plan, the existence of a branch line that passes by Parque Viva. They argue that the threat to destroy the companies is more than evident, as retaliation for the editorial lines of the media outlets it owns and the actions of its journalistic directors. They indicate that the freedom of expression established in constitutional article 29 has been violated and, in turn, an indirect attack on it has been configured, which is prohibited in article 13.3 of the American Convention on Human Rights. They refer to the provisions of the Inter-American Court of Human Rights, among others, in the case of Ivcher Bronstein vs. Peru, in the case of Ríos et al. vs. Venezuela, as well as in Advisory Opinion No. OC-5/85. Likewise, in a subsequent brief submitted to this Chamber, the Director of Diario La Nación reiterated that it is a group of professionals whose freedom of expression is intended to be limited through arbitrary actions against the structures that support the free exercise of journalism. He clarifies that they have not referred to a direct attack, but to an indirect one and that, contrary to what the president stated, the payment of their salaries does not depend on Parque Viva. However, he states that the closure of Parque Viva would put an end to the bothersome journalism they do "and which motivated the threat uttered during the campaign." By virtue of the foregoing, they request that the President of the Republic be ordered to refrain from executing acts tending to harm freedom of expression.
For his part, the President of the Republic, in response to the accusations, indicates that the situations referred to by the appellants bear no relation to curtailing the freedom of the press of the media outlet. He indicates that, rather, the plaintiffs, shielded by that mistaken discourse, demand without any qualms that the State must allow them to operate in the way they want, even when this is contrary to the law and to the detriment of public welfare. He states that Grupo Nación cannot be required, like any other Costa Rican business, to adjust to legal parameters, because immediately, in their view, it becomes an attack on freedom of the press. He maintains that it is not possible for Grupo Nación to say that they pin their economic hopes on what the economic activity of Parque Viva can generate in order to pay their employees, and that temporarily closing that place for holding mass events for failing to comply with minimum health conditions is a direct attack on freedom of the press. He points out that this only demonstrates that the financial health of La Nación is not as they want to make it seem and that they depend on this place to survive financially. He indicates that the fact of protecting the lives of hundreds of families living near Parque Viva has no relation to attacking, limiting, or censoring the freedom of the press of Grupo Nación. He states that the Association of Journalists of Costa Rica, after analyzing the issue, concluded that freedom of the press in our country is in good health and that, at no time, is this right being attacked. He adds that the statements made regarding the financial capacity of Grupo Nación and the declarations made by CCSS officials in this regard are valid and justified. He argues that, at the close of the first quarter of 2022, Grupo Nación projects a net loss of 350 million colones, almost 35% higher than the loss reflected in March 2021. On the other hand, he points out as concerning that the largest asset that Grupo Nación possesses, that is, the property in Llorente de Tibás, is being transferred to a trust along with other properties that this group has been acquiring, even though they have been reporting losses for several years. He maintains that Grupo Nación, like any other debt issuer participating in the national securities market, is obligated to provide truthful information that supports its financial health, and not to hide behind its supposed core activity as a media outlet to allege attacks on freedom of the press when required to comply with legality. He also indicates that the need to feel persecuted on the part of the appellants defending the interests of Grupo Nación reaches the point of asserting that the cancellation of the electric train project promoted by the previous government is due to the fact that a route branch passed by Parque Viva. However, that assertion is false, and he maintains that the decision not to continue with said project was made for the benefit of the citizenry, where a better thought-out and designed project would represent greater benefits for everyone. He states that the appellants forget to indicate that, according to a news story published in the media outlet CRhoy.com, the current government and Grupo Nación signed an agreement that would increase the cost of the electric train by almost 150 billion colones so that the railway line would pass near Parque Viva. He mentions that, as a Costa Rican and a public official, he has the obligation and the right to speak out forcefully against situations that endanger the public health of the people. He indicates that this is a constitutional right he has to freely express his thoughts, which he will do in the most vehement manner when it comes to protecting the rights of Costa Rican families. He points out that recently, the Constitutional Chamber, in Judgment No. 9855-2022, ruled on the right of public servants to express their opinions. Likewise, he refers to the provisions of the Inter-American Court of Human Rights in the case of Ríos et al. vs. Venezuela, where it was indicated that, despite the pronouncements made having had strong and critical content that could even be considered offensive, they constitute legitimate expressions of thought. He adds that it is unavoidable to question whether Grupo Nación is acting in accordance with the ninth principle of the Declaration of Chapultepec and whether, once all the criteria of specialized entities are analyzed, credibility and commitment to the truth are not in question. He affirms, then, that no kind of censorship is being exercised, either directly or indirectly, against Grupo Nación. He points out that the media outlet continues to operate normally, informing the Costa Rican people according to its editorial line, and this guarantee will never be violated.
In view of the foregoing, we have then the grievance formulated by the appellants, in the sense that the closure of Parque Viva (coupled with other statements made by the President of the Republic) represented a materialization of the threats made by this authority aimed at destroying Grupo Nación S.A. (of which, in turn, Diario La Nación is a part), consequently causing an indirect breach of freedom of expression, given that said establishment was created to diversify the company's sources of income and compensate for the loss thereof experienced in recent years. On the other hand, we have the version of the President of the Republic, who maintains that freedom of expression has not been violated, that the media outlet continues to function normally to date, and that the issuance of the health order in question and the closure of Parque Viva seeks to protect the lives of hundreds of families living near said venue. Furthermore, the President argues that he has every right to freely express what he thinks, especially when it comes to protecting the rights of Costa Rican families.
It should be recalled that, in the previous section of this judgment, it was indicated that the closure of Parque Viva carried out by the Ministry of Health on July 8 of this year through health order No. MS-DRRSCN-DARSA2-OS-0368-2022 (issued on July 8, 2022, and electronically signed at 12:37:21 p.m.) was carried out, in turn, through an administrative act considered by this Court as arbitrary, lacking support, and also disproportionate (this conclusion, it is clarified, was reached by this jurisdiction independently of what may be known in this new section). Now, this Chamber considers that, in order to determine whether said action also constituted an indirect restriction or limitation (veiled censorship) on freedom of expression, it must be examined, concomitantly, in accordance with the rest of the events that occurred, including the circumstances and the context in which they arose. In this way, a review will first be made of some of the main events that have surrounded the specific issuance of said health order.
Thus, it is important to note first that, in this matter, it has been proven that Diario La Nación is part of Grupo Nación S.A.; the latter corporation which, in turn, acquired Parque Viva some years ago, as a means, in this particular case, to diversify the company's sources of income and thus compensate for the loss of earnings suffered due to the migration of advertising to internet sites.
Likewise, the record shows that, in light of the electoral contest (specifically the votes held in our country to elect the President of the Republic this year 2022), Diario La Nación carried out a series of publications against the then-candidate –now President of the Republic–, Rodrigo Chaves Robles. In particular, it was demonstrated that on August 30, 2021, said newspaper published a news story regarding the sanctions for sexual harassment imposed on the cited candidate while he was an official of the World Bank. Subsequently, on this same topic, the newspaper carried out other publications on August 31, 2021, September 4 and 7, 2021, October 18 and 19, 2021, February 4, 2022, March 8 and 28, 2022, April 1 and 25, 2022. Likewise, it is on record that a news story criticizing Chaves Robles' proposal to govern through referendums was published by said outlet on February 13, 2022. For their part, news stories concerning the parallel financing structures of the now-President's political campaign were published by Diario Nación, among others, on March 5 and March 29, 2022.
It has also been demonstrated that, in parallel or concomitantly with the above journalistic publications, Chaves Robles, as a presidential candidate, made a series of statements directly against Diario La Nación. Thus, it is on record that on January 29, 2022, Chaves Robles publicly stated the following before a group of supporters:
"(…) We are a tsunami and yes, we are going to cause destruction. We are going to cause the destruction of the corrupt structures of La Nación and Canal 7. Listen to me Ignacio Santos, listen to me the other one (…) René Picado, listen to me Armando González. Here we are. Keep invisibilizing us in the new, in the good, and accusing us injuriously in the bad, because you no longer appoint presidents in Costa Rica (…)". (The emphasis is not part of the original).
Likewise, it was accredited that on February 6, 2022, the then presidential candidate, at the moment of casting his vote, expressly stated to the media outlet AM Prensa the following:
"(…) I did not say that the press was canalla. In Costa Rica there is prensa canalla (…) because there is press that lies (…) that is at the service of powerful groups, that have been dedicated to removing and appointing presidents and that is over for them (…)". (The emphasis is not part of the original).
Furthermore, in response to a question posed by the journalist on this last occasion, Rodrigo Chaves specifically clarified that he was referring to "(…) La Nación, Canal 7, CRhoy (…)" and maintained that he said this "(…) transparently and clearly (…)". (The emphasis is not part of the original).
Along those same lines (although without mentioning specific names of media outlets), it was demonstrated that on January 30 of that same year, at a campaign closing rally (corresponding to the first electoral round), presidential candidate Rodrigo Chaves publicly stated the following:
"(…) we went from the most egalitarian society in Latin America to one of the most unequal in the world (…) to make those who control these media of disinformation, defamation, and lies richer (…) we said it, we said that the house had to be cleaned and they got scared because at first, who cared about Rodrigo Chaves? Nobody (…) the same day Pilar Cisneros announced her candidacy they began to release the venom, the hatred, the lie, and slander, that's when (…) they started to tremble, that's why they do it (…) because of this tsunami that is going to sweep them away like garbage from the house (…) ink and not blood, but it will be of no less historical relevance (…) because here we are telling the same ones as always: the party is over for you, the party is over for you (…)". (The emphasis is not part of the original).
In addition to this, it is important to bear in mind that in this matter it has also been demonstrated that the now President of the Republic has referred to the press, in general terms, as "the prensa canalla y vendida." This, for example, was evident in the news story published by the media outlet Columbia on its digital platform on February 7, 2022; an occasion on which, moreover, the president indicated that two or three media outlets in this country were going to be severely affected in a government led by him. In this news story, the following express statements made by Rodrigo Chaves were recorded:
"(…) In Costa Rica, hear me loud and clear, there is prensa canalla comprada y vendida, not all the press is like that, there are honest people in this country, the vast majority, but there are people who are not honest, the same with the press (…) in Costa Rica (…) there are two or three very important media outlets that are at the service of interests that are going to be severely affected in a Rodrigo Chaves government and that have done the impossible for a political firing squad and lynching against us (…)". (The emphasis is not part of the original).
Likewise, the current President of the Republic has publicly compared the press of this country to rats and other fauna species.
In that regard, it is on the record that on August 3, 2022, at a press conference, that authority, addressing the Minister of Health, stated:
“(…) I see you affected by the media and I understand you, but I am going to be very frank, I do not believe those media or those of your kind, because they are a species (…) people talk about the press, that’s like talking about fauna, there are rhinoceroses, there are raccoons, there are rats, there are birds (…) The species of press you are talking about I do not believe (…) do not get upset with them, let them keep sinking (…)”. (The highlighting is not part of the original).
In addition to the above-cited, it is worth bearing in mind a series of events that have occurred, related to this same matter. In that regard, it must be borne in mind that on July 6, 2022, at a press conference, a journalist from the outlet El Guardián CR asked the now-President of the Republic his opinion regarding the matter of the Caja Costarricense de Seguro Social and the request made to SUGEVAL regarding the bonds issued by Grupo Nación. In that regard, the record shows that the President stated that indeed there is a very serious issue with bonds that previous governments bought issued by La Nación. He also indicated that he is concerned regarding the payment capacity that that outlet would have (which, in his opinion, “seems very, very weak”), by virtue of certain accounting actions and asset diversion that weaken the probability that the people of Costa Rica can recover those resources, which are substantial. After Álvaro Ramos, Executive President of the CCSS, issued his opinion on the matter, the President of the Republic expressly stated the following:
“(…) La Nación’s profitability is in free fall and that means it is incurring constant, constant, constant losses. And so one asks oneself, if that loss trend continues, I don’t know, maybe they have a magic wand and manage to lift the cash flow (…) what happens if La Nación’s cash flow is strangled and the property is not there because it is elsewhere? That is the question and I think Mr. Álvaro expressed it in very good technical terms but hey (idiay), he has the obligation to do that. And I asked him, in addition—since he was already doing it when I called him to ask—he says no, we are already doing it and the inquiry is underway (…)”.
It has also been demonstrated that, by virtue of what occurred that July 6 of this year at the press conference, on July 7, 2022, in the politics section of Diario La Nación, a note was published in which, among other aspects, it was explained why the arguments expressed by the President regarding Grupo Nación’s financial capacity were not accurate. In addition to that, the record shows that, in that same note, it was recorded that the Executive Director of Grupo Nación stated that “(…) Parque Viva resumed activity, as of March 2022, after being two years without events due to the coronavirus pandemic. Likewise, he recalled that the health crisis caused a generalized impact worldwide. Despite that, he emphasized, the company managed to generate cash flow (…)”. (The highlighting is not part of the original).
At this point, it must be recalled that, the following day, that is, July 8, 2022, the Ministry of Health issued the sanitary order (orden sanitaria) that ordered the closure (cierre) of Parque Viva for any type of activity.
In addition to the foregoing, it bears reiterating that in this matter it has been demonstrated that on July 13, 2022, the President of the Republic, at a press conference, spoke out against the road project proposed by Grupo Nación to address the congestion problems that arise in the area of La Guácima, where Parque Viva is located. The record shows that, on that occasion, said authority stated:
“(…) Did you hear the barefaced lie that La Nación published stating it has had for two years a request for an access to Ruta 27 to fix Parque Viva? Ah well no, hey (idiay), if we score a goal let’s score four more goals because it is four times the volume of area they wanted to get the permit for. Aren’t you ashamed to collapse Ruta 27 risking the entire West, Grecia, Naranjo, Atenas, San Carlos, all of Guanacaste and all of Puntarenas? (…)”.
Likewise, it has been established that on July 20, 2022, the President, at a press conference, maintained that one of the reasons for canceling the electric train plan is the existence of a branch line that passes through Parque Viva, whose cost would be 150 billion colones. Specifically, that authority stated:
“(…) We understand that the greater metropolitan area needs a transportation solution. When one sees that they had a branch line for this little train costing 150 billion colones to Parque Viva, one worries even more. So everything together tells us “this is a no-go” (…)”.
Having analyzed the events cited above, jointly, it is clear to this Court that Mr. Rodrigo Chaves Robles, both as a presidential candidate and in the exercise of the presidency of the Republic, has issued a series of clear, direct, and forceful statements against Diario La Nación, through which he expressed his intention to destroy that media outlet (medio de comunicación), just as a tsunami does, according to the terms expressly used by him. This intention is clear when observing what was stated by Chaves Robles publicly on January 29 and February 6 of the current year, occasions on which he not only referred to La Nación, but also to Canal 7 and the outlet CRhoy, which he also branded as “vile press (prensa canalla)”. Likewise, one cannot overlook that the then-presidential candidate, on January 30, 2022, during the close of his campaign, despite not mentioning specific names, did publicly indicate that he would sweep away the media outlets “like the garbage of the house,” due to the tsunami that he and his party represent or would execute to end their “party.” In keeping with the foregoing, it is also important to note that the current President, in this same period, particularly on February 7 of the current year, again hurled epithets against the press, which he branded as vile (canalla) and sold out, and he stated, forcefully, that two or three media outlets would be very affected in the event of a possible government led by his person. Additionally, on August 3, 2022, Chaves Robles took advantage of his intervention together with the Minister of Health to compare the press to rats and other species of fauna.
In addition to this, this jurisdiction also observes that, precisely, the foregoing state of affairs coincided with the same period in which Diario La Nación published various news items regarding Chaves Robles, when, at that time, he held the status of presidential candidate (namely, from August 2021 until at least April 2022). News items that, as stated, could not, in any way, be to the liking of the current President, much less in the midst of an electoral campaign, since these, as stated, were related, among others, to matters of sexual harassment for which he had been sanctioned during his tenure as an employee of the World Bank or, alternatively, to the parallel structures for financing his political campaign (news items regarding which, furthermore, it is clarified, this jurisdiction issues no opinion or pronouncement whatsoever regarding their veracity or not, as that falls outside its competence, nor is it the object of this amparo).
Thus, there is not the slightest doubt for this constitutional body that the President issued a series of threats against the press, in particular, against Diario La Nación, as a means to intimidate and frighten it. The current President, feeling offended or aggrieved by the disclosures made by that media outlet (editorial line), chose, then, as has been demonstrated, to attack it openly and publicly, “loud and clear (claro y duro)” as he himself has said. This, it is worth noting, as has also been demonstrated, was not carried out in an isolated manner, because, on the contrary, it is evident that it involves a series of statements (direct and indirect attacks and threats), directed towards a single purpose and made in the same period, parallel to or concomitant with the publication of the referenced news items.
Now, in this context, one might think, or it would be valid to understand, that the sanitary order (orden sanitaria) issued against Parque Viva (through which its closure (cierre) for any type of event was ordered), materializes the closure of the media outlet.
This is because said closure —in addition to having the particularities already described— certainly harms Parque Viva’s finances and, therefore, Grupo Nación S.A., but also, concomitantly, generates an impact on the media outlet (medio de comunicación) Diario La Nación. It bears recalling at this point, once again, that both Periódico La Nación and the referenced park form part of the same company or financial conglomerate (called Grupo Nación S.A.), and that, precisely, this commercial events venue was acquired to diversify income sources and compensate for the loss of profits suffered by virtue of the migration of advertising toward digital platforms; that is, as a mechanism to contribute to or cooperate with the financing or current maintenance of this particular type of press outlet, according to the terms amply explained in Considerando VIII of this judgment. Such that, if Parque Viva is affected as has occurred (and it ceases to produce income by being completely closed, prohibited from conducting any type of activity, as was ordered), Diario La Nación is also, and inescapably, economically affected, as part of the financial conglomerate that is Grupo Nación S.A. In other words, if the formula or mechanism used by Grupo Nación to generate income and contribute to the expenses generated by Diario La Nación is harmed, obviously, this will negatively impact the latter outlet. In these same terms, this Chamber explained it in the already cited Votos Nos. 1782-2015 and 15220-2016, by indicating that, if the economic income of a media outlet is limited, one also ends up harming it or, even, eliminating it. Note that while the petitioners have been clear in indicating that their salaries, as journalists, at this time, do not depend absolutely on the operation of Parque Viva (just as the President so understands and mentions in the report rendered to this Court), the truth is that they have stated that the closure (cierre) of the venue generates an economic impact that harms and negatively affects the media outlet. In addition to that, the claimants have pointed out that Parque Viva forms part of the structures to which the President of the Republic refers and which are, precisely, those that “sustain their free exercise of journalism.” Furthermore, they have been clear in indicating that the pressure exerted on the company’s finances through its closure “puts future journalistic practice at risk and invites understandings that compromise it.” In this regard, it is necessary to point out that, as demonstrated in the set of proven facts of this judgment, for this third quarter of the year 2022, at least four relevant events were being organized at Parque Viva, which represent the attraction of significant income for Grupo Nación, from which the media outlet Diario La Nación also benefits, according to the terms already explained. Nevertheless, as was likewise established, the Ministry of Health, on July 14 and 15, 2022, denied the producers of those events the issuance of the requested capacity certifications, by virtue of the closure order (orden de cierre) issued against the referenced venue, thereby clearly causing a significant economic impact on Grupo Nación and, therefore, on the media outlet.
It is also worth indicating, regarding this last aspect, that this Constitutional Court’s attention is drawn to the fact that the closure (cierre) of Parque Viva was ordered on July 8, 2022, just one day after Diario La Nación published a note through which it defended itself against the statements related to its finances expressed on July 6, 2022, by the President of the Republic, in which, in turn, the Executive Director of Grupo Nación pointed out that the venue under study had resumed activity in March 2022 and had managed to generate cash flow. Likewise, one cannot lose sight of the fact that the President, in the report rendered to this Chamber, concluded that La Nación does depend on Parque Viva to survive financially, which reaffirms that the closure carried out on this site harms it, and that the consequences produced by that act were not outside his knowledge. Consequently, we are in the presence of the issuance of an abusive, arbitrary, and disproportionate act that weakens the financial stability of Diario La Nación.
Now, according to the analysis carried out amply in Considerandos VII and VIII of this judgment, what occurred with Parque Viva and the impact it causes on the press outlet, translates, in turn, without any doubt, into an indirect violation of freedom of expression, that is, veiled censorship. This is primarily because the negative economic repercussions generated for Diario La Nación could entail, by way of example and in the face of a financial crisis, the decision being made, in the short, medium, or long term, to reduce or dispense with personnel—among them journalists—, even to proceed with the closure of its operations definitively, thereby preventing that outlet and, therefore, those who work in it, from continuing to exercise freedom of the press, as a manifestation of freedom of expression. As the Inter-American Court of Human Rights made clear in the already cited case of Granier et al. vs. Venezuela, the restriction on freedom of expression in this type of situation affects not only the media outlet (legal person), but also natural persons (from shareholders to the journalists who work there). Concomitantly, it is clear that the closure (cierre) of Parque Viva, according to the terms set forth here, also translates into a sort of wake-up call or warning to the media outlet (medio de comunicación) Diario La Nación by virtue of its editorial line, aiming thereby for it to shift in favor of the government or, simply, to produce a dissuasive or intimidating effect and, with it, to silence or completely placate the voices of its director and its journalists. A clear and unquestionable notice given to Periódico La Nación to abstain from incurring in the facts already described, that is, the publication of news that harms the image of the President or the government in general. It is punished, then, for what has already been published and made known regarding the President, his political party, and his way of attempting to govern, but also, a warning is issued so that this type of news does not get disseminated to the citizenry again. Furthermore, it is important to note that this threatening message that violates freedom of expression is sent not only to Diario La Nación, but also, dangerously, to the rest of the country’s media outlets that dare to publish any news against the President and his government.
Thus, it is evident that the closure (cierre) of Parque Viva is an indirect, abusive, and illegitimate mechanism that violates freedom of expression. A state of affairs that the American Convention on Human Rights itself proscribes in its Article 13.3 and which, as it also clarifies, can be carried out not only through the “abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information,” but also, “by any other means aimed at impeding the communication and circulation of ideas and opinions.” The closure of Parque Viva fits perfectly into this latter description and thus becomes yet another example, like those cited in Considerando VII of this judgment, of how the fundamental right to freedom of expression can be indirectly violated.
We must note here that, despite the fact that the President of the Republic maintains that a legitimate purpose mediated in the closure (cierre) of Parque Viva (such as safeguarding the life and health of persons), the truth is that one cannot overlook that said act also (apart from having been issued arbitrarily, lacking grounds, and being disproportionate according to the terms already described), violates one of the most relevant fundamental rights in our Constitutional State of Law (Estado Constitucional de Derecho), which is freedom of expression and freedom of the press, as a manifestation of the latter. The President argues that he acted safeguarding those legal interests even making use of a power permitted by the State (such as the issuance of sanitary orders (órdenes sanitarias)); however, the truth is that, at bottom, through that thesis, the media outlet is harmed and punished (at the hand of the Ministry of Health), thus configuring, in all lights, a clear and evident illegitimate deviation of power. In essence, the impact on the stated public freedoms was clothed in an appearance of legality.
The closure (cierre) of Parque Viva was carried out with abuse of power, through an indirect mechanism (disguised as a legitimate action), with a purpose clearly distinct from that which was indicated, both in the sanitary order (orden sanitaria) and before this Constitutional Chamber, and this, this latter jurisdiction, is absolutely clear on. Thus, we find ourselves before what this Court has already termed “(…) a perverse and anti-democratic way of using the power of the State to direct opinion, according to a system of ‘reward or punishment,’ against those who exercise the freedom of the press and free expression guaranteed constitutionally and conventionally (…)” (Voto No. 15220-2016).
Note that an absolutely credible discourse for third parties is used (such as the defense of public interests), to justify the arbitrary closure that was carried out on Parque Viva, yet, concomitantly, to flagrantly harm the media outlet (medio de comunicación) Diario La Nación, as a reprisal for the news published against the President and his political party, news which, it is highlighted, did not cease to be disclosed despite the threats issued by the latter. Threats that, it bears reiterating, were made on several occasions, clearly and directly against the media outlet Diario La Nación, until they were finally materialized or executed, just as the Venezuelan government did in its time, by lashing out against the media outlet Radio Caracas Televisión for broadcasting news against its regime, an action that was condemned by the Inter-American Court when it held, among other aspects of interest, that it is not possible to arbitrarily restrict the right to freedom of expression based on the political disagreement that a determined editorial line may generate for the government (case of Granier et al. vs. Venezuela, judgment of June 22, 2015, to which extensive reference was made in Considerando VII of this vote and whose content is fully applicable to this amparo proceeding).
Additionally, it must be taken into account that the President has also referred to the press in a derogatory manner (using confrontational words or comparing it to rats and other species of fauna) and that he even made public threats to Grupo Nación through other different forms, such as by publicly questioning the state of its finances (regarding bonds issued and purchased by the State), lashing out against the road project proposed to help with the road congestion problem that arises in La Guácima, and pointing out, as one of the causes for canceling the electric train plan, the fact that there is a branch line that passes through Parque Viva. In essence, carrying out a campaign to publicly discredit the cited press outlet by alluding to various topics of national interest (regarding which, it is also clarified, this Chamber refrains from pronouncing, as they fall outside the scope of its competencies and are not the crux of this amparo).
Concerning these statements, the President of the Republic argues that he is entitled to the constitutional right to freely express his thoughts and, in that regard, cites Judgment No. 9855-2022 issued by this constitutional jurisdiction (where reference was made to the right of public servants to express their opinions), as well as what the Inter-American Court of Human Rights held in the case of Ríos et al. vs. Venezuela, where it indicated that pronouncements made by high-ranking State officials “(…) although they may have strong and critical content that can even be valued as offensive, constitute legitimate expressions of thoughts and opinions about the particular ways a media outlet may exercise journalism that are protected and guaranteed under Article 13 of the American Convention (…).” Notwithstanding the foregoing, it is important to highlight that in that same pronouncement to which the President alludes, the Inter-American Court also held that:
“(…) 139. In a democratic society it is not only legitimate, but at times it is a duty of state authorities, to pronounce themselves on questions of public interest. However, when so doing they are subject to certain limitations in that they must verify in a reasonable manner, although not necessarily exhaustively, the facts on which they base their opinions, and should do so with even greater diligence than that employed by private individuals, by reason of their high investiture, the wide reach and potential effects that their expressions may have in certain sectors of the population, and to avoid citizens and other interested persons receiving a manipulated version of certain facts. Additionally, they must bear in mind that as public officials they are in a position of guarantor of the fundamental rights of persons and, therefore, their statements cannot disregard these nor constitute forms of direct or indirect interference or harmful pressure on the rights of those who seek to contribute to public deliberation through the expression and dissemination of their thoughts. This duty of special care is particularly accentuated in situations of greater social conflict, disturbances of public order or social or political polarization, precisely because of the set of risks they may imply for determined persons or groups at a given time (…)”. (judgment of January 28, 2009) (The highlighting is not part of the original).
Furthermore, it must be taken into account that although this Chamber, in the cited Judgment No. 9855-2022 of 2:17 p.m. of April 29, 2022, referred to the right that public officials have to express their opinions, the truth is that the facts analyzed on that occasion and for which the amparo remedy then filed was granted, differ greatly from the circumstances studied in this new matter. This is taking into account that, on that occasion, the case heard was that of a judicial official against whom an administrative proceeding was initiated by virtue of statements made against a former high-ranking authority of the same institution for which she provides services. Something very different from what occurs in this case, where it has been the President of the Republic himself—the highest-ranking public official in our country, with great power and influence—who has made the statements indicated above and who, while he holds the right to express what he thinks, the truth is that he must do so within certain limits by virtue of his investiture (as the Inter-American Court explained in the judgment described above) and, additionally, without violating other rights or to the detriment of other equally essential freedoms, above all, in a Democratic State of Law.
In light of the foregoing, it is worth reminding the President of something very important on which this Constitutional Chamber noted and explained amply in Considerando VI of this Judgment, which is the fact that public officials who hold a high rank, as is his case, are obligated to tolerate, with greater margin or breadth, the criticisms to which they are subjected and to which they are continually exposed precisely because of the position they hold and by virtue of the public interest surrounding the actions they carry out. This was set forth by this Court in Judgment No. 15220-2016 cited above and, even, by the European Court of Human Rights, when referring to the provisions of Article 10.2 of the European Convention, as was also set forth above. Furthermore, it bears reiterating that the same European Court of Human Rights (cited by the Inter-American Court in the case of Herrera Ulloa vs. Costa Rica), has held that freedom of expression must be guaranteed not only with respect to the dissemination of information or ideas that are received favorably or are considered inoffensive, but also with respect to those that offend, prove unwelcome, or disturb the State. In addition to this, it is also important to highlight that this right to criticize—to call it that—which, among others, press outlets enjoy, takes on greater force under different circumstances, such as, for example, in an electoral contest, where citizens have the right to know who the candidates are or the nominees to occupy one of the most important posts in the country, in fact, as stated, the highest-ranking one. This, precisely, is what the Inter-American Court explained amply and clearly in the also already cited case of Ricardo Canese vs. Paraguay; an occasion on which, it bears recalling, reference was made to the importance of freedom of expression in the context of an electoral campaign and it was held, among other aspects of utmost interest, the following:
“(…) 90. (…) The democratic debate implies that the free circulation of ideas and information regarding candidates and their political parties by the media, by the candidates themselves, and by any person wishing to express their opinion or provide information is permitted. It is necessary that all may question and inquire into the capacity and suitability of candidates, as well as dissent and confront their proposals, ideas, and opinions so that electors may form their criteria for voting (…) In this respect, the European Court has established that (…) For this reason (…) it is particularly important that opinions and information of all kinds may circulate freely in the period preceding elections (…).” (The highlighting is not part of the original).
Also, it is worth pointing out that, on that occasion, the Inter-American Court clearly indicated that those persons who postulate themselves as a candidate to occupy the post of the Presidency of the Republic have voluntarily exposed themselves to public scrutiny, and, consequently, they run the risk of being subjected to greater criticism, since their activities leave the domain of the private sphere to enter the sphere of public debate.
It must be observed that in this case it is clear that, despite what is set forth above, from the moment the news items in question were disclosed, Rodrigo Chaves Robles has dedicated himself to publicly threatening Diario La Nación and, even, justifying the issuance of acts as regrettable as the arbitrary closure (cierre) of Parque Viva. All of this, despite the fact that the President, like any other citizen who feels aggrieved by publications issued against him, has a series of means or mechanisms that the legal system provides him and to which he may legitimately resort subsequently to defend his honor or, alternatively, to ensure the accuracy of the information disclosed (exercising the right to rectification and reply established in Articles 66 and following of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) and 14 of the American Convention on Human Rights). Despite having these instruments available to him, there is no record that the President has made use of them, directing his statements instead against Diario La Nación in the arbitrary manner in which he did, and this has been fully established.
Under this state of affairs, it is observed, then, that what is set forth in this matter has represented a breach of the Constitutional State of Law (Estado Constitucional de Derecho), which holds a democratic tradition recognized, even, at the international level. Therefore, the intervention of this Constitutional Court is imperative, above all, if one takes into consideration, as has also already been said, that attacks on independent media outlets—as is precisely the case with Diario La Nación—tend to be the first targets of anti-democratic and authoritarian political systems or, at least, of those that are headed or directed toward that.
This, history and events in other latitudes so demonstrate.
The threats made by the President of the Republic against Diario La Nación, culminating in the closure of Parque Viva, thereby generating a violation of freedom of expression and freedom of the press, have unquestionably eroded and fractured our democracy—which, it bears noting, our ancestors forged with so much effort—and, for this reason, it is essential to make this type of observation to prevent similar situations from recurring. This is because today it was Diario La Nación, but tomorrow it could be any other media outlet.
In addition to the foregoing, it is important to highlight that, in this case, not only has the right of Diario La Nación to express itself, to issue criticism, and to disseminate, among other things, news related to the current President of the Republic and the management carried out by him, both before and after assuming said office (as a means, in turn, of overseeing his actions in a democratic society) been violated, but the right of the inhabitants, in a Constitutional State of Law, to receive this type of information has also been breached; that is, freedom of expression viewed from its social dimension. If the press is arbitrarily silenced, then the inhabitants are deprived of an important and valuable mechanism for learning what is happening, especially regarding government management (as a mechanism, in turn, for exercising control over its acts and forming an opinion on the matter), and this, without a doubt, equally represents an affront to the Costa Rican democratic system.
For all the arguments set forth above, this Chamber finds that, in the instant case, there has been a clear breach of the provisions of Article 29 of our Magna Carta and of the provisions of Article 13.3 of the American Convention on Human Rights, which expressly prohibits indirect censorship or indirect restrictions carried out “by any means” on the right to freedom of expression. Consequently, it is appropriate to also grant this aspect of the appeal, with the consequences that will be set forth below. This, not without first bringing to bear what the Declaration of Chapultepec states, which is fully applicable in this case:
“The struggle for freedom of expression and of the press, by any means, is not a one-day task; it is a permanent endeavor. It is an essential cause for democracy and civilization in our hemisphere. It is not only a bulwark and antidote against all abuse of authority: it is the civic breath of a society. Defending it day by day is to honor our history and master our destiny.” D. FINAL CLARIFICATIONS OF INTEREST. Finally, this Constitutional Chamber deems it pertinent, at this point in the judgment, to make the following aspects clear:
First: Through this vote, this constitutional jurisdiction is not saying that one may act contrary to what the legal system dictates; it does not propose or urge acting outside the framework of the law. On the contrary, what the Chamber indicates is that the law must be applied correctly and not in an untimely, reckless, or arbitrary manner, as was demonstrated to have occurred in the case under study.
Second: What is ordered in this judgment does not prevent the continued oversight of the operation of commercial enterprises, whether or not they are related to media outlets. The powers of control, supervision, and verification of compliance with requirements and permits for the operation of these establishments must continue to be exercised, but in accordance with the established legal framework, and not in the reckless, arbitrary, and untimely manner in which it was recently carried out in the case assessed in this proceeding.
Third: In the above-stated sense, for the specific case, this Court is aware that the life, health, and integrity of the inhabitants of the area of La Guácima de Alajuela, and of the attendees at the activities held at the establishment known as Parque Viva, must be protected and safeguarded. This jurisdiction, as stated above, through abundant case law, has always sought to safeguard these fundamental rights, and this is absolutely indisputable. Now, the exercise of the public powers available to the administration must be carried out in a manner consistent with the block of legality, and not in the reckless manner in which it has been done in this particular case.
Fourth: It must be absolutely clear that this judgment does not indicate that any commercial activity linked to a media outlet is exempt from the controls required by the legal system. Furthermore, as has also been explained, not every administrative act or conduct that imposes a burden or establishes a content with a negative effect on the financing structures of media outlets constitutes, in itself, a reflexive harm like the one indicated. A complete reading of this judgment does not establish or suggest that rule in any way. What has been established, and must be emphasized, is that the closure of a business or commercial establishment, for the purpose of hushing up or silencing a media outlet, actually represents a subterfuge to violate public liberties and fundamental rights, particularly the freedom of expression and freedom of the press, and thereby to unduly and indirectly limit these liberties, which, as repeatedly explained, are consubstantial with the very existence of democracy; hence, the protection that deserves to be afforded by this Constitutional Court.
X.- COROLLARY. By virtue of the foregoing, it is necessary to grant this amparo proceeding, it having been demonstrated that the closure of Parque Viva was carried out in an arbitrary manner, without a valid objective basis, as retaliation for the editorial line that Diario La Nación has maintained regarding the current President Rodrigo Chaves Robles, and with the sole objective of silencing the voices of said media outlet, to the clear detriment of freedom of expression and freedom of the press protected constitutionally and conventionally.
XI.- NOTE BY JUSTICE CRUZ CASTRO. THE REINFORCED PROTECTION OF FREEDOM OF EXPRESSION IN THE PACT OF SAN JOSÉ.
This case possesses great richness in constitutional analysis and defines an unusual scenario in the control of political power. The Executive Branch, within a system of checks and balances, requires judicial supervision and review. The detailed description made in the majority vote concludes that the sanitary order MSP-DRRSCN-DARSA2-OS-0368-20022 is an administrative act that is “…openly arbitrary, lacking a sound basis, and absolutely disproportionate…”. The judgment I sign describes facts and indicia supporting such a conclusion. It is not a minor matter that the constitutional instance determines, through amparo, that the authorities of the Executive Branch have engaged in an arbitrary act. This involves an openly arbitrary act, incompatible with the rules that prevail in a State of Law. Error or excess is a risk always assumed by those who make decisions affecting the rights of third parties. Despite the large number of cases this Chamber hears through amparo, hearing cases such as these deserves special attention, where a serious arbitrariness is noted in an act linked to a health matter, but also constitutes a violation of freedom of expression, which also has recognition in international human rights law.
In a democracy, political authority is subject to constant review of its decisions; that is the healthy balance ensuring the reasonable exercise of presidential or parliamentary power. I consider that in this case the action of the Executive Branch constitutes a deviation of power, by carrying out actions that appear legitimate but lack technical support and appear disproportionate. From the doctrine and from the General Law of Public Administration, deviation of power can be defined as the exercise of administrative powers for purposes other than those established by the legal system. Deviation of power is “The pursuit of a purpose different from the principal one, to the detriment of the latter...” (art.131.3 LGAP). It is a defect in the purpose of the administrative act, the use of power for ends and by motives other than those for which such power was granted. In the face of arbitrariness, the health of democracy is tested; institutional and judicial controls are put to the test. In this contradictory process, it is ensured that the exercise of power does not overflow; thus we must live, among controls and balances, it is the dialectic that prevents authoritarianism. It is the dialectic of control to which the Executive Branch must be subjected, especially the President of the Republic. The exercise of power requires controls, objections, and dissents. It is not easy for someone with a delicate political responsibility to always be correct in their decisions. In this case, the path undertaken proved inadmissible in a democratic State of Law, but the power of the Administration to undertake other actions to protect health and ensure the prohibition of arbitrariness, while also protecting the freedom of a press media outlet, remains unassailed. In this matter, the Executive Branch has broad powers to address the serious problems of vehicle traffic on all the country's roads.
In this case, in addition to the gross arbitrariness of the Executive Branch in the exercise of its powers, an indirect restriction on freedom of expression and thought is established. Law requires subtlety, it requires nuances, therefore it demands a legal framework that captures unpredictable reality, and with greater brilliance, if it concerns the control of power. That is why Article thirteen, subsection three, of the American Convention on Human Rights refers to indirect means or ways of restricting freedom of expression: the definition is broad, it is an inexhaustible range of possibilities, such as the abuse of official or private controls of newsprint, of radio frequencies, of equipment and apparatus used in the dissemination of information “…or by any other means aimed at impeding the communication and circulation of ideas and opinions…”; it is an open, flexible definition that includes a multiplicity of abusive actions in which formal power restricts such an important right. Law and its application require subtleties, it demands a circumstantial assessment, to capture reality, so rich in twists and disguises. If it were not so, legal control is of little use, especially if it concerns enhancing the effective validity of fundamental rights. In this case, there is not only a gross violation of fundamental rights to due process, but the governmental action attempts to use the sanitary order to limit a press media outlet. This seemed unthinkable thirty years ago, but social and economic changes have transformed the economic structures of private press media outlets. It is not the best scenario for giving the press more independence, but that is the reality. Many media outlets are part of a complex economic conglomerate, thus ensuring their economic and media survival. That is the economic reality of many press media outlets; their existence as a media outlet is achieved through complex structures of legal entities in which the anonymous power of money prevails, without one being able to clearly identify the owners of those media outlets; they are part of a complex network in which economic groups converge, with their communicating vessels. Through this diverse and complex structure, the media outlet is financed thanks to a varied assembly of companies that are not directly engaged in journalistic activity. Everything has changed in the media, it is a reality that cannot be ignored, by assuming, with inadmissible simplicity, that the media outlet is only its name and journalistic activity. It is a transformation similar to what has occurred in social networks, where anonymity prevails and the roots of their activity are not visible to the ordinary citizen. Current press media outlets are part of a complex legal structure, with a diversity of activities and with communicating vessels in relation to the economic structure to which the press media outlet belongs. Anonymity has worsened, just as has happened with social networks, where there is not even certainty about the identity of the person presenting themselves as a participant in a public debate. This business and economic context, described in very simple terms, is what permeates the case of the closure of Parque Viva. Indirect actions can manifest themselves in very concrete and forceful acts, such as the closure of an activity for health reasons, or they could be through actions by the tax administration. The norm of the American Convention on Human Rights possesses an unusual flexibility, without limiting what can be considered an indirect action, but rather allowing that reality, so varied and unpredictable, be included within a broad and flexible normative provision. This open concept allowed the mandatory licensing of journalists to be considered an indirect restriction on freedom of expression, as determined by Advisory Opinion OC-5/85 of November 13, 1985, of the Inter-American Court; requiring the mandatory licensing of journalism was classified as an indirect restriction on the exercise of free expression, based on reasons of public order. This restriction permanently limits a fundamental right, to the detriment of those who do not have such licensing. (see Inter-American Court Advisory Opinion, 1985: paragraphs 48 and 76). I also highlight the Case of Ivcher Bronstein vs. Peru, where the Inter-American Court classified the arbitrary use of the State's regulatory powers when exercised to intimidate a media outlet as an indirect restriction on freedom of expression (see Inter-American Court, 2001: paragraphs 158-163). The Court's precedents have indicated that there is also an indirect restriction when statements by public officials can be classified as forms of direct or indirect interference, or inadmissible pressure on the rights of those seeking to contribute to public deliberation by expressing and disseminating their thought (see Inter-American Court; 2009: paragraph 151); likewise, it has been considered an indirect restriction when accreditations are required in a disproportionate or discriminatory manner from press media outlets for participation in official events (see Inter-American Court, 2009: paragraph 375). All these examples demonstrate the breadth of the provision contained in the third subsection of Article thirteen of the Pact of San José. The mentioned norm does not impose any restriction, it only defines an open concept that includes all possible governmental actions that apply an indirect procedure to restrict freedom of expression. There is nothing novel in what this Court stated in the decision I sign, it merely applied to the specific case a normative provision whose breadth and flexibility allows for recognizing varied forms of intervention by public power on freedom of expression. This case has two key elements: the manifestly arbitrary act in the closure of Parque Viva and the indirect restriction on a press media outlet, according to the provisions of the American Convention on Human Rights.
The discussion and assessment of this amparo reminded me of vote 2016-15220. In that judgment we admitted an indirect limitation on freedom of expression, following the reprehensible actions of officials of Banco Nacional. In that decision I included a note, in which I express my view on a variety of actions by de facto powers, in which the competence of the Chamber and the provisions of the Pact of San José prove insufficient. There are spaces where Law does not prevail, it is the reign of savage powers, according to the terminology of Ferrajoli. How wonderful it would be if the social state, the independence of the judiciary, social rights, had the guarantees that the Pact of San José contains for freedom of expression. I only imagine what social justice and democracy would be like, if that were possible. There is a bias of the American Convention towards individual rights, with overly abstract provisions regarding social rights. However, the norms of the Pact of San José on freedom of expression are wise and adapt to sociological and political transformations, but in other areas so sensitive to democracy and the social state, anomie and “political expediency” prevail. I believe that the note I included in that vote, on a similar topic, remains valid, my reflections on the limitations and weaknesses of legality in our democracy are still pertinent. My condition as a judge does not turn me into a stone witness to what I consider are the injustices that float, very clearly, in the cases we resolve. I do not like that indifference, I do not like that silence. Excesses from formal power require control and counterbalance; I have no doubt that it is also required that de facto powers can be more visible to the citizenry, understanding that they also exert an influence that escapes the healthy controls of a full democracy. So much remains to be done, in electoral matters, in participation, in the validity of the social state, labor guarantees, so diminished in the last fifteen years, so much so that a Collective Bargaining Agreement seems a luxury and privilege of a minority of workers. Indeed, a case like this, which arouses passion and provokes controversy, is of lesser importance next to the deterioration of our Welfare State. The frustration of so many citizens should not lead us to overblow this litigation; there are other challenges and issues in which we face paralysis, deterioration, and silence. The issue of vehicle traffic at Parque Viva has a solution, but I cannot say the same of the problems facing democracy and the Social State in Costa Rica. They are pending subjects that Costa Rican society has, which transcend what is discussed in this amparo. I add, textually, the note I included in the Banco Nacional vote, whose validity, as I expressed, remains:
“Note by Justice Cruz Castro. Freedom of opinion and its distortions.
The amparo filed by Diario La Nación denounces a serious distortion suffered by freedom of the press and access to information. However, the event supporting the amparo raises a series of questions about the role of the media, the threat that they act as de facto powers, and the serious distortion for freedom of information represented by the concentration of news media. Many actions that distort the state of public opinion and the rules of democracy are not heard in the constitutional instance. It is the world of savage powers and their anti-values, which pervert what a democratic society should be. It is very healthy for democracy that the actions attributed to some of the heads of a state bank can be evaluated in light of constitutional power and fundamental rights. However, there is a threat that I cannot ignore, regarding the actions of de facto powers and which totally distort the fundamental liberties that underpin democracy.
The protection and control of freedom of opinion is concentrated on public powers, but there are other actors that are far from being evaluated by constitutional control instances. De facto powers escape these controls, among which can be cited, inter alia, the Church, the Army, financial institutions, and the media. The influence of these powers allows them to alter social and political events, to influence the decisions of the institutional system.
Until now, the concept of de facto powers has been used to identify those actors or groups that, through certain mechanisms, influence public decisions. However, it is a controversial concept and there is no consensus on its content. There is even a divergence of positions among academics. The differences not only range between the quality of democracy and the role of these powers in it, but even in the very groups that hold this de facto power. In this way, media outlets, banks, and organized crime are equated, when there is a notable difference in their actions before the State. But these very important differences do not prevent admitting that there exist a series of very powerful actors who are not visible and who are not subject to any type of scrutiny.
The concentration of media outlets aggravates the distortion that de facto powers can have on the quality of democracy and the regime of public opinion. In the case denounced by Diario La Nación, there is no doubt that there has been a serious distortion and contamination of the opinion regime, but there remain other actions by various actors, especially de facto powers, which, without any supervision or limitation, condition the democratic process and the determination of what is important for democracy. These powers can condition the exercise of political action, they can neutralize or manipulate it. All these distortions caused by de facto powers pervert the regime of public opinion.
The constitutional instance and the protection of fundamental rights do not reach de facto powers; they are actions that transcend the framework of control and discussion that characterizes constitutional power. This involves power with an incidence outside the formal system. So many actions that can be carried out on the margins of transparency, invisible to the validity of fundamental rights. Real factors of power without control and visibility that can colonize and affect the functioning of institutions or the state of opinion in a consultation or an election.
The economic power of de facto powers exceeds that held by a public institution in the distribution of public resources for advertising. A de facto power, if it does not self-restrain, can finance certain candidates or groups, it can also condition the participation of advertising or polling companies regarding a candidate they deem “inconvenient,” causing a candidate for deputy or president to lose, during the electoral contest, their best cadres in guiding their opinion or image campaign. These are actions that go unrecorded, they are savage powers acting without control, without transparency, conditioning the state of public opinion regarding an election or a decision of political relevance. Half of the political scenario is in the shadows; only the acts and decisions of public law bodies and powers can be subjected to healthy scrutiny.
In October 2010, the Second Report on Democracy in Latin America was presented, carried out by the United Nations Development Programme (UNDP) and in which Dante Caputo participated. The report mentions the de facto powers that can influence, in fair play or in the shadows, the official instances of power.
In the survey included in the mentioned report on who exercises real power in Latin America, the percentages of the responses were as follows: economic groups, businesspersons, and the financial sector, 79.7%; media outlets, 65.2%; churches, 43.8%; unions, 31%; illegal powers: mafias, drug trafficking, guerrillas, paramilitaries, 26%; civil society organizations, 12.8%; and indigenous sector, 3.2%. Regarding formal powers, the responses were: Executive Branch, 36.4%; Legislative Branch, 12.8%; and Judicial Branch, 8.5%. This sample of various non-formal powers includes, of course, the media. Pressures or reprisals such as those we have seen in this matter can arise in the world of de facto powers, including press media outlets, without them being visible or able to be denounced. In such a delicate matter, it is appropriate to abandon naive or reductionist visions.
This is a reflection I raise in connection with a relevant case in which undue pressure is exerted against a press media outlet; however, in the world of savage powers, as Ferrajoli calls them, these actions are carried out in the shadows and without constitutional control. They are actions against the principles and the rules of the game in a democracy, just as occurred in this case. The healthy corollary of this case is that regarding freedom of opinion and of thought, there can be no improper pressures or manipulations. In Costa Rican history, the conduct of Diario La Nación has always been unimpeachable; it has truly given, in our history, lessons in journalistic ethics; however, I cannot ignore that in the opacity of various actors exercising de facto power, more serious and reprehensible actions are carried out than those attributed to the heads of Banco Nacional. This involves a culture of naked powers, without an ethical ideology, for the only interest is to achieve an improper influence on the interests of democracy and the citizenry's will.
There is no doubt that actors who hold and exercise, de facto, great power, who engage in activities of pressure, distortion, or manipulation, cannot subjugate and violate the rules of a State of law. In that world of pressures, conditioning, in that culture of savage powers, the constitutional instance can do nothing; thus, the most serious actions against the opinion regime and against democracy remain hidden; this involves an illegitimate power that remains submerged.
In the matter of freedom of information and the right to information, threats arise that may relate to the action and influence of de facto powers, such as economic concentration and political control of the media. That is, the action of de facto economic powers can condition the activity of social opinion media; this is another perspective of this multifaceted phenomenon. The concentration of media outlets causes another very serious distortion of freedom of thought and of opinion, alienating these very relevant constitutional values; access to information and freedom of opinion may have a structural distortion in the concentration of media outlets.
It must be recognized that the ownership of news media is a power, it is a source of power that should foster pluralism and democratic coexistence, but they must submit to rules that derive from the essence of the State of Law, preventing media power from becoming an absolutist power. It is required that it submit to the law, defining limits and bonds to ensure that freedom of information and the right to information flow without distortions. The second rule is the separation of powers, applying the old rule of Montesquieu, from which the fourth power cannot be exempt, because for it to be such in a democratic regime, it must respond to guarantees that make it independent from political and economic power. This assessment requires profound and balanced reflection; the independence of the media requires: independence from centers of economic power and from political parties. If links exist, that such ties be as transparent as public information. These rules and others proposed by L. Ferrajoli would strengthen the function of the media, so that they respond to a state of opinion that derives from pluralism and authentic citizen participation. Ferrajoli, in an article published in 2004, titled: “Libertad de información y propiedad privada: una propuesta no utópica,” proposes various measures so that the power of the media is not exercised in the shadows of de facto powers, but rather responds to these guidelines: “…Guarantee the separation between information management and ownership; institute guarantee authorities oriented towards the protection of freedom of the press and of information; impede all forms of concentration of ownership; exclude employer or political controls; ensure that everyone can access the media; favor with adequate funding non-commercial televisions also creating common infrastructures; affirm the objectively 'public' character of television and expand the space of public television are only some of the possible reforms to confront the imminent danger of 'big brother'…” ( see: http://www.nexos.com.mx/ p=11115 ) In the evaluation of media concentration, a policy that strengthens the function of television in a democratic society has special relevance. So many attacks on freedom of information and of opinion that are imperceptible, not only due to cultural invisibilization but also due to the impunity of a system in which there are powers that act without controls and in opacity.
Much remains to be done in building and strengthening democracy and the dignity of the citizen…." XII.- DOCUMENTATION PROVIDED TO THE CASE FILE. The parties are warned that if any document has been provided on paper, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device, or one produced by new technologies, these must be withdrawn from the office within a maximum period of 30 business days counted from the notification of this judgment. Otherwise, all material not withdrawn within this period will be destroyed, in accordance with the provisions of the "Reglamento sobre Expediente Electrónico ante el Poder Judicial," approved by the Corte Plena in session number 27-11 of August 22, 2011, article XXVI and published in the Boletín Judicial number 19 of January 26, 2012, as well as in the agreement approved by the Consejo Superior del Poder Judicial, in session number 43-12 held on May 3, 2012, article LXXXI.
POR TANTO:
By majority, the appeal is declared with merit in all its extremes and, consequently, the sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022 issued on July 8, 2022, is annulled, as well as what was ordered in official letter No. MS-DRRSCN-DARSA2-1724-2022 of July 15, 2022. The State is ordered to pay the costs, damages, and losses caused by the acts that serve as the basis for this declaration, which will be liquidated in the execution of sentence of the contentious-administrative proceedings. Magistrate Cruz Castro records a note. Magistrate Salazar Alvarado records additional reasons and adds that, since the amparo appeal that annuls the cited sanitary order has been declared with merit, the respondent authorities must, within the period of eighteen months following the notification of this resolution, carry out all such coordination measures they deem pertinent and necessary in order to execute the remedial plan that has been referred to in this matter; or, any other they see fit, with the purpose of providing a comprehensive solution to the problem of traffic congestion that affects the residents of La Guácima de Alajuela, in relation to the events of mass concentration of people and vehicles at Parque Viva; and that, in the event of a potential emergency, the health or physical integrity of persons could be compromised. Magistrate Garro Vargas partially dissents in the following sense: she declares it with merit, for her own reasons, regarding freedom of expression; and declares it without merit regarding the annulment of the sanitary order and the cited official letter, as she considers that matters relating to these cannot be heard in this jurisdiction. Let it be communicated and notified.-.
Fernando Castillo V.
President Fernando Cruz C. Paul Rueda L.
Luis Fdo. Salazar A. Jorge Araya G.
Anamari Garro V. José Roberto Garita N.
Additional reasons of Magistrate Salazar Alvarado.
I concur with the majority vote, which declares the appeal with merit and annuls the cited sanitary order, it having been demonstrated, with complete clarity, that the closure of Parque Viva was an arbitrary act, as retaliation for the editorial line maintained by Diario La Nación, regarding the President of the Republic, and with the objective of silencing said media outlet, in clear detriment to freedom of expression and freedom of the press, protected constitutionally and conventionally.
However, in view of the annulment of sanitary order No. MS-DRRSCN-DARSA2-OS-0368-2022, issued on July 8, 2022, as well as what was ordered in official letter No. MS-DRRSCN-DARSA2-1724-2022 of July 15, 2022, I deem it necessary for the respondent authorities (together with the Municipalidad de Alajuela, and any other competent public institution) to provide effective protection of the fundamental rights of the residents of La Guácima de Alajuela.
To this end, I consider it pertinent and timely that this Constitutional Court order, within the period of eighteen months following the notification of this resolution, that all such coordination measures be carried out as they deem pertinent and necessary in order to execute the remedial plan that has been repeatedly referred to in this matter; or, any other they see fit, with the purpose of providing a comprehensive solution to the problem of traffic congestion that affects the residents of La Guácima de Alajuela, in relation to the events of mass concentration of people and vehicles at Parque Viva; and that, in the event of a potential emergency, the health or physical integrity of persons could be compromised.
In the case before us, it must be borne in mind that this Chamber has protected the right of administered persons to enjoy a physical public space that meets the necessary conditions of accessibility, allowing adequate mobility, and guaranteeing the physical integrity, health, and life of persons.
In Judgment No. 2014-013854 at 9:05 a.m. on August 22, 2014, what is known in doctrine as the "Right to the City" was developed, which comprises the following:
"(...) In the 'Carta Mundial por el Derecho a la Ciudad,' the following were recognized, among others: the right to accessibility to public transportation services and to physical public space -which involves both the movement of users from one place to another in the city, and the possibility of having good sidewalks, pedestrian zones, etc.- and to inclusion, which, as this Court has held, implies the removal of all architectural barriers that impede mobility by one's own means as well as the installation of necessary aids to guarantee the accessibility of persons with disabilities, children, older adults, etc. For its part, the 'Convención sobre los Derechos de las Personas con Discapacidad,' enshrines the right of everyone to enter, transit, and remain in a place, in a safe, comfortable, and autonomous manner (...)". (Criterion reiterated in Judgment No. 2015-04827 at 9:40 a.m. on April 10, 2015, and Judgment No. 2016-009051 at 9:05 a.m. on July 1, 2016, among other resolutions of the Constitutional Court).
Consequently, if a group of citizens, in their territorial circumscription, suffer problems due to the obstruction of public roads, with an impact on their quality of life and general well-being, this falls within the concept of local interests and services of numeral 169 of the Constitución Política, problems whose causes must be identified with precision and, even more so, the solutions, in order to implement them as soon as possible; for which it is the responsibility of the respondent authorities to coordinate with national-level institutions competent to act on the problem. Indeed, the Chamber has developed the municipal obligation to coordinate with other state institutions in order to attend to local interests and provide local services fully. In Judgment No. 1999-5445 at 2:30 p.m. on July 14, 1999, the following was stated:
"(...) they refer to the obligation of coordination that must exist between local governments, decentralized institutions, and the Executive Branch, to carry out the functions entrusted to them, which must be analyzed based on the very nature of municipal autonomy. It is by virtue of the provisions of article 170 of the Constitution, that municipalities (local corporate entities) enjoy functional, administrative, and financial autonomy in the administration of local interests and services (article 169 of the Constitución Política) (...)".
On the other hand, in this matter it is relevant to bear in mind the content of technical report No. CRC-GG-OF-012-2022, of July 12, 2022, signed by the General Manager of the Asociación Cruz Roja Costarricense, by which the difficulties faced by emergency vehicles on the public roads of the area when responding to incidents are recognized, a situation that is aggravated when massive events are held at Parque Viva. In said document, the Minister of Health was informed of the following: "(...) In the specific case subject to this consultation, it is known that the public roads of the community of La Guácima de Alajuela and surrounding areas are insufficient for the rapid access of our emergency units in the ordinary response to incidents, which can be aggravated when massive events are held, since we have become aware of situations in which the simple mechanical failure of a private vehicle substantially delays the entry of our ambulances. Historically, the response times for responding to emergencies by the different institutions have been affected by traffic congestion at various points in the national territory, a situation that also occurs in La Guácima de Alajuela, experiencing a variable increase in the transit time of emergency vehicles, generating delays ranging from 10 minutes to up to 30 minutes. In some specific cases, the arrival or departure time of our vehicles has been extended to even longer, caused by the quantity of vehicles located on the sides of the public roads adjacent to the event site, and even by people transiting on the public roads, which means that one must drive with greater caution. For the specific case, the operational structure of the Benemérita Cruz Roja Costarricense has worked on three scenarios that are addressed for an analysis of the situation that allows the authorities to make decisions according to their competencies. 1. Traffic accidents: in the response to a traffic accident, depending on its severity, the arrival of different resources is necessary, ambulances, rescue trucks, and even the presence of the Cuerpo de Bomberos de Costa Rica. It should be noted that cases may arise in which patients are trapped as a consequence of the incident, requiring the specialized rescue team to join the scene according to needs. In any of these cases, patients require immediate attention, as in some cases life may be in imminent danger. 2. Structural fires: in the response to structural fires, the Cuerpo de Bomberos generally responds to extinguish the fire and the Cruz Roja Costarricense attends the scene for patient care, so depending on the size of the incident, the amount of resources present could be affected by the difficulty of access to the facilities at risk and the evacuation of patients. Medical cases: Depending on the severity of the case, the patient is required to receive prompt attention given that delays in response times generate a negative impact on the person's prognosis, potentially affecting their life. For example, in the case of a cardiorespiratory arrest, access to the patient is required ideally in less than 10 minutes. On the other hand, depending on the circumstances, there is a possibility that the Advanced Life Support Unit (Unidad de Soporte Avanzado de Vida, USAV), on site, requires support from an Advanced Life Support Unit (Unidad de Soporte Avanzado de Vida, USAV), given that this second ambulance has personnel with a higher level of training, more equipment, and therefore, greater resolution capacity, thus offering a better opportunity for the patient's health. It should be noted that with two or more units at the incident site, a large and safe space will be required so that first responders can provide care (...)".
Given the scenario described, and for the reasons set forth, I reiterate that, in order to avoid a failure to provide effective protection of the physical integrity, health, and life of the residents of La Guácima, as well as of any other citizen, I deem it necessary to implement the remedial plan repeatedly cited in this matter; or, any other measure that the authorities deem necessary, to solve the problem of traffic congestion that affects said area, in relation to the events of mass concentration of people and vehicles at Parque Viva.
Luis Fdo. Salazar Alvarado Magistrate DIFFERENT REASONS AND PARTIAL DISSENTING VOTE OF MAGISTRATE GARRO VARGAS regarding judgment 2022-25167 (Parque Viva) TABLE OF CONTENTS Content
I.Preliminary Considerations II. Executive Summary III. Brief Analysis of the Procedural Elements of this Matter A. Type of Process B. Parties 1. Appellants 2. Respondents C. Challenged Object D. Protected Object E. Admissibility and Standing F. Claims G. Factual Framework IV. Partial Dissenting Vote A. Admissibility Phase: Procedural Prerequisites 1. Formal Aspects of the Filing Brief 2. Competence of the Body a) The Protected Object: Fundamental Rights b) The Challenged Object: The Presumptively Injurious Conduct c) The Character of the Injury d) The Nature of the Process 3. The Capacity and Standing of the Parties B. Merits Phase: Aspects to Consider and Reconsider 1. Generalities 2. Definitive Verification of Some Procedural Prerequisites a) The Challenged Object: The Sanitary Order and the Related Official Letter (1) The Order and the Related Official Letter (2) The Non-Suitability of Amparo: Constitutional Case Law (a) Case Law in Normal Times (b) Case Law During the Pandemic (c) The Case of Rolando Araya Monge (3) The Suitability of the Contentious-Administrative Channel (a) Constitutional Provision for Control of the Administration (b) Scope of the Analysis in the Ordinary Channel (c) Advantages of the Ordinary Channel b) Standing (1) Framework of the Problem (2) Regarding the Argument that They Would Only Have Standing Before the Chamber (3) Arguments of the Appellants on the Cause of Standing (4) Considerations of the Judgment Regarding the Dependency (5) The Financial Statements and the Alluded Dependency V. Different Reasons A. Introduction B. Possibility of Hearing the Invoked Injury C. Nonexistence of the Violation of Article 13.3 of the CADH 1. Very Brief Exegetical Analysis of Article 13.3 of the CADH 2. Substantive Consequence of Non-Accreditation of the Dependency 3. Nonexistence of the Violation, Even if There Were Standing a) Regarding the Affectation of Freedom of Expression b) Regarding the Arbitrariness of the Acts (1) If the Acts Are Not Arbitrary: Consequences (2) If the Acts Are Arbitrary: Consequences D. Considerations on the Case Law Invoked in the Case File 1. The Case Law of the Corte IDH 2. The Case Law of the Sala Constitucional E. Additional Reflections on the Nonexistence of the Violation F. Grounds for Granting the Appeal Regarding Freedom of Expression 1. Normative and Case Law Framework 2. Factual Framework 3. Considerations on the Statements 4. Conclusion VI. Reflections on the Case File and the Judgment A. The Dilemma: "Ordinarize" the Amparo or Respect Its Summary Nature 1. On Evidentiary Aspects 2. On the Parties Joined to the Process B. The Consequences of the Annulment of the Challenged Acts C. On the Scope of the Condemnation for Damages and Losses VII. Conclusion
Preliminary Considerations With the respect I customarily hold for the other members of the Sala Constitucional and for the parties to this process, I intend to set forth my different reasons for declaring it with merit – regarding the violation of freedom of expression – and the arguments of my partial dissenting vote by which I declare it without merit – regarding the annulment of the challenged sanitary order and related official letter issued by the Ministry of Health –.
First, I will provide a very brief description of the legal dispute. Then I will explain my position. However, to facilitate its understanding, I will first develop my partial dissenting vote and then my different reasons. Finally, I will make some reflections on the case file and the judgment itself that confirm what is stated in the dissenting vote.
Much to my regret, this text is extensive, but it is designed so that it can be read, at least, at three levels of depth. The first, superficial: for this, it will suffice to read the table of contents, the executive summary, and some underlined passages that appear on various pages. The second, a bit more thorough, which involves reading the entire text continuously and probably skipping the abundant transcriptions of case law. Finally, a more exhaustive one, requiring reading everything, including the footnotes.
I have had to elaborate on some topics due to their importance or due to the demands of the intended purpose. I explain this last point: it is not the same to contradict what is affirmed in the judgment as to argue that something was not said in it. That is the reason why, for example, the analysis relating to the examination of standing in the merits phase of the appeal is so long, as it was pertinent to transcribe and gloss passages from the briefs of the appellants and from the judgment.
Executive Summary The aim is to condense here the main ideas on the following: the dissenting vote regarding the annulment of the challenged acts, the different reasons for which I declare the appeal with merit as regards the injury to freedom of expression, and the reflections on the judgment.
The Case Some journalists from the newspaper La Nación challenge a sanitary order and a related official letter issued regarding Parque Viva, which belongs to Grupo Nación S. A. (hereinafter, Grupo Nación), which is the owner of the newspaper. They argue that their freedom of expression has been injured by virtue of such acts.
Position of the Majority of the Chamber It declares the amparo appeal with merit in all its extremes, annulling the challenged administrative acts, because it considers them to be arbitrary and manifestations of abuse of power and, under the terms of article 13.3 of the Convención Americana sobre Derechos Humanos (CADH), they were indirect means to injure the appellants' freedom of expression.
My Position Partial dissenting vote. I declare the appeal without merit regarding the annulment of the challenged acts, because I consider that they must be heard in the ordinary legality channel and not in an amparo appeal. The foregoing is based on the following arguments.
Every amparo appeal is analyzed by the Sala Constitucional in two phases:
Admissibility phase. In this phase, it is examined whether, prima facie, the appeal meets the procedural prerequisites: 1) the formal aspects; 2) the competence of the body, which is determined by the object sought to be protected (the fundamental rights and freedoms alleged to be violated), the challenged object (the conduct accused of being arbitrary), the character of the injury (whether it is direct or indirect), and respect for the nature of the process (which is summary); 3) the capacity and standing of the parties.
In the present case, there could be doubt about one aspect that determines the competence of the body, that is, whether the challenged object is susceptible to being heard in a summary process. The question arises because habitually the Chamber – for various duly justified reasons – has not heard regarding sanitary orders and because the one challenged here concerns particularly complex technical aspects. This suggests that the amparo appeal is not the suitable channel for the Chamber to rule on the alleged arbitrariness of those administrative acts. Doubt also arises as to whether the appellants have standing, because they invoke injury to their own freedom of expression, but the challenged administrative acts fall upon a property that is owned by the business group to which the newspaper where they work belongs. However, since it is alleged that such acts are indirect means to injure freedom of expression, which article 13.3 of the CADH proscribes, despite the doubts, it might seem reasonable that the presidency of the Chamber admitted the appeal so that it could be heard on the merits.
Merits phase: In this phase, once all the reports from the respondent party and any other material that has been added to the case file have been collected, the Chamber performs a second analysis in two directions: it definitively verifies whether the procedural prerequisites are indeed met and, only after confirming this, it analyzes the substantive issue.
Regarding the first point, in the present case, in my judgment, it is appropriate to examine the two points upon which reasonable doubts arise: whether the challenged object can be heard in a summary process and whether the appellants have standing.
After studying the factual framework, verifying the evidentiary record (numerous, voluminous, coming from multiple involved authorities and mostly dealing with technical and particularly complex aspects), the applicable norms and case law (issued before and during the pandemic), I conclude that the challenged object should not have been examined in a summary process such as the amparo appeal. Along these lines, I explain the reasons why the contentious-administrative channel is the venue called upon to examine the appellants' reproach, not only by express constitutional provision but because it offers many more advantages for the rigorous examination of the issue and the possibility of issuing precautionary measures and even requesting a preferential procedure. Also, after examining the factual framework and confirming the absence of evidence supporting a link between what is claimed and what is challenged, I note that the appellants do not have standing. Furthermore, I refute the argument they present, in the sense that they did not have standing to resort to the contentious-administrative channel to challenge the questioned administrative acts and to invoke the injury to freedom of expression there.
Consequently, since two unavoidable procedural prerequisites (competence and standing) are not met, I consider that the appeal should be declared without merit regarding the annulment of the sanitary order and the related official letter. That is, I do not rule on these, but rather I indicate that the examination of their presumed arbitrariness must be carried out in the contentious-administrative channel.
Different reasons for declaring the appeal with merit regarding the injury to freedom of expression.
Prior to justifying my partial granting of the appeal, I explain that – even though the challenged acts cannot be heard in this appeal –, by virtue of the principle iura novit curia, it is possible to do so with respect to other acts reflected in the factual framework. Moreover, since what is observed from the analysis of this are injuries through direct channels to freedom of expression, the appellants would indeed have standing to be parties to this process.
In the first place, I set forth the reasons why I consider that a violation of article 13.3 of the CADH was not configured. I analyze the case law referred to in the judgment, both from the Corte IDH and from the Sala Constitucional, and show that it actually confirms my thesis. Then I refer to some scenarios that did not occur in the present case, but whose study allows for some reflections on the topic under discussion. There I highlight that everything indicates that proving the economic dependence of the newspaper La Nación on Parque Viva would not have been enough to declare the injury to freedom of expression.
Finally, after examining the evidence provided and the public and notorious facts, and by virtue of the applicable norms and case law, I verify and declare the violation of freedom of expression by the President of the Republic, due to some statements that constituted direct, express, albeit relative, censorship over the subjects (the appellants) and the content (what was communicated).
Final considerations on the case file and the judgment. These allow for confirmation of what is stated in the dissenting vote, in which I maintain that the amparo appeal was not the proceeding in which this challenged object should have been heard. Specifically, I refer to the dilemma that arises between “ordinarizing” an amparo appeal or resolving it without having all the sufficient elements (evidence and parties) and to the implications of having opted for the second option. I also allude to the consequences of the annulment of the challenged acts and their possible impact on public health and safety matters. Finally, I make some comments on the scope of the condemnation for damages and losses – whose execution can only be requested by the appellants and is circumscribed to the injury to freedom of expression declared, not to the business group that owns the media outlet where they work. Nevertheless, this judgment gives the latter the possibility of filing a plenary proceeding for State liability, in which, based on the declaration of nullity of those acts carried out in a summary proceeding, they only need to show the causal link between such acts and the damages and losses they claim.
Brief Analysis of the Procedural Elements of this Matter Type of Process This is an amparo appeal, which is one of the proceedings heard by the Sala Constitucional, established in articles 48 of the Constitución Política and 29 of the Ley de la Jurisdicción Constitucional (LJC).
Parties Appellants The appellants are: Armando Manuel González Rodicio, Armando Mayorga Aurtenechea, Daniela Cerdas Espinoza, Diego De Jesús Bosque González, Esteban Enrique Oviedo Álvarez, Fabrice Le Luos, Guiselle Mora Morales, Harlen Natasha Cambronero Jiménez, Juan Fernando Lara Salas, Kimberly Herrera Salazar, Krisia Chacón Jiménez, Óscar Gerardo Rodríguez Arguedas, Ronald Arturo Matute Charpentier and Vanessa Auxiliadora Loaiza Naranjo. All, as stated, journalists and members of the newsroom of the newspaper La Nación.
Respondents The respondents are: Rodrigo Chaves Robles, in his capacity as President of the Republic, and Joselyn María Chacón Madrigal, in her capacity as Minister of Health.
Challenged Object Under the terms of the filing brief, the challenged object is sanitary order MS-DRRSCN-DARSA2-OS-0368-2022 and, by connection, official letter MS-DRRSCN-DARSA2-1724-2022. This is clearly derived from the petition in which they request that "this amparo appeal be declared with merit, that the temporary suspension of the sanitary operating permit for Parque Viva and the administrative acts that order it be annulled." Protected Object The appellants state the following:
"The arbitrary actions (...) constitute a gross misuse of power to violate our right to free expression and the right of Costa Ricans to receive information and opinions on matters of public interest in accordance with article 29 of the Constitución Política[1] and article 13.3 of the Constitución Americana sobre Derechos Humanos[2]" (filing brief, p. 1).
That is, they consider that the actions of the respondents injure freedom of expression through indirect channels.
They also argue that these same actions violate the principle of legality and the principle of equality, established respectively in articles 11[3] and 33 of the Constitución Política[4].
Admissibility and Standing The appellants consider that the appeal must be admitted because the administrative acts injure the mentioned rights and principles. That is, they consider the act to be arbitrary, due to infringement of the principle of legality and the principle of equality, and it constitutes a violation of the freedom of expression of the appellants themselves and of the right to information of Costa Ricans. In this regard, they point out:
"The administrative acts used to exercise indirect or veiled censorship through economic pressures related to the media outlet where we work lack any technical support and do not pursue any legitimate purpose, but rather retaliation for the newspaper's critical line and an attempt to silence it" (ibid.)[5].
Later they state:
"The illegality of indirect pressures on journalists has been the subject of the case law of the Corte Interamericana de Derechos Humanos" (ibid.).
And then they cite several cases resolved by the Corte Interamericana de Derechos Humanos (Corte IDH)[6] and immediately say:
"In this context, the appeal we present is admissible and consequently we request that the Chamber give it the corresponding course. Indeed, what has been done by the respondent officials (...) configures an evident case of misuse of power (...). The particularity and the special and extraordinary nature of the case is that it is not a matter of mere legality or ordinary legality, that is, of mere legal infringement, susceptible consequently to being heard in the corresponding ordinary jurisdiction, but rather that the misuse of power in this specific case is the instrument devised to violate our fundamental rights and freedoms in a direct and immediate manner, and capable of producing this result." The direct or immediate violation of rights and freedoms, as an inevitable consequence of the spurious ends pursued jointly by the respondents and of the acts that manifest them, fits as a ground within the protective scope of the amparo remedy, pursuant to the provisions of Article 29 of the Law of Constitutional Jurisdiction" (ibid., p. 2).
In other words, they understand that the administrative conduct is a case of evident misuse of power, aimed at injuring freedom of expression and information (hereinafter, reference will be made to freedom of expression to refer to both, as does the title of Article 13.1 of the CADH). They consider that this is what makes it appropriate for the Chamber to admit this remedy. Therefore, by considering that these administrative acts have injured their fundamental rights and freedoms, they assert that the matter is not one of legality, but rather one proper to an amparo remedy, and for that reason, it must be heard and resolved in this jurisdiction and not in the ordinary jurisdiction.
In that sense, they indicate the following:
"If this case is erroneously considered as a matter that must be heard in the ordinary venue because it is a matter of legality, the journalists would be condemned to having no access to judicial protection, since we would lack standing to challenge the facts described herein in the contentious-administrative venue because, being indirect attacks on freedom of expression and the press, the challenged administrative acts are not directed against us, but rather injure our rights indirectly. Thus, at most, we could act as coadjuvants in an ordinary action, always subject to the fate of the principal party and with limited scope, especially regarding freedom of expression, which is our fundamental concern. The constitutional venue that protects our right to freely practice journalism is the only suitable means to defend ourselves against the abuses that, indirectly, the respondents wield against us" (ibid.).
That is, they reiterate that this is not a matter of legality, and they advance another argument: if this amparo remedy were rejected, their right to judicial protection would be violated.
Furthermore, to show the link between the challenged acts and the alleged injuries to freedom of expression, they first argue the following:
"The threat to destroy the companies as retaliation for the editorial lines of the media they own and the actions of their journalistic directors, mentioned in the speech delivered by the now-president on January 29, could not be more evident" (ibid., p. 4).
They then explain the topics that, in the petitioners' view, displeased the respondent here and assert what is central to this matter:
"In all cases, these were serious, well-documented, and entirely pertinent journalistic publications. Not publishing them would have directly affected the right of citizens to be informed about matters of public interest and, at that specific moment, the principle of the informed voter. As a consequence of fulfilling that duty and exercising that right, the directors and our journalistic collaborators were warned of the destruction of the structures that allow us to practice independent journalism.
Parque Viva is one of those structures, in the case of Grupo Nación. It was created, precisely, to diversify the company's income sources and compensate for the loss of income experienced by media outlets worldwide due to the migration of advertising to Internet giants such as Google and Facebook. This fact is public and is recorded in various statements by the company and its officers since at least 2013. In the report to shareholders for the 2013-2014 period, visible on the nación.com page https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html, the executive presidency stated: '…the changes in the industry, in media consumption, and in the national competitive environment will continue to challenge the print media business. Aware of this landscape, we designed, two years ago, a strategy to confront it. While new initiatives mature, especially in the digital realm, every journalistic medium will require a complementary source of income, less dependent on advertising sales. Consequently, as we announced last year, we invested significant resources and efforts in the creation of Parque Viva, in La Guácima de Alajuela'" (ibid., p. 4; highlighting not in the original).
In this way, they explain the link between Parque Viva and the newspaper La Nación, pointing out that the former is a source of income for the latter. Based on this, they allege that the sanitary order[7], by preventing the operation of Parque Viva, leaves the newspaper without financial support, and therefore they consider that this act causes an injury to freedom of expression.
That is, they understand that the sanitary order must be classified within "any other means designed to impede the communication and circulation of ideas and opinions" (Article 13.3 CADH), since its ultimate purpose was to injure freedom of expression, in the context of threats delivered by Mr. Rodrigo Chaves, first during the electoral campaign, then as president-elect, and also in the exercise of office.
Prayers for Relief The petitioners in their prayer for relief refer to three aspects: On one hand, as stated, they request the annulment of the sanitary order. On the other, they ask that the Chamber "order the President of the Republic and the Minister of Health to refrain from executing acts tending to directly or indirectly injure the freedom of expression that we petitioners enjoy, like every Costa Rican citizen." And finally, they indicated: "We expressly waive requesting an award for damages, losses, and costs." Factual Framework Without attempting to substitute the list of facts recorded in the judgment, it is opportune to briefly provide an account of the factual framework of the litigation, in order to offer the context that facilitates the proper understanding of the partial dissenting vote and the different reasons.
Many are public and notorious facts, and all have documentary support in the case file.
1-. Grupo Nación has two business units relevant to the analysis of the specific case. The newspaper La Nación, obviously related to journalistic activity, and Parque Viva, dedicated to holding entertainment activities. This venue, located in La Guácima de Alajuela, had sanitary permits for holding events.
2.- On January 29, 2022, during the presidential electoral campaign, the current president of the Republic made statements in the following terms:
"We are going to cause the destruction of the corrupt structures of La Nación and Canal 7. Listen to me Ignacio Santos, listen to me the other one (...) René Picado, listen to me Armando González. Here we are. Keep invisibilizing us in what is new, in what is good, and accusing us injuriously in what is bad, because you no longer choose presidents in Costa Rica." 3.- The petitioners in this proceeding are journalists from La Nación.
4.- Complaint: In the context of holding massive events organized at Parque Viva, news had been generated about road collapse in the area. Furthermore, on July 5, 2022, an anonymous complaint was filed before the authorities of the Ministry of Health, alleging the existence of dangers derived from that collapse, particularly the difficulties of emergency response bodies in attending to all kinds of emergencies, and requesting the closure of Parque Viva. Preliminary reports: A technical opinion on the matter was requested from the heads of the MOPT, a physical sanitary inspection was carried out at Parque Viva, technical reports were prepared, and a meeting was held of the Technical Advisory Committee for Mass Gatherings —composed of the Minister of Health as coordinator, the Minister of Public Works and Transport, and officials from the Costa Rican Red Cross, the Traffic Police Directorate, the National Emergency Commission, the Fire Department, the 9-1-1 Emergency System, and Risk Management of the Ministry of Health—.
5.- On July 6, 2022, at a press conference, the president of the Republic was asked his opinion on the CCSS issue and the request made to the General Superintendency of Securities (Sugeval) regarding bonds issued by Grupo Nación. When answering, he said that there was a very serious issue with those bonds that previous governments had purchased. He indicated that he was concerned about the payment capacity of that group, due to the accounting results and the diversion of assets that, in his view, weaken the probability that the people of Costa Rica can recover those resources, which are substantial.
6.- On July 7, 2022, the executive director of Grupo Nación gave extensive public explanations and mentioned the role of Parque Viva in the cash flow of Grupo Nación.
7.- Sanitary order. The authorities of the Alajuela 2 Health Governing Area of the Ministry of Health issued sanitary order MS-DRRSCN-DARSA2-OS-0368-2022 of July 8, 2022 —notified that same day— which ordered the following:
"In response to anonymous complaint No. 243-2022, forwarded (sic) via official communication MS-DM-5756-2022 from the Office of the Minister of Health, regarding apparent structural problems, non-compliance with the emergency plan, and safety and hygiene conditions at Parque Viva, and as recorded in the ocular inspection report MS-DRRSCN-DARSA2-1639-2022 of July 5, 2022, at 13:50 hours, the respective site visit was conducted to assess what was indicated in the complaint. Likewise, in accordance with the precautionary principle and in response to official communications: MS-DM5814-2022, by which Technical Report DVT-DGIT-2022-339 issued by the General Directorate of Traffic Engineering of the Ministry of Public Works and Transport is forwarded, and official communication MS-DM-5838-2022 by which Minutes No. 28643-SMOPT-SP of the Technical Advisory Committee on Mass Gatherings is forwarded, the suspension, through this administrative act, is ordered of the Sanitary Operating Permit MS-DRRSCN-DARSA2-RPSF-0177-2019 (theme park, racetrack, amphitheater, sports, cultural events, fairs, and various exhibitions) until the Technical Criteria issued by the Honorable Fire Department of Costa Rica and the Honorable Costa Rican Red Cross regarding the capacity of the access road to said establishment for the first-response units of those institutions are available for analysis and taking of respective actions, the same being processed by the Ministry of Health. Likewise, your represented entity must present a remedial plan that encompasses the solution to the problem of access and the consequent risk to Public Health and Safety during Mass Gathering Activities, and the generation of a potential emergency during said activities." 8.- Connected official communication. After gathering the technical criteria of the director of the Fire Department and the president of the Costa Rican Red Cross, official communication MS-DRRSCN-DARSA2-1724-2022 of July 15, 2022, was issued, through which the director of the Alajuela 2 Health Governing Area informed the legal representative of Parque Viva that, as a follow-up to the provisions of the sanitary order, the technical reports CBCR-027150-2022-OPB-00741 of the Fire Department, CRC-GG-SO-OF-074-2022 and CRC-GG-OF-012-2022 of the Costa Rican Red Cross, 911-DI-2022-2202 of the 9-1-1 Emergency System, and DM-2022-3121 of the Ministry of Public Works and Transport (MOPT) were provided. Additionally, the following was resolved:
"Once these documents were known and analyzed in accordance with what was indicated in the cited order, it is demonstrated that they point out that there is an evident problem for emergency response (traffic accidents, structural fires, medical cases, among others) by the First Response Entities, both in the surrounding communities and for the attendees of the mass gathering events held at Parque Viva, due to traffic and access problems to the site. Therefore, in accordance with the precautionary principle and in order to guarantee compliance with Articles 21 and 50 of the Political Constitution, Articles 11, 152, 153, and 154 of the General Law of Public Administration, and Articles 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357, and 364 of the General Health Law, Sanitary Order MS-DRRSCN-DARSA2-OS-0386-2022 is confirmed in all its terms and scope." 9.- On July 13, 2022, at a press conference, the president referred to the reaction of Grupo Nación and the newspaper La Nación to the closure of Parque Viva.
10. On July 20, 2022, at a press conference, the president pointed out, among the reasons for canceling the electric train plan, the existence of a branch line that passes by Parque Viva.
I dissent partially because I believe that the Constitutional Chamber should not have ruled on the challenged administrative acts (the sanitary order and the connected official communication), because the case under study does not meet the procedural prerequisites that must be demonstrated before this jurisdictional body in every amparo remedy.
To develop my arguments, I will refer to the procedural phases of every amparo remedy that is resolved on the merits.
Admissibility Phase: The Procedural Prerequisites In order for an amparo remedy to pass the admissibility phase, the Constitutional Chamber must verify three elements: the formal requirements of the petition, its competence to hear the matter, and the standing of the parties.
Formal Aspects of the Filing Brief It is necessary, first, to verify if the brief meets some minimum conditions[8]. Since the amparo remedy is an informal process, these are very few: names of the petitioners and respondents, the facts, the challenged object (which act, omission, or material conduct is being attacked), the protected object (the fundamental rights or public freedoms allegedly violated, which would be what the Chamber would protect), the evidence, and the prayer for relief. In reality, what is essential is determining who the petitioner is, recounting the facts, and providing a minimum of evidentiary support. The rest can be deduced by the court or, if it has doubts, it may issue a preliminary order (an act ordering the clarification of what it deems necessary) in accordance with Article 42 of the LJC[9].
The Competence of the Body Next, the Chamber must verify if it has jurisdiction to hear the matter. Competence is conditioned by several elements: the challenged object, the protected object, the nature of the injury, and the nature of the proceeding.
Article 29. The amparo remedy guarantees the fundamental rights and freedoms referred to in this law, except those protected by habeas corpus.
The remedy proceeds against any provision, agreement, or resolution and, in general, against any action, omission, or simple material conduct not based on an effective administrative act, by public servants and bodies, that has violated, violates, or threatens to violate any of those rights.
Amparo shall proceed not only against arbitrary acts, but also against actions or omissions based on erroneously interpreted or improperly applied rules. (Highlighting not in the original).
In the present case, prima facie, the Chamber has jurisdiction to hear the sanitary order and the connected official communication that the petitioners seek to annul, as they are provisions of public servants and it is alleged that they have violated fundamental rights and freedoms that are guaranteed through the amparo remedy. However, as will be seen in detail later, the Chamber in the vast majority of cases tends to dismiss amparo remedies against sanitary orders at the threshold, arguing that their hearing does not conform to the characteristics of a summary proceeding and because it has always been considered that it is the initial act of the procedure, so it is from that moment that the parties can exercise their right of defense. Therefore, to admit it, there needed to be well-founded reasons to depart from that jurisprudential line. I will refer to this almost immediately when pointing out the need to respect the nature of the amparo remedy. For now, it suffices to say that, regarding the admissibility of this remedy, there is a doubt concerning the challenged object, and not only for what has been noted, but because those acts do not fall directly on the petitioners but on a property owned by the same business group that owns the company for which the petitioners work, which is not the location where they perform their duties. Although this is an aspect more related to standing, as will be examined later. In any case, surely in the face of doubt, it was deemed prudent to process it.
From the very beginning of its history, this Chamber stated:
"In good constitutional doctrine, the criterion is based on the fact that any breach of legality, in matters related to those rights, may eventually cause injury to those fundamental rights, but when it involves an injury that is simply indirect, because there exist within the state apparatus bodies that can and must safeguard those rights and repair their violation, it falls to them to hear it and not to this Chamber" (judgment 1610-90)[13].
Another judgment deserves to be cited that, in addition to picking up that precedent from 1990, states:
"It is necessary to warn that the admissibility of the amparo remedy, in general, is conditioned not only on demonstrating the existence of a disturbance —or threat thereof— to one or more of the rights or guarantees contemplated in the Political Constitution or those of a fundamental nature established in international human rights instruments signed and duly incorporated into the legal system, but also that the alleged grievance involves a direct and gross threat or breach of those rights, which endangers that part of their content that is essential and inherent to them, that is, the core that gives them their distinctiveness and makes them recognizable as rights of a specific nature. In this sense, constitutional case law has specified that the problem of direct and indirect violations of the Constitution also involves a necessary assessment of the suitability and expedited nature that the amparo route must characterize (...). For these reasons, the amparo remedy cannot be used to control the legality of the acts of the different Public Administrations, given that amparo is a summary process of simple and rapid processing, incompatible with extensive and technically complex debates" (judgment 2020-12053; highlighting not in the original)[14].
Note that the Chamber points out that the amparo remedy is suitable only for hearing direct injuries, not indirect ones, due to the summary nature of that process. Precisely for this reason, it is worth pausing to analyze the nature of this remedy.
Not every act or omission or material conduct, coming from an authority, even if challengeable in itself, can be heard in a summary and informal process. The reasons can be diverse: the legal or technical complexity of the act, the need for a broad body of evidence to determine its validity and effectiveness, etc. On this, there is consolidated case law that the Chamber reiterates every week when dismissing a good portion of the amparo remedies submitted to it.
Likewise, the court must verify whether the protected object (the fundamental rights allegedly violated) can be effectively guaranteed through an amparo remedy, which is a summary and informal process. In this regard, there is very reiterated case law on the subject, which the Chamber also commonly invokes.
Precisely in this sense, I, together with Magistrate Hernández López, wrote a note that we reiterated on many occasions:
"IV.- NOTE OF MAGISTRATES HERNÁNDEZ LÓPEZ AND GARRO VARGAS, WITH THE SECOND SERVING AS DRAFTER. The amparo remedy is a summary process by nature and, under Article 48 of the Political Constitution, is designed to protect constitutional rights (with the exception of personal liberty and integrity) and those of a fundamental nature established in international human rights instruments applicable to the Republic. Therefore, a matter can be heard through an amparo remedy when the alleged injury to one of those rights is invoked. But that is not enough. The object under discussion must be capable of being adequately heard in a summary process: that is, in a simple proceeding without the need for a complex evidentiary phase. Furthermore, the summary nature must be evident not only in the hearing phase but also in its enforcement phase. Based on the above, the undersigned magistrates believe that the present matter should not be heard in the Constitutional Chamber through the amparo remedy, because, although fundamental rights may be involved, to properly analyze it requires producing technical evidence from various disciplines, in order to examine the diverse elements that come into play in its resolution" (note to judgment 2020-23153).
This is so because, certainly, many matters involve fundamental rights, but must be heard in their corresponding venue. For example, if a person claims they were defrauded in a sale of a lot, what doubt is there —if indeed that was the case— that their right has been violated and that this right is a fundamental right. It is the right recognized in Article 45 of the Political Constitution; but it is clear that the litigation on the matter should not be heard by the Constitutional Chamber, not even if the seller was a public law entity, because the corresponding jurisdiction exists to resolve such conflicts. To go no further, since the examples could be very abundant, if a passerby shoots another, the perpetrator is violating the fundamental right to life or, at least, to the integrity of the victim, but evidently the matter also cannot be heard through an amparo remedy, because that conduct is criminalized and, therefore, it will be the criminal judge who determines responsibility and the scope and consequences thereof. Well then, the Chamber has habitually been very clear on this in its case law, which is why, every week, it dismisses many amparo remedies noting that they are matters proper to ordinary legality.
The foregoing means that, for a case to be examined and resolved in an amparo remedy, it is not enough to argue that the alleged injury to the fundamental right is caused by conduct of the respondent. And the Chamber seeks to respect these criteria precisely so as not to invade the competences of the ordinary jurisdiction (established in Articles 49 and 153 of the Political Constitution) or those of the administrative authorities, as appropriate. But not only for that reason, but because in that way, by placing the matter where it corresponds, the parties will have all the procedural guarantees inherent to due process, which in a summary and informal proceeding like amparo are reduced. Thus, for example, the reports of the authorities, being given under oath[15], are accepted as true, so the possibilities of rebutting them are much less than in plenary proceedings[16].
That is why the Chamber must verify whether, in light of the challenged object (the allegedly injurious acts), the protected object (the fundamental rights allegedly violated), and the type of injury (whether the impact is direct or not), the matter is capable of being heard in a summary process such as amparo.
Given the above, the doubt arises as to whether this remedy should have been admitted. Everything seems to indicate that it did not involve a sanitary order related to a simple matter, but, on the contrary, one of great complexity, which could hardly be analyzed in a summary process. However, as the judgment rightly states[17], the Constitutional Chamber has left a small possibility of admitting amparo remedies against a sanitary order and, in fact, has exceptionally processed them. Thus, one might think that in view of the magnitude of the alleged grievance and the status of the alleged offender and, why not?[18], the status of the alleged aggrieved parties, the case was of particular relevance. Therefore, it could well be understood that it met the conditions to be considered an exception to the jurisprudential line. Thus, the doubt as to whether the challenged object could be heard in this venue through a summary process was resolved in favor of the petitioners, in the preliminary phase and not only in this one[19].
The Capacity and Standing of the Parties Thirdly, the Chamber must verify whether the petitioner has procedural capacity and standing. Regarding capacity, since this is an informal process, any individual of sound mind and any duly represented legal entity has it. In the present case, it involves individuals who evidently have capacity to act. Regarding active standing[20], it can be stated that in the Costa Rican legal system it is universal: every person has it provided they allege a violation of some fundamental right of their own or another's. This is because Article 48 of the Political Constitution says "every person," and since every (natural) person, by the mere fact of being one, has fundamental rights, then every natural person can validly file an amparo remedy, that is, they will have standing provided they allege some injury or threat to a fundamental right. Furthermore, Article 3 of the LJC laconically states: "Any person may file the amparo remedy." In the present case, prima facie, the petitioners have standing to resort to amparo because they allege injury to freedom of expression, which is recognized "by the Political Constitution and (…) the International Law in force in Costa Rica" (Article 2 of the LJC). However, again, it is worth asking whether they indeed have it, because it must be remembered that they seek the annulment of the sanitary order and the connected official communication so that they are restored in the enjoyment of freedom of expression, since they consider that it has been injured by said administrative acts, which they deem arbitrary. That is, the prayer for relief falls upon acts that do not weigh on them but on the property of a company that also belongs to their employer. However, they are emphatic in pointing out that they do have standing to file the remedy, because they understand that there is a link between the challenged object —the sanitary order and the connected official communication— and the object they seek to protect —their freedom of expression[21]—.
Now then, it could be argued that this margin of doubt, again, should go in favor of the petitioners, so this aspect of active standing should not, by itself, be an obstacle to processing the amparo.
*** Having overcome that admissibility phase, as is known, the presidency issues a processing order, and the investigation of the proceeding begins in order to hear the matter on the merits.
Hearing Phase: Aspects to Consider and Reconsider General Aspects To hear the matter on the merits, upon issuing the processing order, reports are requested from the respondent. Clarifications and evidence may also be requested from the parties or from other bodies. The remedy may even be expanded to include other subjects who would be considered respondents.
In effect, in the knowledge phase, it is necessary to gather all the elements required to determine whether what has been alleged has adequate evidentiary support, that is: whether the challenged object is harmful and whether it is so in a direct manner, whether the alleged and duly proven harm falls upon the petitioners, and whether responsibility must be attributed to the respondents.
However, that is not the only nor even the first thing the Court must do; it must also address all types of questions regarding the full satisfaction of procedural prerequisites, because a deficiency in any of these constitutes a violation of due process, which, by the way, must be respected in an amparo proceeding, no matter how informal and summary it may be.
First, it must ensure that it has jurisdiction and therefore must calibrate—now with even greater rigor and with all the elements already in the record at this phase—whether the previously mentioned conditions are met.
Definitive verification of certain procedural prerequisites In the present case, as I have said, it was understood that prima facie said prerequisites were satisfied; but, as I have noted, reasonable doubts arise as to whether their satisfaction can truly be deemed proven. For that reason, I will immediately analyze two aspects that, in my judgment, must be examined again: the challenged object and standing.
The sanitary order and the related official communication In addition to the videos they provided, the petitioners attached to the petition a series of official communications and publications as documentary evidence:
“Notificación de la suspensión temporal del permiso sanitario de funcionamiento de Parque Viva del 8 de julio de 2022; informe de los inspectores del Ministerio de Salud, fechado el 5 de julio; visto bueno de los aforos emitidos por el Ministerio de Salud el 16 de diciembre del 2021 y ampliación del 20 de enero siguiente; nota periodística de entrevista al alcalde de Alajuela Humberto Soto publicada el 13 de julio; nota periodística de entrevista a Hellen Espinoza, dirigente comunal de La Guácima; nota periodística del 13 de julio sobre informe del FMI relacionado con la lentitud del tránsito en Costa Rica; portada del Diario Extra del 14 de julio; página informe a los accionistas del presidente de Grupo Nación para el período 2013-2014 de donde se extrae la cita incorporada al recurso; ratificación de suspensión temporal del permiso sanitario de funcionamiento de Parque Viva fechada 15 de julio; crónicas de conciertos en La Guácima; informe n.°DFOE-LOC-IF-00014- 2020 de 14 de julio del 2022; informe de auditoría operativa sobre la eficacia y la eficiencia en uso de los recursos de la red vial cantonal en la Municipalidad de Alajuela; informe de bomberos de Belén del incendio del 4 de marzo atendido por cuatro unidades; informe de la Cruz Roja fechado 12 de julio; informe del 911 del 11 de julio; informe del MOPT del 11 de julio; informe de Bomberos del 10 de julio; cartas de no objeción al acceso propuesto desde la Ruta 27 de la Dirección General de Ingeniería de Tránsito, el Consejo Nacional de Vialidad, el Consejo Nacional de Concesiones y la Comisión de Carreteras de Acceso Restringido; intercambio de correos electrónicos entre periodistas de “interferencia”, de Radio Universidad y la oficina de prensa del Ministerio de Salud; mensaje en redes sociales de Hulda Miranda, editora del programa “Interferencia” de Radio Universidad; respuesta de SUGEVAL a la Caja Costarricense de Seguro Social; nota periodística sobre estudio del FMI de la velocidad del tránsito vehicular en el mundo” (petition, p. 16; the paragraph breaks have been removed).
The respondents, in addition to the challenged acts, also provided other documents:
La denuncia; el oficio mediante el cual se remite la denuncia ante el Área Rectora de Salud Central Norte, varias notas periodísticas que dan cuenta de la problemática vial cuando se realizan eventos en Parque Viva; el acta de inspección n.°MS-DRRSCN-DARSA2-1639-2022; el oficio n.°MS-DRRSCN-DARSA”-1641-2022 de 5 de julio que es informe de seguimiento a la denuncia ambiental; oficio n.°DVT-DGIT-2022-339, suscrito por el Ing. Junior Araya Villalobos, funcionario de la Dirección General de Ingeniería de Tránsito; acta de la sesión del Comité Asesor Técnico de Concentraciones Masivas del 7 de julio de 2022; orden sanitaria n.°MS-DRRSCN-DARSA2-OS-0368-2022; informe técnico n.°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Jim Batres Rodríguez, Sub-Gerente operativo de la Cruz Roja Costarricense; informe técnico n.°CBCR-027150-2022-OPOB-00741 del 10 de julio de 2022, suscrito por el señor Alexander Araya Mico, de Operaciones de Bomberos del Benemérito Cuerpo de Bomberos; informe n.°CRC-GG-OF-012-2022 del 12 de julio de 2022, suscrito por el señor José David Ruiz Piedra, Gerente General de la Asociación Cruz Roja Costarricense; informe n.°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Jim Batres Rodríguez, Sub-Gerente operativo de la Cruz Roja Costarricense y el informe n.°911-DI-2022-2202 del 11 de julio 2022, suscrito por María Elena Amuy Jiménez del Sistema de Emergencias 911.
Added to that were those later provided by the petitioners:
“Comunicado oficial, Municipalidad de Alajuela, desmintiendo al INVU (Prueba #1). Certificación notarial de usos de suelo # MA-ACC-U-01335-2013, de fecha 18 de junio de 2013, para construcción de Hotel y Servicio de Comidas, # MA-ACC-U-01334-2013, de fecha 18 de junio de 2013, para construcción de Anfiteatro y Centro de exhibiciones, # MA-ACC-U-01336-2013, de fecha 18 de junio de 2013, para construcción de campo ferial, # MA-ACC-U-00817-2013. de fecha 16 de abril de 2013, para construcción de parqueo, campo ferial y centre de convenciones. (ver prueba #2, primer punto). Resolución numero 3088-2013 de Selena. Proyecto Mejoras al Autódromo La Guácima. (ver prueba #4). Oficio DGIT-ED-5935-2014 del 01 de diciembre del 2014 donde la Dirección General de ingeniería de Tránsito emite formal aprobación del estudio de impacto vial (ver prueba #5). Certificación notarial del informe de la consulta de autenticidad de sellos, por medio de código OR del proyecto Obras de Infraestructura La Guácima, emitido por el Colegio Federado de Ingenieros y Arquitectos (ver prueba #2, segundo punto). Copia del índice de láminas de pianos constructivos del proyecto "Obras de Infraestructura la Guácima (ver Prueba # 3). Oficio CBCR-0018379-2014-INB-00736, fechado 16 de junio del 2014 donde el Benemérito Cuerpo de Bomberos acepta la eliminación de hidrantes y se pide subsanar defectos menores. (Ver Prueba # 6). Oficio DVT-DGIT-ED-2015-4056 donde el MOPT acepta la finalización del proyecto de construcción de mejoras viales y deja constancia de la recepción de las obras. (ver prueba # 7). Certificación notarial de Carta de Intenciones para reactivar servicios férreos entre Parque Viva (Guácima) e Incofer (ver prueba #8). Certificación notarial de las páginas 9 y 83 del documento ’APROBACION DEL CONTRATO DE PRESTAMO N° 2241 ENTRE EL GOBIERNO DE LA REPUBLICA DE COSTA RICA Y EL BANCO CENTROAMERICANO DE INTEGRACION ECONOMICA (BCIE) PARA APOYAR EL FINANCIAMIENTO DEL PROYECTO; CONSTRUCCl0N (EOUIPAMIENTO Y PUESTA EN OPERACIÓN DE UN SISTEMA DE TREN RAPIDO DE PASAJEROS (TRP) EN LA GRAN AREA METROPOLITANA, publicado en el Alcance No. 112 a La Gaceta No. 110, 14 de mayo del 2020 (ver prueba # 2. tercer punto). Certificación notarial de los Editoriales de La Nación de 25 y 26 de agosto de 2020 que explican la infamia sobre el supuesto ramal del tren eléctrico. (Ver prueba # 9). Certificación de las siguientes notas periodísticas: Noticia titulada “Los mandos medios a cada rato se atraviesan", Noticia titulada "Zona franca en Grecia iniciara obras después de 24 meses varada por rechazo de acceso a ruta 1", Nota titulada Chaves ataca a La Nación con dates distorsionados, Manifiesto “Defendemos la libertad de prensa", Articulo de Jimen Chan ¿En qué se parece Rodrigo Chaves y sus actuaciones a Donald Trump y las suyas? (Ver prueba #9). Certificación notarial del envío de respuesta a la CCSS en fecha lunes 8 de agosto del 2022, y sus documentos adjuntos; escrito de respuesta y hecho relevante pertinente fechado 26 de junio. (ver prueba # 10” (petitioners’ brief of August 17, 2022, p. 13; the paragraph breaks have been removed).
That means that at the time of hearing this matter on the merits, the record contained numerous official communications from very different authorities concerning a particularly complex topic.
That is, it was not a sanitary order like those issued to thousands of inhabitants during the pandemic, many of which were challenged by filing amparo proceedings and which, by the way, the Court in their vast majority systematically rejected. In those proceedings, it was alleged that the sanitary order had entailed harm to other rights: freedom of movement, freedom of commerce, the right to work, etc. However, the Court understood that they had to be dismissed on procedural grounds, in accordance with reiterated case law on sanitary orders, to which I will immediately refer.
What is important to highlight now is that the challenged object (the order and the related official communication) not only has broad and complex scopes in itself, but to determine whether those acts were arbitrary it was entirely necessary, at the very least, to analyze the documents provided by the parties, and these were neither few nor simple, nor consistent with one another.
(2) The unsuitability of amparo: constitutional case law It is now appropriate to examine what this Court’s case law has said about the suitability of the amparo proceeding to hear sanitary orders. I will excerpt some of its very numerous rulings on this topic. I will first comment on the robust case law handed down from the early years of this Tribunal and which spans its entire history up to 2019, and then that which was handed down during the pandemic caused by COVID-19. When referring to both stages, I will divide the judgments into those by which dismissals on procedural grounds are ordered and judgments in which the merits are decided. Within the latter, I will make some observations regarding a case cited by the majority in the judgment, in which it was alleged that the challenged sanitary order harmed freedom of expression.
(a) Case law in normal times As will be seen, in normal times, the usual practice has been for the Court to dismiss amparo proceedings on procedural grounds in which sanitary orders are challenged. From its origins, the Constitutional Chamber (Sala Constitucional) has maintained an almost uninterrupted case law line in which it affirms that it is not its role to review the legality of sanitary orders.
“UNICO: (…) Estando fundado el acto que se recurre en los artículos 356 y 363 de la Ley General de Salud, y en lo dispuesto en el Reglamento de Seguridad e Higiene Industrial, y habiendo tenido y ejercido el accionante su derecho de defensa através (sic) del procedimiento administrativo seguido al efecto, el acto se convierte en legítimo, desde el punto de vista constitucional, es decir, no produce quebranto constitucional alguno, quedando esta Sala en imposibilidad de revisar los alcances de mera legalidad que pudieran derivarse de él, aspecto que, en todo caso, sí puede ser discutido en la vía ordinaria correspondiente. No obstante se aclara que, no pueden las autoridades de Salud ordenar al accionante a demoler la estructura, si no demuestran que él es el propietario, ni pueden hacerlo por su cuenta, si no han oído previamente al propietario de ese inmueble” (sentencia 1991-1948; the highlighting is not in the original).
It has also indicated that the amparo proceeding is not the pathway to assess the timeliness and legality of the order:
“[E]l recurso pretende que la Sala examine las razones técnicas en que ha fundamentado el Ministerio la orden sanitaria, a la que califican de ilegal e injusta y evidenciándose que no se ha dado ninguna violación a un derecho fundamental y no siendo esta la vía para revisar la oportunidad y la legalidad de lo actuado, el recurso resulta improcedente y debe rechazarse de plano” (sentencia 1992-856).
In the same vein, and always to dismiss on procedural grounds, it has said that there are already other mechanisms to challenge them, that is, ordinary administrative remedies (recursos administrativos ordinarios):
“El amparo, como se infiere de lo que afirma el recurrente, no tiene otro fundamento más que evitar que se declare el cierre de la actividad comercial aludida. La Sala ha sostenido reiteradamente, que las órdenes sanitarias son susceptibles de ser combatidas por medio de los recursos ordinarios del procedimiento administrativo, de manera que los interesados pueden, en esa vía, demostrar técnica y pericialmente, que su actividad no está en los supuestos a que alude la orden dicha. Así las cosas, el recurso resulta improcedente en la vía constitucional y siendo un asunto de legalidad, debe ser debatido en la sede correspondiente” (sentencia 1992-3056; the highlighting is not in the original).
Moreover, it has indicated that the sanitary order does not constitute the final act of the proceeding, and therefore its imposition does not in itself entail harm to due process:
“Sobre la procedencia o no de la orden sanitaria emanada por las autoridades competentes del Ministerio de Salud, los requerimientos técnicos que en ella se hacen respecto del incumplimiento en las condiciones físico- sanitarias y la falta de permisos aludida, tampoco pueden discutirse en esta sede, dado que son las autoridades del Ministerio de Salud, de conformidad con la legislación vigente y aplicable, las que deben velar por el cumplimiento de los requisitos mínimos en los negocios comerciales, entre otros, mediante criterios técnicos debidamente respaldados. Reiteradamente esta Sala ha señalado que las órdenes sanitarias que, en ejercicio de sus competencias, dictan las autoridades de salud, no constituyen el acto final de un procedimiento administrativo en el que no se le ha dado participación alguna a los afectados, sino que por el contrario, debe considerarse el acto inicial, el traslado que se hace a los afectados, para iniciar el procedimiento administrativo, dándoles oportunidad para que conozcan los estudios técnicos que respaldan la orden, los estudien, cuestionen, ofrezcan pruebas de descargo y hagan propuestas alternativas para solucionar los problemas que las autoridades han detectado. Igualmente, pueden cuestionar la orden mediante el recurso de revocatoria y apelación, si a bien lo estiman conveniente –tal y como lo ha hecho el recurrente-. Si no se le pusiera en conocimiento de los estudios y pruebas que sustentan la orden, o no se le diere oportunidad de cuestionarla, eventualmente podría estarse frente a una violación al debido proceso revisable en esta sede, pero ello no ha ocurrido en el caso que nos ocupa” (sentencia 2000-11215).
And it has added that the Court is not one more instance in the administrative proceeding nor a legality controller.
“Lo planteado por la recurrente no es más que un conflicto de legalidad ordinaria ajeno al ámbito de competencia de esta Sala. En primer lugar, conforme lo ha sostenido reiteradamente este Tribunal, la orden sanitaria es el acto inicial del procedimiento administrativo, a partir del cual debe cumplirse el debido proceso a través del ejercicio de los recursos que procedan, como efectivamente los ejerció la amparada (folios 7 a 10). Ahora bien, lo resuelto en torno a dicho recurso por el Ministerio de Salud, según resolución DM-RC-9030-05 de las catorce horas treinta y un minutos del treinta y uno de octubre del dos mil cinco no puede se objeto de impugnación en esta vía, ya que la Sala no es una instancia más dentro del procedimiento administrativo ni un contralor de legalidad. De modo que si la recurrente estima que su casa no es inhabitable y, por ende, no procede ordenar su desalojo, y que los informes rendidos tanto por la Comisión Nacional de Emergencias como por el propio Ministerio de Salud -este último en relación con la inspección de campo realizada- son generales y no individualizan la situación concreta de su caso, no es en esta vía que debe presentar sus alegatos, sino ante la propia administración recurrida o, en su caso, en la jurisdicción ordinaria, pues son éstas -y no la Sala- las competentes para conocer y pronunciarse al respecto” (sentencia 2006-00773; the highlighting is not in the original).
That is, it has understood that the constitutional jurisdiction is not the appropriate forum to hear them. Thus, it has explained that the examination of sanitary orders does not conform to the summary nature of amparo:
“Por otra parte, como lo que se pretende con el amparo, según se desprende del libelo de interposición del recurso, es discutir en esta sede soporte técnico de los actos administrativos impugnados, el recurso es inadmisible, pues el diferendo que existiera sobre el particular constituye un conflicto de mera legalidad que por su naturaleza debe ser planteado, discutido y resuelto en la vía administrativa -como ha ocurrido-, o en la vía contencioso administrativa por agotamiento de la fase anterior. Más aún, discutir en esta sede sobre el contenido o sustento de las órdenes cuestionadas implica revisar en esta jurisdicción los criterios técnico empleados para llegar a la determinación impugnada, lo que no sólo resulta ajeno a la vía del amparo, sino que además excede su carácter sumario” (sentencia 1997-2548, the highlighting is not in the original).
Following that logic, and gathering many of the aforementioned criteria[22], it has also held that, if one disagrees with a sanitary order, in addition to administrative remedies (recursos administrativos), one may resort to the ordinary pathway, so that the technical basis of the order may be assessed there, since this requires a significant evidentiary phase:
“II.- CASO CONCRETO. Esta Sala ha establecido en forma reiterada que las ordenes sanitarias que emite el Ministerio de Salud -como ocurre en este caso-, constituyen justamente el acto inicial del procedimiento correspondiente en la cual se comunica las razones de hecho y de derecho que motivan tales órdenes, momento a partir del cual el administrado puede ejercer plenamente su derecho de defensa, y recurrir los actos administrativos por medio de los recursos y ante las instancias previstas al efecto. De esta forma, para el dictado de los actos en cuestión, la Administración no tenía que observar el debido proceso, dar audiencia previa o hacerle prevención alguna al amparado, pues con el ejercicio de los recursos que se le indican en las propia resoluciones citadas supra, se ejerce el derecho de defensa y se cumple el debido proceso. Ahora bien, si el amparado está disconforme con la procedencia de dichas órdenes sanitarias, ya que cuestiona su sustento técnico o la valoración probatoria que la fundamenta, ello hace referencia a un conflicto de legalidad ordinaria cuyo conocimiento y resolución escapa del ámbito de competencia de esta Sala. Máxime que esto entraña una discusión probatoria y técnica cuya resolución no es propio del carácter eminentemente sumario del recurso de amparo, proceso en el cual no es material ni razonablemente posible entrar en un complicado sistema probatorio o en la práctica de diligencias probatorias lentas y complejas. En mérito de lo expuesto, el recurso es inadmisible y así debe declararse” (sentencia 2015-001416; the highlighting is not in the original; identical considerations were reiterated in judgments 2016-9673, 2016-15956, and 2016-17176).
All these judgments cited so far—which are mere examples, because they involve very well-established lines—have been handed down to dismiss on procedural grounds. That is, they are arguments with which the Court justifies why it does not proceed to hear the matter on the merits.
However, certainly on an exceptional basis, this tribunal has admitted amparo proceedings against sanitary orders for processing, when gross violations of due process have been alleged, or it has been argued that it is necessary to hear them in order to protect other invoked fundamental rights, such as religious freedom. Nonetheless, even in such cases, the case law line is equally solid in the sense that the technical basis of the sanitary order should be discussed in the ordinary legality pathways. In the vast majority of times, at that phase it dismisses the proceeding on the merits, and usually in those cases it reiterates many of the arguments collected in the dismissals on procedural grounds. I will immediately refer to some examples[23].
Thus, in one case it concluded that the right of defense had not been violated:
“II.- Sobre el fondo. El amparo pretende tutelar el principio de legalidad y de igualdad, el debido proceso, el derecho a obtener una justicia pronta y cumplida y la libertad religiosa. En ese sentido, el reclamo particular del accionante es que las autoridades recurridas ordenaron el cierre de su Iglesia, motivados en una serie de mediciones sónicas, en las que no se le diera participación a su representada, y sin pronunciase de manera motivada la gestión que presentó. (…). De autos se desprende que las autoridades sanitarias recurridas intervinieron en el caso en estudio de la Iglesia Evangélica de Curubandé de Liberia, por las denuncias que por exceso de ruido habían presentado los vecinos del lugar, y que en el caso en cuestión se ha seguido un procedimiento administrativo, del cual el recurrente ha tenido conocimiento y oportunidad de defensa, incluso mediante nota de veinte de junio y dieciséis de julio, ambos de dos mil dos. Es justamente al tenor de esas reflexiones que no encuentra esta Sala que al recurrente se le haya vulnerado su derecho de defensa” (sentencia 2002-10129; the highlighting is not in the original).
It has also explained that a sanitary order is not suspended by the filing of ordinary remedies and that this does not harm due process. In relevant part, it advised the following:
“Además, en cuanto a la ejecución de la clausura del local comercial de la amparada, la Administración tiene la potestad de ejecutar por sí, sin recurrir a los Tribunales, los actos administrativos eficaces, válidos o anulables, aun contra la voluntad del administrado. Por esto, la interposición de recursos no tiene efecto suspensivo, a menos que el servidor que lo haya dictado, su superior jerárquico, la autoridad que decide el recurso o el órgano jurisdiccional que conoce del conflicto, ordenen suspender la ejecución cuando la misma pueda causar perjuicios graves o de difícil reparación, o cuando se trate de actos ineficaces o absolutamente nulos (ver artículos 146 y siguientes de la Ley General de la Administración Pública). Por otra parte, el artículo 53 de la Ley Orgánica del Ministerio de Salud, indica que el establecimiento de los recursos no suspende la ejecución del acto recurrido, a menos que, en casos muy calificados, en forma razonada, el Titular de la Cartera, interlocutoriamente y para evitar un resultado irreparable, ordene la suspensión provisional del acto, lo cual hará, en todo caso, bajo su responsabilidad. Por lo que si la recurrente considera que está en dicha hipótesis, deberá presentar la gestión correspondiente al Ministro de Salud. Por los motivos expuestos, el recurso debe ser desestimado como en efecto se dispone” (sentencia 2006-14378; the highlighting is not in the original).
It has affirmed that it is not its role to question the legitimacy or content of the provisions of the Ministry of Health, regarding the execution of sanitary orders:
“Es necesario aclarar que no corresponde a este Tribunal cuestionar la legitimidad o el contenido de las disposiciones tomadas por el Ministerio de Salud en cuanto a los plazos, prórrogas y resolución de recursos, relacionados con el dictado de las órdenes sanitarias, toda vez que ello es parte de su propia competencia” (sentencia 2010-004938).
Furthermore, it has indicated that this Tribunal is not competent to hear the reasons why the closure of a children’s center was ordered, reiterating that it is not its role to assess, in an amparo proceeding, the technical basis of that decision:
“IV.- Ahora bien, si la recurrente está inconforme con la actuación de la administración por haber revocado el acuerdo 31-17-2012, en el que se otorgó la habilitación al centro infantil "El Naranjito", dado que no cuenta con las condiciones mínimas requeridas y se instruyó al Área Rectora para realizar la clausura, ello escapa del ámbito de competencia de esta Sala, ya que el recurso de amparo ha sido instituido para tutelar infracciones o amenazas inminentes a los derechos y libertades fundamentales de las personas, y no para controlar en abstracto la correcta aplicación del derecho. En consecuencia, no corresponde en esta sede analizar las razones del Consejo accionado para disponer el cierre objetado, que como se indicó es parte de sus competencias, ya que el dominio de esta Sala está reservado al análisis de los acciones u omisiones impugnadas, y a su comparación con el ordenamiento jurídico, para determinar la legitimidad o ilegitimidad de lo impugnado, sin que sea posible incursionar en campos de la ciencia o de la técnica para ello, en atención a la naturaleza sumaria del amparo, proceso en el cual no es material ni razonablemente posible entrar a un complicado sistema probatorio o a un análisis de hechos que vaya más allá de los actos impugnados en si, circunscribiéndose más bien a las hipótesis fácticas en que esos actos se fundan. Por lo tanto, dichos extremos corresponden conocerse, discutirse y resolverse en el propio procedimiento administrativo, y una vez concluido el mismo, si la amparada estima que la resolución que dio por concluido el proceso administrativo, es contraria a derecho, tiene la facultad de impugnarla ante la vía contencioso administrativa, a fin de que en esa sede se determine sobre la procedencia o no de lo dispuesto por los órganos recurridos” (sentencia 2014-2423, the highlighting is not in the original).
As can be observed, these are examples of judgments that decide on the merits and dismiss the proceeding, almost always asserting the same things that are usually said in dismissals on procedural grounds.
(b) Case law during the pandemic The case law of this Court handed down during the pandemic caused by COVID-19 requires particular attention. Especially during the times of greatest restrictions, numerous amparo proceedings were filed challenging sanitary orders, alleging that they harmed the right to work and freedom of commerce (by forcing, for example, the closure of commercial premises). They were cases of great importance, since the limitation on the exercise of such rights entailed serious impacts on so many Costa Rican families who, overnight, saw the source of income for their subsistence significantly diminished—if not closed down. In other proceedings, vehicular sanitary restrictions and provisions on the use of masks were challenged. Sanitary orders were also challenged alleging that they harmed rights, no longer in the economic sphere, but in a more intimate and no less important one: for example, harm to freedom of worship and the violation of the rights of persons deprived of liberty to receive conjugal visits and visits from their other family members were alleged. In all those cases, one could say, the Court was implacable and consistent, as will be demonstrated below with a few judgments, which are only a very illustrative sample of what has just been asserted.
Thus, regarding an amparo proceeding in which a sanitary order that ordered the closure of a commercial business was challenged—possible labor and economic sustenance for the family of its owners and its collaborators who depend on the operation of said premises—the Court said that hearing that matter exceeded the summary nature of amparo and dismissed the proceeding on procedural grounds:
“II.- SOBRE EL CASO CONCRETO. En el sub iudice, advierta el recurrente que no corresponde dilucidar en la vía sumaria del amparo si los hechos acaecidos son ciertos o no, si a su establecimiento comercial le resulta aplicable una u otra normativa sanitaria, o si la clausura era procedente; de igual forma, no compete a la Sala determinar la procedencia de la multa. Dicho de otro modo, no le corresponde a este Tribunal hacer las veces de jurisdicción de alzada en la materia y revisar si la decisión de decretar y ejecutar tal cierre, se ajusta o no a los hechos y a la normativa infra constitucional vigente, ni mucho menos usurpar las atribuciones de la autoridad sanitaria recurrida y, previa comprobación de los requisitos legales y reglamentarios del caso, ordenar que se anulen los actos cuestionados, tal y como pretende el recurrente, pues se trata de extremos de legalidad ordinaria que deben ser dirimidos en la vía común, administrativa o jurisdiccional. De este modo, lo expuesto constituye un extremo de legalidad ordinaria que excede la naturaleza eminentemente sumaria del recurso de amparo. Por lo tanto, deberá la parte recurrente, si a bien lo tiene, plantear sus inconformidades o reclamos ante la autoridad recurrida, o bien, en la vía jurisdiccional competente, sedes en las cuales podrá, en forma amplia, discutir el fondo del asunto y hacer valer sus pretensiones.
Consequently, the appeal is inadmissible and must be declared as such” (judgment 2021-3603; very similar considerations were reiterated in judgment 2022-3545).
Along the same lines, it ruled on another of many occasions, when, in flatly rejecting the amparo actions, it indicated that this type of act must be heard in the ordinary channels:
“He maintains that, through health order R1-b11-001-2020, the closure of his business was ordered. He adds that police authorities appeared at the commercial premises and closed it, because supposedly the consumption of liquor is permitted inside the establishment, which he refutes. He considers it unreasonable that police authorities who are not officials of the Ministry of Health have closed the business by means of a health order, due to the supposed infraction of Executive Decree 42227-MP-S issued on the occasion of the coronavirus COVID-19 pandemic. (…)
In the sub lite case, the Chamber observes that what was raised by the appellant is nothing more than a conflict of ordinary legality, which does not constitute a violation of fundamental rights of such magnitude as to justify the intervention of this jurisdiction. Indeed, this Tribunal is not responsible for evaluating, in accordance with the infra-constitutional regulations governing the matter, the appropriateness or not of the aforementioned health order, nor for determining whether or not the alleged fault was incurred. Furthermore, the Chamber does not omit to state that it is from the issuance of a health order that the initial act of the corresponding procedure takes place. Thus, from the notification of such an order, the administered party can fully exercise his right of defense, either by appealing the administrative act before the instances provided for that purpose, at which time he can provide the evidence he considers relevant and raise the arguments he deems opportune—or by performing all the acts he considers pertinent in the exercise of his defense. (…) By virtue of the foregoing, the appeal is rejected” (judgment 2020-7165; the emphasis is not from the original; in the same sense, see judgments 2020-7626 and 2020-7934).
In the context of the pandemic, the gradual opening measures ordered by the Ministry of Health were also questioned. For example, the owners of some gyms alleged that their right to equality, right to work, and freedom of commerce had been infringed, and the Chamber resolved the following:
“I.- Object of the appeal. The appellants, who are owners of gyms located in the GAM, allege inconsistency in the selection of commercial establishments that the government, in the context of the COVID-19 pandemic, has allowed to open as of August 10, 2020. They state that the respondent has authorized the opening of beauty salons, aesthetic centers, and swimming clubs, but not gyms, despite the fact that similar activities ‘and even safer ones than those that were permitted’ are developed in them. (…) They argue that the restriction encourages unfair competition, since users are moving to gyms located in yellow zones because those located in orange zones are closed, which, furthermore, harms the containment of the virus, since people from different sectors intermingle. They believe that the recently begun opening phase generates discriminatory treatment and violates their right to work and commercial freedom. They request that the resumption of activities focused on physical maintenance and conditioning be authorized.
II.- Regarding the specific case. As can be inferred, the claims of the protected party concern aspects that exceed the competencies of this Constitutional Tribunal, which is called upon to amend gross violations of fundamental rights, but not to serve as a generic instrument for channeling petitions and disagreements of other types. In this sense, this Constitutional Tribunal is not a controller of the legality of the actions or resolutions of the respondent authorities, nor can it replace the active Administration in the management of its competencies, so it is not for it to usurp the powers legally conferred on other agencies or bodies such as the Ministry of Health, which exercises the governing role in matters relating to the safeguarding of public health, by virtue of which it has the power and the duty to decree the technical measures it deems useful and necessary in the context of the current pandemic, the technical pertinence of which is not to be analyzed in the summary amparo channel but rather, if the appellant so wishes, the pertinent grievances must be raised in the competent ordinary legality channel” (judgment 2020-15420; the emphasis is not from the original).
Similarly, the Chamber abstained from hearing alleged restrictions on freedom of worship. For example, the following was considered:
“The appellant expresses his disagreement with the measures taken by the Presidency of the Republic and the Ministry of Health, in addressing the pandemic caused by COVID-19 since, in their estimation, they are discriminatory. They consider that the protocols and protective measures proposed by the Episcopal Conference should be taken, and proceed to the immediate opening of places of free worship (…). [T]hrough the amparo channel, this Chamber cannot usurp the powers of the Ministry of Health authorities, in order to define the appropriateness of the claims set forth by the appellant, in accordance with public health policies, since these are matters that require weighing technical, medical-scientific, and opportunity and convenience criteria. Such questions, due to their nature and complexity, must be resolved in the common, administrative or jurisdictional channel, and not in this venue. Consequently, the appeal is inadmissible and is hereby declared as such” (judgment 2020-9093; the emphasis is not from the original).
Additionally, this Tribunal warned that the alleged infringement of freedom of worship should be raised and resolved in the ordinary venues:
“In this sense, the questioned sanitary restrictions, prima facie, are applied to all temples and churches —regardless of the religion or worship to which they belong— in attention to the nature of the activity and the congregation or influx of people who attend it, since what is at issue here is to protect the right to health and to life in a health emergency situation, all of which takes primacy over other considerations, without this suggesting, at least preliminarily and without prejudice to evidence to the contrary, a desire to harm religious activities to deliberately damage freedom of worship. Therefore, the proper course is for this matter to be resolved in the common, administrative or jurisdictional channel; the protected party must, if it so wishes, raise its disagreements or claims before the competent legality channel, since it is in that venue where it will be able, in a broad manner, to discuss the merits of the matter and assert its claims. Consequently, the appeal is inadmissible and is hereby declared as such” (judgment 2020-9570; the emphasis is not from the original).
Note that this meant —as much as in the other cases being referred to here— that, even though it understood that a fundamental freedom or right could be involved, it considered the legality channel to be the competent one to hear the matter.
On other occasions, it rejected the appeal on the merits, for example, when it concerned vehicular health restrictions. On this point, the following judgment is illustrative, in which, echoing several precedents, it dismissed the alleged illegitimacy of the restriction on freedom of transit, and concluded:
“Under that order of ideas, the Chamber considers that for the case under study, what was established in the rulings cited in the preceding paragraphs is perfectly applicable, in which it is dismissed that there is an injury to constitutional rights, since the State has the capacity to specially regulate the circulation of vehicles in a specific sector or zone, in order to make a public interest prevail. It must be noted that by virtue of this public interest, the State is legitimized to establish certain special rules regarding automobile circulation, in pursuit of the welfare and common good of the people. (…).
In summary, in the case under examination, the claim of the protected party revolves around the same fact discussed in the aforementioned precedents, that is, the vehicular restriction applied by the central government. Under that perspective, since that claim bears a close similarity to what has already been heard and resolved in this venue, and considering that there is no reason to change the criterion previously expressed by the Chamber, the appeal must be rejected on the merits, as is hereby declared” (judgment 2020-6917; the emphasis is not from the original; in a similar sense, see judgments 2020-7538 and 2020-9509).
In relation to the health provision on the obligation to use masks, the Chamber declared that it was not in a capacity to evaluate the technical-sanitary criteria that supported it:
“ON THE ADMISSIBILITY OF THIS APPEAL. In the sub lite case, the appellant alleges that the measure of forcing all people to wear a mask to control the coronavirus epidemic in Costa Rica is discriminatory and violates the right to equality for being unreasonable and disproportionate. (…) Given the foregoing, it is clarified to him that the challenged determinations obey technical-sanitary criteria and considerations of opportunity and convenience that the Chamber is not in a capacity to evaluate” (judgment 2020-12551; the emphasis is not from the original).
However, certainly, during the pandemic it admitted for processing other amparo actions in which health orders were challenged.
In one of them, it had the particularity that not only was the closure of a commercial premises at stake, but also the detention of a person for failing to comply with health restrictions, and upon resolving it on the merits, it indicated that it was not for it to rule on the appropriateness of the health order:
“The appellant considers her fundamental rights harmed, given that she is the owner of Restaurante Malibu No. 2, which has a restaurant license, and officers of the Public Force and the Municipal Police, who appeared at said establishment on April 1, 2020, closed the commercial premises and illegally deprived her of liberty for allegedly having breached a health order (…). In the case at hand, the Tribunal observes that the deprivation of liberty of the protected party, carried out at 8:08 p.m. on April 1, 2020, was executed in accordance with subsection 235 (a) of the Criminal Procedure Code, since the Public Force officers considered that the protected party had been caught in flagrante delicto by allowing the consumption of liquor at the bar of the aforementioned commercial premises, which contravenes the health measures adopted in the face of the coronavirus COVID-19 pandemic. (…) Thus, in the sub lite case, it is not evident that the protected party was illegitimately apprehended during the initial processing of the case, since the legal system provides for the possibility of apprehending a person when caught in flagrante delicto or contravention. Ergo, the appropriate course is to declare the appeal without merit.
On the other hand, the protected party requests that the closure seals imposed on the commercial premises of her property be lifted. However, it is not for this Tribunal to evaluate, in accordance with the infra-constitutional regulations governing the matter, the appropriateness or not of the aforementioned health order, nor to determine whether or not the alleged fault was incurred. Furthermore, note that it is from the issuance of a health order that the initial act of the corresponding procedure takes place” (judgment 2020-8302; the emphasis is not from the original).
It also admitted for consideration some allegations from persons deprived of liberty. However, upon resolving on the merits, it likewise abstained from hearing the grievances related to the suspension of prison visits and considered that the discussion of those health provisions should not be aired in this venue:
“[T]he respondent authority reports under oath —warned of the consequences, including criminal ones, provided for in Article 44 of the Law that governs this Jurisdiction— that currently, all types of visits to penitentiary centers are suspended as a preventive measure in relation to the pandemic resulting from COVID-19, and that said provision was communicated to the entire prison population, indicating that the procedures would remain suspended until they can be made effective. Regarding the suspension of the benefit, this Tribunal has determined that the referred suspension is a provisional measure, executed in compliance with orders issued in a coordinated manner by the health and penitentiary authorities, regarding which it is not for this Chamber to act as an instance of legality and, based on that, to evaluate the technical criteria used to determine the appropriateness of said measure” (judgment 2021-14529; the emphasis is not from the original; in identical sense, see judgment 2020-10317).
In a similar sense, regarding a health order that ordered the closure of the Depósito Libre de Golfito, the Chamber reiterated that it is not one more instance within the different administrative and judicial processes, and therefore it is not within its purview to hear this type of matter on the merits:
“Given the described scenario, first of all, it is necessary to indicate to the appellant that the Constitutional Chamber is not competent to act as one more instance within the different administrative or judicial processes handled by administered parties. In the specific case, the appellant intends for this Tribunal to review the decreed eviction since, in his opinion, it is inappropriate given that he considers he has worked in the Plazoleta del Depósito Libre de Golfito for more than twenty years. However, that claim is expressly directed at questioning in this venue, aspects that it is the purview of the ordinary jurisdiction to elucidate, either at the administrative or judicial level, since it is there where, after evidentiary evaluation, it will be possible to determine who has the better right to the property. In this case, it was proven that the appellant does not have a municipal license to conduct stationary sales activity issued by the Municipality of Golfito, nor permission from the Ministry of Health. It could not even be proven that he is one of the evicted persons, as extracted from the reports rendered under oath. In any case, as was assured under oath, those affected by the eviction complied with the health order without problem. This being the case, since this jurisdiction does not have competence to analyze the merits of the matter raised, the appellant must raise his dispute in the ordinary judicial channel, after exhausting the administrative phase, and therefore, nothing else is appropriate but the dismissal of the appeal as is hereby ordered” (judgment 2020-12161; the emphasis is not from the original).
Note in passing, that in this and in the other recently cited rulings, after having processed it, the Chamber warns at this phase that it is not for it to resolve on the merits and dismisses the appeal; but it is not a dismissal of the appeal because it understands that the appellant is not right, but rather because it verifies that it is not appropriate for this tribunal to rule on the merits in an amparo appeal. That is, with more elements, it says what it habitually indicates in rejections.
Also, on another occasion the Chamber reiterated that this type of health measures —being issued in the exercise of the Ministry of Health's own competencies— is not for the constitutional jurisdiction to analyze in order to determine the reasons that motivated the act. Also because the health order is the beginning of the administrative proceeding, so it is from its notification that the parties can question its basis and exercise their right of defense:
“As can be deduced from the aforementioned ruling, the closure order issued by the administration is precisely the act that presides over the beginning of the process, so it is from that moment in which the closure order is issued that due process must be strictly respected in the subsequent actions, which, as described above, was duly respected in the sub lite case, when the health order was notified to the appellant and he was informed in it of the appeals that are available and before which authority, so that he may proceed accordingly.
In the same way, being measures established by administrative bodies under their own competencies, it is foreign to the constitutional jurisdiction to analyze or determine if there are reasons that motivated its issuance, so the discussion of its appropriateness, viability, and duration escapes the knowledge of this jurisdiction (see, in this sense, ruling No. 2006-9685, of 1:17 p.m. of July 7, 2006).
Thus, the appropriate course is to declare the appeal without merit in this regard, as is hereby ordered, upon verifying that the protected party was afforded the due process that corresponds in these cases and was informed how he can proceed, if he so wishes, for the purpose of challenging the actions he claims” (judgment 2021-7471; the emphasis is not from the original).
That is, although during the pandemic the Chamber processed several amparo appeals in which health orders were challenged, when resolving them it reiterated its consistent case law.
(c) The case of Rolando Araya Monge The precedent resolving an amparo appeal filed in favor of presidential pre-candidate Rolando Araya Monge deserves particular attention. It was filed in the context of the pandemic and was admitted for processing, but it is brought up especially because it alleged an infringement of his freedom of expression and also because in the ruling that resolves the present case, the majority invokes this precedent to illustrate an instance in which this Chamber did address and decide on the legitimacy of a health order. However, it is necessary to clarify that in that matter the majority of the Chamber did not properly examine the legitimacy of the health order and the alleged illegitimate restriction on Mr. Araya Monge's freedom of expression. Said case was declared with merit by the majority upon considering that there was an evidentiary problem on the part of the respondents, who did not safeguard or provide to the Chamber the videos of the protected party's statements that motivated the issuance of the health order. The Chamber did not evaluate the legitimacy of the restriction in light of the statements made by Mr. Araya Monge. Even the majority made it clear that the Ministry of Health could well issue restrictions of this type if a threat to public health had been proven. In this regard, the following was resolved:
“[T]he videos that served as the basis for the health order issued, the object of this matter, are not found in the administrative file, which is only attributable to the Administration. Such a situation prevents the protected party from being able to question which expressions could have generated the state reaction and thus defend himself. Now, as with any procedural burden, the party that fails to comply with it—in the sub examine case, the State—must face the procedural consequences of its omission.
The Chamber explains to the respondent authority that, when a person is reproached for the inappropriate use of freedom of expression and limitations are imposed on such right, there must inexorably be certainty regarding the reasons for such exceptional measures, which can only be imposed within the framework of the cases permitted by the constitutional and conventional order. It is reiterated that freedom of expression is essential for the sustenance of democracy and, therefore, constitutes a cardinal aspect of our political system, such that any restriction thereof must not only have an adequate positive-legal basis, whether in internal regulations or within the framework of international human rights law, but also the competent authority is obliged to fully prove the factual basis on which it is based.
Given the summary nature of the amparo proceeding, the Chamber could not assume an inquisitorial position and investigate which videos could have eventually served as the basis for the state action, especially because such activity would have the purpose of supplementing the omissions of the state authorities, which brushes against the nature of a Tribunal that defends the individual against the State.
Finally, the Chamber warns that the foregoing would not have precluded a different assessment, if it had been proven that the protected party's statements endangered people's health and the Administration's action had been based on a precise and well-founded positive legal reasoning. The Chamber reaffirms that the respondent Ministry can and must safeguard public health” (judgment 2021-1515; the emphasis is not from the original).
Therefore, due to the evidentiary particularities of that case —rather, the absence of evidence— the granting of the appeal was ordered. But, it bears reiterating that said judgment did not refer to the content of the health order. So, contrary to what is stated in the ruling, I very respectfully consider that it is not a good example to illustrate the majority's thesis. On that occasion, incidentally, Magistrate Castillo Víquez and I cast a dissenting vote, on the basis of the case law that has habitually affirmed that health orders are not the object of an amparo appeal (see the dissenting vote to judgment 2021-1515).
*** From the review of the case law, it is possible to conclude that historically the Constitutional Chamber has been very rigorous and restrictive in hearing amparo appeals in which health orders have been challenged, even when it has been alleged that they entail injuries to fundamental rights and freedoms of great relevance. To this end, it has relied on the public health protection regulations that, in principle, legitimize the conduct of the Ministry of Health authorities; it has considered that it is not for it to review the technical basis of the decision as these are highly complex evidentiary aspects, which are not suited to being elucidated in a summary proceeding such as the amparo; and it has indicated that the health order is the initial act of the administrative proceeding, so that from its formal notification, the appeal mechanisms are activated, both within the administrative venue itself and in the administrative litigation venue, which is the suitable channel to control the legality of the administrative function.
Thus, in order to be consistent with those solid jurisprudential lines, the appropriate course would have been for the Chamber to also dismiss this amparo appeal. Furthermore, as has been said, if this Tribunal has not heard other amparo appeals in which it was alleged that the challenged health orders violated other rights and fundamental freedoms of utmost importance in the life of individuals and communities (right to work, freedom of commerce, freedom of worship, and freedom of transit), it is not easy to find a sufficient justification for a break from those lines to have been made in the specific case.
One final consideration must be made on an issue that has been taken for granted: And on what basis has the Chamber issued that case law, if, as has also been indicated, Article 29 of the LJC does not expressly exclude health orders from among the administrative acts that could be challenged in an amparo appeal?
The answer is as follows: First, based on Article 7 of the LJC, which gives the Chamber, given its character as a constitutional tribunal, the competence to define (specify, demarcate) its own competence.[24] Second, by virtue of Article 9 of the LJC, which allows it to reject an appeal outright, when it is manifestly inadmissible, or on the merits, when there are precedents.[25] Note that, if, as the rule states, it can reject on the merits at any time, a fortiori —and in fact it does so, as has been seen— it can also reject an appeal for being inadmissible at any time. Third, on the basis of respect for the nature of the proceeding and for the provisions of Articles 48 and 153 of the Political Constitution.[26] And not only for that reason, but also in consideration of the fact that said Article 48 did not come to annul Article 49 of the same Constitution. This is precisely what is necessary to analyze now.
(3) The suitability of the administrative litigation channel It is opportune to show why the administrative litigation jurisdiction is the planned and propitious framework for the adequate hearing of the present matter.
(a) Constitutional provision for control of the Administration Note that this constitutional case law on health orders, which has its origin in the first years of the Chamber's history and had been strengthening over more than three decades, does not assert that these administrative acts are inherently legitimate and should remain exempt from control. In that sense, the Chamber has been consistent in stating that it is for the ordinary jurisdiction to carry out an analysis of legality to determine that the health order was issued in accordance with the Law. Indeed, precisely for this purpose the Constituent established the administrative litigation jurisdiction as an attribute of the Judicial Branch, with the object of guaranteeing the legality of the State's administrative function. Moreover, it is clear that respect for that legality can and usually does have an impact on the sphere of fundamental rights, not just property rights. Well then, the Constitution states:
Article 49.—The administrative litigation jurisdiction is established as an attribute of the Judicial Branch, with the object of guaranteeing the legality of the administrative function of the State, its institutions, and any other public law entity.
Deviation of power shall be grounds for challenging administrative acts.
The law shall protect, at least, the subjective rights and legitimate interests of the administered parties.
Based on the content of that article, the Chamber has derived the constitutional principle of jurisdictional review of the administrative function and the fundamental right to challenge administrative conduct. On this point, it is pertinent to record a somewhat lengthy quote, but its conceptual density warrants it:
“Currently, the entire doctrine of Public Law admits the principle of jurisdictional review of the administrative function, that is, that any specific manifestation of the administrative function can and must be reviewed before a jurisdictional instance to verify its conformity with the parameter of legality (…). This principle, in some constitutions, such as Costa Rica's, translates, at the same time, into an individual guarantee or fundamental right, thus Article 49 of the Constitution establishes the administrative litigation jurisdiction to guarantee the legality of the administrative function. In other words, in the majority of legal systems, including Costa Rica's, the citizen or the administered party has the guarantee that any administrative act of the public powers will be reviewed by the administrative litigation jurisdiction, being able, even, to annul (by absolute or relative nullity) that act when it transgresses the legal system (…). This Constitutional Tribunal has emphasized the constitutional rank held by the principle of jurisdictional review of the administrative function and the fundamental right to obtain effective judicial protection against administrative conduct that infringes the block of legality, thus in Vote No. 9928-2010 (…) it considered the following:
‘IV.- CONSTITUTIONAL REGULATION OF THE ADMINISTRATIVE LITIGATION JURISDICTION AND THE CONSTITUTIONAL ATTRIBUTION OF A COMPETENCE. The original constituent and the reforming power concerned themselves with defining the material competence and, consequently, the extension and scope of two essential jurisdictions for the Social and Democratic State of Law. Indeed, in numerals 10 and 48 the material competence of the constitutional jurisdiction is established and, in numeral 49, that of the administrative litigation jurisdiction. The foregoing makes patent, in the will of the original constituent and the reforming power, the transcendence of both constitutionality and legality control of the public powers in order to guarantee the effective enjoyment and exercise of the fundamental and human rights enshrined, respectively, in the constitutional text and the instruments of Public International Law. Without a doubt, such constitutional precepts embody what doctrine has called the regal clause of the Constitutional State of Law.
Regarding, particularly, the contentious-administrative jurisdiction, Article 49 of the Constitution, after the partial reform (…) of 1963, provides as follows: (…) From the literal transcription of the constitutional precept, the following should be highlighted:
1°) The derived constituent power or reforming power opted for a “judicialist” model of administrative justice, that is, entrusting to a specialized jurisdictional order of the Judicial Branch the competence and authority to exercise oversight of the legality of the administrative function, that is, its substantial conformity or alignment with the bloc de legalidad. This system offers considerable guarantees and comparative advantages for the justiciable party, such as specialization, which, accompanied by the judicial career established at the infra-constitutional level, represents a true guarantee of correctness and compliance with the constitutional imperative contained in Article 41 of the Constitution of “prompt justice (…).
5°) The derived constituent power opted for a mixed administrative justice, in that the first paragraph, when defining the object of the contentious-administrative jurisdictional order—“to guarantee the legality of the administrative function”—must inevitably be complemented by the final paragraph, by prescribing that the law shall provide protection, at a minimum, to subjective rights and legitimate interests—without distinguishing, regarding the latter, thus making admissible the protection of both personal and collective interests, whether corporate or diffuse. Consequently, the contentious-administrative jurisdiction, according to the Law of the Constitution, was instituted both to ensure the legality of the administrative function and for the effective protection of the substantial legal situations of those administered against public authorities. Thus, constitutionally, an objective and subjective role of the contentious-administrative jurisdiction is combined’” (judgment 2013-04491; emphasis not in original)[27].
Thus, the channel provided for exercising control over administrative acts such as those challenged is the contentious-administrative route. It is now appropriate to pause to consider what is examined in that venue.
(b) Scope of analysis in the ordinary channel If the object challenged here (the sanitary order and the related official letter) had been subjected to control in the contentious-administrative channel, the validity requirements[28] would have been assessed, that is, the substantial elements: both the subjective—competence, standing (legitimación), and investiture—and the objective—grounds (motivo), content, and purpose (fin)—; and the formal elements—reasoning (motivación), the procedure used, and the forms of manifestation of the act. The effectiveness requirements[29]—proper notification—would also have been analyzed. Moreover, it should be borne in mind that in the specific case it is alleged that there is a misuse of power (desviación de poder), so it was precisely appropriate to examine the grounds (motivo), content, and basis of the administrative acts in light of the General Law on Public Administration (Ley General de la Administración Pública, LGAP), which, where relevant, provides as follows:
Article 132.
1. The content must be lawful, possible, clear, and precise and covers all questions of fact and law arising from the grounds (motivo), even if they have not been debated by the interested parties.
2. It must also be proportionate to the legal purpose (fin legal) and correspond to the grounds (motivo), when both are regulated.
3. When the grounds (motivo) are not regulated, the content must be regulated, even if in an imprecise manner.
4. Its adaptation to the purpose (fin) may be achieved through the discretionary insertion of conditions, terms, and modes, provided that, in addition to meeting the content characteristics indicated above, the latter are legally compatible with the regulated part thereof.
Article 133.
1. The grounds (motivo) must be legitimate and exist as they have been taken into account for issuing the act.
2. When not regulated, they must be proportionate to the content, and when regulated in an imprecise manner, they must be reasonably consistent with the indeterminate concepts used by the legal system” (emphasis not in original).
To assess those elements and to be able to conclude, with due support, that these are arbitrary administrative acts, it was essential to examine the basis of the sanitary order and, therefore, the abundant technical evidence provided, coming from varied specialist opinions, which it was appropriate to contrast. Only in this way would it have been possible to determine whether, in fact, one is faced with the absence of one or several of the essential elements of the administrative act and the alleged violations of fundamental rights and freedoms of the petitioners.
That analysis, necessary to reach the conclusion of the alleged nullity of the administrative act, undoubtedly exceeds the summary nature of the amparo remedy. It bears reiterating that on hundreds of occasions this Chamber has warned that “the amparo remedy is a summary proceeding in which it is not materially or reasonably possible to enter into a complicated evidentiary system or an analysis of facts going beyond the challenged acts themselves,” and it has been insisted upon “the impossibility of analyzing in this venue a discrepancy regarding technical criteria or parameters” (see the uninterrupted line of the Chamber, at least since judgment 1997-2943, up to the present in the recent judgments 2018-0787, 2019-16757, 2022-7145, and 2022-10379, among others).
In the specific case, as stated, a full technical evidence analysis was essential to assess the administrative conduct of the various parties involved—which are not exclusively the authorities of the Ministry of Health. All the foregoing for the purpose of verifying that, as alleged, the object challenged (the sanitary order and the related official letter) is vitiated by nullity and is a manifestation of a misuse of power (desviación de poder). But, additionally, considering the object sought to be protected (freedom of expression and other fundamental rights), it was necessary to examine additional evidentiary elements to verify a certain, real, effective impact on the legitimate interests or subjective rights (whichever it may be) allegedly harmed, since the matter involves determining the causal link between the challenged act (the order and the related official letter) and the damage inflicted (the alleged harm to freedom of expression and other rights claimed to be violated).
In short, since the petitioners challenged the basis of the impugned administrative acts, and the respondents alleged that they were based on technical criteria, and the Chamber was able to verify that this was inherently highly technical and complex matter, what was appropriate at this knowledge phase (in which it was supposed that a decision on the merits should be made) was to reiterate the robust constitutional case law and, in light of the nature of the amparo remedy, dismiss the remedy regarding the claim to annul the challenged acts.
We arrive here at one of the key points of this vote. It has already been said that prima facie the remedy meets the basic procedural requirements to be admitted; however, it does not meet this latter point that has been explained: the analysis of the challenged object is not consistent with the nature of the proceeding. In other words, what is being challenged (the sanitary order and the related official letter), although alleged to be arbitrary and harmful to fundamental rights and freedoms, is not appropriate for the Constitutional Chamber to hear in an amparo remedy, because its full and fair assessment exceeds the summary nature of this proceeding.
But the contentious-administrative channel is not only the one provided for hearing this type of matter, especially considering the complexity and scope of the acts challenged in the present case, but it is also a channel that has multiple advantages, as will be explained immediately.
(c) Advantages of the ordinary channel In the first place, standing (legitimación) is even broader, according to Article 10 of the Contentious-Administrative Procedural Code (Código Procesal Contencioso-Administrativo, CPCA), since those invoking the impact on legitimate interests or subjective rights may sue and may request the declaration, recognition, or restoration of a legal situation, with or without pecuniary reparation[30].
However, the petitioners allege that, if the Constitutional Chamber had not admitted this amparo, their right to judicial protection would have been harmed.
Although in a later section more detailed reference will be made to the issue of standing, it is worth citing their words again and analyzing them in light of what is now relevant:
“If this case is erroneously considered a matter that must be heard in the ordinary venue because it is a legality matter, the journalists would be condemned not to have access to judicial protection, since we would lack standing (legitimidad) to challenge the facts described here in the contentious-administrative venue because, since this involves indirect attacks on freedom of expression and the press, the challenged administrative acts are not directed against us, but rather harm our rights indirectly. Thus, at most, we could act as coadjuvants in an ordinary action, always subject to the fate of the principal and with limited scope, especially regarding freedom of expression, which is our fundamental concern. The constitutional venue, which protects our right to freely exercise journalism, is the sole suitable means to defend ourselves against the abuses that the respondents indirectly wield against us” (writ of filing, p. 2; emphasis not in original).
Such statements depart from the provisions of the CPCA, since, as has been seen, the petitioners here could have filed a lawsuit to object to the sanitary order and the related official letter, arguing that these administrative acts harmed their freedom of expression and the press. There was and is no obstacle to doing so: neither due to the object challenged (the sanitary order and the related official letter), nor due to the object protected (the rights and freedoms allegedly violated), nor due to standing (which could even be based on legitimate interests).
Thus, they would indeed have had standing not only to seek protection of constitutional rights but also legal ones; not only personal rights but also pecuniary ones; not only subjective rights but also legitimate interests. Furthermore, and this is especially relevant for the case before us, they could allege not only direct harm but also indirect and reflexive harm to any subjective right or legitimate interest.
In the second place, in accordance with Article 31 of the CPCA[31], it is not necessary to exhaust the administrative channel to resort to the contentious-administrative route, just as it is not required to file an amparo remedy, according to Article 31 of the Constitutional Jurisdiction Law (LJC)[32]. Thus, the petitioners could well have gone to that route, just as they did by coming to the Chamber, without waiting to know the outcome of the appeal filed by the company owning the property.
In the third place, the contentious-administrative jurisdiction has broad powers to exercise robust and effective interim relief. Thus, in that channel they could have requested the immediate suspension of the act, something—incidentally—that they did not request before the Constitutional Chamber. Said suspension could have been granted with or without a prior hearing. This is established by Article 19 of the CPCA, which, in what is relevant, states:
Article 19. 1) During the course of the proceeding or in the execution phase, the respective court or judge may order, at the instance of a party, the appropriate and necessary interim measures to proteccionally and provisionally guarantee the object of the proceeding and the effectiveness of the judgment. 2) Such measures may also be adopted by the respective court or judge, at the instance of a party, before the proceeding has begun.
Furthermore, the judicial body exercising that interim relief has broad discretion to impose on the parties various types of obligations, compliance with which it will supervise:
“Article 20.- Interim measures may include the preservation of the state of things, or else, anticipatory or innovative effects, through the provisional regulation or satisfaction of a substantial factual or legal situation. By means thereof, the respective court or judge may provisionally impose on any of the parties to the proceeding obligations to do, not to do, or to give. // If the measure involves active administrative conduct or omissions with discretionary elements, or defects in the exercise of its discretion, it shall be subject to the provisions of Article 128 of this Code.” Thus, the contentious-administrative judge is empowered even to modulate the suspension of the challenged act, determining whether it occurs totally or partially and, in the latter case, whether conditions are imposed. For example, it could have indicated that the suspension did not apply to the holding of sporting events, which usually have a less massive attendance than concerts.
The petitioners could have alleged the serious damages or harms, current or potential, arising from the acts accused as arbitrary[33], and the judicial body had to perform a balancing considering the public interest and that of third parties, and the rights that the respondents claim to protect (the life, health, and integrity of the users of the property and the neighbors) [34].
Regarding the interim proceeding, the rules provide short time limits and, at the same time, adequate conditions for the body to have all the necessary elements for judgment[35].
This interim relief not only has high-quality regulatory provisions but is also of proven promptness and effectiveness. To demonstrate this, many decisions could be recorded[36]. It suffices to note that just in recent weeks two interim measures have been granted against governmental acts[37].
There is another advantage of the contentious-administrative channel that is obvious, especially when it hears a non-summary proceeding: that of offering the possibility of having an exhaustive examination of all kinds of evidence, according to Article 82 of the CPCA[38].
The advantages and procedural guarantees offered by the contentious-administrative route for hearing a matter like the present one do not end there. If the objection is that its major disadvantage is its slowness, Article 69 of the CPCA[39] provides a solution that helps to avoid it: the declaration of preferential processing, which establishes much shorter time limits and prerogatives to accelerate the proceeding.
Note that this is not a solution to suspend the effects of the act, since interim relief would serve that purpose, but rather to resolve the dispute with greater celerity. Thus, the matter could well have reached a judgment within a reasonable time, despite its complexity, precisely because—in light of the challenged object, its very repercussion, and the rights sought to be guaranteed—there were clear possibilities that it would follow that preferential processing.
(1) Framework of the problem As I have said, Article 48 of the Political Constitution establishes universal standing, and this is reflected in Article 33 of the LJC, which states that “any person may file the amparo remedy.” This has been understood by the Chamber as the normative provision for universal active standing, which includes vicarious active standing. In other words, those rules establish that any person may file an amparo remedy and that this includes the possibility of filing it on behalf of another person.
But, of course, this is from the logic that, if it is filed on behalf of oneself, it is because the challenged act is harmful to oneself. At the same time, if it is filed on behalf of another person, it is because the challenged act is harmful to that other person.
However, in the present amparo, we are faced with an atypical case, because the petitioners claim to have standing to file the amparo remedy in which they challenge administrative acts that do not fall upon them, but upon a property owned by a company belonging to the same business group that owns the newspaper for which they work.
They claim to have the right to be granted the annulment of the sanitary order and the related official letter—which they consider arbitrary—as a means for the enjoyment of their freedom of expression, which they consider harmed.
Therefore, although, due to those normative provisions, standing problems almost never arise in amparo remedies, in this one they do. And it seems that they are aware of this, since in the writ of filing they state:
“…since this involves indirect attacks on freedom of expression and the press, the challenged administrative acts are not directed against us, but rather harm our rights indirectly” (writ of filing, p. 2).
Thus, the key to the petitioners’ argument for requesting the Chamber to admit the present remedy and rule on it is the link they affirm exists between the sanitary order and the alleged harm to freedom of expression. It is evident that, in order to deem that link proven, it is not enough to prove the mere business connection of the two business units, but rather the dependence of the newspaper (where they exercise their freedom of expression) on Parque Viva (on which the challenged object falls).
(2) On the claim that they would only have standing before the Chamber The petitioners not only maintain that they have standing to bring the amparo but even go so far as to affirm that only here, before the Chamber, do they have standing, because in the ordinary jurisdiction they could only be coadjuvants and freedom of expression, which is the interest they seek to have protected, could not be guaranteed:
“If this case is erroneously considered a matter that must be heard in the ordinary venue because it is a legality matter, the journalists would be condemned not to have access to judicial protection, since we would lack standing (legitimidad) to challenge the facts described here in the contentious-administrative venue because, since this involves indirect attacks on freedom of expression and the press, the challenged administrative acts are not directed against us, but rather harm our rights indirectly. Thus, at most, we could act as coadjuvants in an ordinary action, always subject to the fate of the principal and with limited scope, especially regarding freedom of expression, which is our fundamental concern. The constitutional venue, which protects our right to freely exercise journalism, is the sole suitable means to defend ourselves against the abuses that the respondents indirectly wield against us” (ibid., p. 2; emphasis not in original).
Regarding these assertions, in my opinion, two objections may arise. The first, as has already been seen, is that they seem to ignore that in the contentious-administrative jurisdiction the petitioners would indeed have even broader standing, because under Article 10.1 of the CPCA they could allege not only a subjective right but also a legitimate interest. The second is that they disregard that the Chamber is not the only one that can protect fundamental rights. To say otherwise, to understand that the Chamber is the sole instance to guarantee those rights, would be akin to maintaining that the ordinary jurisdiction only protects pecuniary and legal rights. Ultimately, it would be to affirm that the Constitutional Chamber has a monopoly on the protection of fundamental rights, when the truth is that it only has a monopoly on the protection of fundamental rights through the amparo remedy. I shall now proceed to explain what I have said in a brief summary.
Fundamental rights were not recognized upon the creation of the Constitutional Chamber, but rather the latter, by hearing the amparo remedy, has made their guarantee possible with great effectiveness and promptness. What other jurisdictional channels exist to protect fundamental rights? The ordinary channels, provided for in Articles 153 and 49 of the Political Constitution, already cited[40]. Incidentally, I believe it is not without reason that the Constituent Power wanted that norm, together with Article 48—dedicated to the amparo remedy and habeas corpus—to conclude Title IV, called “Individual Guarantees,” as if to underline that this title not only establishes the substantive fundamental rights but also the mechanisms to protect them jurisdictionally.
The Chamber protects fundamental rights (with the exception of personal liberty and integrity, which it hears in habeas corpus) through the amparo remedy, which is an expeditious and effective channel; and only the Chamber has jurisdiction to hear that remedy provided for in Article 48 of the Political Constitution. But, of course, it is not the only venue where fundamental rights are protected. If one were to say that the ordinary judge does not protect fundamental rights, we would be affirming that the latter only applies the law and regulations. On the contrary, the ordinary judge is among the first called upon to protect and enforce the fundamental rights of persons. Moreover, the Chamber itself, through its case law and, often in view of legal reforms providing other channels, has been delegating to other bodies the hearing of matters that previously were only heard through the amparo remedy[41]. That is why I have said that the Chamber does not have a “monopoly” on the protection of fundamental rights.
Besides having standing to be plaintiffs, alleging the violation of subjective rights and legitimate interests, they could also have requested the corresponding restitution and indemnification. All in accordance with Article 10 of the CPCA, already cited.
It was not necessary for the company as such to file a lawsuit in the contentious-administrative channel. They themselves could have resorted to that channel to protect freedom of expression by arguing, as they do here, that the administrative acts are arbitrary, that they are the materialization of a misuse of power (desviación de poder), and they constitute a harm to that freedom. As it seems to me, this is precisely what causes that, in the event that the Chamber had dismissed the present amparo remedy, the admissibility of a petition filed by the petitioners before the Inter-American Commission on Human Rights, with a view to the matter subsequently being brought before the Inter-American Court of Human Rights, would have encountered a serious obstacle, since the domestic remedies referred to in Article 46.1 of the American Convention on Human Rights (CADH)[42] had not been exhausted, nor could Article 46.2 of that Convention[43] have been invoked. Unfortunately, the analysis of this interesting topic exceeds the object of this dissenting vote.
Now, having said this: that the petitioners would have standing to resort to the contentious-administrative channel, without the company they work for having done so; and that they could be plaintiffs, not mere coadjuvants; and that in that channel they would be protected not only regarding subjective rights (in this case, freedom of expression) but also legitimate interests; and that they could obtain for themselves the restitution they request (and even the indemnification if they had requested it), it is appropriate to analyze whether in fact they have standing to bring the amparo before the Constitutional Chamber.
(3) Arguments of the petitioners on the cause of standing The petitioners argue that there is a link between the challenged object (the sanitary order and the related official letter) and the object they seek to protect (their freedom of expression). This is despite the fact that those acts fall upon a property that is not the newspaper’s nor is it dedicated to anything related to the journalistic activity.
But on what do they base this link? On the fact that the acts are motivated, not formally, but in their ultimate intention, by the desire to destabilize Grupo Nación, which is the owner of the two companies: Parque Viva and the newspaper La Nación[44].
“The administrative acts used to exercise indirect or veiled censorship through economic pressures related to the medium in which we work lack any technical basis and do not pursue any legitimate purpose (fin legítimo), but rather a retaliation for the newspaper’s critical line and an attempt to silence it” (ibid., p. 1)[45].
The petitioners argue that the harmful actions by the President of the Republic occur in two directions: calling into question the financial solidity of Grupo Nación and the closure of Parque Viva. Regarding the first, they state:
“It is worth noting that no financial authority has expressed the same doubts, Grupo Nación maintains an ‘A’ rating, and the company’s assets double its liabilities. The financial statements are public, because Grupo Nación is listed on the stock exchange, and they show the reserve of the necessary resources to pay the next maturity” (ibid., p. 5).
They recount statements by the President at a press conference:
“?La Nación’s profitability is in free fall and that means it is incurring constant, constant, constant losses. And so one asks, if that loss trend continues, I don’t know, maybe they have a magic wand and manage to raise cash flow. What happens? It is the duty to take care of your grandmother’s pension. What happens if La Nación’s cash flow is choked off and the property is not there because it is somewhere else? (…) ' stated the President” (ibid., p. 5).
They refer to the fact that the President urged the Costa Rican Social Security Fund to request information from SUGEF on Grupo Nación’s payment capacity:
“As is clear, the spectacle had no other purpose than to harm Grupo Nación, calling its finances into doubt, to curtail our freedom of expression because ‘the usual practice of institutional investors’ is to consult the issuer directly and to use the information published by law.
Never before had a president personally concerned himself with the fate of investments by a public institution that no financial authority has questioned. Never before had a large part of a presidential press conference been dedicated to informing that questions were posed to the issuer through SUGEF, instead of doing so directly. And two days later, the closure of Parque Viva would come, undoubtedly to see ‘if La Nación’s cash flow is choked off’” (ibid., p. 6).
They accuse the illegitimacy of said statements in light of judgments of the Inter-American Court of Human Rights and, specifically, argue:
“In our case, as is public and notorious, in addition to the constant use of the word ‘scoundrel’ (canalla), an insult to delegitimize, intimidate, and stimulate repudiation of the press among government followers, which is in itself dangerous, the references to the financial health of Grupo Nación fall short of the ‘reasonable, though not necessarily exhaustive, verification’ of ‘the facts on which it bases its opinions,’ and the duty to ‘do so with even greater diligence than that employed by private individuals, by reason of its high office, the broad reach, and eventual effects that its expressions may have on certain sectors of the population, and to avoid citizens and other interested persons receiving a manipulated version of certain facts’[46]” (ibid., p. 6).
In the argument, all the foregoing seems to have a purpose of offering the context to show the second aspect of actions they consider harmful: the closure of Parque Viva, carried out through the challenged acts.
“In the actions of the Public Administration directed at closing Parque Viva, there is a clear misuse of power (desviación de poder) to violate human rights. The measures adopted do not pursue the satisfaction of public interests, but rather spurious interests consisting of retaliating against their right to inform. This [is] the true purpose (fin) that the adopted administrative acts have. These acts not only economically affect the company that owns Parque Viva, but also, additionally, the information medium where we work and, thereby, harm our right to inform. This is the true purpose (fin) pursued by the administrative acts against which I seek amparo” (ibid., p. 7; emphasis not in original).
In the same vein, they add:
“If the community celebrates something, it is that the government’s misuse of power (desviación de poder) shed light on a long-standing problem that is not resolved by the arbitrary administrative acts indicated in this remedy. The ineffectiveness of those acts distorts their intended public purpose (fin público) and shows that the sole purpose (fin) is to affect Grupo Nación’s finances in retaliation for the free exercise of journalism by us, the petitioners, in an attempt to silence us in the future, as the President promised” (ibid., p.
13; emphasis not in original).
They then add a passage in the same vein as those just cited:
"The legality of the actions described must be challenged, by whoever has standing to do so, in the appropriate jurisdiction, but together with the President's campaign promise, the arbitrary acts pointed out leave no doubt as to the persecutory purpose against the newspaper where we work and its retaliatory nature, with a misuse of power (desviación de poder), against the editorial line, seriously injuring the right to freedom of expression. Of course, the pressure exerted on the company's finances jeopardizes future journalistic practice and invites understandings that compromise it" (ibid., p. 14; emphasis not in original).
In a subsequent filing responding to the report given by the President of the Republic, in the same vein, the petitioners state:
"'Grupo Nación cannot be required, like any other Costa Rican business, to comply with the parameters of the law because immediately, in its view, it becomes an attack on press freedom,' says the President's report. We petitioners never alleged such an absurdity. Grupo Nación, and we as individuals, are subject to the laws. We do not seek a hateful and undemocratic exceptionality. We petitioners maintain that in the specific case there is a misuse of power (desviación de poder) to indirectly limit our freedom of expression in fulfillment of the threat made during the political campaign, which the presidential report does not mention even once. And at this point it is worth pointing out the fallacy of the arguments about the fulfillment of the duty to protect social interests with the closure of Parque Viva. It is not that we petitioners use freedom of expression as a pretext to exempt Grupo Nación from complying with the law; it is that the President and the Minister of Health use the fulfillment of duty as a pretext to materialize the purpose of silencing us expressed in the electoral campaign and duly documented" (petitioners' filing of August 17, p. 9; emphasis not in original).
Previously, they had referred to the origin of this relationship between the newspaper La Nación and Parque Viva, which deserves to be cited again:
"Parque Viva is one of those structures [that allow us to practice independent journalism], in the case of Grupo Nación. It was created, precisely, to diversify the company's income sources and compensate for the loss of income experienced by media outlets worldwide due to the migration of advertising to internet giants like Google and Facebook. This fact is public and appears in various statements by the company and its representatives since at least 2013. In the shareholders' report for the 2013-2014 period, visible on the nación.com page https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html, the executive presidency stated: '…changes in the industry, in media consumption, and in the national competitive environment will continue to challenge the print media business. Aware of this landscape, we designed, two years ago, a strategy to face it. While new initiatives mature, especially in the digital realm, every journalistic medium will require a complementary source of income, less dependent on advertising sales. Consequently, as we announced last year, we invested significant resources and efforts in the creation of Parque Viva, in Guácima de Alajuela'" (filing submission, p. 4; emphasis not in original).
As can be observed, this paragraph speaks of the link, but dependence is not proven: it only refers to the justification for the decision to venture into another commercial line of business.
The petitioners do not show data that would allow observing since when and in what percentage the alleged dependence occurs. That is, they do not provide evidence establishing a direct and unequivocal relationship that would allow affirming, without a margin of doubt, that the sustainability of the newspaper La Nación depends on Parque Viva.
Incidentally, they only make an analytical reference to the financial statements of Grupo Nación, when asserting the ability to pay, and they explain that the assets are far superior to the liabilities, something that is indeed reflected in the audited consolidated financial statements report for 2020-2021. In 2020: Assets 68,883,898, Liabilities 27,661,566. In 2021: Assets 68,555,759 and Liabilities 28,288,573[47].
In a subsequent filing, they do collect the words of the executive director of Grupo Nación in which he explains what the expectations are for Parque Viva:
"It is worth noting that the day after the conference on the bonds, the executive director of Grupo Nación, Pedro Abreu, gave extensive public explanations and mentioned the role of Parque Viva in the company's cash flow. A day later, the government precipitously closed Parque Viva.
Abreu declared, among other things: 'It is said that La Nación only drags losses. It is very important to distinguish between accounting loss and cash flow generation. We are dragging accounting losses, it is true, but we are generating cash flow. This means that, between operations and financial investments, we are generating sufficient cash flow to pay the debt, to pay all the interest, to pay all the investments, and, additionally, we are saving to face future maturities. This can be seen in our financial statements, which are public,' Abreu stated, adding: 'Parque Viva has been stopped for two years (due to the pandemic). So, the numbers we have been showing, where cash flow has been positive, are with Parque Viva closed. Since March 2022, Parque Viva is operating, it will start generating cash flow and will begin to contribute to that flow we were already generating. So, this year's numbers will look much better than last year's. We believe that will be the trend from here to 2025.' (See attached evidence). The next day, Parque Viva was closed. (See publication 'Chaves attacks La Nación with distorted data.')" (Petitioners' filing of August 17, p. 9).
It is therefore of interest now to observe whether the judgment adequately substantiates this dependence, which would be the root of the standing that allows the petitioners to validly file an amparo action to annul acts that do not fall upon them.
(4) Considerations of the judgment regarding dependence In reality, the judgment does not properly address the problem of standing. It takes such dependence for granted with arguments that only aim to explain several phenomena that I do not question and that are in themselves public and notorious facts, without real incidence on the verification of that dependence in the specific case.
In the first place, the phenomenon of the migration of newspaper readers to the digital format:
"Traditional media outlets, mainly print media, have suffered in recent years a strong economic decline with the arrival of the internet, the fall in advertising investment, and its migration to large digital platforms" (judgment, considering VIII).
This is unobjectionable, but it is useful only to show the context in which the newspaper La Nación and all media outlets operate.
Next, they explain that this phenomenon has led to another: the reaction of the owners of these companies to this change of circumstances:
"By virtue of the foregoing, media outlets have found themselves in need of innovating and seeking new formats, proposals, or mechanisms to seek new income (and audience) that allow, in turn, to finance journalism and the medium as such, especially investigative journalism, which is costly. In other terms, new commercial strategies have had to be implemented or mixed models put into operation in order to 'make media outlets profitable,' as it has been called by some. So much so that many media outlets, today, do not generate money with their main or traditional activity, but with others that allow them to subsist" (ibid.).
It is recognized that the actions have been directed in several directions: innovating and seeking new formats, using other income mechanisms to finance journalism. It is within this last type of action that the investment made by Grupo Nación in acquiring and starting up Parque Viva would fall, since they understand that "many media outlets, today, do not generate money with their main or traditional activity, but with others that allow them to subsist." Up to this point, the only thing that can be clear is that the original business unit of Grupo Nación (the newspaper) needs the new business unit (Parque Viva). But, as much as the petitioners, the judgment does not address showing to what extent and how this dependence occurs.
Afterwards, the judgment points out:
"By way of example, media outlets have modernly resorted, among others, to the following formulas or strategies: a) some print media have created their own digital platform and established subscription models or what has been called 'pay per view'; a formula successfully used by large media outlets like The New York Times or The Guardian. b) Resort has been made to the creation of higher quality and exclusive content (on specific topics of interest to certain sectors), which makes the search and access to them attractive. c) Use has been made of podcasts (series of episodes on various topics recorded in audio and transmitted online, used, for example, by the medium The New York Times through its program The Daily). d) The organization of events, forums, or congresses on certain topics has been promoted with experts and personalities, for which, in turn, a fee is charged to participate or enter (the media outlets Texas Tribune or The Economist have been characterized by organizing events of this type). e) Resort is also made to the sale of pieces to third parties (large media outlets, taking advantage of the enormous experience and structural support they have, cover certain specialized information, process it, and sell it to others, even to their own competition). f) Use has been made of the so-called Brand licenser, which allows media outlets to license their brand so that third-party companies use it in their products or services (e.g., National Geographic sells products related to travel and adventure, books, and has even installed stores related to its coverage line)" (ibid.).
As can be observed, this is only a list of activities carried out by different press media or printed magazines to innovate the way of disseminating ideas or news, in this new and challenging context. But none of these activities relates to the diversification of investments by the group owning the communication company in order to obtain financial resources to sustain the press medium. In the present case, by contrast, the petitioners are pointing out that the original business unit of Grupo Nación (the newspaper) depends for its subsistence on another business unit that has nothing to do with the exercise of journalism or communication (Parque Viva).
Immediately, the judgment ventures into the phenomenon of holdings or conglomerates of companies in the following terms:
"Likewise, it is worth highlighting that, as part of those formulas to which media outlets have had to appeal to diversify their income sources and sustain themselves financially, resort has also been made to the acquisition of or adhesion to other companies whose main activities are related or not directly to journalism (thus forming what has been called holdings or economic interest groups). This type of phenomenon in particular has manifested itself in other latitudes and also at the national level" (ibid.).
We then enter a sphere closer to that of the case at hand, since it deals with business groups whose original business unit is the communication medium, and that diversify their investment by acquiring "companies whose main activities are related or not directly to journalism." Grupo Nación fits within that phenomenon. Well then, this is not in dispute. It is a public and notorious fact, but it does not reflect the real dependence. It is one thing for this or any group to wish to diversify its investment and quite another for it to want to maintain a business unit that is inherently deficient. In other terms, the purpose of holdings is not to maintain within their fold a financially unviable business unit, but rather to increase income in diverse activities and minimize the risks involved in investing all capital in a single business unit.
Later, the judgment gathers examples of holdings that have investments in the field of media outlets. It begins with the following:
"Thus, by way of example, there is the case of the daily The Boston Globe and other media (owned, in turn, by the American newspaper The New York Times), which were acquired in 2013 by John Henry, owner of the baseball team Red Sox and the football team Liverpool FC, with the purpose of facing the enormous economic losses suffered by the former, caused by the migration of readers and advertising to the internet" (ibid.).
It is a good example, although in the opposite direction: it is the owner of a non-journalistic company that acquires two journalistic companies. But it does not seem that Mr. Henry could invoke an injury to freedom of expression in the event that his respective sports teams were sanctioned with hefty fines. In any event, let us remember that here we are primarily analyzing the issue of financial dependence, which would be the condition to determine the alleged link between administrative acts and injury to freedom of expression. Then, it is only worth saying that this example only serves to point out that, indeed, today more than ever, journalistic activity in written format is less profitable than that of other business units, regardless of the line of business, and that these others can serve as financial support, since the owner of both is the same and may wish to subsidize the one that is not profitable.
The judgment continues:
"Likewise, it is noted that Warren Buffet, through his holding Berkshire Hathaway (a company owning total or partial shares in several business groups in textiles, insurance, automobiles, beverages, etc.) in 2012, bought sixty-three newspapers from the Media General Group in the southeastern United States, which were also suffering low profitability. Among the dailies acquired by Buffett are the Richmond Times of Virginia, the Winston-Salem Journal of North Carolina, and the Morning News of Florence of South Carolina" (ibid.).
Again, the example is closer, but, also again, it is the reverse of the case at hand: the business group that already had its investment diversified in different activities, although none in the field of communication, as referred to in this passage, acquires "newspapers (…) which were also suffering low profitability." Since the example is similar, the comments would also be similar. It is therefore appropriate to transcribe what the judgment goes on to note:
"Likewise, there is the case of Jeff Bezos (founder and owner of Amazon, a giant e-commerce company), who in 2013 bought The Washington Post, with the aim of achieving its survival, after this medium of communication similarly suffered the blows of the irruption of new technologies, the decline in audiences and advertising income. Note that, in this particular case, despite the fact that the medium of communication—as announced, among others, by the Spanish media outlet El País—will not be integrated or adhere properly to Amazon, its acquisition forms part of that same commercial strategy aimed at helping it remain functioning" (ibid.).
Indeed, this means that the owner of a business unit unrelated to the media field invests in one of these but does not incorporate it into its original financial scheme. The truth is that it is unknown whether this integration also occurred with Mr. Henry or with Mr. Buffet, and it is not inherently relevant. The important thing is that these are examples in which the financial viability of media outlets occurs thanks to their acquisition by owners of companies with other, more profitable commercial lines of business.
In the present case, it is a group whose original business unit is a newspaper, which is claimed not to be inherently profitable, and which ventures into another commercial line of business: it acquires another business unit whose activity is not developed in the field of communication. The judgment points this out:
"In Costa Rica, the use of this type of mechanisms or formulas is exemplified through Grupo Nación S.A. (a corporation of which the Newspaper La Nación forms part), which decided to buy the facilities of what used to be the Autódromo La Guácima and converted them into the events center called Parque Viva, as a means to diversify the company's income sources and thus compensate for the loss of earnings suffered due to the migration of advertising to internet sites" (ibid.).
This, as I have said, is a public and notorious fact, and moreover, it is an absolutely legitimate financial decision.
The judgment adds:
"It is understandable that within the current juncture where written media outlets require financial support given the loss of some of their traditional income sources, another type of companies or societies are created or established—under the protection of the legal system—to provide them with resources and economic or financial sustainability to maintain the former. The case of Grupo Nación S.A., and the acquisition of the now-called Parque Viva referred to above, represents a clear example of what has been said" (ibid.).
I agree that it is understandable, and it is taken as certain that Grupo Nación sought this when venturing into this new commercial line of business. That is, the acquisition of Parque Viva goes in that direction: diversifying the investment so that the group as such would have sufficient returns. I even concede that such diversification aimed to make the existence of the newspaper itself financially viable. But the judgment does not address showing financial dependence in real terms, which would allow verifying what the petitioners say, who—as has been seen—do not prove it either.
Immediately, the judgment resumes what it was saying and adds:
"This type of financial structures, like the rest of the examples cited above, become a source of income or resources that contribute to or make possible the journalistic work being exercised, given that the income these generate allows covering or balancing many of the expenses that a medium of communication demands. Therefore, it is a reality that, if this type of mechanisms or proposals are affected in an illegitimate or arbitrary manner, the exercise of journalism is harmed, in turn; in essence, press freedom, as a manifestation of freedom of expression" (ibid.).
Again, it is not possible to admit without major difficulty that investment diversification allows compensating the losses of one business unit with the profits of another; but here, in the present case, before entering into arguments about the arbitrariness of the challenged acts, it is necessary to prove, demonstrate, clarify that indeed the newspaper La Nación depends financially on Parque Viva. And, after that exhaustive analysis, I believe that the judgment omits the reference to this very important point, which is the key to the whole argumentative arc of the petitioners, without which they lack standing.
This considering clause of the judgment ends with a rather long paragraph, but which, due to its importance and consistency, deserves to be transcribed as well:
"Now then, the reflect (indirect or veiled) affectation that may materialize against press freedom, thanks to the measures adopted against such financing structures, is an aspect that must be weighed in each specific case, it being clear that not every administrative act or conduct that imposes a burden or establishes a content of negative effect regarding those entities, supposes a reflect injury as has been indicated. Indeed, it is worth noting that like every administered person, these structures are affected by and subject to the legal norms that regulate, specify, and delimit the exercise of their respective economic activities. In that sense, their operation must satisfy and comply with the regulations proper to their activity, which includes, having the respective administrative authorizations for the deployment of the commercial matter. Hence, they must have the respective titles that allow proving compliance with urban planning and building regulations (within these, those pertaining to Law No. 7600), health, safety, as well as the commercial licenses and patents that are due in each case. Additionally, comply with the pertinent tax regulations. Likewise, in the course of their activity, like every person, they are subject to the oversight and control of the exercise of the activity, in order to verify that they maintain the level of compliance by virtue of which the commercial activity was authorized. In this dynamic, the neglect of the conditions of exercise imposed by those sectoral regulations, could well (sic) lead to the imposition of administrative measures of restriction or sanction. The foregoing, provided that the specific exercise of that manifestation of the administrative police power can be deemed legitimate, based on the due and timely accreditation of the assumptions of non-compliance that would give rise to each legal consequence, and that this decision is in accordance with the merits of the case background and the applicable Legal System (relationship between the objective material elements motive-content) and that it is consistent with the protected public interest. In those cases, where the administrative function is established as the legitimate exercise of administrative powers seeking the safeguarding of public interest, one could not postulate a sort of reflect infringement of press freedom, but rather, the lawful and foreseeable consequence of neglecting public order norms to which every administered person is exposed. By contrast, when those measures find no support in the diverse factual or legal presuppositions that, in each case, the normative plexus defines as a necessary antecedent (conditioning presupposition) to adopt a certain sanctioning decision or one of negative content, or else, when the content of the act adopted based on the verification of those conditions, is overreaching, disproportionate, unreasonable in relation to those antecedents, antagonistic to the public interest, or in general, contrary to legality (in a broad sense), one would be facing an administrative behavior that can imply a misuse of power (desviación de poder) (art. 113 LGAP) and supposes, as has been indicated, an indirect or reflect injury to press freedom. It is a careful analysis of the particularities of each case, as a parameter for a neutral, equitable, and objective assessment between fundamental freedoms and rights in a framework of a State of Law and the exercise of administrative powers that have, as a principle and purpose, the protection and satisfaction of public interest. Ergo, not every act that negatively impacts the sphere of a financial structure supposes an alteration to the freedom under examination, just as not every administrative control function regarding those can be understood as legitimate, without more. In this way, in cases like the present one, where an indirect violation of freedom of expression and press is alleged, as a result of monitoring activities of the Health Administration, it falls to this jurisdictional instance, to weigh the particular nuances, to define whether it is a due or undue exercise, as a sine qua non condition for a value judgment regarding the existence or not of the duty to validly tolerate those administrative impositions" (ibid.; emphasis not in original).
Said in other terms: each business unit must comply with the legal system, and the Administration may impose sanctions when it deems this is not the case; but these must be duly substantiated. To determine whether they are, it is necessary to examine the relationship between the objective material elements (motive-content) and their consistency with the protected public interest.
Precisely, this examination is what the Chamber is expected to carry out in the subsequent considering clauses, since as is well stated in that passage: "Not every act that negatively impacts the sphere of a financial structure supposes an alteration to the freedom under examination, just as not every administrative control function regarding those can be understood as legitimate, without more." Here, in this section of the dissenting vote, an analysis is being carried out to confirm whether the procedural prerequisite called standing is present, under the understanding that the dependence of the newspaper, not the simple financial connection, is a condition without which it cannot be affirmed that there is a legal link between the challenged acts and the alleged injury. That is, that such a link is the requirement to have said standing. But already in the analysis on the merits, as that passage of the judgment correctly points out, another condition must concur for the injury to be declared: that the act is arbitrary. However, as I have shown in the previous section, the complexity that those acts entail leads to the conclusion that their knowledge is not proper to an amparo appeal, which by nature is summary.
Thus ends that considering clause, which precisely lacks the analysis and verification of the alleged dependence. One can only conclude that Grupo Nación expanded its range of businesses, but it is not demonstrated that the operation of the newspaper where the petitioners work depends financially on Parque Viva and that, therefore, there is merit to entering into examining whether their freedom of expression has been somehow affected by acts that fall upon that other business unit.
(5) The financial statements and the alleged dependence Now then, in the filing submission there appears a link to the financial statements of Grupo Nación[48]. I propose to make a brief analysis of these with a view to determining the alleged dependence.
The mentioned link leads to the website where the audited consolidated financial statements appear, the Presidency reports[49], and the shareholders' reports. This last one also includes the two previous ones. The quarterly financial statements also appear[50].
Regarding the last period ending in December 2021, of particular interest is the table titled "La Nación, S. A. and subsidiaries. Assets, liabilities, and results by segments as of December 31, 2020, and for the period ended on that date (expressed in thousands of Costa Rican colones)," and the similar table, but as of December 31, 2021[51], because they reflect in various columns those items by business unit. Before those tables, the following information appears:
"As of December 31, 2021, and 2020, the information on assets and liabilities is presented, as well as the financial performance of the main operating segments with which the Group counts, comprising the activities developed by: a) Media - Includes income from the dailies La Nación, La Teja, and the weekly El Financiero, as well as income from printing for third parties, production and distribution of papers and cardboards, b) Digital - Comprises the results from the products El empleo and Yuplón, c) Parque Viva - Business revolving around the administration of venues and creation of entertainment platforms, d) Portfolio, considers investments at fair value with changes in other comprehensive income held abroad through its subsidiary Desarrollo Los Olivos, S.A. and investments in local financial instruments and investments in associates and other participations"[52].
In those tables, the following is indicated. In 2020, the consolidated losses of Media, to which—according to the cited text—the dailies La Nación and La Teja and the weekly El Financiero belong, were ¢ (1,772,204); and the consolidated losses of Parque Viva were ¢ (2,365,096)[53].
In 2021, the consolidated losses of Medios were ¢ (1,969,114) and those of Parque Viva were ¢ (51,802)[54].
From that information it is only possible to conclude:
1.- The newspaper La Nación and Parque Viva belong to Grupo Nación (a fact which, furthermore, is public and well-known).
2.- The information appearing on the website reflects the consolidated financial statements of Grupo Nación, not the financial statements of each subsidiary.
3.- The tables appearing in the Shareholders' Report on assets, liabilities, and results by segment as of December 31, 2020, and December 31, 2021, show that both business units—Medios (to which the newspaper La Nación belongs) and Parque Viva[55]—sustained losses. And in global terms (for both years), Medios had greater losses, ¢ (3,844,599), than those of Parque Viva, ¢ (2,416,898).
But from this alone, without further information provided by the appealing party, it cannot be inferred that the newspaper depends financially on Parque Viva; especially since the latter is a business unit with losses. That financial situation is also reflected for both units in prior years. Thus, between 2018 and 2021, the financial results were unfavorable for both the Medios segment (within which the newspaper La Nación is located) and Parque Viva.
[56] Perhaps the results observed in recent years might originate from the investments and indebtedness that Grupo Nación has had to assume in that process of transforming its news business and seeking new sources of revenue. Eventually, the expectation is that at some point in the future, Parque Viva will be the main source of revenue for Grupo Nación. But what is certain is that it is not clear that the newspaper La Nación, as a press medium, depends on Parque Viva, at least not at this moment.
Now then, although it could not be said that the development of Parque Viva is aimed at financing the Medios business unit, it might perhaps be understood that it seeks to guarantee the group's shareholders an adequate return on their investment.
On the other hand, if what justifies those consolidated losses are investments whose return is anticipated within a certain timeframe, that was not duly accredited. It was only mentioned in a subsequent written submission, already cited here, which includes the words of the CEO of Grupo Nación, intended to defend the health of the group's finances as such. However, at the same time, they serve to confirm that, to date, Parque Viva has not had the cash flow to demonstrate that the newspaper La Nación depends financially on it, or, put another way, that without Parque Viva it is not possible to carry out the journalism that the appellants claim to practice.
In reality, the only thing the appellants provided was the link where the information appears, without presenting the slightest accounting explanation to support the assertion of dependence.
In summary, the information on the website neither alludes to nor is sufficient to establish as true the financial dependence of the Medios business unit on the Parque Viva business unit. Even if the dependence were not absolute, the possibility of understanding that there is a legal connection between the challenged acts and the alleged injury could be assessed; but the problem is that the only thing accredited is that the diversification of Grupo Nación's investments (a public and well-known fact) was driven by the challenges suffered by the newspaper La Nación in the context of its readers' migration to other platforms (another public and well-known fact, which did not require proof).
Finally, I must make another observation: From the statements of the President of the Republic before and after assuming office, it could be said that he himself is the one making the connection. Nevertheless, what is in question here is not the financial link between the two business units, since both belong to the same Grupo Nación, but rather the financial dependence of the newspaper on Parque Viva and, as has been seen, this was not proven by the appealing party, nor analyzed and confirmed by the majority of this Chamber. It is taken for granted, when it is the condition for determining whether there is a legal connection between the challenged acts and the freedom allegedly violated.
Furthermore, regarding the President of the Republic's words, no longer in the statements that gave rise to the filing of the appeal, but those contained in the report to this Chamber, the appellants state:
"The report from the President asks: 'How is it possible, Magistrate Ladies and Gentlemen, that Grupo Nación comes to say that it places all its economic hopes in what the economic activity of Parque Viva can generate to be able to pay its employees, and that temporarily closing that venue for holding mass events for failing to comply with minimum health conditions is a direct attack on freedom of the press? This only shows that the financial health of La Nación is not how they want to make it seem and that they depend on this venue to survive financially.' Grupo Nación has said none of that. The appellants are journalists from Grupo Nación (...), we are professionals whose freedom of expression is intended to be limited through arbitrary actions against the 'structures' that sustain our free exercise of journalism, as the President promised. On the other hand, we have not spoken of a 'direct attack' on freedom of expression, but an indirect one, equally prohibited by Article 13.3 of the Convention and the jurisprudence of the Inter-American Court. We never said that the payment of our salaries depends on Parque Viva, as is also stated in the Presidency's press release. To verify everything said, one only has to read the appeal, but it is worth noting the insistence on the supposed demonstration that they 'depend on this venue to survive financially.' The unfounded obsession with the company's finances extends to the interpretation of what we have not said! Of course, if the desires revealed by this passage were true, the closure of Parque Viva would put an end to the bothersome journalism that we appellants practice and which motivated the threat made during the campaign. Nothing could be clearer" (appellants' written submission of August 17, p. 12; the emphasis is not in the original).
This passage invites reflection. On the one hand, as the appellants rightly point out, the President confuses "Grupo Nación" with "journalists of La Nación." On the other hand, the President is surprised that this Grupo Nación places its hopes in Parque Viva. He adds that this only shows that the health of La Nación (here it is unknown whether he is referring to the newspaper or the group) is not good and that, in effect, according to what the appellants said (whom he confuses with the group), it confirms that they depend on Parque Viva to survive financially (both the group and, it could be said, the newspaper). With those words, he is not saying that La Nación depends on Parque Viva; rather, he says that they claim that La Nación (the group or the newspaper) depends on Parque Viva.
Having reached this point, the problem of standing would be resolved: the appellants affirm that the newspaper La Nación depends on Parque Viva[57] and the respondent accepts it, as he understands that this is a confirmation that the group (or the newspaper) lacks financial health. (This latter point would justify his actions, his expressed concern about the bonds; but, for the purpose of the substantive analysis of this amparo action, it is an element that clearly works against him, as it would be the admission that the order was intended to leave the newspaper without financial support). In any event, what is important to stress here is that the President, although he does not affirm the existence of this financial dependence (be it of the newspaper itself or of the group) on Parque Viva, nor does he deny it.
But it turns out that the appellants respond that it is not true that they, or Grupo Nación, have said that La Nación, the company in which they practice journalism, depends on Parque Viva. Instead, they say, if that were the case, if they did depend, if what the President says were true, the closure of the Parque would indeed consummate the injury to freedom of expression:
"Of course, if the desires revealed by the passage were true, the closure of Parque Viva would put an end to the bothersome journalism that we appellants practice and which motivated the threat made during the campaign" (ibid.).
So then? Do they depend or do they not depend?
In any case, I consider that the failure to prove the financial dependence of the newspaper (in which the appellants work) on Parque Viva (the property upon which the challenged acts fell and which is owned by another business unit) has a procedural legal effect: the lack of standing to come before this Chamber to validly file an amparo action for an alleged injury to freedom of expression arising from the closure of Parque Viva. That is, by not proving that dependence, the conditions were also not met for this Chamber to examine on the merits the existence of a connection between the closure of the venue and the concrete impact on the communication medium and its ordinary functioning, and specifically, the freedom of expression of the appellants.
I must add that even in the event that standing had been proven, the unsuitability of the amparo action for hearing the challenged acts remains.
Furthermore, it is timely to stress that this is not an analysis on the merits of the matter, but on the procedural prerequisites, whose existence is not dispensable but constitutive of due process.
A. Introduction As will be recalled, the appellants seek the annulment of the challenged acts that fall upon Parque Viva, as they accuse them of being arbitrary and of constituting an indirect means to harm their freedom of expression, because they leave the medium in which they work without economic support, and therefore without true independence.
As could be appreciated, my dissenting opinion goes in two directions. On the one hand, I show that the appellants do not have standing to allege that presumed injury by indirect means, since the connection between the challenged acts (the health order and the related official communication) and the alleged injury to freedom of expression is not verified. This is because they did not prove there was a financial dependence of the newspaper on Parque Viva. On the other hand, because determining whether the challenged acts are arbitrary or not exceeds the summary nature of the amparo action.
The majority of this Chamber does not refer to those aspects, but rather admits the connection between the challenged acts and the injury presumably caused by them, as the appellants allege, and declares the appeal with merit under the understanding that Article 13.3 of the CADH was violated.
I opted to declare the appeal with merit, with regards to the injury to freedom of expression, but for reasons different from those of the majority. I now propose to set them forth.
First, I will refer to the procedural principle that makes it possible to hear this injury and the reasons why there is no legal obstacle to doing so. Then I will explain why I consider that it is not appropriate to declare the injury to freedom of expression through indirect ways or means, that is, the violation of Article 13.3 of the CADH. Afterwards, I will make some comments on all the jurisprudence of the Inter-American Court of Human Rights (Corte IDH) and this Constitutional Chamber regarding this norm, which is invoked in the case file, and which rather seems to confirm my thesis. Subsequently, I will allude to some scenarios that allow for some reflections on the topic under discussion. Finally, I will show why, in my judgment, the injury to the freedom of expression of the appellants was indeed configured.
Possibility of hearing the invoked injury Throughout the dissenting opinion, I have stressed that this Constitutional Chamber is not competent to hear the challenged object (the health order and the related official communication) and that the appellants do not possess the standing they claim to have. Thus, I understand the surprise that could be caused by the fact that, at the same time, I maintain that it is indeed appropriate to hear the matter on the merits regarding the freedom of expression.
The apparent dilemma disappears when one notices in what sense and under what assumption I proceed to hear this amparo action on the merits.
Indeed, what I affirm is that it is possible to hear whether the injury to freedom of expression has been configured, but not the one the appellants claim; and it is possible to hear a challengeable object (act or conduct), even if it has not been attacked expressly but tacitly by the appellants; and that such an object would be the cause of that injury. Since this challenged object directly affects the appellants, even if it has not been expressly alleged as such, it is possible to hear it. For that reason, they have standing, and that procedural prerequisite is fulfilled. Furthermore, as will be seen, due to its characteristics, that object and that injury are susceptible to being heard in a summary proceeding such as amparo.
Is it permissible to make that distinction in order to hear what was not alleged? What allows me to do that? The principle iura novit curia, which translates as: "the court knows the law." This principle is linked to the maxim da mihi facta, dabo tibi ius which, in simple terms, is usually translated as: give me the facts, and I will give you the law. In other words: explain to me what happened, and I will tell you who is right from a legal point of view.
This is the classic principle whereby the judge is empowered to take the facts into consideration and apply the law, as they deem appropriate, without necessarily being bound by the arguments presented by the parties.
The Diccionario panhispánico del español jurídico of the Real Academia de Lengua Española defines this principle as follows:
"The court knows the law'. Principle that allows a judicial body to apply norms different from those invoked by the parties, after hearing them." And the same dictionary immediately transcribes a judgment of the Supreme Court of Spain that illustrates the concept very well:
"The principle iura novit curia allows the Judge to base the ruling on the legal precepts or juridical norms that are of pertinent application to the case, even if the litigants have not invoked them, and [it means] that the judge is only bound by the essence and substance of what is requested and discussed in the litigation, not by the literalness of the concrete claims exercised, as they have been formulated by the litigants, so that there will be no extra petitum incongruence when the Judge or Court decides or rules on one of them which, even if it was not formally and expressly exercised, was implicit in or an indispensable or necessary consequence of the petitions articulated or the main issue debated in the process" (STS, 3.ª, 16-VI-2015, rec. 3739/2013; the emphasis is not in the original)[58].
I reiterate, this principle allows the judge to apply the Law as they deem appropriate, but without modifying the facts. Of course, the judge will assign value to these according to the relevance they consider reasonable; but this also occurs when this principle is not invoked. That is, the judge, when assessing the facts—weighs them—and determines what they think is relevant. Thus, in consideration of that principle, what is significant is not what the appellants intend but what the parties recount.
This Chamber has applied that principle from its beginnings, both in constitutional review proceedings[59] and in proceedings for jurisdictional guarantees of fundamental rights. Here are some examples referring to the latter, specifically to amparo actions:
"II.- The silence of the Minister of Public Works and Transportation in responding to the repeated petitions and complaints of the appellant and other interested parties constitutes in itself a violation of their right to petition enshrined in Article 30 of the Political Constitution. Although that provision was not expressly invoked in the appeal, the silence of the Minister was, which implies the indicated violation, which can be declared by this Chamber by virtue of the principle "iura novit curia" and must be declared by virtue of the fact that fundamental rights and freedoms are matters of public order, by definition" (Judgment 1989-73).
In the same sense, it affirmed:
"In application of this imperative, and of the principle "iura novit curia," the constitutional judge is obliged to analyze any aspect that, even if it has not been alleged, could result in a violation of a constitutional right" (Judgment 1991-1129).
In another judgment, it pointed out that an injury can be declared, even if it was not expressly asserted in the appeal:
"The silence of Banco Nacional in failing to respond to the repeated petitions and complaints of the appellants in a specific manner constitutes in itself a violation of their right to petition enshrined in Article 27 of the Political Constitution. Although that provision was not expressly invoked in the appeal, the silence of the bank was, which implies the indicated violation, which can be declared by this Chamber by virtue of the principle "Iura Novit Curia" and must be declared since fundamental rights and freedoms are matters of public order by definition" (Judgment 1998-5839).
Along the same lines, it emphasized that the injury tacitly alleged by the appellant must be taken into account:
"There being no injury with respect to the rights that the appellant claims are violated, this Chamber, based on the principle iura novit curia, notes that the facts reveal the injury of a right that the appellant tacitly claims is violated: the right of access to the case file as an integral part of the right of defense, whose exercise is one of the essential conditions of due process" (Judgment 2013-9403).
If this classic principle has a place in any proceeding, even more so in one like the amparo action, which is summary and informal, and whose purpose is the protection of the rights of individuals.
Inexistence of the violation of Article 13.3 of the CADH First, I wish to set forth why it seems to me that a violation of freedom of expression through indirect means did not occur. To do this, before assessing the factual framework, I will undertake a very brief exegetical analysis of the norm that the appellants and this Chamber consider to have been violated.
Very brief exegetical analysis of Article 13.3 of the CADH It is timely to transcribe again that norm of the Pact of San José or CADH:
Article 13. (...) 3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions (the emphasis is not in the original).
As can be observed, this subsection has three clearly defined parts: the first establishes the prohibition against restricting freedom of expression by indirect ways or means; the second contains the examples of such ways and the phrase that removes the exhaustive nature of such examples (or by any other); and the third encompasses the essential characteristic of those means, which relates to their purpose (tending to impede the communication and circulation of ideas and opinions).
Furthermore, although the list of examples of indirect ways or means contained in the norm is certainly illustrative and not exhaustive, it must be kept in mind that those "any other means" must follow the logic of the mentioned examples, which have a common denominator: they are conduct that falls upon communicative activity proper. Even the third part of the norm confirms this, as it specifies that what makes those indirect ways or means illegitimate is that they are "tending to impede the communication and circulation of ideas and opinions." On the other hand, it speaks of indirect ways for direct injuries, not of indirect injuries by indirect ways. This is particularly important.
Substantive consequence of the failure to prove dependence As examined, the appellants do not prove the financial dependence of the newspaper La Nación on Parque Viva. This has a procedural effect, since, the link between the challenged acts—which fall upon another business unit different from the one in which they work—and the presumed injury to the freedom of expression of the appellants not having been demonstrated, they lack standing.
However, in the present case, that also has a consequence for the resolution on the merits of the matter. Acts that fall upon a property belonging to the same owners as the newspaper cannot be understood to be an indirect means of harming the freedom of the appellants, since, there being no financial dependence, it cannot be affirmed that those acts impede "the communication and circulation of ideas and opinions" (Article 13.3 of the CADH). This last point holds even under the assumption that affecting the newspaper's financial situation constitutes an injury to freedom of expression.
Inexistence of the violation, even if standing existed I have said there is no standing because dependence was not proven, which would establish the connection between the challenged object and the alleged injury to freedom of expression. But what would have happened if it had been proven? That is, is proving the financial dependence of a communication medium on another business unit of a different commercial line, belonging to the same owner of the newspaper, sufficient to understand that any presumably arbitrary act suffered by that business unrelated to the field of communication affects the freedom of expression of those who work at the newspaper?
This is a matter of great importance. Now then, since I consider that dependence was not proven, it would not be necessary for me to engage in reflecting on it; but I would not want to give rise to misunderstandings.
Standing is a procedural aspect, relating to the admissibility of the appeal (on which the court can rule at any time, not only in the initial phase, that is, it can declare it without merit due to the lack of this procedural prerequisite: that is precisely what I did in the dissenting opinion). Now then, to enter into these reflections, it will be supposed that there is dependence and, therefore, standing.
Evidently, for it to be understood that an injury to freedom of expression by indirect means occurred, proving standing is not sufficient. Afterwards, two aspects must be examined: whether that freedom was affected and whether the challenged acts were arbitrary.
Said norm establishes as an essential condition that those indirect means or ways be "tending to impede the communication and circulation of ideas and opinions." In fact, as has been noted, the examples that Article 13.3 of the CADH itself includes, in an illustrative and non-exhaustive manner, refer to actions that affect the communication company.
But I am not the only one saying this. It has been said by the jurisprudence of the Inter-American Court of Human Rights (Corte IDH) and this Constitutional Chamber itself. The following section will refer to this matter in more detail. Now it is appropriate to analyze the other condition: that the acts be arbitrary.
Thus, it would not be necessary to continue with the analysis.
But let us suppose several things that are not proven in order to continue reflecting on this matter: Let us suppose there is a financial dependence of La Nación on Parque Viva and that the challenged acts impeded or are a certain threat by which "the communication and circulation of ideas and opinions" will be impeded.
Then, under those assumptions, it would be appropriate to proceed to examine the presumed arbitrariness of the challenged acts[60]. It is clear that there would only be two possibilities: that they are arbitrary or that they are not.
(2) If the acts are not arbitrary: consequences If the acts were legitimate (because all validity and efficacy requirements were met), they would have the same impact on the financial health of the newspaper, but there would be nothing to grant amparo for. That is, freedom of expression would not have been harmed, since the financial impact that the challenged acts declared legitimate would have is a collateral effect, legitimate as well, albeit detrimental to the newspaper. To affirm this, it suffices to recall the classic principle of double effect[61], by virtue of which the indirect evil produced by a licit and proportionate direct voluntary act is non-attributable. This, for the specific case, translates as follows: if it were demonstrated that the challenged acts issued by the Administration are legitimate (direct voluntary acts falling upon Parque Viva), no responsibility whatsoever can be attributed to it (to the Administration, that is, to the Ministry of Health) for the indirect effects (even if harmful) that fall upon the newspaper La Nación and, concretely, upon its journalists.
Therefore, if in this Chamber—or in the contentious-administrative jurisdiction, which is where in my judgment it was appropriate to hear those acts—it had been declared that the acts are legitimate and not arbitrary, they would have materially had the same impact on the financial health of the newspaper; but formally, no injury to freedom of expression would have been configured, even under the assumption of Article 13.3 of the CADH. That is, the journalists would be in the financially vulnerable situation in which, according to their allegations, they suffer; but that situation would not be the result of harmful but rather legitimate conduct by the Administration and, therefore, there would be no actionable injury to freedom of expression[62].
(1) If the acts are arbitrary: consequences If it is verified that the challenged acts are arbitrary, and all under the assumption that there is financial dependence and an impact because "the communication and circulation of ideas and opinions" is impeded, then the acts would, in principle, become harmful to the freedom of expression of the journalists.
However, as I explained in the dissenting opinion—and it seems to me it will become even clearer in the final section on reflections regarding the case file and the judgment—the examination of the challenged acts is not appropriate to be conducted in this venue. Therefore, if the declaration of their arbitrariness was made without the necessary procedural safeguards, then the declaration of the injury to freedom of expression by indirect means suffers from the identical procedural defect.
But why have I just pointed out that "then such acts would, in principle, become harmful to the freedom of expression of the journalists"? Because, from my perspective, even if the acts were arbitrary, an injury to freedom of expression by indirect means would not necessarily occur.
But the reflections on this point will be the subject of a later section.
What should be emphasized now is that, as has been seen, in the present case there was no impairment of freedom of expression in the terms set forth in Article 13.3 of the CADH, and that, even if there had been, such impairment would only have been amenable to protection if the declaration of the arbitrariness of the acts had been made with the appropriate procedural safeguards.
It is now appropriate to examine the case law invoked, both by the appellants and by the majority of the Chamber, to support the violation of Article 13.3 of the CADH.
Considerations regarding the case law invoked in the case file As is known, the appellants and the majority invoke Article 13.3 of the CADH to assert that a sanitary order and its related official communication issued concerning the property of Parque Viva harm the freedom of expression of the journalists who work at the Periódico La Nación—that is, in a business unit distinct from the Parque Viva business. As part of their arguments, they invoke case law, both from the Inter-American Court of Human Rights (Corte IDH) and from the Constitutional Chamber (Sala Constitucional).
I will immediately make some considerations in this regard to show that, rather, those judgments support my thesis.
The case law of the Inter-American Court of Human Rights (Corte IDH) From my perspective, the case law issued by the Corte IDH that is brought up to claim that an infringement of Article 13.3 of the CADH occurred in this matter is very valuable, but the cited cases bear no factual similarity to the one examined in the sub lite. Therefore, the rationes on which those judgments are based do not fit and cannot be validly invoked. Furthermore, the appellants invoke some cases decided by the Corte IDH that, as will be seen, the majority of the Chamber logically does not incorporate into the judgment, since doing so would expose a weakness in the reasoning. I shall illustrate this immediately below.
In the first place, the appellants—but not the majority of the Chamber in the judgment—cite the case “Ríos et al. v. Venezuela,” [63] decided in a context of ongoing aggression and threats against journalists, camera operators, photographers, and other workers in the social media. In that decision, the Corte IDH develops the content of Article 13.3 of the CADH as follows:
“340. A literal interpretation of this provision [Article 13.3 of the CADH] allows one to consider that it specifically protects the communication, dissemination, and circulation of ideas and opinions, such that the use of ‘indirect means or methods’ to restrict them is prohibited. The enumeration of restrictive means set forth in Article 13.3 is not exhaustive, nor does it prevent considering ‘any other means’ or indirect methods derived from new technologies. Furthermore, Article 13.3 of the Convention imposes obligations of guarantee upon the State, even in the sphere of relations between private individuals, since it not only encompasses indirect governmental restrictions, but also ‘private controls’ that produce the same result. For a violation of Article 13.3 of the Convention to be established, it is necessary that the method or means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions.
360. As for the purpose pursued by those official communications, in the sense of indirectly influencing and pressuring the directors regarding the content of the information disseminated, the Tribunal notes that the Commission and the representatives have not provided evidence or elements demonstrating that the issuance of the official communications affected the alleged victims’ freedom to seek, receive, and impart information. Neither have they provided evidence to refute the content of the official communications, issued on the basis of regulations in force in Venezuela (…).
380. As has been noted (supra para. 340), this Tribunal considers that for a violation of Article 13.3 of the Convention to be established, it is necessary that the method or means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions.
381. The Court observes that although the presence and actions of DISIP or Military Household agents at the ‘Los Mecedores’ station, where the RCTV transmission antennas were located, could have been perceived as threats and provoked some intimidating effect on the alleged victims, the Tribunal lacks sufficient evidence demonstrating that the threat to intervene in the channel’s signal had materialized into concrete acts affecting the alleged victims’ rights to receive and impart information, under the terms of Article 13 of the Convention (…).
394. Ultimately, it has not been proven before the Court that the three official communications issued by CONATEL regarding the content of a program transmitted by RCTV and the interventions to its broadcasts constituted undue and indirect restrictions on the alleged victims’ right to seek, receive, and impart information, which would constitute a violation of Articles 13.1 and 13.3 of the American Convention, to their detriment” (emphasis not in the original).
From the quoted text, the following is opportune to highlight: “for a violation of Article 13.3 of the Convention to be established, it is necessary that the method or means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions.” That is to say, the indirect mechanism employed by the authorities must have a direct effect on freedom of expression and the free circulation of ideas and opinions. The Corte IDH declared that it was not established that the State had violated the right to seek, receive, and impart information, under the terms of Article 13.3 of the CADH. Surely, because the infringement of that provision was rejected, the majority of the Chamber did not invoke this judgment in support of its decision [64]. However, I consider that the highlighted ratio is extremely important, and subsequently it is repeated in later opinions on the matter, with the indicated condition remaining unaltered: “that the method or means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions.” In the second place, the majority judgment relies on the holdings in the “Ivcher Bronstein v. Peru” case [65]. In this decision, the Corte IDH did find an infringement of Article 13.3 of the CADH, because it verified that through indirect pressures exerted against Mr. Baruch Ivcher Bronstein—rendering the legal title of Peruvian nationality without effect, without which he could not continue as the owner of a company holding a television channel concession in Peru—his freedom of expression was harmed. In that case, upon declaring the violation of that provision, it stated:
“162. In the context of the facts described, this Court observes that the resolution that rendered Mr. Ivcher’s title of nationality legally without effect constituted an indirect means to restrict his freedom of expression, as well as that of the journalists who worked and investigated for the program Contrapunto of Channel 2 of Peruvian television.
163. By removing Mr. Ivcher from the control of Channel 2, and excluding the journalists from the program Contrapunto, the State not only restricted their right to circulate news, ideas, and opinions, but also affected the right of all Peruvians to receive information, thus limiting their freedom to exercise political options and to develop fully in a democratic society.
164. For all the foregoing, the Court concludes that the State violated the right to freedom of expression enshrined in Articles 13.1 and 13.3 of the Convention, to the detriment of Baruch Ivcher Bronstein” (emphasis not in the original).
Thus, in that judgment it was determined that—as a consequence of the editorial line taken by Channel 2—Mr. Ivcher was the subject of intimidating actions of various types, which culminated in concrete restrictions on freedom of expression: he was suspended in the exercise of his rights as majority shareholder and president of the television company, and his appointment as director of the company was revoked; and, therefore, the circulation of ideas that the protected person promoted was restricted. That is to say, a certain restriction on the right to circulate news, ideas, and opinions was verified.
The majority of this Chamber subsequently refers to the “Ricardo Canese v. Paraguay” case [66]. In that decision, the Corte IDH generically protected Article 13 of the CADH, declaring the following:
“[T]he State violated the right to freedom of thought and expression enshrined in Article 13 of the American Convention on Human Rights, in relation to Article 1.1 of said treaty, to the detriment of Mr. Ricardo Nicolás Canese Krivoshein.” The factual framework of that case shows that a certain harm was caused to Mr. Canese’s ability to exercise his freedom of expression. This is because it was verified that, following his statements in the context of an electoral process, he was subjected to criminal proceedings and restrictions on his freedom of movement. In summary, the Corte IDH concluded the following:
“[T]he Tribunal considers that, in this case, the criminal proceedings, the consequent conviction imposed on Mr. Canese for more than eight years, and the restrictions on leaving the country for eight years and almost four months constituted indirect means of restricting Mr. Canese’s freedom of thought and expression.” In relation to this case, it must be said that there were direct consequences on the person who made the statements, who, by virtue of these, was criminally punished with restrictions on his freedom of movement [67].
Next, it is appropriate here to refer to the “Perozo et al. v. Venezuela” case [68], which was also invoked by the appellants, but not by the majority of the Chamber. That judgment concerns a convulsive political situation and a context of “threats [and aggressions] against social communicators.” The Corte IDH protected the situation of the communicators under Article 13.1, but not Article 13.3, both of the CADH, in the following terms:
“The effective exercise of freedom of expression implies the existence of social conditions and practices that favor it. It is possible that this freedom may be illegitimately restricted by normative or administrative acts of the State or by de facto conditions that place, directly or indirectly, those who exercise or attempt to exercise it in a situation of risk or greater vulnerability, through acts or omissions of State agents or private individuals. Within the framework of its obligations to guarantee the rights recognized in the Convention, the State must refrain from acting in a manner that fosters, stimulates, favors, or deepens that vulnerability and must adopt, when pertinent, necessary and reasonable measures to prevent or protect the rights of those in such a situation, as well as, where appropriate, investigate facts that harm them (…).
367. (…) A literal interpretation of this provision [Article 13.3 of the CADH] allows one to consider that it specifically protects the communication, dissemination, and circulation of ideas and opinions, such that the use of ‘indirect means or methods’ to restrict them is prohibited. The enumeration of restrictive means set forth in Article 13.3 is not exhaustive, nor does it prevent considering ‘any other means’ or indirect methods derived from new technologies. Furthermore, Article 13.3 of the Convention imposes obligations of guarantee upon the State, even in the sphere of relations between private individuals, since it not only encompasses indirect governmental restrictions, but also ‘private controls’ that produce the same result.
368. This Tribunal considers that for a violation of Article 13.3 of the Convention to be established, it is necessary that the method or means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions.
369. The statements mentioned, examined in the context in which they occurred, contain opinions about the alleged actions or participation of Globovisión, or of persons linked to it, in events that took place under circumstances of high political polarization and social conflict in Venezuela, which falls outside the object of the present case (supra paras. 72 to 74). Regardless of the situation or motivation that generated those statements, in a State governed by the rule of law, conflictive situations must be addressed through the avenues established in the domestic legal order and in accordance with applicable international standards. In the context of vulnerability faced by the alleged victims, certain expressions contained in the statements under examination could have been perceived as threats and provoked an intimidating effect, and even self-censorship, in them, due to their relationship with the media outlet alluded to. However, the Tribunal considers that, in consideration of the criteria set forth in the preceding paragraph, those other effects of such pronouncements were already analyzed supra, under Article 13.1 of the Convention, in relation to Article 1.1 thereof” (emphasis not in the original).
After reading that passage, one understands why the majority did not allude to that judgment of the Corte IDH. It is worth highlighting the ratio of the Court, in the sense that for a violation of Article 13.3 of the CADH to be established, it is necessary that the method or means effectively restrict, even if indirectly, the communication and circulation of ideas and opinions. This, as is public and notorious, has not happened in the present case, for, after the issuance of the administrative acts, the journalists have been able to express their ideas and opinions without any difficulty, and the certain impossibility or difficulty of doing so in the future—due to the existence of such acts—was not duly proven.
Finally, it is necessary to refer to the “Granier et al. (Radio Caracas Televisión) v. Venezuela” case [69], which was indeed invoked by the appellants and the majority of the Chamber, in which the violation of freedom of expression through indirect means was declared. It is framed within the political and social crisis that occurred in Venezuela, in which “since 2002, officials of the Venezuelan State, among them President Chávez, made various statements regarding that the concessions for some private social media outlets in Venezuela would not be renewed,” and later “starting in December 2006, State officials proceeded to announce the official decision not to renew the concession of RCTV.” In that judgment, the following considerations of interest were made:
“1.3. Indirect restrictions – scope of Article 13.3 of the Convention 161. (…) This Tribunal considers that the scope of Article 13.3 of the Convention must be the result of a joint reading with Article 13.1 of the Convention, in the sense that a broad interpretation of this provision allows one to consider that it specifically protects the communication, dissemination, and circulation of ideas and opinions, such that the use of ‘indirect means or methods’ to restrict them is prohibited.
162. In this regard, the Court notes that what this subsection seeks is to exemplify more subtle forms of restriction of the right to freedom of expression by State authorities or private individuals. Indeed, this Tribunal has had the opportunity to declare in previous cases the indirect restriction caused, for example, by a decision that rendered ‘legally without effect the title of nationality’ of the majority shareholder of a television channel, or by ‘the criminal proceedings, the consequent conviction imposed [...] for more than eight years, and the restrictions on leaving the country for eight years’ against a presidential candidate.
163. On the other hand, the enumeration of restrictive means set forth in Article 13.3 is not exhaustive, nor does it prevent considering ‘any other means’ or indirect methods derived from new technologies. In this sense, Article 13 of the Declaration of Principles on Freedom of Expression indicates other examples of indirect means or methods, by stating that ‘[t]he use of the power of the State and the resources of the public treasury; the granting of tariff preferences; the arbitrary and discriminatory allocation of official advertising and official credits; the granting of radio and television frequencies, among others, with the aim of pressuring and punishing or rewarding and privileging social communicators and media outlets based on their information lines, attacks freedom of expression and must be expressly prohibited by law. Social media have the right to carry out their work independently. Direct or indirect pressures aimed at silencing the informative work of social communicators are incompatible with freedom of expression.’ Likewise, expert witness García Belaunde during the public hearing referred to other possible forms of indirect restriction related to: i) ‘advertising, [since] States are important advertising agents and […] giving much advertising or withdrawing it can be important and, as the case may be, can produce a kind of asphyxiation for media that basically live on advertising,’ or ii) ‘taxation [when] cases [occur in] which […] companies […] have been taxed heavily’ with the aim of causing discomfort or sending messages to the media outlet” (emphasis not in the original).
Up to this point, the most relevant part of that passage is that the Corte IDH affirms that restrictions on freedom of expression through indirect means are more subtle; it then alludes to its own case law and underlines that the enumeration of these contained in Article 13.3 of the CADH is not exhaustive, and finally, it mentions other possible examples, including those mentioned by the expert witness. In this regard, it should be kept in mind that those measures—advertising and taxes—fall directly on those media outlets. It then goes on to state:
“164. Likewise, the Court recalls that for a violation of Article 13.3 of the Convention to be established, it is necessary that the method or means effectively restrict, indirectly, the communication and circulation of ideas and opinions. Furthermore, the Court reiterates that Article 13.3 of the Convention imposes obligations of guarantee upon the State, even in the sphere of relations between private individuals, since it not only encompasses indirect governmental restrictions, but also private controls that produce the same result. In this regard, the Court highlights that indirect restriction may end up generating a dissuasive, intimidating, and inhibiting effect on all those who exercise the right to freedom of expression, which, in turn, prevents public debate on matters of interest to society” (emphasis not in the original).
As can be observed, this paragraph is especially significant because it reiterates that for the violation of said provision to be established, the indirect method or means must effectively restrict the communication and circulation of ideas and opinions. In other words, for a conduct to be considered an indirect means of restriction, such a restriction must occur. If the restrictive effect does not occur, the means claimed as restrictive is not such, precisely because it lacks an essential condition: that of effectively impacting freedom of expression, that is, the communication and circulation of ideas and opinions. This, which seems obvious, is precisely what leads to the conclusion that the alleged violation of Article 13.3 of the CADH has not occurred here in the present case.
In that same passage, it is said that such restriction may manifest in various ways: it can have a dissuasive, intimidating, and inhibiting effect on all those who exercise the right to freedom of expression, which, in turn, prevents public debate on matters of interest to society. And it is a public and notorious fact that the appellant journalists, after the issuance of the sanitary order and the related official communication, have continued to carry out their work according to their own judgment and position, as is proper in a democratic society. Moreover, they did not show in a reliable manner—not even indiciarily—that, due to those challenged administrative acts, they would not be able to continue doing so in the future.
In that judgment, after referring to the content and importance of freedom of expression in a democratic society, the Corte IDH states:
“171. Taking into account the foregoing, the Court emphasizes the need for States to clearly and precisely regulate the processes concerning the granting or renewal of concessions or licenses related to broadcasting activities, through objective criteria that avoid arbitrariness. Specifically, it is necessary to establish the safeguards or general guarantees of due process, which each State determines as necessary in these processes in light of the American Convention, in order to prevent the abuse of official controls and the generation of possible indirect restrictions (…).
189. Now, both the Inter-American Commission and the representatives have asserted that this was not the real purpose, since there would be evidence demonstrating that there was an intention to punish RCTV for its critical editorial line against the Government. In this regard, in the present case, the Court considers it necessary to bear in mind that the motive or purpose of a given act of State authorities becomes relevant for the legal analysis of a case, because a motivation or purpose different from the norm granting the State authority the power to act may show whether the action can be considered an arbitrary action or a misuse of power. In relation to this, the Tribunal takes as a starting point that the actions of State authorities are covered by a presumption of lawful behavior. And therefore, an irregular action by State authorities must appear proven, in order to rebut said presumption of good faith. For the above, the Court shall proceed to: a) provide a recount of the evidence in the case file regarding the alleged undeclared purpose, and b) examine said evidence.” That is to say, it admits that an examination must be carried out to determine whether or not there was a misuse of power, and for this, it considers that analyzing the evidence is unavoidable [70]. On this point, the Corte IDH states:
“197. The Court concludes then, as it has done in other cases, that the facts of the present case involved a misuse of power, since a permitted faculty of the State was used with the objective of editorially aligning the media outlet with the government. The foregoing assertion is derived from the two main conclusions to which this Tribunal can arrive based on what has been described above, namely, that the decision had been made beforehand and that it was based on the annoyance generated by RCTV’s editorial line, in addition to the context of the ‘deterioration of the protection of freedom of expression’ that was proven in the present case (supra para. 61).
198. Likewise, this Tribunal considers it necessary to highlight that the misuse of power declared here had an impact on the exercise of freedom of expression, not only on the workers and directors of RCTV, but also on the social dimension of said right (supra para. 136), that is, on the citizenry that was deprived of having access to the editorial line that RCTV represented. Indeed, the real purpose sought to silence critical voices toward the government, which, together with pluralism, tolerance, and the spirit of openness, constitute the demands inherent in a democratic debate that, precisely, the right to freedom of expression seeks to protect. It is proven, consequently, that in the present case an indirect restriction on the exercise of the right to freedom of expression was established, produced by the use of means aimed at impeding the communication and circulation of ideas and opinions, when the State decided to reserve for itself the portion of the spectrum and, therefore, to prevent participation in the administrative procedures for the awarding of titles or the renewal of the concession to a media outlet that expressed critical voices against the government, for which reason the Tribunal declares the violation of Articles 13.1 and 13.3 in relation to Article 1.1 of the American Convention to the detriment of Marcel Granier, Peter Bottome, Jaime Nestares, Inés Bacalao, Eladio Lárez, Eduardo Sapene, Daniela Bergami, Miguel Ángel Rodríguez, Soraya Castellano, María Arriaga, and Larissa Patiño” (emphasis not in the original).
From what is underlined, it clearly emerges that there was conduct aimed at impeding freedom of expression stemming from the State’s decision not to renew the concession to a journalistic media outlet that appeared contrary to the government’s interests. It concerns, as highlighted, a measure that “had an impact on the exercise of freedom of expression.” Furthermore, an extremely relevant fact must be highlighted: that measure fell directly on the media company.
It is worth providing a recap of the judgments in which the Corte IDH did declare the violation of Article 13.3 of the CADH: In the “Ivcher Bronstein v. Peru” case, the arbitrary deprivation of the title of nationality by the Peruvian State against Mr. Ivcher Bronstein was verified, with the object of depriving him of the editorial control of the television channel he directed, given that the Peruvian legislation in force in 1997 provided that, to be the owner of companies holding television channel concessions in Peru, it was required to hold Peruvian nationality. In the “Ricardo Canese v. Paraguay” case, the conviction and the restrictions on leaving the country imposed on Engineer Ricardo Canese as a consequence of statements made while he was a presidential candidate were examined; and, as a result of the criminal proceedings against him, Mr. Canese was subjected to a permanent restriction on leaving the country that, in the opinion of the Corte IDH, did not meet the requirements of legality, necessity, and proportionality required in a democratic society. Finally, in the “Granier et al. (Radio Caracas Televisión) v. Venezuela” case, the concession for RCTV was not renewed, and the corresponding transmission ceased.
The lines of the Corte IDH are reiterative in the sense that “for a violation of Article 13.3 of the Convention to be established, it is necessary that the method or means effectively restrict, indirectly, the communication and circulation of ideas and opinions.” Ultimately, what is sought is to prevent the existence or generation of obstacles to the free flow of information or opinion. Therefore, if it is not demonstrated that this free circulation was impeded, then the harm to Article 13.3 of the CADH is not established. Furthermore, all the cases have another common denominator: they concern measures that fell directly on the person or on the media outlet. The logic of that provision is that those conducts that indirectly cause direct harm to freedom of expression are injurious.
In the sub lite, by contrast, it was not possible to demonstrate what the impact has been—of the issuance of a sanitary order and its related official communication that fall on a property of another business unit unrelated to the newspaper—on the freedom of expression of the appellants. In other words, what the Corte IDH requires for a violation of Article 13.3 of the Convention to be established has not been fulfilled: that the indirect method or means effectively restricts the communication and circulation of ideas and opinions. I emphasize the word effectively, that is, that the circulation of ideas and opinions is in fact or truly restricted. In other words, the rationes of the judgments of the Corte IDH cannot be invoked in the present case, because the factual framework considered proven prevents it, since there is no verification that the administrative acts accused of being arbitrary (the sanitary order and the related official communication) have effectively impacted the freedom of expression of the appellants.
In summary, the judgments of the Corte IDH just analyzed here (which were those invoked by the appellants and/or by the majority of the Chamber) allow for the conclusion that the violation of Article 13.3 of the CADH was declared only when the indirect methods or means had a direct impact on the exercise of freedom of expression.
In the case at hand, on the contrary, that case law cannot validly be applied to support granting the petition, since these are acts that have a direct impact on the business unit also belonging to the newspaper's owning group, but which were not shown to have had a direct impact on the exercise of the petitioners' freedom of expression.
The Constitutional Chamber's case law We must now examine the constitutional case law that the majority of the Chamber invokes to show that in this matter, the line of those rulings is being followed, in which it was established that, through indirect means, a direct injury to freedom of expression was caused.
The first case the majority brings up refers to a petition in which the conduct of a deputy of the Republic was examined; he sent letters to public institutions with the apparent purpose of requesting that advertising be withdrawn from the media outlet. The petitioner alleged that this should be considered influence peddling, abuse of power, and prior censorship. The existence of the notes addressed to public institutions was verified, containing the following statements: "I urge you to consider, as a responsible precautionary measure, the possibility of pulling off the air the institutional advertising you pay for on this radio program, while we resolve in the courts the complaint we are about to file." In resolving the matter, this Chamber gathered the ratio of the judgments of the Inter-American Court of Human Rights and concluded:
"In this sense, censorship can be direct—for example, the direct prohibition of a certain publication—or indirect (also called soft censorship, subtle censorship, veiled)—for example, the use of various means to intimidate and thereby prevent a publication. The Convention provides a non-exhaustive list of cases of censorship by indirect means (controls of paper, frequencies, etc.) and concludes with the general rule, which would be '…or by any other means aimed at impeding the communication and circulation of ideas and opinions' (...).
The exhortation sent to public institutions so that they withdraw advertising from the protected party's radio program falls within the cases of indirect censorship of freedom of expression for several reasons.
Firstly, advertising provides the primary financial support that enables the transmission of radio programs and, ultimately, the economic sustenance of the people who work on said program. It is evident that if the program's economic income is limited, it can also be harmed or—even—eliminated, all to the detriment of both freedom of expression and freedom of information. The described situation is even more serious when it involves small media outlets, such as local newspapers or small radio stations, whose financial stability can depend heavily on state advertising." Note that the advertising mentioned was that which was broadcast on the petitioner's media outlet. It involved economic income derived from the program's operation, not from the activity of a business unit unrelated to it.
The ruling continues:
"Secondly, a deputy of the Republic is not just any citizen, but rather holds particular political power due to his influence in the approval of bills, regarding which there is a multitude of both private and public interests. Ergo, a recommendation to withdraw advertising from a radio program, issued by an official in a particular position of political power and having as its leitmotiv his disagreement with the criticisms against him disseminated by a specific media outlet, constitutes a veiled form of intimidation that not only affects the radio program directly alluded to but also sends an intimidating message to the rest of the media, fostering an environment hostile to the freedoms of expression and information essential in a democratic system. In the case under consideration, such a threat even came to have concrete effects, insofar as, according to the evidence provided by the plaintiff, the advertising schedule of the ICAA, scheduled for the period from October 15 to November 15, 2014, was suspended while the respondent's official communication was being answered (...).
In that sense, sending a note to the program's sponsors indicating that they consider withdrawing their sponsorship due to its negative content against his image constituted indirect censorship—in the terms indicated in the case law of the Inter-American Court cited above—of the radio program 'Rompiendo El Silencio'. In the assessment made, specific weight is given to the fact that the respondent holds a position of political power due to his office as Deputy of the Republic, and that his missive indeed caused a negative effect beyond a simple complaint, it having been accredited in the proceedings that it produced effects on one of the sponsors, who temporarily suspended the advertising (ICAA). Consequently, this point is declared with merit" (ruling 2015-1782; the underline is from the original; the bold underline is not from the original).
If that ruling is examined carefully, one can see that the majority of the Chamber that granted the petition emphasized the fact that the threat had concrete effects, since an advertising schedule planned for the protected party's program was suspended. So the respondent legislator's conduct had a direct impact on the radio program's income and advertising. Now, in the dissenting vote, the following was recorded:
"The only factual circumstance from which the majority of this Court deemed that censorship occurred is that the Costa Rican Institute of Aqueducts and Sewers suspended the schedule from October 15 to November 15, 2014, pending the response to be offered to co-respondent Oscar López, when the truth of the matter is that the radio program remained on the air and broadcasting, since it had other sponsors. In any case, the Communication Director of that public entity reported that the schedule was restarted on November 1, 2014. I believe that such factual circumstances are absolutely and categorically insufficient to consider direct or indirect censorship as proven, which, as noted, never occurred. It must be taken into consideration that to accept or grant a petition for amparo, according to Article 29 of the Law of Constitutional Jurisdiction, there must be a violation or threat of violation of the fundamental right invoked, which did not happen in the case at hand. Additionally, it is necessary to note that prior censorship has its origin in active or omissive conduct by public powers that deploy some type of control or fail to do so in order to prevent the dissemination of ideas, thoughts, opinions, which did not happen in the case at hand. The foregoing is clearly evident, by way of example, in two emblematic cases of the Inter-American Court of Human Rights on the matter, which are the cases 'The Last Temptation of Christ vs. Chile' and 'Ivcher Bronstein vs. Peru' in which, respectively, the film production could not be shown between 1988 and 2003, due to an administrative resolution based on a constitutional norm, and the Peruvian citizenship of the owner of a television channel that broadcast a program critical of the government was revoked by administrative decision, causing it to stop being transmitted. Ultimately, we are not facing any illegitimate suppression, radical or otherwise, of freedom of expression. Nor is it possible to infer, from the factual circumstance noted, an illegitimate control or indirect or veiled means of censorship of a suitable nature" (dissenting vote of Magistrate Jinesta Lobo to ruling 2015-1782; the highlighting is not from the original).
That dissenting position is closer to the case law of the Inter-American Court of Human Rights, in the sense that it maintains that for an injury to Article 13.3 of the American Convention on Human Rights to exist, a direct and certain affectation on the freedom to disseminate ideas, thoughts, and opinions is required. But, in any case, it does fulfill another of the conditions of that case law: that the conduct falls directly on the petitioner.
Secondly, in the present matter, the majority of the Chamber invoked the ruling on a petition in which it was questioned that the Banco Nacional was gradually reducing its advertising schedule in the newspaper La Nación. In proven fact e) of said ruling, the following was recorded as duly demonstrated:
"e) In the first half of 2016, the Banco Nacional de Costa Rica ordered the gradual reduction of the advertising schedule in the pages of the Diario La Nación. From the $732,402.54 U.S. dollars invested in 2014 and the $696,373.73 U.S. dollars invested in 2015, in the cited period of 2016, the advertising schedule was reduced to $123,347.47 U.S. dollars (see documentation and report rendered under oath)" (ruling 2016-15220).
In this regard, after such facts were accredited, the following considerations were made:
"In conclusion, on this topic it must be considered demonstrated that even though there could have been technical or objective reasons that pointed to a decrease in the Bank's advertising schedules with the newspaper La Nación, the truth is that these reasons were not taken into account to order, as was indeed done, a pause in the advertising contracted with said media outlet, starting from the publication of the first news items at the end of February, and particularly during the months of June and July, which it is proven occurred with the purpose of 'achieving a change in the attitude' of the newspaper La Nación, regarding the manner in which issues related to the Banco Nacional had been addressed for several months. In summary, it is possible to prove in the case, as will be stated, that indirect censorship was produced by a public official against a media outlet, as a reaction to its editorial line, with the sole purpose of 'motivating' a change, that is, manipulating the media outlet to bring it closer to his purposes, whether to obtain a meeting with one of the media outlet's owners or more space for the Bank's version in the face of the questions raised. All of which is without a doubt injurious to Article 13.1 of the American Convention on Human Rights and Articles 28 and 29 of the Political Constitution (...).
The problem in this case arises rather when public companies depart from that channel to manage their advertising schedule according to purposes foreign to objective and technical reasons, and incompatible with the constitutional framework of fundamental rights. It is at that point that this Chamber's participation acquires full justification, and that is what is sought to be confirmed or ruled out through this amparo petition (...).
It is constitutionally reprehensible that the General Manager of a public Bank, that is, a public official, issued an order to withdraw an advertising schedule from a specific written newspaper, without valid objective and technical grounds, but rather due to his disagreement with the way in which the news items and reports issued regarding the activities and situation of the banking entity he represents were being prepared. The Tribunal understands that the foregoing constitutes indirect censorship, a clear way of trying to influence the media outlet's informational content, and moreover it sends an intimidating message to the rest of the media that fosters an environment hostile to the freedoms of expression and information essential in a democratic system (...).
That is precisely what has been demonstrated in this amparo, that the withdrawal of advertising during the first half of 2016, but particularly in the months following the publications at the end of February, occurred in a context of confrontation with the media outlet, where it can be proven that the strategy did not obey objective criteria, but rather occurred, in the manager's own words, with the purpose of 'motivating' the newspaper to change its editorial line and news focus, instead of using the existing legal mechanisms, such as the right of rectification and reply if it was believed that the information was inaccurate or offensive" (ruling 2016-15220; the highlighting is not from the original).
In the aforementioned case, there is conduct that directly impacts the media outlet. Indeed, it was demonstrated that there was a manifest intention to reduce the advertising schedule, which is one of the sources of income that sustain the protected newspaper. Here it is worth noting that it is true that the Chamber properly protected the income the media outlet receives for advertising, but it is also true that such protection does not extend to protecting any commercial activities of the media outlet's owners, simply by the fact that they also belong to them.
The majority of the Chamber in the present matter also refers to a case in which the petitioner alleged that the interview titled "Domestic Violence Against Men" was conducted on the program "Café Nacional" of the public company Radio Nacional de Costa Rica and that, subsequently, the director of Radio Nacional published an article titled "Bitter Shame," in which he warned that he would censor beforehand the topic of aggression towards men and would prevent it from being spoken of again on Radio Nacional. This resulted in the interview being completely erased from the Internet portal of the National Radio and Television System (Sinart) and from the Facebook page. In that ruling, the following was stated:
"In applying the foregoing to the case at hand, the Chamber notes sufficient elements to conclude that the protected parties' statements were censored and, thereby, their fundamental rights were injured. Such a conclusion emerges from the express statements of the Director of Radio Nacional when he indicated that the repetition of interviews such as that of the protected parties 'of course is not going to happen,' and that he 'would never have allowed this interview to be aired...', but '...a situation like this will not happen again...'. The Chamber observes that the respondent party warns with absolute clarity of the censorship that will exist regarding future interviews like the one in question, and the regret for not having censored the one conducted. For this Tribunal, there is no doubt that the transcribed expressions constitute censorship, especially coming from the director of the media outlet that served for the transmission of the interview in question" (ruling 2018-8396).
From what has been recounted, there is also no doubt that there was an explicit purpose to suppress the contents that the protected party intended to make known, which justifies the protection of his freedom of expression. Furthermore, it rather seems to be an example of injuries through the threat of censorship and through subsequent censorship, carried out by direct means, so it is somewhat debatable that the norm applicable to that case is Article 13.3 of the American Convention on Human Rights. But, again, note that the arbitrary acts fall directly on the person communicating.
Then, the majority of the Chamber refers to another ruling that declared an intrusion by Prodhab into the protected media outlet's freedom of expression, since said agency had ordered the removal of an image of a person in a specific news event that, in the Chamber's opinion, was of public interest and justified the use of the image of that person under investigation. In the pertinent part, the following was resolved:
"In this sense, censorship of press freedom can be direct—for example, the direct prohibition of a certain publication—or indirect (also called soft censorship, subtle censorship, veiled)—for example, the use of various means to intimidate and thereby prevent a publication. The Convention provides a non-exhaustive list of cases of censorship by indirect means (controls of paper, frequencies, etc.) and concludes with the general rule, which would be '…or by any other means aimed at impeding the communication and circulation of ideas and opinions' (2015-1782).
The Chamber considers that the exercise of Prodhab's powers for the purposes of the Law on the Protection of the Person Regarding the Processing of Their Personal Data cannot be used as a censor of the legitimate exercise of press freedom, because that would be indirect censorship, in State control, of a fundamental, essential right for the maintenance of the democratic regime.
In that sense, the Chamber considers that if the use of the image (passport page photograph) as in this case occurs within the context of a news event of public interest, inserted in a public document, directly related to the content of the news—since it involves a border migration issue—whose use, moreover, does not denigrate or affect the image of its owner, it is not valid to separate or decontextualize that image from its news story, much less try to eliminate it, because it forms an integral part of it" (ruling 2020-10961).
The granting of that amparo petition is justified precisely because there was a direct restriction on the media outlet and, for that reason, I concurred with the unanimous vote on the matter. Note that here also the arbitrary act fell directly on the newspaper.
The majority of the Chamber also invokes another ruling that I also signed. In that matter, it was verified that there were statements or instructions from the then-executive president of the Costa Rican Institute of Aqueducts and Sewers, addressed to employees of said institution, so that they would not give statements to two specific media outlets. In summary form, the Chamber concluded the following:
"On this point, the Tribunal considers that in the case under examination, there are sufficient indications that the executive president of the ICAA said the phrase transcribed above, which, by all appearances, constitutes an affectation of the constitutional rights to freedom of thought and expression, freedom of the press, and equality, all in relation to the democratic constitutional principles of accountability and transparency in public management, by virtue of it being a type of veiled censorship, given that the practical result of such a call is to prevent the harmed media outlets from having access to public information" (ruling 2020-016167; the highlighting is not from the original).
From that quotation, a direct impact in relation to the media outlets is evident. That is, that the mentioned institution's employees were urged to refrain from "feeding" or providing information to two specific newspapers.
The majority of the Chamber also cites what was recently resolved in ruling 2022-23107, in which I also concurred, through which an alleged communication that the then-Minister of Communication, Patricia Navarro Molina, sent via WhatsApp to all Government ministers and executive presidents was brought to the attention of this Tribunal. It was alleged that, in the referenced communication, the minister instructed all senior officials to urgently suspend all types of state advertising to the media outlets Amelia Rueda, La Nación, CRHoy, and Canal 7. Likewise, that they were urged therein "with urgent character not to participate in interviews on Hablando Claro and Amelia Rueda." However, that petition was dismissed with respect to that point, given that this Chamber was unable to consider it proven that the order or directive questioned by the petitioner had been issued. Nevertheless, as a considerative framework, ruling 2015-1782 was invoked, to which reference has already been made at the beginning of this section.
Finally, it is worth noting that, although it was not invoked by the majority, it is pertinent to refer to the recent ruling handed down on September 30, 2022, whose operative part was adopted in the following terms:
"The petition is partially granted. Consequently, official communication N°MS-DM-6218-2022 of July 22, 2022, is partially annulled, regarding the prohibition on providing statements or information without first obtaining the respective approval of the senior officials of the Ministry of Health. Said official communication remains unaltered, regarding the handling of inquiries through an institutional email (institutional spokesperson's office). The respondent authorities are warned that, in accordance with the provisions of Article 71 of the Law of Constitutional Jurisdiction, a prison sentence of three months to two years or a fine of twenty to sixty days shall be imposed on whoever receives an order that must be complied with or enforced, issued within an amparo petition, and fails to comply with it or enforce it, provided the offense is not more severely punished" (ruling 2022-23075; the highlighting is not from the original).
In that matter, the Chamber accredited that the official communication established a prohibition directed at Ministry of Health employees against providing statements or information without first having the respective approval of that ministry's senior officials. It was deemed that this implied a restriction on freedom of information, and said official communication was partially annulled. It could also be debatable whether Article 13.3 of the American Convention on Human Rights applies to this case, but, if it did, note that the arbitrary act is aimed at directly restricting the free circulation of information that nourishes the media outlets.
In any case, all the rulings cited by the majority have in common that, in some way, a restriction on freedom in the flow of communication and ideas was verified, whether through the reduction of advertising that sustains the media outlet itself, through specific directives aimed at eliminating news content, or through restrictions on public employees from making contact with certain media outlets. The rationes that grounded those rulings, from my perspective, are not applicable to the present matter. Indeed, in this one, as has been affirmed throughout these pages, it was not possible to prove specific conduct aimed at restricting the free circulation of information and the fundamental rights of the protected journalists. That is, there is no evidence whatsoever by which it can be affirmed that the contested acts would have prevented the petitioners from carrying out their journalistic work, that is, the exercise of their freedom of expression. Therefore, because a concrete restriction is not proved, the precedents invoked up to this point are not applicable. If there had been an injury to such freedom, it would be appropriate to examine whether the indirect means indeed restricted it, but here the injury as such is not noted. Furthermore, and this is particularly relevant, in all the cases in which the Chamber declared that the acts infringed freedom of expression, these fell directly on the communicator or the media outlet.
These insights shed by that case law, both from the Inter-American Court of Human Rights and from the Constitutional Chamber, are a starting point to revisit the reflections being made in the heading regarding the nonexistence of the injury.
Additional reflections on the nonexistence of the violation As I have stated, from the moment it is verified that there is no standing, it is not appropriate to examine the merits of the matter in order to determine whether the alleged injury occurred. But, even if there were standing, this would not be sufficient to grant the petition, since at least two conditions must be present: that there is an affectation of freedom of expression and that the acts are arbitrary.
With the case law discussed above, I believe it has become even clearer that in the present case, the affectation of freedom of expression was not configured, because there was no impediment to "the communication and circulation of ideas and opinions." Regarding the acts, it has already been indicated that, in principle, an act must be arbitrary for the possibility of it being formally injurious to arise. If the acts are legitimate in themselves, it would not be appropriate to speak of an affectation of freedom of expression but rather of a harm, which is not unlawful. As the ruling states in a passage that was transcribed in its entirety and is quoted here in the pertinent part:
"[N]ot every act that negatively impacts the sphere of a financial structure constitutes an alteration of the freedom under examination" (Whereas Clause VIII).
Now then, what would happen if the act were legitimate in itself but has real and harmful repercussions on the financial stability of the newspaper, which would make freedom of expression impossible or seriously hinder it, in the sense that independent journalism would not be possible?
To answer that question, it would be appropriate to invoke Article 3 of the LJC:
Article 3. The Political Constitution shall be deemed infringed when this results from the comparison of the text of the contested norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles. (The highlighting is not from the original).
The norm is more applicable in proceedings for constitutional review, but, being in the preliminary part of the law and referring to "contested act," nothing prevents it from being used in proceedings for the protection of fundamental rights, such as the amparo petition.
Therefore, under that norm, acts legitimate in themselves could seriously and formally injure freedom of expression, which is why it could be understood that their annulment would proceed.
However, I believe that the application of Article 3 of the LJC has a limit. Or rather, perhaps that same article applied vigorously is the key to clarifying its own limits.
Firstly, it will be necessary to examine whether those injurious effects are unlawful, because, even if they are harmful, the acts that cause such effects would not necessarily be arbitrary. But, furthermore, it is not just a matter of assessing the concrete effects of the acts on their direct addressee (Parque Viva), but on other spheres (the newspaper La Nación and, because of that, the petitioners)[71]. That is, it would be necessary to attend to the effects that the contested acts have on the other business unit (the newspaper). Even so, everything points to the need to go further. It is appropriate to consider what the effects are of deeming that arbitrary acts are injurious because they impact another business unit and, presumably, by leaving it without economic support, curtail the petitioners' freedom of expression.
In the present matter, one must keep firmly in mind the coordinates of the question: there are two business units—Parque Viva and the newspaper La Nación—that belong to Grupo Nación, but that are not part of a production process. Each has distinct and fully independent commercial lines of business, both in terms of their purpose (what they are dedicated to) and the subjects involved in them. Each business unit is subject to different rules in various regulatory and management planes.
Thus, as has been seen, Article 13.3 of the American Convention on Human Rights indicates that the injury to freedom of expression through indirect means occurs when these are "aimed at impeding the communication and circulation of ideas and opinions." Furthermore, by case law, both from the Inter-American Court of Human Rights and from the Constitutional Chamber, the acts must fall on the subject who communicates (natural or legal person). So, the question is: are those acts that fall on a business unit (Parque Viva) distinct from the newspaper injurious to freedom of expression because they impact its financial health?
If one were to say yes, that is, that the acts are arbitrary and are injurious to freedom of expression because they impact the financial stability of the newspaper, what would be affirmed is that the cause of the violation of freedom of expression is that impact on such stability. If that were truly the case, it would be almost irrelevant whether the acts are arbitrary in themselves or not, since it would suffice that they impact financial stability for them to be considered unlawfully injurious, because what would matter is whether, due to their effects, the acts are unlawfully injurious. From my perspective, holding that would have counterproductive consequences for society and, paradoxically, for the owners of Grupo Nación.
Again, the question is[72]: Do the contested acts that fall on Parque Viva (which is a business unit dedicated to a commercial line of business unrelated to mass media) impact the freedom of expression of La Nación's journalists (which is the dependent business unit) by leaving the newspaper without financial support and, because of this, are they arbitrary[73]?
The answer this time adds another piece of information: If the answer were yes, then it would have to be admitted that any act that is detrimental to the financial health of Parque Viva would injure the freedom of expression of La Nación's journalists, by leaving the newspaper without financial support. Ultimately, as has been anticipated, the cause of the unlawful injuriousness would be the impact on the newspaper's financial health. However, that does not seem reasonable for several concatenated reasons:
To facilitate the analysis, it will be understood that business unit A is the one with a commercial line of business unrelated to mass media (Parque Viva) and business unit B is the newspaper.
First.
Every natural or legal person would wish to have a business unit like B, in order to enjoy a sort of impunity vis-à-vis the Administration in their business unit A, because this unit would have to remain forever unharmed, protected, from any financial impact proven to affect the activity of business unit B.
Second. There would be the danger that every legitimate act of the Administration that falls upon business unit A, but that is proven to have a financial impact on business unit B, would be considered illegitimate due to its effects on the freedom of expression of those who work there. That is, the Administration would face serious limitations in enforcing compliance with the specific regulations of each line of business, because once the financial dependence of B on A is proven, everything would be redirected to an injury to freedom of expression, including those acts that are inherently legitimate.
Third. That danger could even entail a risk for the owner of business unit A itself, because if it carries out a legitimate act regarding this unit that affects the financial health of business unit B, it would be committing an act injurious to the freedom of expression of the journalists who work in business unit B. The alleged impunity that business unit A would enjoy vis-à-vis the Administration becomes a source of its own horizontal and boundless liability towards the journalists who work in business unit B.
The foregoing would be so because what would make the act unlawfully injurious to freedom of expression would not be the absence of any of the requirements of validity (substantive and formal) and of effectiveness[74], but rather its effects on the financial health of the dependent unit; and it would be understood that such impact necessarily affects freedom of expression. That is, it would be considered that this freedom would be injured by any financial impact on business unit B originating from business unit A. So that under that logic, any act falling upon unit A (not only the inherently arbitrary one) that impacts the financial health of B impedes “la comunicación y la circulación de ideas y opiniones” (article 13.3 of the CADH). This without regard to the nature of the act, nor its legitimacy or lack thereof, nor the intensity of the impediment.
I ask myself whether that thesis withstands universal application. It seems that sooner rather than later it would lead to absurdity.
Furthermore, it must be borne in mind that holding companies or conglomerates are composed of parallel business units that are subject to the specific rules of the line of business to which they are dedicated. Therefore, the same financial root does not permit extrapolating rules from one business to another: neither the prohibitions, nor the protections, nor the benefits.
So much is this the case that, in the event of bankruptcy of one of the units (which are not part of the same production process, but are dedicated to different lines of business), the workers of the unit in crisis could not lay claim to the assets of the other solvent unit, precisely because they are two distinct business units and their responsibilities and rights are not interchangeable.
In this respect, the judgment states:
“[C]abe advertir que como toda persona administrada, estas estructuras se encuentran afectas y sujetas a las normas jurídicas que regulan, precisan y delimitan el ejercicio de sus respectivas actividades económicas. En ese sentido, su funcionamiento debe satisfacer y cumplir con las regulaciones propias de su actividad, lo que incluye, contar con las respectivas habilitaciones administrativas para el despliegue de la materia comercial” (sentencia, considerando VIII; the highlighting is not from the original).
This is also so by demands of the principle of equality, for otherwise, equals would be treated unequally. That is, owners of news media who are also owners of another company with a different line of business would have, in this other line of business, advantages over other competitors, as just explained.
Thus, it appears that the application of an administrative act to one of the business units, even if it has a financial impact on another business unit that is parallel and independent (by its object and by the subjects involved, and is not part of the same production process), is not sufficient to be understood as an indirect means to unlawfully injure any right of those linked to the other unit, not even if it concerns freedom of expression. Moreover, as noted, article 13.3 of the CADH clearly indicates that it shall be understood as injurious if that indirect path or means impedes “la comunicación y la circulación de ideas y opiniones.” There is one final element worth commenting on. Although it is not possible to set down a univocal answer, because the subject has many facets, it is worth asking whether the format is part of the hard core of freedom of expression, at least, of that which is exercised through a news medium. For this, it must be remembered that freedom of expression entails by definition the duty on the part of the State not to do: not to impede its exercise. And, in accordance with article 13.3 of the CADH, it must be added that there is also an obligation to guarantee that such exercise is not impeded by indirect means. But what is it that must be protected? That provision says “la comunicación y la circulación de ideas y opiniones.” It says nothing about the manner of doing so[75]. That is, it does not seem that protecting freedom of expression necessarily means that the State must absolutely guarantee that someone continues to exercise that freedom through a format freely chosen by the person communicating, above all if one is in the presence of other communication options that are equally or more effective. Therefore, it is not obvious that this obligation to guarantee extends to the duty to “foment” or protect at all costs “la comunicación y la circulación de ideas y opiniones” in a format that for various reasons (caused or suffered) becomes unviable. Such reasons may be logistical, financial[76], or even technical. This is a question open to debate.
Grounds for granting the appeal with respect to freedom of expression The appellants recount a series of facts to prove the link between the challenged object and the alleged injury. It seems that for them, the importance of some of these is that they reflect the context that allows that link to be assessed. However, I consider that there are facts that are in themselves significant. They will be analyzed here with the aim of determining whether they constitute direct violations of freedom of expression.
Normative and jurisprudential framework There are two provisions that must be taken into consideration. On the one hand, article 29 of the Political Constitution, which establishes:
Article 29. Todos pueden comunicar sus pensamientos de palabra o por escrito, y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca.
On the other, as relevant, article 13 of the CADH, which states:
Article 13. Libertad de Pensamiento y de Expresión 1. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
2. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar: a) el respeto a los derechos o a la reputación de los demás, o b) la protección de la seguridad nacional, el orden público o la salud o la moral públicas.
3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.
4. Los espectáculos públicos pueden ser sometidos por la ley a censura previa, con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2.
5. Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional. (The highlighting is not from the original).
The Constitutional Chamber has a robust body of jurisprudence that underscores that respect for freedom of expression is one of the indispensable conditions of the Rule of Law and of the exercise of democratic life. Among many other judgments, the following can be partially transcribed:
“VIII.- La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle contenido a varios principios del Estado constitucional, como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos. Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa” (sentencia 2006-5977; the highlighting is not from the original; those considerations have been repeatedly reiterated by the Chamber, for example, in sentencias 2015-1782, 2018-8396, 2019-8263 and 2020-16167).
This judgment continues with a passage that is particularly relevant for the analysis that will immediately be carried out:
“La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca; la no censurabilidad de los contenidos, si bien no se da en forma previa, encuentra algunas limitaciones, sin embargo, éstas deben ser tales que la libertad siga teniendo sentido o no sea vaciada de su contenido, básicamente, como toda libertad, debe ejercerse con responsabilidad, en fin para perseguir fines legítimos dentro del sistema” (ibid.; the highlighting is not from the original).
That is, it speaks of censorship –understood as the act of condemning– as an act contrary to freedom of expression. Stated another way, it affirms that the consequence of that freedom is the prohibition of all manner of censorship. Then, there is not only prior censorship, expressly prohibited by articles 29 of the Constitution and 13 of the CADH, but subsequent censorship may also occur, which has the purpose of inhibiting certain informative content or opinion. It is also stated that the protection against censorship reaches not only the subjects (who communicates) but also the content (what is communicated).
Furthermore, although it does not emerge from those jurisprudential lines, I consider that other criteria could be incorporated to complete a typology of censorship. Thus, by its appearance, it may be veiled or manifest; by the means employed to exercise it, it may be direct or indirect (for example, as provided in article 13.3 of the CADH); by its effects, it may be absolute (if the condemnation goes concomitantly with suppression) or relative.
Finally, in summary, it has stated:
“La Sala recuerda que la defensa de la libertad de expresión es vital para el funcionamiento de un régimen democrático” (sentencia 2017-014977; the highlighting is not from the original).
Naturally, I fully concur with that jurisprudence, and I have concurred in many other subsequent judgments that strengthen that line (cf. sentencias 2021-15417, 2022-4244, 2022-5915, 2022-9856, 2022-23107, among others).
Factual framework When reading the allegations, it is noted that the appellants consider the administrative acts to be the last link in a chain of manifestations threatening freedom of expression. As I have said, they allude to these to reflect a context and show the link between the health order (and the related official communication) and the injury to freedom of expression. However, in my opinion, it is necessary to pause to examine which manifestations of the President of the Republic –not only those alleged, but those that have the character of a public and notorious fact and that indubitably can be considered part of that context– could constitute in themselves direct injuries to freedom of expression.
This examination must be measured by the requirements of procedural order: temporality, active standing[77], passive standing, etc. Therefore, it is only appropriate to analyze the facts occurring from the moment in which the President assumed power (since before that he was not a public official), up until the moment in which the present amparo appeal was filed (July 29, 2022).
That is the reason why two particularly significant manifestations are excluded: that of January 29, 2022, in which he refers by their names to the directors of media outlets[78], and that of August 3, 2022, in which he calls journalists “fauna,” and affirms that one of the species is that of the “ratas”[79].
Special mention is merited by that referring to the term “prensa canalla.” In that regard, the appellants state:
“En nuestro caso, como es público y notorio, además del constante uso de la palabra “canalla”, una injuria para deslegitimar, amedrentar y estimular el repudio a la prensa entre los seguidores del gobierno, lo cual es por sí mismo peligroso” (escrito de interposición, p. 6).
However, it is a verified fact that from the moment he assumed power, the President has not used that word, at least not in public. For that reason, this point must also be excluded from the examination.
Nevertheless, it is opportune to make two considerations. In the first place, certainly it has not been said that a specific person is canalla, but when one says “prensa” one refers not only to the company or medium as such but to those who practice journalism in it. In the second place, it is difficult to find a more insulting term than that. The Diccionario de la Real Academia Española states:
canalla: From It. canaglia, and this der. from cane perro.
1. f. coloq. Gente baja, ruin.
2. f. desus. perrería (?muchedumbre de perros).
3. m. y f. Persona despreciable y de malos procederes.
It is obvious that no one deserves that epithet.
Neither are taken into account the statements made in the press conference of July 9 nor that of July 20, 2022, which refer to the owners of Grupo Nación, not properly to the appellants.
However, it is sufficient for this analysis to confine oneself to the press conference of July 13, 2022. On that occasion, the President stated the following:
1:13:26[80] “La libertad de prensa en Costa Rica goza de buena salud. Tiene un Gobierno que la va a defender a toda costa. ¿Hay algún medio cerrado? ¿Algún periodista detenido? ¿Alguna rotativa parada? Obviamente no”.
In this regard, it should be noted that the President seems to forget that those are not the only ways to injure the freedom of expression of journalists. Not only closing a newspaper or unjustifiably arresting a journalist are conducts that violate freedom of expression. This is so not only because direct injuries may occur by indirect means, in accordance with article 13.3 of the CADH, but because direct injuries by direct means may occur in many forms.
In that press conference, the President also made other statements about which a preliminary warning must be given. In many moments he alludes to Grupo Nación and in others to the journalists who work for the newspaper La Nación. At times it is not possible to distinguish whether he is addressing one or the other, because he refers to them as a whole. Nevertheless, a selection was made here of the statements that are indubitably directed at the newspaper La Nación, although it could also be understood that he is referring simultaneously to Grupo Nación as such. Therefore, given that the appellants work for that medium, it must be understood that they are directed at them:
1:16:46 “El artículo 50 de la Constitución Política, que yo juré defender (…), me obliga a hacer que los funcionarios hagan lo que La Nación dice de manera mentirosa, patrañosamente, es un ataque a la libertad de prensa” [the text italicized with voice inflection, in a mocking and ironic tone].
1:17:25 “En el año 2017 un medio que no es parte de esta categoría, de esta especie, de este grupo, publicó e-mails internos del Parque Viva diciendo (…) ‘aquí tenemos un problema serio y tenemos que ponernos a arreglarlo’” [the text italicized with voice inflection, in a mocking and ironic tone]. 2017 to 2022: ¿qué ha pasado? Nada. ¿Dónde está el plan remedial?” 1:18:08 “No solo le ha mentido a la población, el grupo La Nación. Ha difamado a la patria, ha difamado a los costarricenses ante la prensa y comunidad internacionales, (…) pidiéndole favorcitos a sus socios y amigos en la Sociedad Interamericana de Prensa para defender intereses mezquinos”.
1:18:50 “Lo que La Nación debió haber hecho en lugar de haber difamado esa patria bendita, donde la libertad de prensa está garantizada, fue ponerse a trabajar duro y honestamente para preparar un plan viable y honesto. Han tenido cinco años desde que ellos mismos reconocieron que había niveles de riesgo inaceptables y que había que arreglarlos”.
1:19:49 “¿Oyeron la mentira descarada que publicó La Nación? (…) que tiene desde hace dos años pidiendo acceso para la ruta 27 (…) Dice la Nación: ¡Los acusamos!: Esto es contra la libertad de prensa porque se mueven rápido. ¿A eso hemos llegado en Costa Rica?” 1:23:56 “¿A quiénes defienden el Grupo La Nación?… ¿a la libertad de prensa o a sus intereses?” 1:28:00 “Porque ellos se creen encima de la ley…” 1:28:26 “Yo daría mi última sangre para proteger las libertades de nuestro pueblo, incluyendo la libertad de mentir y de desinformar que han ejercido con gusto, frecuentemente, esos estos medios aliados de la casta que se piensa monárquica de este país”.
1:29:50 “Ustedes, La Nación, tienen la libertad para trabajar. Les debería dar vergüenza difamar a su país (…)”.
Yo hubiera querido tener una conferencia de prensa normal (…), pero la cantidad de tinta, la cantidad de minutos en canales de televisión que se han dedicado a malinformarle a usted señora, a usted señor, a usted joven, en su casa, en su carro, donde quiera que esté oyendo esto, fue demasiado (sic), y este es mi derecho de respuesta, porque el derecho de respuesta esos medios (Ustedes saben la palabra, yo me la voy a callar) no creo que me lo hayan dado, porque me lo negaron en el pasado (…).
Yo sé que es una serie de expresiones y de meditaciones pasionales, fuertes. Yo sé que el pueblo de Costa Rica no está acostumbrado a ver un presidente diciéndole al Grupo de La Nación que se creen reyes con corona, costarricenses con corona. Pero esa es una nueva era. Aquí todos y todas somos iguales en libertad, en respeto, con absoluta libertad de expresión, aunque sean mentiras, pero la libertad de expresión no significa que alguien puede mentir descaradamente y que el gobierno y las personas ofendidas tengan que callarse”. (The highlighted text is what is deemed relevant).
Considerations regarding the statements These statements reflect the context of tension, subsequent to the temporary closure of Parque Viva, between the President and Grupo Nación and the newspaper La Nación. They allude to determinable persons, some of whom are the appellants in this amparo.
Those statements were public and made in his capacity as President of the Republic, that is, as the holder of the highest investiture. That means that his conduct in and of itself has an enormous projection and relevance.
A vehement style is not injurious per se. However, the words and the extremely belligerent tone may be, for they destroy the peaceful climate that is necessary for the free exchange of ideas in a democratic society. Even more so when the statements discredit specific persons or a line of reporting.
As was stated in one of the transcribed judgments, this Chamber has indicated:
“La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca” (sentencia 2006-5977; the highlighting is from the original).
This means that any statement that entails censorship, even if by its effects it is only relative and not absolute, since it did not prevent the subsequent dissemination of the condemned ideas, constitutes a direct injury to freedom of expression, because freedom of expression demands respect for those who dissent and entails facilitating the communication of ideas without any discrediting, neither of the subjects nor of the content.
The appellants deserve respect, firstly, by the dignity inherent to their condition as persons. Precisely, the safeguarding of that dignity is the purpose of every Rule of Law. They also deserve respect for the very fact of being journalists, whose work has particular importance in a pluralistic and democratic society.
Certainly, the President of the Republic also has freedom of expression, but by virtue of his status as a public official, it is limited by the duties inherent to his office: respect for the Constitution and the laws, and for the dignity of others, and for the expressions of criticism and disagreement.
In that sense, the Political Constitution states:
Artículo 140. Son deberes y atribuciones que corresponden conjuntamente al Presidente y al respectivo Ministro de Gobierno:
Mantener el orden y la tranquilidad de la Nación, tomar las providencias necesarias para el resguardo de las libertades públicas.
Thus, to safeguard public liberties –and within these is found freedom of expression– is a task constitutionally assigned to the President. The provision also refers to order and tranquility, which are necessary not only in the area of public security, but also for the peaceful coexistence proper to a democratic regime. Therefore, provoking or contributing to a level of verbal violence directed against journalists who disagree with his views seems like an affront to the environment of social peace that he must promote.
It is a different matter whether that climate of violence is magnified by other social actors, but that exceeds the scope of these pages.
It now corresponds to distinguish and analyze three particularly relevant passages:
First. Those in which he calls the journalists liars (mentirosos).
It is not appropriate to rule on who is right on the merits of the matter (I have already stated ad nauseam, in the dissenting opinion, that in my view it should have been heard in the administrative litigation jurisdiction), but it is clear that within the framework of a democratic and pluralistic society it is not fitting to call a liar someone who dissents, because that –in addition to being denigrating– stifles public debate, and discourages the free circulation of ideas and opinions. Therefore, if it is considered that a person or group of persons departs from the truth and that this has relevant consequences –in addition to stating it publicly, but without censoring–, the channels that the legal order offers to settle the question may well be used. But discrediting persons in such a belligerent manner is not a solution, much less so in a democratic society.
The hallmark of journalism is to communicate what is understood to be truthful and fair. For that reason, calling journalists liars means characterizing them as lacking a quality that by their profession they should possess. That is, when it is directed at journalists, that adjective acquires a particularly pejorative connotation and is, without doubt, censorship.
Second. Those in which he asserts that La Nación, and therefore the journalists who work for that medium, have defamed the homeland (patria) and the Costa Ricans (costarricenses).
The context of this is the following. The closure of Parque Viva was a news event that was picked up by prestigious Latin American newspapers, under the following headlines:
“Gobierno de Costa Rica cierra Parque Viva tras ataque de Rodrigo Chaves al diario ‘La Nación’”[81].
“Gobierno de Costa Rica cierra Parque Viva en medio de ataques del presidente al diario ‘La Nación’”[82].
“El gobierno de Costa Rica atacó a uno de los principales medios del país y luego cerró un estadio de esa empresa”[83].
Thus, the President considers that the fact that such media outlets and others have reported on the closure of Parque Viva with an approach coinciding with that of La Nación, and its journalists, is the result of their efforts before those outlets. If that were the case, why would that be reprehensible? Both the journalists of La Nación and those of other media are entirely free to communicate the news from their own angle. And why is it despicable that the newspaper La Nación and its journalists seek alliances beyond the borders? Such conduct is natural, logical, understandable, and does not seem that in itself it entails “defamation” (difamación) of the homeland and of the Costa Ricans, among other things, because neither “patria” nor “costarricenses” are categories or terms that are identified with “gobierno.” Again, that very serious discrediting of the appellants constitutes censorship that curtails the exercise of their freedom of expression.
Third. That in which he says that what was stated in that press conference responds to his right to reply (derecho a respuesta), which he believes would have been denied to him.
It is worth warning that in that passage he does not pronounce “the word”: “Ustedes saben la palabra, yo me la voy a callar”; but it is not adventurous to affirm that he alludes to the one he has avoided saying since becoming President of the Republic. This for three reasons: the suppression does not mean that he does not allude to it; he suppresses it because it is denigrating; the word seems to unequivocally evoke a word that others know is the one that at the time he said referred also to the newspaper La Nación. But since the foregoing is only a triad of conjectures, it suffices to refer to another aspect of that passage: the presumption that the newspaper would not accept his right to reply. In this regard, it must be said that under that logic the foundations of a Rule of Law are undermined, for it amounts to taking justice into one’s own hands. It is another thing that at the press conference the President deems it opportune to make clarifications and show the reasons for the divergence with the newspaper, but it is not legally appropriate for the justification for this to be based on the presumption of the non-compliance, by the newspaper and by those who work there, with the provisions of articles 66 et seq. of the LJC, regarding the right of rectification and response.
Those hostile and delegitimizing statements against the medium in which the appellant journalists work, and therefore against them themselves, do not contribute to creating a climate of free exchange of ideas. On the contrary, as I have said, they constitute censorship, which constitute direct injuries to the appellant journalists.
It is clear that any authority, and of course the President, may use the forums at their disposal to clarify, contrast, and deny what has been said by journalists; but what is proper is to do so within a framework of respect, befitting a pluralistic society and consistent with our democratic tradition.
Regarding this last point, it is striking that there is practically no jurisprudence on this subject.
Perhaps this is because the prevailing approach in this country to date has never been that public officials exercise censorship of this nature, neither with La Nación journalists nor with those of other media outlets.
Given that for procedural reasons it is not possible to take cognizance of the other statements that are public and notorious facts and are part of the aforementioned context of tension, it is also not legally feasible for me to rule on the existence or non-existence of a pattern of conduct on this matter.
Conclusion
It is possible to conclude that the president's statements made on July 13 at the press conference, which are part of the context referred to by the petitioners, constitute examples of direct, manifest, albeit relative, censorship, and therefore they are direct injuries to the petitioners' freedom of expression, for which reason I consider that the amparo action should be granted with respect to this aspect.
Given that I do not rule on the challenged administrative acts, that is, the sanitary order and the related official letter, since I consider that this Chamber lacks jurisdiction to hear them within the framework of this amparo action, I will not refer to those administrative acts in themselves, that is, whether or not they are arbitrary. However, it seems pertinent to me to make some observations about the case file and the judgment. This will allow me to confirm what I stated in my dissenting opinion, in which I maintain that the amparo action was not the appropriate process to resolve this matter.
The dilemma: "ordinary-izing" the amparo or respecting its summary nature The present case placed the Constitutional Chamber in a dilemma: denature the amparo action, transforming it into an ordinary proceeding—what is colloquially called "ordinary-izing" (ordinariar) the amparo—or resolve it without all the necessary elements. Apparently, the majority sought to preserve, as much as possible, the summary nature of the amparo. Indeed, although this judgment is voluminous, there are grounds to consider that, regarding the examination of the challenged acts, two types of deficiencies occurred: one at the evidentiary level and another concerning the parties brought into the proceeding. This is what I will now proceed to demonstrate.
Regarding evidentiary aspects It is necessary to recall that the amparo action is summary by nature. This, in the Chamber's own words, which, by the way, it uses every week in its outright rejections, means the following:
"[The purpose of the amparo action is to provide timely protection against violations or threats to fundamental rights and freedoms, not to serve as a generic instrument through which it is possible to bring actions against any other kind of constitutional or legal violations. Consequently, the admissibility of the amparo action is generally conditioned not only upon proving the existence of a disturbance—or threat of disturbance—to one or more of the rights or guarantees enshrined in the Political Constitution or in the international human rights instruments signed by the country, but also upon the alleged grievance constituting a direct and gross threat or violation of those rights, which endangers that part of their content that is essential and inherent to them, that is, the core that gives them their distinctiveness and makes them recognizable as rights of a specific nature. The foregoing, in legal doctrine, is known as the minimum essential content of the right, which is violated, for example, when the exercise of any right is conditioned upon compliance with conditions, assumptions, or requirements of such a nature that, in practice, make its use materially impossible or nugatory. In this regard, constitutional jurisprudence has specified that the problem of direct and indirect violations of the Constitution also involves a necessary assessment of the suitability and expedited nature that must characterize the amparo proceeding. It has been stated that '…in essence, the basic idea may lie in the distinction between a direct and an indirect injury to fundamental rights. In sound constitutional doctrine, the criterion is based on the fact that any violation of legality, in matters related to those rights, may eventually cause injury to those fundamental rights, but when it is a merely indirect injury, because there exist within the state apparatus bodies that can and must safeguard those rights and repair their violation, it is for them to hear the matter and not for this Chamber…' (Judgment No. 1610-90 of 3:03 p.m. on December 9, 1990). The latter highlights the reason why the amparo proceeding is eminently summary in nature—that is, brief and simple—and its processing is not compatible with the practice of slow and complex evidentiary proceedings, or with the need to previously examine—with a declaratory nature—whether the infra-constitutional rights that the parties cite as part of the factual array of the amparo action or of the legal report, as the case may be, actually exist" (judgment 2021-001965; the emphasis is not from the original; these jurisprudential lines are constantly repeated by this Court, and to cite a few examples, vid. judgments 2018-18079, 2019-17891, and 2020-12053)[84].
However, due to the characteristics of the acts challenged here, a rigorous analysis and contrast of extensive technical evidence and criteria from the respondent authorities were necessary, namely: the permits granted by the Permits Unit of the General Directorate of Traffic Engineering of the MOPT; the conditions under which the sanitary operating permit MS-DRRSCN-DARSA2-RPSF-0177-2019 was granted by the Ministry of Health; the capacity authorizations given by the Alajuela 2 Health Governing Area of the Ministry of Health—official letters MS-DRRSCN-DARSA2-4070-2021 of December 16, 2021, and MS-DRRSCN-DARSA2-0163-2022 of January 20, 2022—; the inspection record MS-DRRSCN-DARSA2-1639-2022 and the inspection result report MS-DRRSCN-DARSA2-1641-2022 of July 5, 2022, issued by the Alajuela 2 Health Governing Area; official letter DVT-DGIT-2022-339 from the MOPT, which referred to the road conditions of the area and was emphatic in asserting that, at the time mass gathering events take place, the road providing access to Parque Viva does not have sufficient capacity to handle the generated traffic; the technical criteria of the experts from the Technical Advisory Committee for Mass Gatherings, which is composed, among others, of representatives from the National Emergency Commission, the Benemérito Cuerpo de Bomberos, and the Costa Rican Red Cross[85].
In passing, it is worth recalling that initially the sanitary order was issued "until such time as the technical criteria issued by the Benemérito Cuerpo de Bomberos de Costa Rica and the Benemérita Cruz Roja Costarricense are available for its analysis and the taking of respective actions, regarding the capacity of the access road to said establishment for the first-response units of those institutions, which are being managed by the Ministry of Health"[86].
Furthermore, it was necessary to assess various technical criteria gathered by the competent authorities. Thus, among others, the following appear to be relevant[87]: official letter MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 of July 10, 2022, signed by the regional deputy director of the Public Force Directorate of Alajuela, from which it can be inferred that the Public Force "has been facing a situation of obstruction in the handling of police-related incidents, in the immediate external perimeter of Parque Viva, located in Rincón Chiquito in the district of La Guácima de Alajuela, at times when activities are taking place at that location. This area is classified by the Public Force as a sensitive area; since different criminal activities converge there"; official letter CBCR-027150-2022-OPB-00741 from the Benemérito Cuerpo de Bomberos, in which it was concluded that "due to the situations raised above, as a consequence, several communities such as Rincón Chiquito, Rincón Herrera, Guácima centro, as well as the Parque Viva facilities themselves, could be affected because the response time of Fire Department units increases considerably, and furthermore, when road blockages occur, access to the communities is impossible, a situation that puts lives and property at risk"; the technical reports CRC-GG-SO-OF-074-2022 and CRC-GG-OF-012-2022, signed respectively by the deputy operational manager and the general manager of the Costa Rican Red Cross Association; official letter 911-DI-2022-2202 of July 11, 2022, rendered by the director of the 9-1-1 Emergency System; technical criterion DM-2022-3121 of July 11, 2022, signed by the Minister of Public Works and Transport.
All of these are reports mentioned in the judgment, but a detailed assessment of them is not observed in it, as would surely have been appropriate in view of what the majority set out to do when hearing the challenged acts: determine if they were arbitrary and lacking in foundation. This as a premise without which it was not possible to declare the injury to freedom of expression. Indeed, as has been seen, if the act was not arbitrary, even if an impact on the petitioners derived from said act had been proven, there would be no basis to grant the amparo action for injury to freedom of expression. For that reason, it can be stated that, if an examination on the merits was to be conducted, the analysis of the technical aspects was entirely pertinent.
Regarding the parties brought into the proceeding From reading the judgment, the absence of many subjects involved in some way in the challenged administrative acts is noticeable. Certainly, this matter was pursued exclusively against the President of the Republic and the Minister of Health; however, the judgment alludes to a series of conducts, competencies, and criteria of other authorities that were not integrated into this proceeding and whose considerations were necessary to reach a well-founded conclusion. For example, the Minister of MOPT was not integrated, nor the heads of the Consejo Nacional de Vialidad, the General Directorate of Traffic Police, the General Directorate of Traffic Engineering, the Consejo Nacional de Concesiones, and the Restricted Access Roads Commission; nor other authorities from the Ministry of Health, namely: those from the Alajuela 2 Health Governing Area and the North Central Health Governing Regional Directorate; nor the members who issued criteria in the Technical Committee for Mass Gatherings, in which there are representatives from the Costa Rican Red Cross, the National Emergency Commission, the Benemérito Cuerpo de Bomberos, the 9-1-1 Emergency System, and Risk Management of the Ministry of Health. Neither was the Municipality of Alajuela integrated into the proceeding—an authority to which the majority of this Chamber attributes part of the problem examined here and which could well have provided guiding criteria to solve the situation underlying this dispute—.
Many of those authorities could have been integrated as respondents, since, as is known, in the processing of an amparo, the jurisdictional body has the power to expand the proceeding regarding the parties and the subject matter[88]. It also has the power to request evidence to better resolve, both regarding reports rendered that deserve clarification, and regarding evidence that exists—official letters, for example, that were issued by persons outside the proceeding—and, naturally, regarding data that is not yet on record. Much of that additional evidence can also be requested from authorities that should not be considered as parties.
Thus, many of the mentioned authorities could have participated as respondents or as mere informants—in the context of evidence to better resolve—. The latter even in cases where official letters signed by those authorities were on record.
In that sense, there are other authorities that could also have enriched the analysis of the question. For example, the Contraloría General de la República, which rendered a report on the effectiveness and efficiency in the use of cantonal road network resources in the Municipality of Alajuela; the Ministry of Public Security and, particularly, the General Directorate of the Public Force, due to its highly emphatic technical reports. The same could be noted regarding the Instituto Nacional de Vivienda y Urbanismo (INVU), which issued a report, and even the Secretaría Técnica Nacional Ambiental, which stated that the Parque Viva premises had an environmental feasibility study (viabilidad ambiental) only for improvements to the racetrack.
In order to conduct a thorough analysis of the situation raised, it would have been necessary to examine aspects that are not typical of an amparo action, for example: the legitimacy of an anonymous complaint; the alleged irregularity in the diligence and haste of the administrative conduct; the necessity, timeliness, and advisability of issuing a sanitary order for the sake of protecting human life and health, also conditioned upon the collection of more technical elements that would confirm the decision; the scope of the sanitary order and the related official letter; the validity of the sanitary permits and compliance with the capacity limits established by the authorities of the Ministry of Health; the competence of those authorities to order the presentation of a proposal for improving traffic flow for holding mass events; the responsibility of private companies in solving the problems of traffic collapse resulting from commercial activities carried out by them. Also, surely, to assess the adequate control of urban development and the issuance of sanitary and construction permits in the area in question. Additionally, to determine the objective causes that provoke traffic congestion and the remedial projects of the Municipality of Alajuela and other competent authorities in the matter; and to address the possible response scenarios in an emergency situation together with a scenario of severe traffic congestion. In the same way, and in light of the questions raised by the persons protected by the amparo, it would have been appropriate to weigh the reasonableness and proportionality of the order issued in relation to the material possibilities and the scope of responsibility of the company owning the property to provide a solution to the road problem attributed to it.
It must be borne in mind that the petitioners argue that the sanitary order was executed arbitrarily, even though the technical criteria from the Red Cross and the Cuerpo de Bomberos regarding the capacity of the access road to the establishment were not yet available, and that these were provided and communicated days after the issuance of that order and are, moreover, questionable. Those assertions confirm that what was alleged and what was sought required a plenary trial in which, by evaluating all the pertinent evidence, it would also be possible to analyze the questions raised regarding the technical reports subsequent to the order, which came to confirm the road problem examined by the Ministry of Health and other technical bodies. In an appropriate venue and process, not only would an adequate reception and evaluation of evidence have been possible, but the opportunity would have been conferred to contrast the criteria of the competent technical authorities. On the contrary, for example, it can be observed that the judgment attempts to counteract the criterion of the executive presidency of the INVU with a publication made by the Municipal Mayor of Alajuela on a social network. Naturally, I do not rule on whether one authority or the other is correct, but rather on the method chosen by the majority of the Chamber to contrast opinions of authorities that are contradictory among themselves. In that sense, it could be said that it does not appear to have been the most accurate from a procedural legal standpoint.
Everything I have set out here, as can be inferred from the title of this section, highlights the severe dilemma to which this court was subjected: "ordinary-ize" (ordinariar) the amparo action, in order to evaluate and examine all pertinent evidence, or resolve it without all the elements necessary to conduct a rigorous and detailed analysis of the question, as it demanded. The latter, because not only was the protection of the freedom of expression allegedly infringed at stake, but also the right of the inhabitants to have their health, their physical integrity, and their lives protected.
In my dissenting opinion, I have shown that this dilemma was resolved simply by the Chamber having respected the summary nature of the amparo proceeding, thus continuing with its solid jurisprudence on the matter. In that way, it would have declared that this conflict should have been brought in the ordinary legal channels. Well then, now, a careful reading of the judgment leads me to confirm that to determine with certainty whether the challenged acts were arbitrary, unfounded, or disproportionate—as the majority of the Chamber affirms—the appropriate course was for this matter to be decided in the ordinary courts, after a comprehensive examination of the situation and all the evidentiary elements outlined here. By having analyzed the challenged subject matter in a summary proceeding such as the amparo, regrettably, various elements are absent, at the evidentiary and argumentative levels, that would have been necessary to reach the conclusion the judgment presents. As I have said, it is notably lacking that at least all the parties involved in the technical foundation of the questioned sanitary order were integrated, and that the technical arguments invoked in said administrative act were precisely refuted.
It is opportune to emphasize that, according to the majority's criterion, the respondent authorities—when issuing the sanitary order—should have "carried out an adequate balancing and adopted the least burdensome measure for fundamental rights, promoting their equilibrium and limiting their impact to a minimum"[89]. Nevertheless, the judgment does not previously demonstrate to what extent, concretely, the sanitary order had affected the fundamental rights of the journalists protected by the amparo, that is, if there was a real impact on their freedom of expression.
Finally, it is fully justified that the petitioners and the judgment take into account statements of the president when he was a candidate, as this helps to contextualize the grievances complained of. But it is striking that the judgment assesses statements of the president subsequent to the date of the filing of the amparo action.
The consequences of the annulment of the challenged acts The majority of the Chamber ordered the annulment of the sanitary order MS-DRRSCN-DARSA2-OS-0368-2022 of July 8, 2022, as well as the provisions in official letter MS-DRRSCN-DARSA2-1724-2022 of July 15, 2022, which confirmed it.
This means that the situation regarding the access problem to Parque Viva, which is of public knowledge, which neither the petitioners nor the owners of the property have denied, and which is reflected in the large number of cited technical reports, returns to the moment at which the complaint was filed before the Ministry of Health authorities. So that, should there be any event affecting public health or the integrity of persons, it seems that the responsibility will be shared by the majority of the Chamber.
I reiterate that both the examination of the legitimacy of the challenged acts and the balancing of the rights and legitimate interests of the neighbors and users could well have been carried out before the contentious-administrative jurisdiction. Also because there, through the exercise of precautionary justice, measures could have been issued to modulate the effects of the suspension of the act and impose conditions that would seek to protect third parties. In the case at bar (sub lite), the annulment of the administrative acts was ordered outright, omitting any condition that would allow, in some way, to safeguard such rights and interests.
In the judgment, on the one hand, reference is made to the progress of a plan to solve the traffic congestion and, on the other hand, by annulling the challenged acts, no warning whatsoever is indicated regarding the need to carry out the implementation of the measures that definitively resolve said problem. Stating that warning, at least, would have had symbolic value: reflecting that the Chamber is aware that a risk truly exists for the neighbors and users of Parque Viva.
Regarding the scope of the award of damages Finally, I will allow myself to make a few comments on the award of damages. As will be recalled, in the initial petition filing, the petitioners stated that they waived these. Of course, if the amparo action was granted, the Chamber is not legally empowered to omit that award. But, certainly, the claim for these damages is waivable. On the other hand, in light of the initial petition filing and the logic of the judgment, it must be understood that the award of damages is solely for the benefit of the petitioners and solely for the injury to freedom of expression that was declared to derive from the challenged administrative acts. It cannot be understood that such damages include the possible patrimonial situations related to the commercial activity of Parque Viva. A separate matter, and I am not revealing anything new, is that the owners of Parque Viva are entitled to file a claim for State liability in the contentious-administrative jurisdiction[90] based on the annulment of those administrative acts. Since these have already ceased to exist juridically, it is not for that court to assess whether the nullity was appropriate or not. It will no longer be necessary to allege the grounds on which they were considered arbitrary, nor will there be an evidentiary phase on this aspect. There, it will only be necessary to prove the existence and unlawful nature of the damages suffered in their commercial activity, and the causal link of these with the annulled acts. This is one more reason to reflect on whether it was appropriate for the Chamber to hear the challenged acts. The fact is that in a summary proceeding, a decision was made on certain acts—of great complexity and enormous consequences, also at the patrimonial level—whose annulment expedites the claim for damages to a business unit that was not a party to the amparo nor is engaged in journalistic activity.
Pursuant to the arguments set forth above, I rule on this amparo action as follows: I grant it with respect to freedom of expression, inasmuch as statements by the respondent were proven that constitute acts of direct, manifest, albeit relative, censorship, which injure that freedom of the petitioners. I deny it with respect to the annulment of the sanitary order and the related official letter because, in addition to not proving active legal standing (legitimación activa), it is not appropriate to hear those acts in this jurisdiction.
Anamari Garro Vargas 1 [1] Article 29. Everyone may communicate their thoughts orally or in writing, and publish them without prior censorship; but they shall be responsible for the abuses they commit in the exercise of this right, in the cases and in the manner established by law.
[2] Article 13. Freedom of Thought and Expression.
1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice (…).
3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
[3] Article 11. Public officials are mere depositaries of authority. They are obliged to fulfill the duties imposed upon them by law and cannot arrogate powers not granted therein. They must take an oath to observe and uphold this Constitution and the laws. The action to demand criminal liability for their acts is public. The Public Administration in the broad sense shall be subject to a procedure of results evaluation and accountability, with the consequent personal responsibility for officials in the performance of their duties. The law shall indicate the means for this control of results and accountability to operate as a system covering all public institutions.
[4] Article 33. Every person is equal before the law and no discrimination contrary to human dignity may be practiced.
[5] They subsequently make further allegations along the same line, which will be transcribed in the dissenting opinion.
[6] In the differing reasons, a brief reference will be made to these.
[7] In light of the petition, it must be understood that they refer to the order and the related official letter. Hereinafter, when referring to the sanitary order, the related official letter is also alluded to.
[8] In this regard: Article 38 of the LJC. In the amparo action, the fact or omission motivating it, the right considered violated or threatened, the name of the public servant or body responsible for the threat or grievance, and the evidence for the charge shall be stated with the greatest possible clarity. // It shall not be indispensable to cite the constitutional norm infringed, provided the injured right is clearly determined, unless an international instrument is invoked. // The action is not subject to other formalities nor shall it require authentication. It may be filed by brief, telegram, or other means of communication expressed in writing, for which telegraphic franking shall be available.
[9] Article 42. If the action is unclear, such that the fact motivating it cannot be established, or does not meet the indicated requirements, the petitioner shall be warned to correct the defects within three days, which must be specifically indicated in the same resolution. If they are not corrected, the action shall be rejected outright (de plano).
[10] Article 48. Every person has the right to the habeas corpus remedy to guarantee their personal freedom and integrity, and to the amparo remedy to maintain or restore the enjoyment of the other rights enshrined in this Constitution, as well as those of a fundamental nature established in international human rights instruments applicable to the Republic. Both remedies shall fall under the jurisdiction of the Chamber indicated in Article 10.
[11] Article 2. The constitutional jurisdiction is specifically responsible for: 1. Guaranteeing, through the remedies of habeas corpus and amparo, the rights and freedoms enshrined by the Political Constitution and the human rights recognized by International Law in force in Costa Rica.
[12] Hereinafter, at least in this segment, when referring to fundamental rights, it shall be understood that reference is also made to public freedoms.
[13] These considerations have been repeated verbatim in at least 1734 resolutions of the Constitutional Chamber. Cfr. https://nexuspj.poder-judicial.go.cr. And, in a similar vein, among many others, vid. judgments 2006-3919, 2017-17948, 2021-18328, 2021-27342.
[14] Moreover, this judgment is recent, which shows that it is a jurisprudential line that spans the entire history of this court. Without any difficulty, even more recent ones along the same lines could be found. Cfr. https://nexuspj.poder-judicial.go.cr [15] Article 44 of the LJC. (…) The reports shall be considered given under oath (…).
[16] Among many others, vid. judgments 1995-4169, 2000-5401, 2022-0022 (repeated during 2022 in at least 16 judgments), 2022-5941.
[17] The judgment states: "In this regard, it is worth noting that this Chamber has also maintained that sanitary orders issued by the Ministry of Health authorities may be reviewable before this jurisdiction, in exceptional cases, determined specifically by their unavoidable direct relationship with the fundamental freedoms or rights essential to the sustenance of the democratic system" (considerando IX, point A, p. 191).
[18] I state this not because La Nación journalists are first-class citizens and others are not, but because from the allegations and from public and notorious facts, a tension between the newspaper La Nación and the President of the Republic can be observed, and this is neither a minor nor an ignorable fact. The necessary protection of freedom of expression in a democratic and pluralistic State must precisely be assessed in context.
[19] I say this because I consider there were sufficient elements to have rejected the action at that stage, but, even if it were considered that those doubts should be resolved in favor of the petitioners, as will now be seen, the Chamber during the cognizance phase could have determined that it lacked jurisdiction.
This is part of the core of this partially dissenting vote.
[20] The matter of passive standing is set aside, because for the present case it is of no major relevance: it is unquestionable that the respondents have it.
[21] They add “and the right of Costa Ricans to receive information and opinions on matters of public interest” (filing brief, p. 1), but that is not something to be protected in an amparo, because the Constitutional Chamber has always required that the amparo petitioners be specific subjects or, at least, clearly determinable; and the category “Costa Ricans” is excessively broad and would turn the amparo proceeding into an actio popularis. Surely, because this is a legal obviousness, the judgment does not even bother to address it; but I have preferred to do so. Moreover, that just-cited phrase is translated in the order granting leave as follows: “the right of the public to know information of interest to society” (order granting leave, July 29, 2022, p. 12), which, furthermore, is thus recorded in resultando 1 of the judgment. It is a different matter that freedom of expression has in itself a collective dimension, but that is not the one protected through the amparo proceeding. The existence of such a dimension serves, and it is no small thing, to qualify the importance of respecting the individual dimension of the right to freedom of expression of journalists.
[22] All of the foregoing is reiterated partially or totally in various judgments. By way of example, vid. judgments 2017-2350, 2018-1210, 2019-11129, 2020-2289.
[23] In order not to extend the citations, a large part of the passages has been suppressed in which—as has been noted—the Chamber, when hearing on the merits, reiterates what it has said in those rejections.
[24] Article 7. It corresponds exclusively to the Constitutional Chamber to resolve regarding its own competence, as well as to hear the incidental questions that arise before it and the related preliminary questions.
[25] Article 9. The Constitutional Chamber shall reject outright any petition that is manifestly improper or unfounded. // It may also reject it on the merits at any time, even from its presentation, when it considers that there are sufficient elements of judgment, or that it is a simple reiteration or reproduction of a previous equal or similar petition that was rejected; in this case provided that it does not find reasons to vary its criterion or reasons of public interest that justify reconsidering the question. // Likewise, it may grant it in an interlocutory manner when it considers it sufficient to base it on evident principles or norms or on its own precedents or jurisprudence, but if it involves habeas corpus or amparo proceedings, it must await the defense of the respondent.
[26] Article 153. It corresponds to the Judicial Branch, in addition to the functions that this Constitution assigns to it, to hear civil, criminal, commercial, labor, and administrative disputes, as well as others established by law, whatever their nature and the quality of the persons involved; to resolve them definitively and to execute the resolutions it pronounces, with the aid of the public force if necessary.
[27] That judgment has many other dense and interesting passages that are also pertinent, but, for what is of interest here, only those especially significant passages have been transcribed.
[28] Articles 128 et seq. of the LGAP.
[29] Articles 140 et seq. of the LGAP.
[30] Article 10. 1) The following shall have standing to sue: a) Those who invoke the affecting of legitimate interests or subjective rights (…). 4) Any interested party who has been affected in their legitimate interests or subjective rights may request the declaration, recognition, or restoration of a legal situation, with or without pecuniary reparation.
[31] Article 31. 1) The exhaustion of administrative remedies shall be optional, except as provided in articles 173 and 182 of the Political Constitution.
(The first article refers to municipal agreements and the second states: Article 182. Contracts for the execution of public works entered into by the Branches of State, the Municipalities, and the autonomous institutions, purchases made with funds from those entities, and the sales or leases of property belonging to the same, shall be made through public bidding, in accordance with the law regarding the respective amount).
[32] Article 31. Reconsideration or any other administrative recourse shall not be necessary to file an amparo proceeding.
[33] Article 21.- The precautionary measure shall be appropriate when the execution or permanence of the conduct submitted to process produces serious current or potential damages or injuries arising from the alleged situation, and provided that the claim is not reckless or, palpably, lacking in seriousness.
[34] Article 22.- To grant or deny a precautionary measure, the respective court or judge must especially consider the principle of proportionality, weighing the eventual injury to the public interest, the damages and injuries caused to third parties by the measure, as well as the characteristics of instrumentality and provisionality, such that the substantive management of the entity is not affected, nor is the legal situation of third parties seriously affected. // It must also take into account the financial possibilities and forecasts that the Public Administration must make for the execution of the precautionary measure.
[35] Article 23. Once the precautionary measure is requested, the respective court or judge, ex officio or at the request of a party, may adopt and order extremely provisional measures immediately and prima facie, in order to guarantee the effectiveness of the measure ultimately adopted. Such measures must maintain the necessary link with the object of the process and the required precautionary measure.
Article 24. 1) The court or the respective judge shall grant a hearing to the parties for up to three days regarding the request for the measure, except as provided in the following article of this Code. 2) Once that period has elapsed, the court or the respective judge shall resolve what is appropriate, unless it deems it necessary to hold an oral hearing, in which case it shall hold it within a maximum period of three business days.
[36] Vid., as examples, the following resolutions: TCASVI250-2010: confirmed the preventive protection of the environment in the face of potential impacts that could be generated by the execution of the modification of a Regulatory Plan; TCASII 108-2016: confirmed the precautionary measures in favor of sustainable development and the right to a healthy and ecologically balanced environment (land in dispute); TCA 552-2020: suspended the decrees related to the health vehicle restriction; TACASI 17-2018: revoked the TCA’s resolution that denied the precautionary measure and instead ordered the suspension of the effects of a tariff safeguard measure on milled rice imports.
[37] TCA (no known number) at 9:10 p.m. on October 7, 2022: immediately suspended the effects of the decree called “Reform of the Tariff of Professional Consulting Services for Buildings and Regulation of Fee Tariffs for Professionals in Surveying, Topography, and Topographical Engineering” (professional fees). Only pro informatione, it should be added that subsequent to the voting on this amparo, other similar resolutions have been taken: TCA (no known number) of October 28, 2002 (File 22-005972-1027-CA); and TCA 671-2022 of November 3, 2022 (File 22-005678-1027-CA) which suspended the effects derived from Executive Decree No. 43704-JP-MEIC of September 14, 2022 (professional fees of lawyers).
[38] Article 82. 1) The judge shall order and conduct all necessary evidentiary proceedings to determine the real truth of the facts relevant to the process. 2) The means of evidence may be all those permitted by Public Law and Common Law. 3) Evidence may be recorded and provided to the process by means of any type of documentary, electronic, computer, magnetic, optical, telematic support or that produced by new technologies. 4) All evidence shall be assessed in accordance with the rules of sound judgment. 5) Evidence contained in the administrative file, whatever its nature, shall be evaluated by the judge as documentary evidence, unless it is challenged by the aggrieved party through the pertinent legal means.
[39] Article 60. 1) In the event that the handling judge, ex officio or at the request of any of the parties, deems that the matter under their investigation is urgent or necessary or is of great importance for the public interest, they shall directly refer it for consideration by the trial court that corresponds by turn, so that it may decide whether it is given preferential processing, under the terms of this article, by means of a reasoned resolution against which there shall be no recourse whatsoever. 2) If the court deems that preferential processing is not appropriate, it shall return the process to the handling judge, so that it may be directed through the ordinary procedure. 3) If preferential processing is granted, the complaint shall be transferred and a peremptory period of five business days shall be granted for its answer. When necessary, the court shall order a single hearing to be held in which the matters referred to in article 90 of this Code shall be heard and resolved, evidence shall be taken, and the parties’ conclusions shall be heard. If there is no evidence to be taken, the oral and public hearing shall be dispensed with. Only when new facts arise or evidence must be completed in the court’s judgment may a new hearing be held. 4) The scheduling of the hearing shall have priority on the court’s agenda. 5) If the conversion of the process occurs at a procedural stage after that regulated in the third paragraph of this article, the court shall order the corresponding adjustment to the rules of said paragraph. 6) The judgment must be issued within a maximum period of five business days, counted from the day after that on which it was decided to give the process preferential processing or, as the case may be, from the holding of the last hearing. 7) If filed, the resolution of the cassation appeal shall have priority on the agenda of the Administrative Cassation Court or of the First Chamber of the Supreme Court of Justice, as appropriate. The appeal must be resolved within a period of ten business days.
[40] To which another norm of the Constitution could be added: Article 70. A labor jurisdiction shall be established, dependent on the Judicial Branch.
[41] For example, the electoral amparo proceeding is of praetorian origin, although it was later provided for in the Electoral Code; the hearing of administrative mora, after the promulgation of the CPCA, is left in the hands of the administrative jurisdiction; the examination of various labor matters, after the Labor Procedural Reform, is domiciled in that forum; issues of informational self-determination, after the entry into force of the respective law, are referred to the Data Protection Agency of Inhabitants (Prodhab); among others.
[42] Article 46. 1. For a petition or communication presented in accordance with articles 44 or 45 to be admitted by the Commission, it shall be required: a) that the remedies under internal jurisdiction have been filed and exhausted, in accordance with the generally recognized principles of International Law.
[43] Article 46. 2. The provisions of subsections 1 a) and 1 b) of this article shall not apply when: a) the due process of law for the protection of the right or rights that are alleged to have been violated does not exist in the internal legislation of the State in question; b) the party allegedly injured in their rights has not been permitted access to the remedies of internal jurisdiction, or has been prevented from exhausting them, and c) there has been unjustified delay in deciding on the mentioned remedies.
[44] It will later be seen that this, in turn, belongs to Media.
[45] Subsequently, other arguments they make along the same line will be transcribed.
[46] The phrases in single quotation marks come from IACHR Court. Case of Ríos et al. Vs. Venezuela. Preliminary Objections, Merits, Reparations, and Costs. Judgment of January 28, 2009. Series C No. 194, paragraph 139, as the same filing brief notes.
[47] MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), pp. 67 and 66, respectively.
[48] https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html [49] In the three cases, the last ones are those from the 2020-2021 period.
[50] The last one is that of the second half of 2022.
[51] Shareholders' Report 2020-2021 (whose name within the text is Annual Report La Nación and Subsidiaries - 2020-2021), MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), pp. 67 and 66, respectively.
[52] Ibid., p. 65.
[53] Ibid., p. 67.
[54] Ibid., p. 66.
[55] MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), (2020, p. 67; 2021, p. 66).
[56] AF-INFORME ANUAL-LN- 2018-19.pdf - Google Drive (2018, p. 64; 2019, p. 71). MEMORIA 2020-2021_DIGITAL.pdf (nacion.com) (2020, p. 67; 2021, p. 66).
[57] Recall what they say and what has already been transcribed in its moment: “…we were warned of the destruction of the structures that allow us to exercise independent journalism. // Parque Viva is one of those structures, in the case of Grupo Nación” (filing brief, p. 4).
[58] Definition of principle iura novit curia - Diccionario panhispánico del español jurídico - RAE [59] Vid. resolution 1990-290 (constitutional consultation), judgment 1992-3410 (unconstitutionality action), [60] To facilitate the analysis, we will assume that both challenged acts are equally arbitrary or equally non-arbitrary, that is, not that one is arbitrary and the other is not.
[61] The Supreme Court of the United States has applied this principle to resolve cases on freedom of expression (United States vs. O’Brien, 1968) and freedom of religion (Employment Div. Dep. of Human Resources vs. Smith, 1990).
[62] Certainly, there also exists the possibility of liability of the Administration for lawful conduct, but that is absolutely exceptional. In this regard, article 194 of the LGAP establishes: 1. The Administration shall be liable for its lawful acts and for its normal functioning when they cause damage to the rights of the administered party in a special manner, due to the small proportion of those affected or the exceptional intensity of the injury.
[63] IACHR Court. Ríos et al. vs. Venezuela. Preliminary Objections, Merits, Reparations, and Costs. Judgment of January 28, 2009. Series C No. 194.
[64] It alludes to that case only to refer to the limits of statements by public officials in a democratic society. Cfr. judgment, p. 266.
[65] IACHR Court. Case of Ivcher Bronstein vs. Peru. Merits, Reparations, and Costs. Judgment of February 6, 2001. Series C No. 74.
[66] IACHR Court. Case of Ricardo Canese vs. Paraguay. Merits, Reparations, and Costs. Judgment of August 31, 2004. Series C No. 111.
[67] In a very similar sense, vid. IACHR Court. Case of Palamara Iribarne vs. Chile. Merits, Reparations, and Costs. Judgment of November 22, 2005. Series C No. 135.
[68] IACHR Court. Case of Perozo et al. vs. Venezuela. Preliminary Objections, Merits, Reparations, and Costs. Judgment of January 28, 2009. Series C No. 195.
[69] IACHR Court. Case of Granier et al. (Radio Caracas Televisión) vs. Venezuela. Preliminary Objections, Merits, Reparations, and Costs. Judgment of June 22, 2015. Series C No. 293.
[70] By the way, in our country, according to article 49 of the Political Constitution, in the face of a concrete administrative act, such examination corresponds to the administrative jurisdiction, as was explained in the dissenting vote. With this, I wish to recall in passing that, if the matter was to prove the misuse of power alleged by the petitioners, especially in a context with as much technical complexity as that underlying the present proceeding, amparo was not the appropriate avenue.
[71] Naturally, if it is a matter of weighing all interests, one must also weigh the effects of the act or its annulment on other rights of third parties (life, integrity, health) and on the public interest; but, for the purposes of these reflections, I will focus attention on the effects on freedom of expression.
[72] Under the assumption that the newspaper depends financially on Parque Viva and that the acts falling upon the former have financial consequences for the latter.
[73] They are arbitrary or unlawfully injurious. (The intrinsic arbitrariness they may have for lacking any of the elements of validity of the act is not being considered here).
[74] The validity requirements: the substantial elements: both the subjective—competence, standing, and investiture—and the objective—motive, content, and purpose—; and the formal elements—reasoning, procedure employed, and the forms of manifestation of the act. Vid. articles 128 et seq. of the LGAP. On the efficacy requirements, vid. articles 140 et seq. of the LGAP.
[75] Certainly, article 13.1 of the ACHR states: Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other medium of one's choice. (The highlighting is not from the original). But, I believe that this does not contradict the reflections set forth above, since it seems that an analysis on the matter would require specifying the scope of that article regarding freedom of expression in general and regarding informational or opinion freedom carried out as a commercial activity.
[76] Moreover, as will be recalled, the two judgments of the Chamber on suppression of advertising as an indirect means of injury to freedom of expression have in common that the arbitrary acts fell directly upon the subjects who were communicating: in one case, a radio program (2015-1782) and, in the other, the newspaper La Nación (2016-15220).
[77] There is no doubt that journalists have, in themselves, active standing regarding injuries by direct means, even if they have not expressly alleged them.
[78] Recorded in the judgment as a proven fact, under the subtitle other facts of interest 2).
[79] Press conference of August 3, minute 44:22 et seq. Cfr. (1794) En Vivo | Conferencia de prensa Consejo de Gobierno 3 de Agosto, 2022 - YouTube [80] Hereinafter, the moment of the intervention will be noted in this way within the press conference of July 13, 2022, held at Casa Presidencia. Cfr. (1792) En Vivo | Conferencia de prensa Consejo de Gobierno 13 de Julio, 2022 - YouTube [81] El Universal, Mexico, July 8. https://www.eluniversal.com.mx/mundo/gobierno-de-costa-rica-cierra-parque-viva-tras-ataque-de-rodrigo-chaves-al-diario-la-nacion.
[82] El Comercio, Peru, July 8, https://elcomercio.pe/mundo/centroamerica/gobierno-de-costa-rica-cierra-parque-viva-en-medio-de-ataques-del-presidente-al-diario-la-nacion-noticia/ [83] Nación, Argentina, July 9, https://www.lanacion.com.ar/el-mundo/el-gobierno-de-costa-rica-ataco-a-uno-de-los-principales-medios-del-pais-y-luego-cerro-un-estadio-de-nid09072022/ [84] Note that this jurisprudential citation in turn collects one that comes from 1990, that is, from the very first moments of the Chamber’s history and, without difficulty, others could be found in the same sense, even prior to the one cited.
[85] Vid. the proven facts of the judgment: 6, 10, 11, 16, 18, and 21.
[86] Proven fact of judgment 23.
[87] Vid. the proven facts of the judgment: 26, 27, 28, 29, 30, and 31.
[88] This latter scenario, which is more exceptional, occurs when the body, with the elements it has at its disposal, deems that there is some other aspect perhaps barely mentioned by the parties, which is connected to the object of the question, and on which it is appropriate to rule. In that scenario, it will again grant a hearing to the parties so that they may address the matter.
[89] Considerando IX. Specific Case, point B, p. 242.
[90] According to the Constitution: Article 11. Public officials are mere depositaries of authority. They are obligated to fulfill the duties that the law imposes upon them and cannot arrogate powers not granted in it. // Article 41. Resorting to the laws, everyone must find reparation for the injuries or damages they have received in their person, property, or moral interests. They must be given prompt, complete justice, without denial and in strict conformity with the laws.
Also based on the LGAP. Article 190.1. The Administration shall be liable for all damages caused by its legitimate or illegitimate, normal or abnormal functioning, except for force majeure, fault of the victim, or act of a third party.
Observations of CONSTITUTIONAL CHAMBER voted by ballot Classification prepared by CONSTITUTIONAL CHAMBER of the Judicial Branch. Its reproduction and/or distribution in an onerous manner is prohibited.
It is a faithful copy of the original - Taken from Nexus.PJ on: 03-29-2026 04:39:38.
Sala Constitucional Clase de asunto: Recurso de amparo Analizado por: SALA CONSTITUCIONAL Sentencia con Voto Salvado Sentencia con nota separada Indicadores de Relevancia Sentencia relevante Sentencia clave Sentencias Relacionadas Contenido de Interés:
Temas Estrategicos: Derechos Humanos,Der Económicos sociales culturales y ambientales Tipo de contenido: Voto de mayoría Rama del Derecho: 4. ASUNTOS DE GARANTÍA Tema: LIBERTAD DE EXPRESIÓN Y PRENSA Subtemas:
MEDIOS DE COMUNICACION.
Tema: PODER EJECUTIVO Subtemas:
ORDEN SANITARIA..
025167-22. LIBERTAD DE EXPRESIÓN. PODER EJECUTIVO. SE CUESTIONA ORDEN SANITARIA CONTRA EL PARQUE VIVA, POR PARTE DEL MINISTERIO DE SALUD, ADUCIENDO QUE SE DEBE A UNA VIOLACIÓN A LA LIBERTAD DE EXPRESIÓN. POR MAYORÍA SE DECLARA CON LUGAR EL RECURSO EN TODOS SUS EXTREMOS Y, EN CONSECUENCIA, SE ANULA LA ORDEN SANITARIA NO. MS-DRRSCN-DARSA2-OS-0368-2022 EMITIDA EL 8 DE JULIO DE 2022, ASÍ COMO LO DISPUESTO EN EL OFICIO NO. MS-DRRSCN-DARSA2-1724-2022 DE 15 DE JULIO DE 2022. VCG02/2023 “(…) I.- OBJETO DEL RECURSO. El recurrente, en su condición de Director del Diario La Nación y otros periodistas de ese medio, acusan que el pasado 8 de julio de 2022 –a modo de materializar las amenazas giradas por el Presidente de la República públicamente semanas atrás en contra de dicho diario–, el Ministerio de Salud ordenó el cierre de Parque Viva (adquirido por el Grupo Nación S.A. para diversificar las fuentes de ingreso de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet), a través de un acto arbitrario y carente de todo sustento, lo cual, a su vez, representa una violación indirecta a la libertad de expresión y, por ende, contraviene lo dispuesto en el ordinal 29 constitucional y en el artículo 13.3 de la Convención Americana sobre Derechos Humanos.
II.- HECHOS PROBADOS. De relevancia para dirimir el presente recurso de amparo, se tienen por acreditados los siguientes:
A. HECHOS RELACIONADOS CON LA ORDEN SANITARIA GIRADA A PARQUE VIVA:
B. OTROS HECHOS DE INTERÉS:
III.- HECHOS NO PROBADOS. De relevancia para dirimir el presente recurso de amparo, se tienen por indemostrados los siguientes:
IV.- SOBRE LA LIBERTAD DE EXPRESIÓN. La libertad de expresión es uno de los pilares sobre los cuales está fundado el Estado de Derecho y comprende, tanto la garantía fundamental y universal de manifestar los pensamientos o las opiniones propias, como conocer los de otros. En otros términos, refiere a la libertad de buscar, recibir y difundir informaciones e ideas, ya sea oralmente o por escrito. Por esto se dice que la libertad de expresión se caracteriza por ser un derecho con una doble dimensión: una dimensión individual, consistente en el derecho de cada persona a buscar información y expresar los propios pensamientos, ideas e informaciones; y una dimensión colectiva o social, consistente en el derecho de la sociedad a procurar y recibir cualquier información, a conocer los pensamientos, ideas e informaciones ajenos y a estar bien informada. Sobre esta doble dimensión de la libertad bajo estudio, la Corte Interamericana de Derechos Humanos (en adelante Corte IDH), en el caso Herrera Ulloa vs. el Estado de Costa Rica (sentencia de 2 de julio de 2004), sostuvo lo siguiente:
“(…) 109. Al respecto, la Corte ha indicado que la primera dimensión de la libertad de expresión “no se agota en el reconocimiento teórico del derecho a hablar o escribir, sino que comprende además, inseparablemente, el derecho a utilizar cualquier medio apropiado para difundir el pensamiento y hacerlo llegar al mayor número de destinatarios”. En este sentido, la expresión y la difusión de pensamientos e ideas son indivisibles, de modo que una restricción de las posibilidades de divulgación representa directamente, y en la misma medida, un límite al derecho de expresarse libremente.
110. Con respecto a la segunda dimensión del derecho a la libertad de expresión esto es, la social, es menester señalar que la libertad de expresión es un medio para el intercambio de ideas e informaciones entre las personas; comprende su derecho a tratar de comunicar a otras sus puntos de vista, pero implica también el derecho de todos a conocer opiniones, relatos y noticias vertidas por terceros. Para el ciudadano común tiene tanta importancia el conocimiento de la opinión ajena o de la información de que disponen otros como el derecho a difundir la propia.
111. Este Tribunal ha afirmado que ambas dimensiones poseen igual importancia y deben ser garantizadas plenamente en forma simultánea para dar efectividad total al derecho a la libertad de expresión en los términos previstos por el artículo 13 de la Convención (…)”.
Por su parte, la Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos (Marco jurídico interamericano sobre el derecho a la libertad de expresión, diciembre 2009), se refirió a este derecho conforme los siguientes términos:
“(…) se trata de uno de los derechos individuales que de manera más clara refleja la virtud que acompaña –y caracteriza– a los seres humanos: la virtud única y preciosa de pensar al mundo desde nuestra propia perspectiva y de comunicarnos con los otros para construir a través de un proceso deliberativo, no solo el modelo de vida que cada uno tiene derecho a adoptar, sino el modelo de sociedad en el cual queremos vivir. Todo el potencial creativo en el arte, en la ciencia, en la tecnología, en la política, en fin, toda nuestra capacidad creadora individual y colectiva, depende, fundamentalmente, de que se respete y promueva el derecho a la libertad de expresión en todas sus dimensiones. Se trata entonces de un derecho individual sin el cual se estaría negando la primera y más importante de nuestras libertades: el derecho a pensar por cuenta propia y a compartir con otros nuestro pensamiento (…)”.
Nuestra Constitución Política garantiza la libertad de expresión y pensamiento en los artículos 28 y 29, los cuales señalan lo siguiente:
“ARTÍCULO 28.- Nadie puede ser inquietado ni perseguido por la manifestación de sus opiniones ni por acto alguno que no infrinja la ley.
Las acciones privadas que no dañen la moral o el orden públicos, o que no perjudiquen a tercero, están fuera de la acción de la ley.
No se podrá, sin embargo, hacer en forma alguna propaganda política por clérigos o seglares invocando motivos de religión o valiéndose, como medio, de creencias religiosas”.
“ARTÍCULO 29.- Todos pueden comunicar sus pensamientos de palabra o por escrito, y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca”.
En el ámbito internacional, la libertad de expresión ha sido consagrada en diversos instrumentos. En lo que respecta al sistema interamericano, el Pacto Internacional de Derechos Civiles y Políticos dispone en su artículo 19 lo siguiente:
“1. Nadie podrá ser molestado a causa de sus opiniones.
2. Toda persona tiene derecho a la libertad de expresión; este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
3. El ejercicio del derecho previsto en el párrafo 2 de este artículo entraña deberes y responsabilidades especiales. Por consiguiente, puede estar sujeto a ciertas restricciones que deberán, sin embargo, estar expresamente fijadas por la ley y ser necesarias para:
La Declaración Universal de Derechos Humanos en su ordinal 19 señala también:
“Todo individuo tiene derecho a la libertad de opinión y de expresión; este derecho incluye el de no ser molestado a causa de sus opiniones, el de investigar y recibir informaciones y opiniones, y el de difundirlas, sin limitación de fronteras, por cualquier medio de expresión”.
Por su parte, la Convención Americana sobre Derechos Humanos, en su artículo 13, consigna lo siguiente:
“1. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
2. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar:
3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.
4. Los espectáculos públicos pueden ser sometidos por la ley a censura previa con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2.
5. Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional”.
En el artículo IV de la Declaración Americana de los Derechos y Deberes del Hombre, se señala lo siguiente:
“Toda persona tiene derecho a la libertad de investigación, de opinión y de expresión y de difusión del pensamiento por cualquier medio”.
Asimismo, instrumentos internacionales de soft law han resguardado esta libertad. Así, la Declaración de Chapultepec (adoptada por la conferencia hemisférica sobre libertad de expresión celebrada en México, D.F. el 11 de marzo de 1994), en su primer principio refiere que:
“1. No hay personas ni sociedades libres sin libertad de expresión y de prensa. El ejercicio de ésta no es una concesión de las autoridades; es un derecho inalienable del pueblo”.
Por su parte, la Declaración de Principios sobre Libertad de Expresión (aprobada por la Comisión Interamericana de Derechos Humanos en octubre de 2000, en el 108 período ordinario), dispone lo siguiente:
“1. La libertad de expresión, en todas sus formas y manifestaciones, es un derecho fundamental e inalienable, inherente a todas las personas. Es, además, un requisito indispensable para la existencia misma de una sociedad democrática”.
En otro contexto, dentro del ordenamiento jurídico europeo, se destaca la Convención Europea sobre Derechos Humanos, que en su ordinal 10 precisa la titularidad universal de este derecho, conforme los siguientes términos:
“Libertad de expresión 1. Toda persona tiene derecho a la libertad de expresión. Este derecho comprende la libertad de opinión y la libertad de recibir o de comunicar informaciones o ideas sin que pueda haber injerencia de autoridades públicas y sin consideración de fronteras. El presente artículo no impide que los Estados sometan a las empresas de radiodifusión, de cinematografía o de televisión a un régimen de autorización previa.
2. El ejercicio de estas libertades, que entrañan deberes y responsabilidades, podrá ser sometido a ciertas formalidades, condiciones, restricciones o sanciones, previstas por la ley, que constituyan medidas necesarias, en una sociedad democrática, para la seguridad nacional, la integridad territorial o la seguridad pública, la defensa del orden y la prevención del delito, la protección de la salud o de la moral, la protección de la reputación o de los derechos ajenos, para impedir la divulgación de informaciones confidenciales o para garantizar la autoridad y la imparcialidad del poder judicial”.
Igualmente, la Carta de los Derechos Fundamentales de la Unión Europea, en su ordinal 11, cita lo siguiente:
“Artículo 11 Libertad de expresión y de información 1. Toda persona tiene derecho a la libertad de expresión. Este derecho comprende la libertad de opinión y la libertad de recibir o de comunicar informaciones o ideas sin que pueda haber injerencia de autoridades pœblicas y sin consideración de fronteras.
2. Se respetan la libertad de los medios de comunicación y su pluralismo”.
El derecho a la libertad de expresión ha sido ampliamente desarrollado en la jurisprudencia constitucional costarricense. Así, en la Sentencia No. 8196-2000 de las 15:08 hrs. de 13 de septiembre de 2000, el Tribunal Constitucional hizo referencia a las distintas formas en que se puede manifestar la libertad de expresión, conforme los siguientes términos:
“(…) IV.- De la Libertad de Expresión. La doctrina caracteriza a la libertad de expresión como una libertad presupuesto del ejercicio de otras libertades, que opera como legitimadora del funcionamiento del sistema democrático y de la eficacia de sus instituciones y que jurídicamente adopta pluralidad de formas. La vinculación más clara se da con la libertad de pensamiento, que es la condición previa e indispensable para la existencia de la libertad de expresión. En ejercicio de ambas libertades, el individuo puede escoger o elaborar las respuestas que pretende dar a todas aquellas cuestiones que le plantea la conducción de su vida en sociedad, de conformar a estas respuestas sus actos y, comunicar a los demás aquello que considera verdadero, sin censura previa. El ámbito de acción de esas libertades es muy amplio, pues comprende las manifestaciones de los individuos sobre política, religión, ética, técnica, ciencia, arte, economía, etc. La libertad de expresión, entonces, implica la posibilidad de que el sujeto transmita sus pensamientos (ideas, voliciones, sentimientos), y comprende la libertad de creación artística o literaria, la libertad de palabra, la libre expresión cinematográfica y también las manifestaciones vertidas por medio de la prensa escrita, la radio y la televisión, en tanto son medios de difusión de ideas. Así también, de la libertad de expresión se infiere el derecho de dar y recibir información y el derecho a comunicar con propósito diverso ya sea económico, político, recreativo, profesional, etc., sin que se impongan medidas restrictivas que resulten irrazonables. La libertad de expresión no sólo protege al individuo aislado, sino las relaciones entre los miembros de la sociedad y es por ello que tiene una gran trascendencia, ya que contribuye a la formación de la opinión pública. Es a su vez presupuesto de la libertad de prensa y de la libertad de información, pues de la libertad de expresión derivaron en sucesión histórica la libertad de prensa (o de escritos periódicos dirigidos al público en general) y la libertad de información, que es como hoy día se denomina a la libertad de expresión concretada en los medios de comunicación social. La libertad de información entonces, comprende la prensa escrita, oral, audiovisual y por su naturaleza, se encuentra relacionada con el derecho de crónica, de crítica, a la industria o comercio de la prensa y al fenómeno de la publicidad. Este aspecto ha adquirido mucha importancia en las últimas décadas, pues debido al alto costo de instalación y mantenimiento de los medios de comunicación colectiva, cuando son propiedad privada sólo pueden subsistir por el uso intensivo de la publicidad. Asimismo, existe el fenómeno del derecho social a la información, que reside precisamente en la comunidad y en cada uno de sus miembros, y que les da la posibilidad de ajustar su conducta a las razones y sentimientos por esa información sugeridos, para la toma de decisiones y a la vez cumple una función de integración, ya que unifica una multitud de opiniones particulares en una gran corriente de opinión, estimulando así la integración social (…)”. (El destacado no forma parte del original).
Asimismo, en ese mismo voto, la Sala Constitucional se pronunció sobre la prohibición de la censura previa, así como a los límites a los que está sometida la libertad bajo estudio:
“(…) V.- Una de las principales garantías que protegen la libertad de expresión es la prohibición de censura previa, ocurriendo así, que cualquier control debe darse a posteriori. Como censura previa entiende esta Sala aquel control, examen o permiso a que se somete una publicación, texto u opinión, con anterioridad a su comunicación al público, mediante el cual se pretende realizar un control preventivo de las manifestaciones hechas por un medio de comunicación colectiva, ya bien sea radiofónico, televisivo o impreso. Este concepto no sólo está plasmado en nuestra Constitución Política en el artículo 29, sino que también se incorporó en el Pacto de San José, cuyo artículo 13 inciso 2, dispone que el ejercicio de la libertad de expresión no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por ley y ser necesarias para asegurar ya sea el respeto a los derechos o a la reputación de los demás, o la protección de la seguridad nacional, el orden público o la salud o la moral pública. El artículo 29 de la Constitución Política consagra lo que parte de la doctrina califica como libertad de prensa, mientras que otra señala como libertad de información, y dispone:
"Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca." La Sala se refirió a este tema en la sentencia No. 1292-90 de las horas del de mil novecientos noventa y dijo:
"La libertad de expresión contenida en el artículo 29 de nuestra Constitución, permite la comunicación de pensamientos de palabra o por escrito y su publicación sin previa censura, garantía que refuerza el artículo 28 del mismo cuerpo normativo al prohibir la persecución por el ejercicio de esa libertad. No obstante, como todo derecho, esa libertad no es absoluta, y tiene su límite, de tal forma que el abuso que se haga de ella hará incurrir en responsabilidad a su autor, según la legislación que rige la materia." (…)
Ahora bien, a pesar de la gran libertad de que goza el individuo para formar opiniones basado en criterios personales y a su vez comunicarlas con toda amplitud, no debe pensarse que el ejercicio de estas libertades no tiene límite alguno, pues la libertad de expresión, al igual que el resto de las libertades públicas no es irrestricta: sus límites vienen dados por el mismo Orden Constitucional, y así lo consideró esta Sala en la sentencia N° 3173-93, al indicar que “II.- Los derechos fundamentales de cada persona, deben coexistir con todos y cada uno de los derechos fundamentales de los demás; por lo que en aras de la convivencia se hace necesario muchas veces un recorte en el ejercicio de esos derechos y libertades, aunque sea únicamente en la medida precisa y necesaria para que las otras personas los disfruten en iguales condiciones. Sin embargo, el principio de la coexistencia de las libertades públicas -el derecho de terceros- no es la única fuente justa para imponer limitaciones a éstas; los conceptos "moral", concebida como el conjunto de principios y de creencias fundamentales vigentes en la sociedad, cuya violación ofende gravemente a la generalidad de sus miembros-, y "orden público", también actúan como factores justificantes de las limitaciones de los derechos fundamentales. VI- No escapa a esta Sala la dificultad de precisar de modo unívoco el concepto de orden público, ni que este concepto puede ser utilizado, tanto para afirmar los derechos de la persona frente al poder público, como para justificar limitaciones en nombre de los intereses colectivos a los derechos. No se trata únicamente del mantenimiento del orden material en las calles, sino también del mantenimiento de cierto orden jurídico y moral, de manera que está constituido por un mínimo de condiciones para una vida social, conveniente y adecuada. Constituyen su fundamento la seguridad de las personas, de los bienes, la salubridad y la tranquilidad.” Asimismo, en la sentencia N° 3550-92 de las dieciséis horas de veinticuatro de noviembre de mil novecientos noventa y dos, este Tribunal desarrolló el tema de los límites legítimos a las libertades públicas y se refirió al principio de reserva de ley enfatizando que " solamente mediante ley formal, emanada del Poder Legislativo por el procedimiento previsto en la Constitución para la emisión de las leyes, es posible regular y, en su caso restringir los derechos y libertades fundamentales -todo, por supuesto, en la medida en que la naturaleza y régimen de éstos lo permita, y dentro de las limitaciones constitucionales aplicables (…)”. El destacado no forma parte del original).
Asimismo, más recientemente, en el Voto No. 9512-2020 de las 13:02 hrs. de 22 de mayo de 2022, este Tribunal dispuso lo siguiente:
“(…) V.- SOBRE LA LIBERTAD DE EXPRESIÓN Y LOS LÍMITES IMPONIBLES.- Este Tribunal ha entendido la libertad de expresión e información tal y como se dispuso en la sentencia No. 8109-98 de las 14:21 horas del 13 de noviembre de 1998, en la que se indicó lo siguiente: “...IV.- El Derecho de Información es aquel que permite a todas las personas recibir información suficientemente amplia sobre determinados hechos y sobre las corrientes de pensamiento y a partir de ellos escoger y formarse sus propias opiniones. Ello se logra a partir de dos vías diferentes: mediante la exposición objetiva de los hechos y por el pluralismo de las corrientes ideológicas. Asimismo, la Libertad de Expresión y de Pensamiento constituye un derecho fundamental que le permite al individuo dentro de un amplio ámbito de libertad, formular criterios personales de lo que éste considere adecuado o no, para responder a determinadas situaciones; permitiendo a la vez, poder comunicar sin censura previa, el resultado de su planteamiento ideológico. Este derecho tiene una gran trascendencia, ya que contribuye a la formación de la opinión pública, mediante los aportes intelectuales del individuo que ejerce opiniones o conceptos ya establecidos, o bien criticándolos. El ámbito de libertad es muy amplio, pues en él se comprenden todas las manifestaciones que realizan los individuos sobre política, religión, ética, técnica, ciencia, arte, economía, etc, por lo que de lo anterior se desprende que el ejercicio de la Libertad de Expresión y la Libertad de Pensamiento excluye la censura previa, ocurriendo que el control existente se da a posteriori y sobre los excesos sujetos al abuso de tales libertades, excluyéndose de tal prohibición los considerados espectáculos públicos.” Aunado a ello, en la misma sentencia se señaló que: “... La libertad de expresión forma parte de la libertad de información y en un Estado de Derecho, implica una ausencia de control por parte de los poderes públicos, y de órganos administrativos al momento de ejercitar ese derecho, lo que quiere decir que no es necesaria autorización alguna para hacer publicaciones, y que no se puede ejercer la censura previa, salvo que este de por medio la salud, la seguridad nacional, la moral y las buenas costumbres, como es el caso de los espectáculos públicos. El ejercicio de la libertad de expresión no puede ser ilimitado, ya que de ser así, los medios de comunicación ó cualquier sujeto de derecho, se podría prestar para propagar falsedades, difamar o promover cualquier tipo de desordenes y escándalos. Es por ello que la libertad de información trae implícito un límite, que funciona como una especie de autocontrol para el ciudadano que ejercita ese derecho, en el sentido de que si comete un abuso será responsable de él, en los casos y del modo en que la ley lo establezca. De allí que existan, en nuestro ordenamiento, figuras penales como la injuria, la calumnia o la difamación, que pueden ser la consecuencia de un abuso en el ejercicio del derecho de información. (…)
La Corte Interamericana de Derechos Humanos en el caso de Mauricio Herrera Ulloa contra el Estado de Costa Rica, en su sentencia del 2 de julio de 2004, sobre la libertad de expresión, indicó que la libertad de expresión es un medio para el intercambio de ideas e informaciones entre las personas; comprende su derecho a tratar de comunicar a otras sus puntos de vista, pero implica también el derecho de todos a conocer opiniones, relatos y noticias vertidas por terceros. Para el ciudadano común tiene tanta importancia el conocimiento de la opinión ajena o de la información de que disponen otros, como el derecho a difundir la propia. (…)
Ahora bien, la libertad de pensamiento y de expresión en una sociedad democrática, es un tema que como ya se ha mencionado supra, ha sido desarrollado en la Convención Americana, específicamente, en su artículo 13.2, que prevé la posibilidad de establecer restricciones a la libertad de expresión.
La jurisprudencia de la Corte Interamericana de Derechos Humanos ha señalado que, a través de la aplicación de responsabilidades ulteriores por el ejercicio abusivo del derecho de libertad de pensamiento y de expresión, no se debe de modo alguno limitar, más allá de lo estrictamente necesario, el alcance pleno de dichos derechos.
Se ha mencionado que la legalidad de las restricciones a la libertad de expresión fundadas sobre el artículo 13.2 de la Convención Americana, dependerá de que estén orientadas a satisfacer un interés público imperativo, por lo que se debe escoger aquella que restrinja en menor escala el derecho protegido.
Además, para que deban justificarse, es necesaria su ponderación sobre la necesidad social del pleno goce del derecho y no limitar el derecho tutelado más allá, de lo estrictamente necesario. Es decir, que la restricción debe ser proporcionada al interés que la justifica y ajustarse estrechamente al logro de ese objetivo, interfiriendo en la menor medida posible en el efectivo ejercicio del derecho a la libertad de expresión e información (ver en este sentido la Opinión Consultiva OC-5/85). (…)”. (El destacado no forma parte del original).
Por su parte, la Corte IDH en el caso Moya Chacón y otros vs. Costa Rica (sentencia de 23 de mayo de 2022), indicó lo siguiente:
“(…) b.3 Restricciones permitidas a la libertad de expresión y la aplicación de responsabilidades ulteriores en casos que haya afectación de la honra y de la dignidad en asuntos de interés público 71. El Tribunal recuerda que, con carácter general, el derecho a la libertad de expresión no puede estar sujeto a censura previa sino, en todo caso, a responsabilidades ulteriores en casos muy excepcionales y bajo el cumplimiento de una serie de estrictos requisitos. Así, el artículo 13.2 de la Convención Americana establece que las responsabilidades ulteriores por el ejercicio de la libertad de expresión, deben cumplir con los siguientes requisitos de forma concurrente: (i) estar previamente fijadas por ley, en sentido formal y material; (ii) responder a un objetivo permitido por la Convención Americana y (iii) ser necesarias en una sociedad democrática (para lo cual deben cumplir con los requisitos de idoneidad, necesidad y proporcionalidad).
72. Respecto a la estricta legalidad, la Corte ha establecido que las restricciones deben estar previamente fijadas en la ley como medio para asegurar que las mismas no queden al arbitrio del poder público. Para esto, la tipificación de la conducta debe ser clara y precisa, más aún si se trata de condenas del orden penal y no del orden civil. Sobre los fines permitidos o legítimos, los mismos están indicados en el referido artículo 13.2 y son (a) el respeto a los derechos o a la reputación de los demás, o (b) la protección de la seguridad nacional, el orden público o la salud o la moral públicas. Asimismo, las restricciones a la libertad de expresión deben ser idóneas, esto es, efectivamente conducentes para alcanzar la finalidad legítimamente permitida. En lo que respecta al análisis de necesidad, el Tribunal ha sostenido que, para que una restricción a la libre expresión sea compatible con la Convención Americana, aquella debe ser necesaria en una sociedad democrática, entendiendo por “necesaria” la existencia de una necesidad social imperiosa que justifique la restricción. En este sentido, la Corte deberá examinar las alternativas existentes para alcanzar el fin legítimo perseguido y precisar la mayor o menor lesividad de aquéllas. Finalmente, en relación con la proporcionalidad de la medida, la Corte ha entendido que las restricciones impuestas sobre el derecho a la libertad de expresión deben ser proporcionales al interés que las justifican y ajustarse estrechamente al logro de ese objetivo, interfiriendo en la menor medida posible en el efectivo goce del derecho. En ese sentido, no es suficiente que tenga una finalidad legítima, sino que la medida en cuestión debe respetar la proporcionalidad al momento de afectar la libertad de expresión. En otras palabras, “en este último paso del análisis se considera si la restricción resulta estrictamente proporcional, de tal forma que el sacrificio inherente a aquella no resulte exagerado o desmedido frente a las ventajas que se obtienen mediante tal limitación”. El Tribunal recuerda que estas restricciones tienen carácter excepcional y no deben limitar, más allá de lo estrictamente necesario, el pleno ejercicio de la libertad de expresión y convertirse en un mecanismo directo o indirecto de censura previa.
73. En este sentido, la Corte ha establecido que se pueden imponer tales responsabilidades ulteriores en tanto se pudiera haber afectado el derecho a la honra y la reputación. Así, el artículo 11 de la Convención establece, en efecto, que toda persona tiene derecho a la protección de su honra y al reconocimiento de su dignidad. La Corte ha señalado que el derecho a la honra “reconoce que toda persona tiene derecho al respeto de esta, prohíbe todo ataque ilegal contra la honra o reputación e impone a los Estados el deber de brindar la protección de la ley contra tales ataques”. En términos generales, este Tribunal ha indicado que “el derecho a la honra se relaciona con la estima y valía propia, mientras que la reputación se refiere a la opinión que otros tienen de una persona”. En este sentido, este Tribunal ha sostenido que, “tanto la libertad de expresión como el derecho a la honra, derechos ambos protegidos por la Convención, revisten suma importancia, por lo cual es necesario garantizar ambos derechos, de forma que coexistan de manera armoniosa”. El ejercicio de cada derecho fundamental tiene que hacerse con respeto y salvaguarda de los demás derechos fundamentales. Por ende, la Corte ha señalado que “la solución del conflicto que se presenta entre ambos derechos requiere de una ponderación entre los mismos, para lo cual deberá examinarse cada caso, conforme a sus características y circunstancias, a fin de apreciar la existencia e intensidad de los elementos en que se sustenta dicho juicio”.
74. El Tribunal recuerda a este respecto que, para determinar la convencionalidad de una restricción a la libertad de expresión cuando este colisione con el derecho a la honra, es de vital importancia analizar si las declaraciones efectuadas poseen interés público, toda vez que en estos casos el juzgador debe evaluar con especial cautela la necesidad de limitar la libertad de expresión. En su jurisprudencia, la Corte ha considerado de interés público aquellas opiniones o informaciones sobre asuntos en los cuales la sociedad tiene un legítimo interés de mantenerse informada, de conocer lo que incide sobre el funcionamiento del Estado, o afecta derechos o intereses generales o le acarrea consecuencias importantes. Determinar lo anterior tiene consecuencias en el análisis de la convencionalidad de la restricción al derecho a la libertad de expresión, toda vez que las expresiones que versan sobre cuestiones de interés público -como, por ejemplo, las concernientes a la idoneidad de una persona para el desempeño de un cargo público o a los actos realizados por funcionarios públicos en el desempeño de sus labores- gozan de mayor protección, de manera tal que se propicie el debate democrático.
75. Así, la Corte ha señalado que, en una sociedad democrática, aquellas personas que influyen en cuestiones de interés público están más expuestas al escrutinio y la crítica del público. Este diferente umbral de protección se explica porque sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público y, por tanto, se han expuesto voluntariamente a este escrutinio más exigente. Esto no significa, de modo alguno, que el honor de las personas participantes en asuntos de interés público no deba ser jurídicamente protegido, sino que éste debe serlo de manera acorde con los principios del pluralismo democrático.
76. Por otro lado, en relación con el carácter necesario y el riguroso análisis de proporcionalidad que debe regir entre la limitación al derecho a la libertad de expresión y la protección del derecho a la honra, se deberá buscar aquella intervención que, siendo la más idónea para restablecer la reputación dañada, contenga, además, un grado mínimo de afectación en el ámbito de la libertad de expresión. A este respecto, en el marco de la libertad de información, el Tribunal considera que existe un deber del periodista de constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos que divulga. Ahora bien, esto no significa una exigencia estricta de veracidad, por lo menos en lo que hace referencia a cuestiones de interés público, reconociendo como descargo el que la publicación se haga de buena fe o justificadamente y siempre de conformidad con unos estándares mínimos de ética y profesionalidad en la búsqueda de la verdad. Asimismo, el Tribunal advierte que, para que exista el periodismo de investigación en una sociedad democrática, es necesario dejar a los periodistas “espacio para el error”, toda vez que sin ese margen de error no puede existir un periodismo independiente ni la posibilidad, por tanto, del necesario escrutinio democrático que dimana de este.
77. Adicionalmente, la Corte también considera que nadie podrá ser sometido a responsabilidades ulteriores por la difusión de información relacionada con un asunto público y que tenga como base material que es accesible al público o que proviene de fuentes oficiales.
78. Por último, también se debe destacar la necesidad de que, en caso de estimarse adecuado otorgar una reparación a la persona agraviada en su honra, la finalidad de esta no debe ser la de castigar al emisor de la información, sino la de restaurar a la persona afectada. A este respecto, los Estados deben ejercer la máxima cautela al imponer reparaciones, de tal manera que no disuadan a la prensa de participar en la discusión de asuntos de legítimo interés público (…)”.
Aunado a lo anterior cabe destacar que la libertad de expresión, conforme lo dispone el artículo 13.3 de la Convención Americana sobre Derechos Humanos, no puede ser restringida o coartada a través del uso de medidas o vías indirectas. Sin embargo, este aspecto en particular, será desarrollado más adelante.
V.- EN CUANTO A LA LIBERTAD DE PRENSA COMO MANIFESTACIÓN DEL DERECHO A LA LIBERTAD DE EXPRESIÓN. La libertad de prensa se fundamenta en la libertad de expresión y, al mismo tiempo, es uno de sus vehículos naturales. Es una de las principales y más importantes manifestaciones de la libertad de expresión. La ya citada Declaración de Chapultepec ha sido contundente en el resguardo que merece particularmente la libertad de prensa, por lo que, en su primer principio dispone que “1. No hay personas ni sociedades libres sin libertad de expresión y de prensa. El ejercicio de ésta no es una concesión de las autoridades; es un derecho inalienable del pueblo”.
Se trata de un derecho fundamental que defiende que cualquier persona pueda, de una parte, acceder a información y, de otra, difundir esta a través de cualquier medio de expresión, sea medios impresos (publicaciones periodísticas, revistas, folletos, etc.), radio, televisión e, incluso, más modernamente, haciendo uso del internet y de las plataformas digitales, entre otros. Particularmente, esta Sala ha definido este derecho como aquel que tienen los administrados “(…) de buscar y difundir las informaciones y las ideas a un número indeterminado de personas sobre hechos que por su naturaleza son de interés de la generalidad por considerarse noticiosos (...)” (Sentencias Nos. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006 y 8396-2018 de las 12:40 hrs. de 25 de mayo de 2018).
En virtud de lo anterior, esta libertad permite a las personas la posibilidad de organizarse y crear medios de comunicación independientes del poder gubernamental, en los cuales tienen el derecho de expresarse libremente, sin censura. Todo esto, además, sin temor a las represalias del Estado o de otras entidades o individuos. La finalidad de este este derecho, es garantizar a la población recibir y difundir una información que no está manipulada ni, tampoco, al servicio de una persona, entidad o interés particular.
Desde sus primeros pronunciamientos, la Corte IDH, al resolver la opinión consultiva No. OC-5/85 sobre la colegiatura obligatoria de periodistas mediante sentencia de 13 de noviembre de 1985, aludió a esta libertad desde el ejercicio periodístico e indicó que:
“(…) 72. (...) La profesión de periodista -lo que hacen los periodistas- implica precisamente el buscar, recibir y difundir información. El ejercicio del periodismo, por tanto, requiere que una persona se involucre en actividades que están definidas o encerradas en la libertad de expresión garantizada en la Convención (...)
74. (...) El ejercicio del periodismo profesional no puede ser diferenciado de la libertad de expresión, por el contrario ambas cosas están evidentemente imbricadas, pues el periodista profesional no es ni puede ser, otra cosa que una persona que ha decidido ejercer la libertad de expresión de modo continuo, estable y remunerado (...)”.
Asimismo, en el caso Herrera Ulloa vs. Costa Rica (sentencia de 2 de julio de 2004), la Corte IDH sostuvo, sobre el rol de los medios de comunicación y el periodismo en relación con la libertad de expresión, lo siguiente:
“(…) 117. Los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. Los referidos medios, como instrumentos esenciales de la libertad de pensamiento y de expresión, deben ejercer con responsabilidad la función social que desarrollan.
118. Dentro de este contexto, el periodismo es la manifestación primaria y principal de esta libertad y, por esa razón, no puede concebirse meramente como la prestación de un servicio al público a través de la aplicación de los conocimientos o la capacitación adquiridos en la universidad. Al contrario, los periodistas, en razón de la actividad que ejercen, se dedican profesionalmente a la comunicación social. El ejercicio del periodismo, por tanto, requiere que una persona se involucre responsablemente en actividades que están definidas o encerradas en la libertad de expresión garantizada en la Convención.
119. En este sentido, la Corte ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca. (…)”. (El destacado no forma parte del original).
Más recientemente, en el caso Moya Chacón y otros vs. Costa Rica (sentencia de 23 de mayo de 2022), la Corte IDH reiteró parte de lo anteriormente citado y sostuvo, sobre este mismo tema, lo siguiente:
“(…) b.2 Importancia del rol del periodista en una sociedad democrática 66. La Corte ha destacado que el ejercicio profesional del periodismo “no puede ser diferenciado de la libertad de expresión, por el contrario, ambas cosas están evidentemente imbricadas, pues el periodista profesional no es, ni puede ser, otra cosa que una persona que ha decidido ejercer la libertad de expresión de modo continuo, estable y remunerado”. El Tribunal ha afirmado que los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. En efecto, la Corte ha caracterizado los medios de comunicación social como verdaderos instrumentos de la libertad de expresión y, además, ha señalado que “[s]on los medios de comunicación social los que sirven para materializar el ejercicio de la libertad de expresión, de tal modo que sus condiciones de funcionamiento deben adecuarse a los requerimientos de esa libertad. Para ello es indispensable, inter alia, la pluralidad de medios, la prohibición de todo monopolio respecto de ellos, cualquiera sea la forma que pretenda adoptar, y la garantía de protección a la libertad e independencia de los periodistas”.
67. El Tribunal recuerda que, para que la prensa pueda desarrollar su rol de control periodístico, debe no solo ser libre de impartir informaciones e ideas de interés público, sino que también debe ser libre para reunir, recolectar y evaluar esas informaciones e ideas. En su informe de 2012 al Consejo de Derechos Humanos de las Naciones Unidas, el Relator especial sobre la promoción y protección del derecho a la libertad de opinión y expresión de las Naciones Unidas se refirió a que las personas que desarrollan una actividad periodística “observan, describen, documentan y analizan los acontecimientos y documentan y analizan declaraciones, políticas y cualquier propuesta que pueda afectar a la sociedad, con el propósito de sistematizar esa información y reunir hechos y análisis para informar a los sectores de la sociedad o a esta en su conjunto”. Lo anterior implica que cualquier medida que interfiera con las actividades periodísticas de personas que están cumpliendo con su función obstruirá inevitablemente con el derecho a la libertad de expresión en sus dimensiones individual y colectiva.
68. Adicionalmente, en el marco de la libertad de información, esta Corte considera que existe un deber del periodista de constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos que divulga. Es decir, resulta válido reclamar equidad y diligencia en la confrontación de las fuentes y la búsqueda de información. Esto implica el derecho de las personas a no recibir una versión manipulada de los hechos. En consecuencia, los periodistas tienen el deber de tomar alguna distancia crítica respecto a sus fuentes y contrastarlas con otros datos relevantes. Por su lado, el Tribunal Europeo de Derechos Humanos ha señalado que la libertad de expresión no garantiza una protección ilimitada a los periodistas, inclusive en asuntos de interés público. En efecto, dicho Tribunal ha indicado que, aun cuando están amparados bajo la protección de la libertad de expresión, los periodistas deben ejercer sus labores obedeciendo a los principios de un “periodismo responsable” y ético, lo cual resulta de particular relevancia en una sociedad contemporánea donde los medios no sólo informan sino también pueden sugerir, a través de la manera cómo presentan la información, la forma en que dicha información debe ser entendida.
69. Además, dada la importancia de la libertad de expresión en una sociedad democrática y la elevada responsabilidad que ello entraña para quienes ejercen profesionalmente labores de comunicación social, el Estado no sólo debe minimizar las restricciones a la circulación de la información sino también equilibrar, en la mayor medida de lo posible, la participación de las distintas informaciones en el debate público, impulsando el pluralismo informativo. Por último, la Corte ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca.
70. En el marco de esta protección que deben otorgar los Estados, resulta fundamental la protección de fuentes periodísticas, piedra angular de la libertad de prensa y, en general, de una sociedad democrática, toda vez que permiten a las sociedades beneficiarse del periodismo de investigación con el fin de reforzar la buena gobernanza y el Estado de Derecho. La confidencialidad de las fuentes periodísticas es, por lo tanto, esencial para el trabajo de los periodistas y para el rol que cumplen de informar a la sociedad sobre asuntos de interés público (…)”. (El destacado no forma parte del original).
Así las cosas, la libertad de prensa en relación con la libertad de expresión, hacen referencia al derecho de toda persona, y de los medios de comunicación en particular, a través de sus periodistas, de investigar e informar, sin limitaciones irrazonables o coacciones.
La Corte Constitucional Colombiana, ha hecho alusión también a esta libertad destacando tres de sus más importantes características. Particularmente, en la Sentencia No. C-135/21 de 13 de mayo de 2021, sostuvo que la prensa cumple un rol educador, es un mecanismo que contribuye a la construcción del diálogo social pacífico y, a su vez, es un guardián de la democracia. Además, explicó expresamente lo siguiente sobre estas características:
“(…) 57.1. Rol de educador. Los medios de comunicación y la prensa actúan como difusores del conocimiento. Esto permite que el público en general pueda acceder a información sobre hechos, conocimiento científico, las leyes que los regulan e información pública en sentido amplio, que de otro modo no podrían conocer. Es una fuente que centraliza y luego difunde el conocimiento, lo que permite que la ciudadanía se eduque y la democracia se fortalezca.
57.2. Mecanismo de contribución al diálogo social. El acceso al conocimiento que la prensa y los medios masivos de comunicación permiten, junto con el análisis investigativo adoptado por la misma, llevan a un mayor diálogo y debate pacífico de la ciudadanía en torno a los asuntos de interés público.
57.3. Guardián de la democracia. La prensa y los medios masivos de comunicación han sido denominados “el cuarto poder” o el “guardián de la democracia”, en alusión a la función que ejercen de control a la Administración Pública, y su designación como instrumento de rendición de cuentas a aquellos que detentan el poder (…)”.
Este órgano constitucional igualmente se ha pronunciado sobre esta libertad. Así, en el Voto No. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006 señaló:
“(…) La libertad de prensa engloba de manera genérica todos los tipos de impresos, impresión, edición, circulación de periódicos, folletos, revistas y publicaciones de toda clase. Es por su naturaleza vehículo natural de la libertad de expresión de los ciudadanos. Se traduce en el derecho para los administrados de buscar y difundir las informaciones y las ideas a un número indeterminado de personas sobre hechos que por su naturaleza son de interés de la generalidad por considerarse noticiosos. Por su naturaleza, está sujeta a las mismas limitaciones que la libertad de expresión. Tiene como funciones en la democracia: informar (hechos, acontecimientos noticiosos), integrar la opinión (estimulando la integración social) y controlar el poder político, en cuanto es permanente guardián de la honestidad y correcto manejo de los asuntos públicos. Dado su vínculo simbiótico con la ideología democrática, un sin fin de instrumentos internacionales y prácticamente todas las Constituciones del mundo libre, desde la Declaración Francesa de 1789 (art.11) la han reconocido.
Nuestra Constitución Política por su parte, la tutela por medio de diversas normas: “Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en las condiciones y modos que establezca la ley” (artículo 29) “Nadie puede ser inquietado ni perseguido por la manifestación de sus opiniones ni por acto alguno que no infrinja la ley. Las acciones privadas que no dañen la moral o el orden público o que no perjudiquen a tercero, están fuera de la acción de la ley. No se podrá, sin embargo, hacer en forma alguna propaganda política por clérigos o seglares invocando motivos de religión o valiéndose, como medio, de creencias religiosas” (artículo 28). Otras normas constitucionales relacionada con este derecho son: “Se garantiza la libertad de petición, en forma individual o colectiva, ante cualquier funcionario público o entidad oficial, y el derecho a obtener pronta resolución (artículo 27). “Se garantiza el libre acceso a los departamentos administrativos con propósitos de información sobre asuntos de interés público. Quedan a salvo los secretos de Estado” (artículo 30).
La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca; la no censurabilidad de los contenidos, si bien no se da en forma previa, encuentra algunas limitaciones, sin embargo, éstas deben ser tales que la libertad siga teniendo sentido o no sea vaciada de su contenido, básicamente, como toda libertad, debe ejercerse con responsabilidad, en fin para perseguir fines legítimos dentro del sistema (…)”.
Asimismo, en el Voto No. 10961-2020 de las 10:05 hrs. de 16 de junio de 2020, esta jurisdicción hizo referencia a la libertad de prensa y a su relación intrínseca con la libertad de información, señalando lo siguiente:
“(…) IV.- Por su parte, en cuanto a la libertad de información y de prensa existe también un profuso desarrollo que refiere este derecho como un derecho preferente, que no sólo es un derecho fundamental, sino que funge como garantía esencial del funcionamiento del sistema democrático. Como referencia pueden citarse las sentencias 2004-08229 y 2007-017324 que lo definen como:
"(...) El Derecho a la Información, que guarda una estrecha relación con la Libertad de Expresión y el Derecho de Prensa, consiste en la facultad de buscar, recibir y difundir información e ideas de toda índole, y puede ejercitarse mediante la palabra impresa, las emisiones de radio y de televisión. Sobre este particular, en sentencia número 2001–09250 de las 10:22 horas del 14 de setiembre de 2001, la Sala dijo lo siguiente:
“...la libertad de información es un medio de formación de opinión pública en asuntos de interés general. Este valor preferente alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa, entendida en su más amplia acepción. Esto, sin embargo, no significa que la misma libertad pueda ser entendida de manera absoluta, sino más bien debe de analizarse cada caso concreto para ponderar si la información se ha llevado a cabo dentro del ámbito protegido constitucionalmente, o por el contrario si ha transgredido ese ámbito, afectando el derecho al honor, a la intimidad o a la imagen, entre otros derechos también constitucionalmente protegidos.” En efecto, la doctrina sobre el tema señala que la Libertad de Prensa ampara la posibilidad de publicar noticias con veracidad, buenos motivos y fines justificables. No obstante, si bien la misión de la prensa en una sociedad abierta y democrática es informar a la opinión pública en forma objetiva y veraz, esto no debe entenderse como una exigencia de carácter absoluto, pues, en la práctica, claramente existen dificultades de todo tipo que harían totalmente irracional el exigirle semejante logro a los medios de comunicación. Por esta razón, se ha aceptado que éstos solamente están obligados a buscar leal y honradamente la verdad, en la forma más imparcial que les sea posible. En otras palabras, el deber de veracidad únicamente les impone la obligación de procurar razonablemente la verdad, y no la de realizar ese cometido en forma absoluta. Por consiguiente, el deber de veracidad entraña una obligación de medios, no de resultados (…)
El orden democrático exige, la defensa de la libertad de expresión, como instrumento básico e indispensable para la formación de la opinión pública. Y esa defensa, lleva a la posibilidad de expresar el pensamiento usando los medios que elija el emisor y también en la facultad de difundirlo a través de ellos. (…) el valor de esta defensa, alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa. En ese sentido, se entiende que si bien, el derecho a la expresión, contemplado en el artículo 13 de la Convención Americana, no tiene carácter absoluto, los límites para su ejercicio y controles de su adecuado desempeño no deben de modo alguno limitar su ejercicio, más allá de lo estrictamente necesario, al punto que puedan convertirse en un mecanismo directo o indirecto que afecten la libertad de expresión, información y prensa y constituyan una violación al derecho (…)”. (El destacado no forma parte del original).
Igualmente, en la Sentencia No. 9512-2020 de las 13:02 hrs. de 22 de mayo de 2022, este Tribunal Constitucional dispuso lo siguiente:
“(…) es claro que el ejercicio de las libertades de expresión e información adquiere características distintivas, cuando se realiza a través de un medio de comunicación, características que variarán dependiendo de cada tipo de medio. Estas variaciones repercuten, a su vez, sobre el alcance de los derechos que se ejercen, su contenido, y las posibles limitaciones de las que eventualmente son susceptibles. Es claro que, el objeto jurídico de la protección de la libertad de expresión, en el marco de la libertad de prensa, es la posibilidad de obtener información, como insumo necesario para informarse y poder informar a una colectividad. Es decir que, en stricto senso, la libertad de expresión protege la transmisión de todo tipo de pensamientos, opiniones, ideas e informaciones personales de quien se expresa, mientras que la libertad de información permite a las personas recibir y poseer información sobre hechos, eventos, acontecimientos, personas, grupos y en general situaciones, en aras de que el receptor se entere de lo que está ocurriendo. La libertad de información abarca actividades como la búsqueda de información e investigación, a través de fuentes, donde puede hallarse, procesarse y transmitirse a través de un medio determinado. Por eso, el derecho a informar ocupa un lugar especial dentro del ordenamiento constitucional costarricense, particularmente cuando su ejercicio se apareja con el de la libertad de prensa, es decir, cuando se ejerce a través de los medios de comunicación. Los diferentes tribunales internacionales de derechos humanos, han reconocido que los medios de comunicación ostentan una función social importante, en la construcción y sostenibilidad de los sistemas democráticos, por lo que en numerosas oportunidades se ha reconocido que los medios de comunicación colectiva, como personas jurídicas, pueden ser titulares de derechos fundamentales, según su naturaleza particular; en consecuencia, es claro que la libertad de expresión sí cobija a los medios de comunicación en tanto personas jurídicas, así como a quienes se expresan, a través de ellos. Es igualmente pertinente destacar, en este ámbito, la relación entre la libertad de expresión del medio de comunicación como “persona jurídica”, y la libertad de expresión de las personas naturales que forman parte de la estructura organizacional de tales personas jurídicas, por ejemplo, los editores, redactores, reporteros y otros periodistas o comunicadores sociales, que contribuyen a la transmisión de expresiones de terceros, a la vez que ejercen su propia libertad de expresión. La relación existente entre ambas libertades, y a su vez entre dichas libertades y la libertad de expresión de quien efectivamente está comunicando un mensaje a través de tales medios o personas, ha de dilucidarse en cada caso concreto con especial atención a los distintos intereses en juego, para llegar a una solución que logre el máximo nivel de armonización concreta entre todos ellos, y a su vez con los intereses del receptor y, en especial, del público en general. La difusión masiva que alcanzan las informaciones transmitidas a través de los medios y su poder de penetración, el impacto profundo que pueden tener sobre las personas en general, garantiza el desarrollo democrático de un estado constitucional y a su vez, propicia el fortalecimiento de la libertad de expresión.
En este sentido, la Corte Interamericana de Derechos Humanos ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca, pues los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual, es indispensable que recojan las más diversas informaciones y opiniones (Caso Ivcher Bronstein vs Panamá- Corte I.D.H.-).
A su vez, la Corte Europea de Derechos Humanos, al interpretar el artículo 10 de la Convención Europea, concluyó que "necesarias", sin ser sinónimo de "indispensables", implica la" existencia de una ‘necesidad social imperiosa’ y que para que una restricción sea "necesaria" no es suficiente demostrar que sea "útil", "razonable" u "oportuna" (21). Este concepto de “necesidad social imperiosa” fue hecho suyo por la Corte en su opinión consultiva OC-5/85, La Colegiación Obligatoria de Periodistas (artículos 13 y 29 de la Convención Americana sobre Derechos Humanos). (…)
Ha destacarse que es a través de los medios de comunicación, que la libertad de expresión contribuye a la consolidación de la sociedad democrática. Por lo tanto, las condiciones de su uso, deben conformarse con los requisitos de esta libertad, lo que significa que debe garantizarse la libertad e independencia de los periodistas y los medios de comunicaciones (opinión consultiva OC-5/85 Corte IDH, La Colegiación Obligatoria de Periodistas).
De acuerdo con la jurisprudencia de la Corte Interamericana, la libertad de expresión no está completa en el reconocimiento teórico del derecho a hablar o escribir, sino cuando también incluye, en forma inseparable, el derecho a usar todo medio adecuado para divulgar información y garantizar que llegue a la audiencia más amplia posible (…) (Caso Ivcher Bronstein vs Panamá- Corte I.D.H.-). No obstante, como cualquier otro derecho humano, la libertad de expresión no es un derecho absoluto, y puede estar sujeta a limitaciones por parte de cualquiera autoridad estatal o eventualmente de particulares, previamente adoptadas por el legislador bajo estrictas condiciones. (…)”. (El destacado no forma parte del original).
VI.- TOCANTE A LA LIBERTAD DE EXPRESIÓN (Y DE PRENSA) COMO GARANTES DEL SISTEMA DEMOCRÁTICO. La libertad de expresión y, concomitantemente, el ejercicio de la libertad de prensa, devienen en pilares fundamentales sobre los que se erige una sociedad democrática. Resulta prácticamente incuestionable la intrínseca relación que existe entre tales libertades y la democracia; de ahí que, esta última se debilita y erosiona arbitrariamente cuando dichas libertades no se pueden ejercer plenamente ni, tampoco, se respetan y garantizan en los ordenamientos jurídicos.
La Carta Democrática Interamericana (aprobada por los Estados Miembros de la OEA durante una sesión extraordinaria de la Asamblea General que se llevó a cabo el 11 de septiembre de 2001 en Lima, Perú), sobre este particular, dispone en su artículo 4 que: “Son componentes fundamentales del ejercicio de la democracia la transparencia de las actividades gubernamentales, la probidad, la responsabilidad de los gobiernos en la gestión pública, el respeto por los derechos sociales y la libertad de expresión y de prensa”. Además, hay que recordar que la ya dictada Declaración de Principios sobre Libertad de Expresión establece en su primer principio que la libertad de expresión es “(…) un requisito indispensable para la existencia misma de una sociedad democrática”.
La libertad de prensa (o lo que algunos denominan una prensa libre), como manifestación de la libertad de expresión, constituye un elemento esencial para fiscalizar –sin represiones–, las actuaciones de los terceros, sean de índole privada o funcionarios públicos, principalmente de los que ocupan altos cargos o aspiran a este, permitiendo así, consecuentemente, la rendición de cuentas, combatir la corrupción, la transparencia en el manejo de fondos públicos, entre otros muchos aspectos que resultan fundamentales para mantener vigente un sistema democrático. Parte de ese deber, reside en el investigar a las personas en el poder, principalmente al gobierno, formulando los cuestionamientos difíciles e intentar así revelarle a la ciudadanía lo que realmente está sucediendo, como medio, a su vez, para que tomen las decisiones correctas, principalmente, a la hora de votar y, también posteriormente, cuando se está en ejercicio del poder. Tal y como lo ha manifestado la llamada Unión por las Libertades Civiles de Europa (organización no gubernamental que promueve las libertades civiles para todas las personas en la Unión Europea) “(…) Una prensa libre ayuda en cada paso de este proceso. Proporciona información a los votantes antes de votar; fomenta el diálogo y el debate para enriquecer la comprensión de esta información; y luego informa a la ciudadanía sobre la labor del gobierno y si realmente están llevando a cabo sus promesas. En democracia, la ciudadanía delega el poder de decisión en sus cargos electos, y la prensa es una forma de controlarlos (…)”. En esencia, es factible afirmar, entonces, que la libertad de prensa resulta fundamental en los sistemas democráticos, pues permite a los ciudadanos formarse opiniones y criterios en relación con la realidad en que viven. Por este motivo, lamentablemente los medios de comunicación independientes son precisamente uno de los objetivos principales de los sistemas políticos antidemocráticos o, al menos, de aquellos que quieren perfilarse y van encaminados hacia ello.
Esta Sala Constitucional se ha manifestado específicamente sobre la libertad de expresión y su función como garante de la democracia. Así, en el emblemático Voto No. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006, señaló lo siguiente:
“(…) VIII.- La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle contenido a varios principios del Estado constitucional, como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos. Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa. Como lo ha señalado el propio Tribunal Constitucional español, quedarían vaciados de contenido real otros derechos que la Constitución consagra, reducidas a formas huecas las instituciones representativas y absolutamente falseado el principio de legitimidad democrática... que es la base de toda nuestra ordenación jurídico-política (Sentencia 6/1981), si no existieran unas libertades capaces de permitir ese intercambio, que… presupone el derecho de los ciudadanos a contar con una amplia y adecuada información respecto de los hechos, que les permita formar sus convicciones y participar en la discusión relativa a los asuntos públicos (Sentencia 159/1986) (…)”. (El destacado no forma parte del original).
Aunado a ello, respecto estrictamente a los medios de comunicación y su responsabilidad a la hora de informar y contribuir así con los procesos democráticos, en ese mismo voto se sostuvo lo siguiente:
“(…) XI .- La responsabilidad social de los medios de comunicación como detentadores de poder frente al ciudadano. La lucha por la defensa de los derechos fundamentales de los habitantes, tradicionalmente surge contra el poder político, no obstante, posteriormente evoluciona para proteger a la persona de otros sujetos particulares que tienen una relación de poder con respecto al ciudadano, en aquellos casos que lesionen algún derecho fundamental. Hay que tener claro que en las democracias, los medios de comunicación no tienen un papel simplemente pasivo en el tema de la libertad de expresión; no se limitan a ser víctimas de los atentados contra tan importante libertad. Tienen por el contrario una gran responsabilidad y poder al ser los vehículos naturales para que las libertades comunicativas (expresión, imprenta, información, etcétera) sean una realidad, que puedan servir al desarrollo de los procesos democráticos formando una ciudadanía bien informada, que conozca sus derechos y sus obligaciones, que tenga las herramientas necesarias para poder elegir bien a sus gobernantes. La responsabilidad social de los medios y el lugar de la libertad de expresión en el desarrollo democrático es lo que justifica que el estatuto jurídico de los medios y de los profesionales que en ellos trabajan sea distinto al del resto de las personas. Pero ese estatus, como se indicó no es invocable frente a fines ilegítimos, que incluyen el atentar contra libertades fundamentales de mala fe o con negligencia evidente. A tenor de estas razones y fundamentos, es que cabe concluir que el Estado, y concretamente el legislador, tiene derecho y el deber de proteger a los individuos, frente al uso ilegítimo de este derecho, el cual, mal utilizado, es tan dañino para la democracia como la censura misma, no sólo porque su ejercicio de mala fe, puede lesionar el honor de la persona afectada, sino el de la sociedad entera de recibir información adecuada capaz de ayudarla a conformar la opinión pública en forma transparente. El peligro que representa un mal uso de este derecho para la democracia es tan grave como su no ejercicio, y ese mal uso no está determinado sólo por la negligencia evidente o mala fe que afecte otras libertades, sino también frente a otros factores, como la posibilidad que la falta de un pluralismo mediático afecte la capacidad de la prensa de generar una opinión pública libre e informada. Naturalmente que la exigencia de ese pluralismo, no se reduce a una vertiente puramente cuantitativa, sino que también conlleva algún factor cualitativo que se concreta en la "presencia de diversidad de opiniones y de fuentes de información”. Sin duda alguna que por su rol en la democracia, su posibilidad de difusión, los medios de comunicación están en una relación de poder con respecto al ciudadano y a la sociedad, y aunque su existencia es fundamental para fines legítimos y esenciales de la democracia, tienen el potencial, como cualquier poder, de desviarse ocasionalmente, frente a actuaciones individuales, en cuyo caso el Estado tiene la obligación de establecer las previsiones necesarias para la protección del sistema y del individuo. Evidentemente que como se indicó, la protección del Estado no puede darse como lo ha señalado la Corte de Derechos Humanos, con el derecho a censurar previamente las informaciones, lo cual será a todas luces inconstitucional (art. 28), sino que se refiere a su control a posteriori, en el caso que haya existido intención de infligir daño o actuado con pleno conocimiento de que se estaban difundiendo noticias falsas o se condujo con manifiesta negligencia en la búsqueda de la verdad o falsedad de las mismas y con ella resultó afectado el honor y reputación de alguna persona. La Sala comparte la opinión de la Corte Interamericana de Derechos Humanos (opinión consultiva 5/85) en el sentido de que:
33. ...No sería lícito invocar el derecho de la sociedad a estar informada verazmente para fundamentar un régimen de censura previa supuestamente destinado a eliminar las informaciones que serían falsas a criterio del censor. Como tampoco sería admisible que, sobre la base del derecho a difundir informaciones e ideas, se constituyeran monopolios públicos o privados sobre los medios de comunicación para intentar moldear la opinión pública según un solo punto de vista.
De igual forma reconoce la jurisprudencia sentada en el caso New York Times vs. Sullivan de 1964 en la que se señala que la protección que la Constitución ofrece a la libertad de expresión no depende de la verdad, popularidad o utilidad social de las ideas y creencias manifestadas, y reconoce que un cierto grado de abuso es inseparable del uso adecuado de esa libertad, a partir de la cual el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos. Los enunciados erróneos son inevitables en un debate libre, y deben ser protegidos para dejar a la libertad de expresión aire para que pueda respirar y sobrevivir. Las normas deben impedir que un funcionario público pueda demandar a un medio de comunicación o a un particular por daños causados por una difamación falsa relativa a su comportamiento oficial, a menos que se pruebe con claridad convincente que la expresión se hizo con malicia real, es decir, con conocimiento de que era falsa o con indiferente desconsideración de si era o no falsa. Esta salvedad que se hace es indispensable frente a la obligación del Estado de proteger la reputación y honra de las personas y más aún, dentro de la obligación que tiene de velar porque el mal uso o desvío de esta libertad no se utilice para violar fines igualmente esenciales del sistema democrático, entre los que se incluye el sistema de derechos fundamentales. Es reconocida en doctrina la interdependencia que existe entre los derechos fundamentales y su valor sistémico, en ese sentido, la protección de una libertad en demérito de otras por falta de una visión hermenéutica tiene un efecto negativo sobre todo el sistema de libertad (ver sentencia 2771-03 de esta Sala)". (…)”. (El destacado no forma parte del original).
Asimismo, en la Sentencia No. 15220-2016 de las 16:00 hrs de 18 de octubre de 2016, este órgano constitucional señaló muy atinadamente lo siguiente:
“(…) La libertad de expresión es un pilar fundamental del Estado democrático, ya que permite la circulación de ideas e información –aun aquellas de oposición al gobierno de turno-, la formación de la opinión pública, la transparencia, la fiscalización y denuncia de las acciones del gobierno, entre otras. No en vano señala Bobbio que la democracia es el ejercicio de poder en público (…) tratándose de funcionarios públicos, y en particular aquellos de alta jerarquía, el umbral de la libertad de expresión y el deber de tolerancia a la crítica aumentan. Esto es así porque un elemento fundamental del sistema democrático, que lo distingue de las dictaduras, consiste en la amplia libertad de que gozan tanto la ciudadanía en general como la prensa en particular, con respecto de exteriorizar sus críticas y cuestionar la idoneidad (técnica o moral) de los funcionarios públicos y sus decisiones, sin temor a censura ni represalias, lo que evidentemente no obsta que la persona que se sienta afectada, acuda al derecho de rectificación o a otras vías judiciales ordinarias en defensa de su imagen y buen nombre. En el caso concreto de los funcionarios públicos, se encuentran más expuestos al escrutinio público, toda vez que el ejercicio de sus funciones trasciende el ámbito privado y, por su impacto en el desarrollo y acontecer político y nacional, se incorpora a la esfera pública, esto es tiene consecuencias de interés para la ciudadanía en general. Asimismo, el control ciudadano sobre la Administración Pública y el deber de rendición de cuentas de los funcionarios públicos (artículo 11 de la Constitución Política), solo pueden darse en un sistema democrático de amplia libertad de expresión e información. Esa es la relevancia de la dimensión social del derecho de información, íntimamente ligado al de expresión. En tal sentido, precisamente, la Corte Interamericana de Derechos Humanos se expresó en el caso Tristán Donoso:
“115. Por último, respecto del derecho a la honra, la Corte recuerda que las expresiones concernientes a la idoneidad de una persona para el desempeño de un cargo público o a los actos realizados por funcionarios públicos en el desempeño de sus labores gozan de mayor protección, de manera tal que se propicie el debate democrático. La Corte ha señalado que en una sociedad democrática los funcionarios públicos están más expuestos al escrutinio y la crítica del público. Este diferente umbral de protección se explica porque se han expuesto voluntariamente a un escrutinio más exigente. Sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público. Este umbral no se asienta en la calidad del sujeto, sino en el interés público de las actividades que realiza (…)
122. Como ya se ha indicado, el derecho internacional establece que el umbral de protección al honor de un funcionario público debe permitir el más amplio control ciudadano sobre el ejercicio de sus funciones (supra párr. 115). Esta protección al honor de manera diferenciada se explica porque el funcionario público se expone voluntariamente al escrutinio de la sociedad, lo que lo lleva a un mayor riesgo de sufrir afectaciones a su honor, así como también por la posibilidad, asociada a su condición, de tener una mayor influencia social y facilidad de acceso a los medios de comunicación para dar explicaciones o responder sobre hechos que los involucren.” De igual forma, en el caso Ricardo Canese, la Corte indicó:“ 97. El control democrático, por parte de la sociedad a través de la opinión pública, fomenta la transparencia de las actividades estatales y promueve la responsabilidad de los funcionarios sobre su gestión pública, razón por la cual debe existir un mayor margen de tolerancia frente a afirmaciones y apreciaciones vertidas en el curso de los debates políticos o sobre cuestiones de interés público.
98. El Tribunal ha establecido que es lógico y apropiado que las expresiones concernientes a funcionarios públicos o a otras personas que ejercen funciones de una naturaleza pública deben gozar, en los términos del artículo 13.2 de la Convención, de un margen de apertura a un debate amplio respecto de asuntos de interés público, el cual es esencial para el funcionamiento de un sistema verdaderamente democrático. (…)”. (El destacado no forma parte del original).
A mayor abundamiento, esta Sala, en la Sentencia No. 12926-2017 de las 09:30 hrs. de 18 de agosto de 2017, indicó, sobre tema en particular, que:
"(…) la libertad de prensa es un pilar fundamental del Estado democrático al punto de que no puede existir el segundo sin la garantía efectiva a favor de todos los habitantes de la República del ejercicio del derecho de buscar, recibir y difundir información e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección, sin que dicho derecho pueda ser sometido a la previa censura (...)”.
La Corte Interamericana de Derechos Humanos ha hecho también alusión a la estrecha relación que existe entre democracia y libertad de expresión, y ha referido que se trata de un elemento fundamental sobre el cual se basa la existencia de una sociedad democrática. En ese particular, en la opinión consultiva No. OC-5/85 sobre la colegiatura obligatoria de periodistas (sentencia de 13 de noviembre de 1985), dispuso que es conditio sine qua non para que quienes deseen influir sobre la colectividad puedan desarrollarse plenamente, razón por la cual afirma que una sociedad que no está bien informada no es plenamente libre. Es decir, que dentro de los sistemas democráticos el ejercicio de la libertad de expresión permite el desarrollo y proyección del ser humano, contribuye al funcionamiento de la democracia y es un medio o instrumento para el ejercicio de los otros derechos humanos. Por su parte, en el caso Herrera Ulloa vs. Costa Rica, la Corte sostuvo lo siguiente:
“(…) 113. En iguales términos a los indicados por la Corte Interamericana, la Corte Europea de Derechos Humanos se ha manifestado sobre la importancia que reviste en la sociedad democrática la libertad de expresión, al señalar que “(…) la libertad de expresión constituye uno de los pilares esenciales de una sociedad democrática y una condición fundamental para su progreso y para el desarrollo personal de cada individuo. Dicha libertad no sólo debe garantizarse en lo que respecta a la difusión de información o ideas que son recibidas favorablemente o consideradas como inofensivas o indiferentes, sino también en lo que toca a las que ofenden, resultan ingratas o perturban al Estado o a cualquier sector de la población. Tales son las demandas del pluralismo, la tolerancia y el espíritu de apertura, sin las cuales no existe una sociedad democrática. (…) Esto significa que (…) toda formalidad, condición, restricción o sanción impuesta en la materia debe ser proporcionada al fin legítimo que se persigue (…)”. (Es destacado no forma parte del original).
De igual manera, en esta última ocasión, la Corte IDH señaló que la Comisión Africana de Derechos Humanos y de los Pueblos y el Comité de Derechos Humanos también se han pronunciado en ese mismo sentido; de ahí que haya concluido que existe una coincidencia en los diferentes sistemas regionales de protección a los derechos humanos y en el universal, en cuanto al papel esencial que juega la libertad de expresión en la consolidación y dinámica de una sociedad democrática. Además, indicó expresamente que:
“(…) 116. (…) Sin una efectiva libertad de expresión, materializada en todos sus términos, la democracia se desvanece, el pluralismo y la tolerancia empiezan a quebrantarse, los mecanismos de control y denuncia ciudadana se empiezan a tornar inoperantes y, en definitiva, se empieza a crear el campo fértil para que sistemas autoritarios se arraiguen en la sociedad (…)”.
En el caso Ivcher Bronstein vs. Perú (sentencia de 6 de febrero de 2001), la Corte IDH mencionó que, a su vez, la Corte Europea ha puesto énfasis en que el artículo 10.2 de la Convención Europea, referente a la libertad de expresión, deja un margen muy reducido a cualquier restricción del debate político o del debate sobre cuestiones de interés público y explicó que, según dicho Tribunal: “(…) 155. (…) los límites de críticas aceptables son más amplios con respecto al gobierno que en relación a un ciudadano privado o inclusive a un político. En un sistema democrático las acciones u omisiones del gobierno deben estar sujetas a exámenes rigurosos, no sólo por las autoridades legislativas y judiciales, sino también por la opinión pública (…)”.
Asimismo, en la sentencia Moya Chacón y otro vs. Costa Rica (sentencia de 23 de mayo de 2022), la Corte IDH confirmó lo anteriormente citado, de la siguiente manera:
“(…) b.1 Importancia de la libertad de expresión en una sociedad democrática (…)
63. (…) la Corte ha establecido que la libertad de expresión, particularmente en asuntos de interés público, “es una piedra angular en la existencia misma de una sociedad democrática”63. La Corte Interamericana, en su Opinión Consultiva OC-5/85, hizo referencia a la estrecha relación existente entre democracia y libertad de expresión, al establecer que este derecho es indispensable para la formación de la opinión pública, así como también es conditio sine qua non para que los partidos políticos, los sindicatos, las sociedades científicas y culturales, y en general, quienes deseen influir sobre la colectividad puedan desarrollarse plenamente, y para que, en suma, la comunidad esté suficientemente informada a la hora de ejercer sus opciones. Y es que el control democrático por parte de la sociedad a través de la opinión pública fomenta la transparencia de las actividades estatales y promueve la responsabilidad de los funcionarios sobre su gestión pública, razón por la cual debe existir un margen reducido a cualquier restricción del debate político o del debate sobre cuestiones de interés público.
64. El Tribunal recuerda que, en una sociedad democrática, los derechos y libertades inherentes a la persona, sus garantías y el Estado de Derecho constituyen una tríada, cada uno de cuyos componentes se define, completa y adquiere sentido en función de los otros. En ese sentido, el Tribunal advierte que los artículos 3 y 4 de la Carta Democrática Interamericana resaltan la importancia de la libertad de expresión en una sociedad democrática, al establecer que “[s]on elementos esenciales de la democracia representativa, entre otros, el respeto a los derechos humanos y las libertades fundamentales; el acceso al poder y su ejercicio con sujeción al Estado de Derecho; la celebración de elecciones periódicas, libres, justas y basadas en el sufragio universal y secreto como expresión de la soberanía del pueblo; el régimen plural de partidos y organizaciones políticas; y la separación e independencia de los poderes públicos”. Asimismo, indica que “[s]on componentes fundamentales del ejercicio de la democracia la transparencia de las actividades gubernamentales, la probidad, la responsabilidad de los gobiernos en la gestión pública, el respeto por los derechos sociales y la libertad de expresión y de prensa”.
65. Así, sin una efectiva garantía de la libertad de expresión se debilita el sistema democrático y sufren quebranto el pluralismo y la tolerancia; los mecanismos de control y denuncia ciudadana pueden volverse inoperantes y, en definitiva, se crea un campo fértil para que arraiguen sistemas autoritarios. En consecuencia, una sociedad que no está bien informada no es plenamente libre (…)”.
Por su parte, la Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos (Marco jurídico interamericano sobre el derecho a la libertad de expresión, diciembre 2009), señaló lo siguiente:
“(…) la CIDH y la Corte Interamericana han subrayado en su jurisprudencia que la importancia de la libertad de expresión dentro del catálogo de los derechos humanos se deriva también de su relación estructural con la democracia. Esta relación, que ha sido calificada por los órganos del sistema interamericano de derechos humanos como “estrecha”, “indisoluble”, “esencial” y “fundamental”, entre otras, explica gran parte de los desarrollos interpretativos que se han otorgado a la libertad de expresión por parte de la CIDH y la Corte Interamericana en sus distintas decisiones sobre el particular. Es tan importante el vínculo entre la libertad de expresión y la democracia que, según ha explicado la CIDH, el objetivo mismo del artículo 13 de la Convención Americana es el de fortalecer el funcionamiento de sistemas democráticos pluralistas y deliberativos mediante la protección y el fomento de la libre circulación de información, ideas y expresiones de toda índole (…) si el ejercicio del derecho a la libertad de expresión no solo tiende a la realización personal de quien se expresa, sino a la consolidación de sociedades verdaderamente democráticas, el Estado tiene la obligación de generar las condiciones para que el debate público no solo satisfaga las legítimas necesidades de todos como consumidores de determinada información (de entretenimiento, por ejemplo), sino como ciudadanos. Es decir, tienen que existir condiciones suficientes para que pueda producirse una deliberación pública, plural y abierta, sobre los asuntos que nos conciernen a todos en tanto ciudadanos de un determinado Estado (…)”. (El destacado no forma parte del original).
También, dicha Relatoría expuso lo siguiente:
“(…) en una sociedad democrática, la prensa tiene derecho a informar libremente y criticar al gobierno, y el pueblo tiene derecho a ser informado sobre distintas visiones de lo que ocurre en la comunidad (…)”.
En la misma línea de pensamiento, la Corte Europea de Derechos Humanos, en el caso Lingens vs. Austria (sentencia de 8 de julio de 1986), resaltó que "(…) la libertad de prensa proporciona a la opinión pública uno de los mejores medios para conocer y juzgar las ideas y actitudes de los dirigentes políticos. En términos más generales, la libertad de las controversias políticas pertenece al corazón mismo del concepto de sociedad democrática (…)”.
Asimismo, la Corte Constitucional Colombiana, ha hecho referencia al tema bajo estudio en varias oportunidades. Así, en la Sentencia No. T-256/13 30 de abril de 2013, sostuvo que: “(…) el derecho a la libertad de expresión, es un principio del ejercicio de la democracia pues es en el marco de un estado democrático donde la participación de la ciudadanía adquiere especial relevancia, y en desarrollo de ella, se garantiza la libertad de expresar las distintas opiniones y de manifestar los pensamientos minoritarios sin miedo a ser reprimido por poderes estatales (…)” y explicó que:
“(…) Por ello, los pronunciamientos de la Comisión Interamericana y la jurisprudencia de la Corte Interamericana de Derechos Humanos han resaltado que la libertad de expresión cumple una triple función en el sistema democrático: a) asegura el derecho individual de toda persona a pensar por cuenta propia y a compartir con otros el pensamiento y la opinión personal, b) tiene una relación estrecha, indisoluble, esencial, fundamental y estructural con la democracia, y en esa medida, el objetivo mismo del artículo 13 de la Convención Americana es el de fortalecer el funcionamiento de sistemas democráticos, pluralistas y deliberativos, mediante la protección y fomento de la libre circulación de ideas y opiniones, y c) finalmente, es una herramienta clave para el ejercicio de los demás derechos fundamentales, toda vez que “se trata de un mecanismo esencial para el ejercicio del derecho a la participación, a la libertad religiosa, a la educación, a la identidad étnica o cultural y, por supuesto, a la igualdad no sólo entendida como el derecho a la no discriminación, sino como el derecho al goce de ciertos derechos sociales básicos (…)”.
Igualmente, este órgano constitucional agregó que:
“(…) Esta Corporación desde muy temprano en su jurisprudencia reconoció el valor de este derecho en el marco de una democracia con las siguientes palabras: “Aunque la libertad de expresar y difundir el propio pensamiento y opiniones es un derecho de toda persona, no es sólo un derecho individual, sino también garantía de una institución política fundamental: "la opinión pública libre". Una opinión pública libre está indisolublemente ligada con el pluralismo político, que es un valor fundamental y un requisito de funcionamiento del estado democrático. Sin una comunicación pública libre quedarían vaciados de contenido real otros derechos que la Constitución consagra, reducidos a formas hueras las institucionales representativas y participativas y absolutamente falseado el principio de la legitimidad democrática (…)”. (El destacado no forma parte del original).
En la Sentencia No. T-543 de 2017 de 25 de agosto de 2017, la Corte Constitucional Colombiana señaló que la libertad de expresión cumple las siguientes funciones en una sociedad democrática: “(…) (i) permite buscar la verdad y desarrollar el conocimiento; (ii) hace posible el principio de autogobierno; (iii) promueve la autonomía personal; (iv) previene abusos de poder; y (v) es una “válvula de escape” que estimula la confrontación pacífica de las decisiones estatales o sociales que no se compartan (…)”. Por su parte, en la Sentencia No. C-135/21 de 13 de mayo de 2021, dicha Corte mencionó que algunos de los aportes del derecho fundamental a la libertad de expresión al funcionamiento democrático, son los siguientes: “(…) i) permite buscar la verdad y desarrollar el conocimiento; ii) crea un espacio de sano diálogo y protesta para la ciudadanía, que consolida sociedades pluralistas y deliberativas; iii) permite establecer mecanismos de control y rendición de cuentas ante los gobernantes; iv) promueve el autogobierno ciudadano; y v) contribuye a mejores elecciones populares (…)”.
También, en la Sentencia No. T-145/19 de 2 de abril de 2019, la Corte Colombiana sostuvo que la libertad de expresión “(…) es un pilar del Estado Social de Derecho y un principio fundamental de los regímenes democráticos, donde se respeta la dignidad humana y se valora la participación de la ciudadanía y de todos los sectores, lo que permite consolidar sociedades pluralistas y deliberativas (…)”. Asimismo, en esta última ocasión, dicho órgano señaló que “(…) El fundamento principal del amparo jurídico de la libertad de expresión encuentra sustento en la dignidad humana, en la autonomía de la persona y en su carácter instrumental para el ejercicio de múltiples derechos, y en las distintas funciones que cumple en los sistemas democráticos (…)”.
VII.- SOBRE LA PROHIBICIÓN DE IMPONER RESTRICCIONES POR VÍAS INDIRECTAS A LA LIBERTAD DE EXPRESIÓN (Y A LA LIBERTAD DE PRENSA). La libertad de expresión y, por ende, la libertad de prensa, no son considerados derechos irrestrictos y absolutos, sino que –tal y como se analizó supra–, se encuentran sujetos a ciertos límites o controles ulteriores. Al respecto, el ordinal 29 de nuestra Carta Política estatuye que las personas serán responsables de los abusos que cometan en el ejercicio del derecho a la libertad de expresión y, por su parte, el artículo 13.2 de la Convención Americana sobre Derechos Humanos dispone que el referido derecho está sujeto a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar el respeto a los derechos o la reputación de los demás o proteger la seguridad nacional, el orden público, la salud o la moral pública.
Sin embargo, igualmente, estas limitaciones, ha dicho este Tribunal Constitucional, gozan de carácter excepcional y no pueden restringir tales derechos más allá de lo estrictamente necesario, vaciándolos de contenido y convirtiéndose así en un mecanismo directo o indirecto de censura, el cual no tiene cabida en nuestro medio. Estas libertades, en consecuencia, no pueden ser objeto de restricciones ilegítimas directas (como sería, por ejemplo, la censura previa, el asesinato de periodistas en virtud del ejercicio de sus funciones, etc.) ni, tampoco, de restricciones de índole indirecto (también llamada soft censorship, censura sutil, velada). Estas últimas medidas –de índole indirecto–, se caracterizan por ser menos evidentes, pero que igualmente tienen como propósito reducir o coartar arbitrariamente la libertad de expresión. Se podrían considerar formas más sutiles en que las autoridades públicas o particulares buscan restringir final y efectivamente la libertad de expresión. Los autores García Ramírez y Gonza las definen muy acertadamente como aquellas “(…) acciones u omisiones que traen consigo la inhibición del sujeto, como consecuencia de la intimidación, la obstrucción de canales de expresión o la “siembra” de obstáculos que impiden o limitan severamente el ejercicio de aquella libertad (…)” (GARCÍA RAMÍREZ (Sergio) y GONZA (Alejandra). La libertad de expresión de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, primera edición, 2007, p. 42). Por su parte, la Relatoría para la Libertad de Expresión explica que “(…) Estas medidas (…) no han sido diseñadas estrictamente para restringir la libertad de expresión. En efecto, éstas per se no configuran una violación de este derecho. No obstante ello, sus efectos generan un impacto adverso en la libre circulación de ideas que con frecuencia es poco investigado y, por ende, más difícil de descubrir (…)” (Informe Anual de la Relatoría para la Libertad de Expresión, 2004).
Como ejemplos de este tipo de restricciones indirectas o censura velada se puede citar, entre otros muchos, el uso de diversos medios para intimidar y, de este modo, evitar una publicación, los controles de papel para periódicos o de frecuencias radioeléctricas, la restricción a la libertad de circulación, la concesión o supresión de publicidad estatal, las limitaciones de ingresos económicos a medios de comunicación, la imposición de altas e injustificadas cargas tributarias. Sobre este tipo de restricciones indirectas, los citados autores García Ramírez y Gonza explican que estas puede ocurrir cuando“(…) se vulnera un derecho diferente de la libertad de expresión misma, en forma que ésta resulta afectada –por ejemplo, en un caso, la privación de la nacionalidad del sujeto–, se practican investigaciones indebidas o excesivas, se prohíbe el acceso a determinados medios de los que regularmente se ha valido el titular del derecho, se restringe la libertad de circulación, se desconocen los efectos de un contrato o se impide a los titulares de ciertos bienes la disposición de éstos (…)” (GARCÍA RAMÍREZ (Sergio) y GONZA (Alejandra). La libertad de expresión en la jurisprudencia de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, primera edición, 2007, p. 42). Por su parte, el Magistrado Rueda Leal, en las razones adicionales consignadas en la Sentencia No. 15220-2016 de las 16:00 hrs. de 18 de octubre de 2016, hizo también referencia a algunas modalidades de este tipo de censura indirecta o velada, enumerando las siguientes: “(…) a) La negativa de acceso a las instituciones y a la información pública como represalia por una cobertura crítica, lo que obliga al medio a acudir a instancias jurisdiccionales. De esta forma, aunque finalmente se obligue a una entidad a entregar determinada información si se demuestra su carácter público, no menos cierto es que la Administración “gana” tiempo, logrando así una divulgación en un “timing” político más favorable. b) La asignación inequitativa de frecuencias de radio y televisión. c) La obstaculización del acceso a recursos elementales para la producción de un medio (como el papel o el servicio telefónico) vía fijación de requerimientos arbitrarios o imposiciones tributarias irrazonables. d) La amenaza de entablar procesos judiciales, condicionada a la divulgación o no de reportajes críticos (…)”.
En cuanto a estas restricciones de índole propiamente indirecto, el artículo 13.3 de la Convención Americana sobre Derechos Humanos, señala expresamente lo siguiente:
“3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”. (El destacado no forma parte del original).
La Declaración de Chapultepec (adoptada por la conferencia hemisférica sobre libertad de expresión celebrada en México, D.F. el 11 de marzo de 1994), estatuye que no debe existir ninguna ley o acto de poder que coarte la libertad de expresión o de prensa, cualquiera sea el medio de comunicación. Asimismo, en el elenco de principios menciona lo siguiente:
“4. El asesinato, el terrorismo, el secuestro, las presiones, la intimidación, la prisión injusta de los periodistas, la destrucción material de los medios de comunicación, la violencia de cualquier tipo y la impunidad de los agresores, coartan severamente la libertad de expresión y de prensa. Estos actos deben ser investigados con prontitud y sancionados con severidad”.
“5. La censura previa, las restricciones a la circulación de los medios o a la divulgación de sus mensajes, la imposición arbitraria de información, la creación de obstáculos al libre flujo informativo y las limitaciones al libre ejercicio y movilización de los periodistas, se oponen directamente a la libertad de prensa”.
“6. Los medios de comunicación y los periodistas no deben ser objeto de discriminaciones o favores en razón de lo que escriban o digan.” “7. Las políticas arancelarias y cambiarias, las licencias para la importación de papel o equipo periodístico, el otorgamiento de frecuencias de radio y televisión y la concesión o supresión de publicidad estatal, no deben aplicarse para premiar o castigar a medios o periodistas”.
“10. Ningún medio de comunicación o periodista debe ser sancionado por difundir la verdad o formular críticas o denuncias contra el poder público”. (El destacado no forma parte del original).
Igualmente, la Declaración de Principios sobre Libertad de Expresión (aprobada por la Comisión Interamericana de Derechos Humanos en octubre de 2000, en el 108 período ordinario), dispone, sobre este mismo tema, lo siguiente:
“5. La censura previa, interferencia o presión directa o indirecta sobre cualquier expresión, opinión o información difundida a través de cualquier medio de comunicación oral, escrito, artístico, visual o electrónico, debe estar prohibida por la ley. Las restricciones en la circulación libre de ideas y opiniones, como así también la imposición arbitraria de información y la creación de obstáculos al libre flujo informativo, violan el derecho a la libertad de expresión”.
“9. El asesinato, secuestro, intimidación, amenaza a los comunicadores sociales, así como la destrucción material de los medios de comunicación, viola los derechos fundamentales de las personas y coarta severamente la libertad de expresión. Es deber de los Estados prevenir e investigar estos hechos, sancionar a sus autores y asegurar a las víctimas una reparación adecuada”.
“13. La utilización del poder del Estado y los recursos de la hacienda pública; la concesión de prebendas arancelarias; la asignación arbitraria y discriminatoria de publicidad oficial y créditos oficiales; el otorgamiento de frecuencias de radio y televisión, entre otros, con el objetivo de presionar y castigar o premiar y privilegiar a los comunicadores sociales y a los medios de comunicación en función de sus líneas informativas, atenta contra la libertad de expresión y deben estar expresamente prohibidos por la ley. Los medios de comunicación social tienen derecho a realizar su labor en forma independiente. Presiones directas o indirectas dirigidas a silenciar la labor informativa de los comunicadores sociales son incompatibles con la libertad de expresión”. (El destacado no forma parte del original).
Como se puede observar con meridiana claridad, existen múltiples formas en que se puede manipular a los medios de forma indirecta. Incluso, la Convención Americana sobre Derechos Humanos es clara al indicar que los ejemplos citados en el ordinal 13.3 no son taxativos, al señalar que este tipo de restricciones indirectas se pueden configurar también “por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”.
Ahora, la Corte Interamericana de Derechos Humanos se ha pronunciando en distintas ocasiones respecto a la censura velada o restricciones propiamente indirectas, condenándolas contundentemente. Así, en la Sentencia Ivcher Bronstein vs. Perú (sentencia de 6 de febrero de 2001), la Corte IDH conoció un caso planteado por Baruch Ivcher Bronstein, ciudadano naturalizado del Perú y accionista mayoritario de la empresa que operaba entonces el canal 2 de la televisión de ese país. Ivcher Bronstein, en esa condición, ejercía control editorial sobre los programas, particularmente, uno llamado Contrapunto (mediante el cual se difundieron varios informes periodísticos sobre torturas, un supuesto asesinato y casos de corrupción cometidos por los Servicios de Inteligencia del Gobierno Peruano) y se demostró que, en virtud de lo anterior, este fue sometido a varios actos intimidatorios que concluyeron con la emisión de un decreto que revocó su ciudadanía peruana. En tal oportunidad, la Corte IDH dispuso que la resolución que dejó sin efecto legal la nacionalidad otorgada a Ivcher Bronstein constituyó precisamente un medio indirecto para restringir su liberad de expresión, así como la de los periodistas que laboraban en dicho programa. En tal ocasión, la Corte IDH vertió los siguientes argumentos de interés:
“(…) 158. De igual manera se ha demostrado que, como consecuencia de la línea editorial asumida por el Canal 2, el señor Ivcher fue objeto de acciones intimidatorias de diverso tipo. Por ejemplo, luego de la emisión de uno de los reportajes mencionados en el párrafo anterior, el Comando Conjunto de las Fuerzas Armadas emitió un comunicado oficial en el que denunciaba al señor Ivcher por llevar a cabo una campaña difamatoria tendiente a desprestigiar a las Fuerzas Armadas (supra párr. 76.k). Además, el mismo día en que el Ejército emitió dicho comunicado, el Poder Ejecutivo del Perú expidió un decreto supremo que reglamentó la Ley de Nacionalidad, estableciendo la posibilidad de cancelar ésta a los peruanos naturalizados (supra párr. 76.l).
159. Ha sido probado también que días después de que el Canal 2 anunciara la presentación de un reportaje sobre grabaciones ilegales de conversaciones telefónicas sostenidas por candidatos de la oposición, el Director General de la Policía Nacional informó que no se había localizado el expediente en el que se tramitó el título de nacionalidad del señor Ivcher, y que no se había acreditado que éste hubiera renunciado a su nacionalidad israelí, razón por la cual, mediante una “resolución directoral”, se dispuso dejar sin efecto el mencionado título de nacionalidad.
160. Como consecuencia de lo anterior, el 1 de agosto de 1997 el Juez Percy Escobar ordenó que se suspendiera el ejercicio de los derechos del señor Ivcher como accionista mayoritario y Presidente de la Compañía y se revocara su nombramiento como Director de la misma, se convocara judicialmente a una Junta General Extraordinaria de Accionistas para elegir un nuevo Directorio y se prohibiera la transferencia de las acciones de aquél. Además, otorgó la administración provisional de la Empresa a los accionistas minoritarios, hasta que se nombrase un nuevo Directorio, retirando así al señor Ivcher Bronstein del control del Canal 2.
161. La Corte ha constatado que, después de que los accionistas minoritarios de la Compañía asumieron la administración de ésta, se prohibió el ingreso al Canal 2 de periodistas que laboraban en el programa Contrapunto y se modificó la línea informativa de dicho programa (supra párr. 76.v).
162. En el contexto de los hechos señalados, esta Corte observa que la resolución que dejó sin efecto legal el título de nacionalidad del señor Ivcher constituyó un medio indirecto para restringir su libertad de expresión, así como la de los periodistas que laboraban e investigaban para el programa Contrapunto del Canal 2 de la televisión peruana.
163. Al separar al señor Ivcher del control del Canal 2, y excluir a los periodistas del programa Contrapunto, el Estado no sólo restringió el derecho de éstos a circular noticias, ideas y opiniones, sino que afectó también el derecho de todos los peruanos a recibir información, limitando así su libertad para ejercer opciones políticas y desarrollarse plenamente en una sociedad democrática.
164. Por todo lo expuesto, la Corte concluye que el Estado violó el derecho a la libertad de expresión consagrado en el artículo 13.1 y 13.3 de la Convención, en perjuicio de Baruch Ivcher Bronstein (…)”. (El destacado no forma parte del original).
Otro claro ejemplo de este tipo de restricciones indirectas se consigna en el caso Ricardo Canese vs. Paraguay (sentencia de 31 de agosto de 2004). El señor Ricardo Canese, quien era candidato presidencial durante la contienda electoral para las elecciones del Paraguay del año 1993, relacionó a Juan Carlos Wasmosy (también candidato), con acciones ilícitas presuntamente cometidas por este último cuando ejercía como presidente de un consorcio, las cuales, a su vez, fueron publicadas en dos diarios paraguayos. Esto originó que Canese (quien trabajaba en un medio de comunicación), fuera procesado penalmente por la comisión de los delitos de difamación e injuria, siendo condenado en primera instancia en 1994 y en segunda instancia en 1997; oportunidad en la cual, a su vez, se le impuso dos meses de prisión y una multa. Además, como consecuencia de este proceso, Canese fue sometido a una restricción permanente para salir del país (y, también, paralelamente, fue despedido del medio donde laboraba). Estas sentencias, posteriormente, fueron anuladas en diciembre de 2002 por la Sala Penal de la Corte Suprema de Justicia de Paraguay. La Corte IDH, hizo referencia a la importancia de garantizar la libertad de expresión durante una campaña electoral y, luego de analizar el caso bajo estudio, sostuvo que la sanción penal a la cual fue sometida Canese era considerada como un método indirecto de restricción a dicho derecho. Expresamente, en dicha ocasión, se indicó lo siguiente:
“(…) 3) La importancia de la libertad de pensamiento y de expresión en el marco de una campaña electoral.
88. La Corte considera importante resaltar que, en el marco de una campaña electoral, la libertad de pensamiento y de expresión en sus dos dimensiones constituye un bastión fundamental para el debate durante el proceso electoral, debido a que se transforma en una herramienta esencial para la formación de la opinión pública de los electores, fortalece la contienda política entre los distintos candidatos y partidos que participan en los comicios y se transforma en un auténtico instrumento de análisis de las plataformas políticas planteadas por los distintos candidatos, lo cual permite una mayor transparencia y fiscalización de las futuras autoridades y de su gestión. (…)
90. El Tribunal considera indispensable que se proteja y garantice el ejercicio de la libertad de expresión en el debate político que precede a las elecciones de las autoridades estatales que gobernarán un Estado. La formación de la voluntad colectiva mediante el ejercicio del sufragio individual se nutre de las diferentes opciones que presentan los partidos políticos a través de los candidatos que los representan. El debate democrático implica que se permita la circulación libre de ideas e información respecto de los candidatos y sus partidos políticos por parte de los medios de comunicación, de los propios candidatos y de cualquier persona que desee expresar su opinión o brindar información. Es preciso que todos puedan cuestionar e indagar sobre la capacidad e idoneidad de los candidatos, así como disentir y confrontar sus propuestas, ideas y opiniones de manera que los electores puedan formar su criterio para votar. En este sentido, el ejercicio de los derechos políticos y la libertad de pensamiento y de expresión se encuentran íntimamente ligados y se fortalecen entre sí. Al respecto, la Corte Europea ha establecido que:
Las elecciones libres y la libertad de expresión, particularmente la libertad de debate político, forman juntas el cimiento de cualquier sistema democrático (Cfr. Sentencia del caso Mathieu-Mohin y Clerfayt c. Belgica, de 2 de marzo de 1987, Serie A no. 113, p.22, párr. 47, y sentencia del caso Lingens c. Austria de 8 de julio 1986, Serie A no. 103, p. 26, párrs. 41-42). Los dos derechos están interrelacionados y se refuerzan el uno al otro: por ejemplo, como ha indicado la Corte en el pasado, la libertad de expresión es una de las “condiciones” necesarias para “asegurar la libre expresión de opinión del pueblo en la elección del cuerpo legislativo” (ver la sentencia mencionada más arriba del caso Mathieu-Mohin y Clerfayt, p. 24, párr. 54). Por esta razón[,] es particularmente importante que las opiniones y la información de toda clase puedan circular libremente en el período que antecede a las elecciones.
91. La Corte observa que, en sus declaraciones, la presunta víctima hizo referencia a que la empresa CONEMPA, cuyo presidente era el señor Juan Carlos Wasmosy, en ese entonces candidato presidencial, le “pasaba” “dividendos” al ex dictador Stroessner. Ha quedado demostrado, así como también es un hecho público, que dicho consorcio era una de las dos empresas encargadas de ejecutar las obras de construcción de la central hidroeléctrica de Itaipú, una de las mayores represas hidroeléctricas del mundo y la principal obra pública del Paraguay.
92. La Corte estima que no queda duda de que las declaraciones que hiciera el señor Canese en relación con la empresa CONEMPA atañen a asuntos de interés público, pues en el contexto de la época en que las rindió dicha empresa se encargaba de la construcción de la mencionada central hidroeléctrica. Conforme fluye del acervo probatorio del presente caso (supra párr. 69.4), el propio Congreso Nacional, a través de su Comisión Bicameral de Investigación de Ilícitos, se encargó de la investigación sobre corrupción en Itaipú, en la cual se involucraba al señor Juan Carlos Wasmosy y a la referida empresa.
93. La Corte observa que la Sala Penal de la Corte Suprema de Justicia del Paraguay, al emitir la decisión por la cual anuló las sentencias condenatorias dictadas en 1994 y 1997 (supra párr. 69.49), indicó que las declaraciones que el señor Canese rindió en el marco político de una campaña electoral a la Presidencia de la República, “necesariamente importan en una Sociedad Democrática, encaminada a una construcción participativa y pluralista del Poder, una cuestión de interés público”.
94. En el presente caso, al emitir las declaraciones por las que fue querellado y condenado, el señor Canese estaba ejercitando su derecho a la libertad de pensamiento y de expresión en el marco de una contienda electoral, en relación con una figura pública como es un candidato presidencial, sobre asuntos de interés público, al cuestionar la capacidad e idoneidad de un candidato para asumir la Presidencia de la República. Durante la campaña electoral, el señor Canese fue entrevistado sobre la candidatura del señor Wasmosy por periodistas de dos diarios nacionales, en su carácter de candidato presidencial. Al publicar las declaraciones del señor Canese, los diarios “ABC Color” y “Noticias” jugaron un papel esencial como vehículos para el ejercicio de la dimensión social de la libertad de pensamiento y de expresión, pues recogieron y transmitieron a los electores la opinión de uno de los candidatos presidenciales respecto de otro de ellos, lo cual contribuye a que el electorado cuente con mayor información y diferentes criterios previo a la toma de decisiones.
98. El Tribunal ha establecido que es lógico y apropiado que las expresiones concernientes a funcionarios públicos o a otras personas que ejercen funciones de una naturaleza pública deben gozar, en los términos del artículo 13.2 de la Convención, de un margen de apertura a un debate amplio respecto de asuntos de interés público, el cual es esencial para el funcionamiento de un sistema verdaderamente democrático. Este mismo criterio se aplica respecto de las opiniones o declaraciones de interés público que se viertan en relación con una persona que se postula como candidato a la Presidencia de la República, la cual se somete voluntariamente al escrutinio público, así como respecto de asuntos de interés público en los cuales la sociedad tiene un legítimo interés de mantenerse informada, de conocer lo que incide sobre el funcionamiento del Estado, afecta intereses o derechos generales, o le acarrea consecuencias importantes. Como ha quedado establecido, no hay duda de que las declaraciones que hiciera el señor Canese en relación con la empresa CONEMPA atañen a asuntos de interés público (supra párr. 92).
99. En este sentido, la Sala Penal de la Corte Suprema de Justicia del Paraguay, al emitir el 11 de diciembre de 2002 (supra párr. 69.49) la decisión por la cual anuló las sentencias condenatorias dictadas en 1994 y 1997 y absolvió a la presunta víctima de culpa y pena, se refirió al carácter y relevancia de las declaraciones de ésta, al señalar, inter alia, que [l]as afirmaciones del Ing. Canese, -en el marco político de una campaña electoral a la primera magistratura-, necesariamente importan en una Sociedad Democrática, encaminada a una construcción participativa y pluralista del Poder, una cuestión de interés público. Nada más importante y público que la discusión y posterior elección popular del Primer Magistrado de la República.
100. Las anteriores consideraciones no significan, de modo alguno, que el honor de los funcionarios públicos o de las personas públicas no deba ser jurídicamente protegido, sino que éste debe serlo de manera acorde con los principios del pluralismo democrático. Asimismo, la protección de la reputación de particulares que se encuentran inmiscuidos en actividades de interés público también se deberá realizar de conformidad con los principios del pluralismo democrático. (…)
103. Es así que tratándose de funcionarios públicos, de personas que ejercen funciones de una naturaleza pública y de políticos, se debe aplicar un umbral diferente de protección, el cual no se asienta en la calidad del sujeto, sino en el carácter de interés público que conllevan las actividades o actuaciones de una persona determinada. Aquellas personas que influyen en cuestiones de interés público se han expuesto voluntariamente a un escrutinio público más exigente y, consecuentemente, en ese ámbito se ven sometidos a un mayor riesgo de sufrir críticas, ya que sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público. En este sentido, en el marco del debate público, el margen de aceptación y tolerancia a las críticas por parte del propio Estado, de los funcionarios públicos, de los políticos e inclusive de los particulares que desarrollan actividades sometidas al escrutinio público debe ser mucho mayor que el de los particulares. En esta hipótesis se encuentran los directivos de la empresa CONEMPA, consorcio al cual le fue encargada la ejecución de gran parte de las obras de construcción de la central hidroeléctrica de Itaipú 104. Con base en las anteriores consideraciones, corresponde al Tribunal determinar si, en este caso, la aplicación de responsabilidades penales ulteriores respecto del supuesto ejercicio abusivo del derecho a la libertad de pensamiento y de expresión a través de declaraciones relativas a asuntos de interés público, puede considerarse que cumple con el requisito de necesariedad en una sociedad democrática. Al respecto, es preciso recordar que el Derecho Penal es el medio más restrictivo y severo para establecer responsabilidades respecto de una conducta ilícita.
105. El Tribunal estima que en el proceso seguido contra el señor Canese los órganos judiciales debieron tomar en consideración que aquel rindió sus declaraciones en el contexto de una campaña electoral a la Presidencia de la República y respecto de asuntos de interés público, circunstancia en la cual las opiniones y críticas se emiten de una manera más abierta, intensa y dinámica acorde con los principios del pluralismo democrático. En el presente caso, el juzgador debía ponderar el respeto a los derechos o a la reputación de los demás con el valor que tiene en una sociedad democrática el debate abierto sobre temas de interés o preocupación pública.
106. El proceso penal, la consecuente condena impuesta al señor Canese durante más de ocho años y la restricción para salir del país aplicada durante ocho años y casi cuatro meses, hechos que sustentan el presente caso, constituyeron una sanción innecesaria y excesiva por las declaraciones que emitió la presunta víctima en el marco de la campaña electoral, respecto de otro candidato a la Presidencia de la República y sobre asuntos de interés público; así como también limitaron el debate abierto sobre temas de interés o preocupación pública y restringieron el ejercicio de la libertad de pensamiento y de expresión del señor Canese de emitir sus opiniones durante el resto de la campaña electoral. De acuerdo con las circunstancias del presente caso, no existía un interés social imperativo que justificara la sanción penal, pues se limitó desproporcionadamente la libertad de pensamiento y de expresión de la presunta víctima sin tomar en consideración que sus declaraciones se referían a cuestiones de interés público. Lo anterior constituyó una restricción o limitación excesiva en una sociedad democrática al derecho a la libertad de pensamiento y de expresión del señor Ricardo Canese, incompatible con el artículo 13 de la Convención Americana.
107. Asimismo, el Tribunal considera que, en este caso, el proceso penal, la consecuente condena impuesta al señor Canese durante más de ocho años y las restricciones para salir del país durante ocho años y casi cuatro meses constituyeron medios indirectos de restricción a la libertad de pensamiento y de expresión del señor Canese. Al respecto, después de ser condenado penalmente, el señor Canese fue despedido del medio de comunicación en el cual trabajaba y durante un período no publicó sus artículos en ningún otro diario.
108. Por todo lo expuesto, la Corte considera que el Estado violó el derecho a la libertad de pensamiento y de expresión consagrado en el artículo 13 de la Convención Americana, en relación con el artículo 1.1 de dicho tratado, en perjuicio del señor Ricardo Canese, dado que las restricciones al ejercicio de este derecho impuestas a éste durante aproximadamente ocho años excedieron el marco contenido en dicho artículo (…)”. (El destacado no forma parte del original).
Igualmente, de sumo y gran interés resulta el caso Granier y otros (Radio Caracas Televisión) vs. Venezuela (sentencia de 22 de junio de 2015). En este asunto, la Corte IDH tuvo por probada la existencia de un ambiente conflictivo y de tensión en Venezuela, producto del golpe de Estado sufrido, el cual, a su vez, originó una polarización política (radicalización de las posturas de los sectores involucrados) y coadyuvó a que el gobierno acusara a los medios de comunicación privados, entre ellos a RCTV (Radio Caracas Televisión), de ser enemigos del gobierno, golpistas y fascistas. La Corte tuvo por demostrado también que el Estado de Venezuela buscó la forma de silenciar a dicho medio de comunicación (habida cuenta que expresaba ideas diferentes a las políticas de gobierno manteniendo una línea crítica a la Presidencia de Hugo Chávez), a través de la no renovación, en el año 2007, de la concesión de uso del espectro radioeléctrico (la cual poseía desde su fundación en el año 1953), lo cual, evidentemente, coartó a este, de forma indirecta o velada, la posibilidad de continuar funcionando y continuar difundiendo información disidente, en clara violación a la libertad de expresión. En esta sentencia, de forma relevante, la Corte IDH sostuvo que dicha decisión fue precedida por diversas declaraciones públicas emitidas, tanto por el Presidente de la República como por otros funcionarios, quienes generaron un ambiente de intimidación. Particularmente, se indicó que el entonces Presidente Chávez, realizó, entre otras, las siguientes manifestaciones:
“(…) 75. (…) a) la declaración del Presidente Chávez de 9 de junio de 2002 en su Programa “Aló Presidente”, en la que afirmó: “las televisoras y las radios, las emisoras, aún cuando sean privadas sólo hacen uso de una concesión, el Estado es el dueño [...], y el Estado le da permiso a un grupo de empresarios que así lo piden para que operen, para que lancen la imagen por esa tubería, pero el Estado se reserva el permiso. Es como si alguien quisiera utilizar una tubería de aguas para surtir agua a un pueblo que sea del Estado, y el Estado le da el permiso. [...] Suponte tú que […] le demos el permiso para que use la tubería de agua [y] comience a envenenar el agua. […] [Hay que] inmediatamente no sólo quitarle el permiso, meterlo preso. Está envenenando a la gente, eso pasa, igualito es el caso [y] la misma lógica, la misma explicación con un canal de televisión”; b) la declaración del Presidente Chávez de 12 de enero de 2003 en su programa “Aló Presidente”, en la que expresó: “Igual pasa con estos dueños de canales de televisión y los dueños de las emisoras de radio; ellos también tienen una concesión del Estado, pero no les pertenece la señal. La señal le pertenece al Estado. Eso quiero dejarlo bien claro, quiero dejarlo bien claro porque si los dueños de estas televisoras y emisoras de radio continúan en su empeño irracional por desestabilizar nuestro país, por tratar de darle pie a la subversión, porque es subversión, sin duda, […] es subversión en este caso fascista y es alentada por los medios de comunicación, por estos señores que he mencionado y otros más que no voy a mencionar. Así lo adelanto a Venezuela. He ordenado revisar todo el procedimiento jurídico a través de los cuales se les dio la concesión a estos señores. La estamos revisando y si ellos no recuperan la normalidad en la utilización de la concesión, si ellos siguen utilizando la concesión para tratar de quebrar el país, o derrocar el gobierno, pues yo estaría en la obligación de revocarles la concesión que se les ha dado para que operen los canales de televisión”; c) la declaración del Presidente Chávez de 9 de noviembre de 2003 en su programa “Aló Presidente”, a través de la cual manifestó: “no voy a permitir que ustedes lo hagan de nuevo, […] ustedes: Globovisión, Televén, Venevisión y RCTV mañana o pasado mañana [Ministro] Jesse Chacón, le di una orden, usted debe tener un equipo de analistas y de observadores 24 horas al día mirando todos los canales simultáneamente y debemos tener claro, yo lo tengo claro, cual es la raya de la cual ellos no deben pasarse, y ellos deben saber, es la raya de la ley pues. En el momento en que pasen la raya de la ley serán cerrados indefectiblemente para asegurarle la paz a Venezuela, para asegurarle a Venezuela la tranquilidad”, y d) el 9 de mayo de 2004, el Presidente Chávez declaró en su programa “Aló Presidente”: [a]quí los que violan el derecho a la información, el derecho a la libertad de expresión, son los dueños de los medios de comunicación privados, son algunas excepciones, pero sobretodo los grandes canales de televisión Venevisión, Globovisión, RCTV […] los dueños de estos medios de comunicación están comprometidos con el golpismo, el terrorismo y la desestabilización, y yo pudiera decir a estas alturas no me queda ninguna duda, que los dueños de esos medios de comunicación nosotros bien podemos declararlos enemigos del pueblo de Venezuela (…)
80. (…) a) la declaración del Presidente Chávez de 28 de diciembre de 2006, por ocasión de su saludo de fin de año a las Fuerzas Armadas, en la cual expresó: “Hay un señor por ahí de esos representantes de la oligarquía, que quería ser presidente de la oligarquía, y que luego esos Gobiernos adecos-copeyanos le dieron concesiones para tener un canal de televisión y él ahora anda diciendo que esa concesión es eterna, se le acaba en marzo la concesión de televisión, se le acaba en marzo, así que mejor que vaya preparando sus maletas y vaya viendo a ver qué va a hacer a partir de marzo, no habrá nueva concesión para ese canal golpista de televisión que se llamó Radio Caracas Televisión, se acaba la concesión, ya está redactada la medida, así que vayan preparándose, apagando los equipos pues, no se va tolerar aquí ningún medio de comunicación que esté al servicio del golpismo, contra el pueblo, contra la nación, contra la independencia nacional, contra la dignidad de la República, Venezuela se respeta, lo anuncio antes que llegue la fecha para, para que no sigan ellos con su cuentito de que no que son 20 años más, 20 años más yo te aviso chirulí, 20 años más si es bueno, se te acabo, se te acabo (…)
Asimismo, en esta oportunidad y, conforme los siguientes términos, la Corte explicó cómo, en este caso en particular, se dio una violación al artículo 13.3 de la Convención Americana sobre Derechos Humanos:
“(…) 148. Al respecto, la Corte ha señalado anteriormente que los medios de comunicación son verdaderos instrumentos de la libertad de expresión, que sirven para materializar este derecho y que juegan un papel esencial como vehículos para el ejercicio de la dimensión social de esta libertad en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. En efecto, este Tribunal coincide con la Comisión respecto a que los medios de comunicación son, generalmente, asociaciones de personas que se han reunido para ejercer de manera sostenida su libertad de expresión, por lo que es inusual en la actualidad que un medio de comunicación no esté a nombre de una persona jurídica, toda vez que la producción y distribución del bien informativo requieren de una estructura organizativa y financiera que responda a las exigencias de la demanda informativa. De manera semejante, así como los sindicatos constituyen instrumentos para el ejercicio del derecho de asociación de los trabajadores y los partidos políticos son vehículos para el ejercicio de los derechos políticos de los ciudadanos, los medios de comunicación son mecanismos que sirven al ejercicio del derecho a la libertad de expresión de quienes los utilizan como medio de difusión de sus ideas o informaciones. (…)
151. En consecuencia, la Corte Interamericana considera que las restricciones a la libertad de expresión frecuentemente se materializan a través de acciones estatales o de particulares que afectan, no solo a la persona jurídica que constituye un medio de comunicación, sino también a la pluralidad de personas naturales, tales como sus accionistas o los periodistas que allí trabajan, que realizan actos de comunicación a través de la misma y cuyos derechos también pueden verse vulnerados (…)
152. Al respecto, debe advertirse que hoy en día una parte importante del periodismo se ejerce a través de personas jurídicas y se reitera que es fundamental que los periodistas que laboran en estos medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos los que mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad. En especial, teniendo en cuenta que su actividad es la manifestación primaria de la libertad de expresión del pensamiento y se encuentra garantizada específicamente por la Convención Americana (…)
1.3. Restricciones indirectas – alcances del artículo 13.3 de la Convención 161. En el presente caso se ha argumentado que se estaría frente a una posible restricción indirecta al derecho a la libertad de expresión, razón por la cual la Corte resalta que el artículo 13.3 de la Convención hace referencia expresa a tal situación al señalar que “[n]o se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”. Este Tribunal considera que el alcance del artículo 13.3 de la Convención debe ser el resultado de una lectura conjunta con el artículo 13.1 de la Convención, en el sentido que una interpretación amplia de esta norma permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas.
162. Al respecto, la Corte señala que lo que busca este inciso es ejemplificar formas más sutiles de restricción al derecho a la libertad de expresión por parte de autoridades estatales o particulares. En efecto, este Tribunal ha tenido la oportunidad de declarar en casos anteriores la restricción indirecta producida, por ejemplo, mediante una decisión que dejó “sin efecto legal el título de nacionalidad” del accionista mayoritario de un canal de televisión o por “el proceso penal, la consecuente condena impuesta […] durante más de ocho años y las restricciones para salir del país durante ocho años” en contra de un candidato presidencial.
163 Por otra parte, la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. En este sentido, el artículo 13 de la Declaración de Principios sobre la Libertad de Expresión indica otros ejemplos de medios o vías indirectas (…)
Igualmente, el perito García Belaunde durante la audiencia pública hizo referencia a otras posibles formas de restricción indirecta relacionadas con: i) “la publicidad, [ya que] los Estados son importantes agentes de publicidad y […] dar mucha publicidad o quitarla puede ser importante y, dado el caso, puede haber una especie de asfixia para los medios que básicamente viven de la publicidad”, o ii) “la tributación [cuando se dan] casos [en] que [las] empresas […] han sido cargadas tributariamente” con el fin de generar molestias o enviar mensajes al medio de comunicación.
164. Asimismo, la Corte recuerda que para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, en forma indirecta, la comunicación y la circulación de ideas y opiniones. Además, la Corte reitera que el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también controles particulares que produzcan el mismo resultado. Al respecto, la Corte resalta que la restricción indirecta puede llegar a generar un efecto disuasivo, atemorizador e inhibidor sobre todos los que ejercen el derecho a la libertad de expresión, lo que, a su vez, impide el debate público sobre temas de interés de la sociedad. (…)
170. (…) Este Tribunal estima que, dado que el espacio radioeléctrico es un bien escaso, con un número determinado de frecuencias, esto limita el número de medios que pueden acceder a ellas, por lo que es necesario asegurar que en ese número de medios se halle representada una diversidad de visiones o posturas informativas o de opinión. La Corte resalta que el pluralismo de ideas en los medios no se puede medir a partir de la cantidad de medios de comunicación, sino de que las ideas y la información transmitidas sean efectivamente diversas y estén abordadas desde posturas divergentes sin que exista una única visión o postura. Lo anterior debe tenerse en cuenta en los procesos de otorgamiento, renovación de concesiones o licencias de radiodifusión. En este sentido, el Tribunal considera que los límites o restricciones que se deriven de la normatividad relacionada con la radiodifusión deben tener en cuenta la garantía del pluralismo de medios dada su importancia para el funcionamiento de una sociedad democrática (…)
3. Alegada restricción indirecta a la libertad de expresión establecida en el artículo 13.3 de la Convención Americana (…)
193. Ahora bien, para efectuar un análisis del recuento de declaraciones reseñado anteriormente es imperioso realizar una lectura conjunta de las declaraciones y señalamientos, por cuanto de manera aislada no podrían configurar autónomamente hechos constitutivos de una vulneración a la Convención Americana. Esto debido a que el hecho de que varios funcionarios hayan realizado declaraciones en el mismo sentido durante un mismo lapso, demuestra que no fueron declaraciones aisladas. Teniendo en cuenta lo anterior, la Corte procederá a efectuar una valoración de lo allí expuesto con el fin de determinar si existieron razones o motivos por los cuales se arribó a dicha decisión distintos a la finalidad declarada, por cuanto, como ya lo señaló, tener en cuenta el motivo o propósito es relevante para el análisis jurídico de un caso, en especial si se busca determinar si se configuró una actuación arbitraria o una desviación de poder (supra párr. 189). En primer lugar, la Corte resalta que desde el año 2002 se venía advirtiendo que a los canales de televisión que no modificaran su línea editorial no se les renovaría su concesión (supra párr. 75) y que este tipo de declaraciones se acrecentaron cuando se acercó la fecha del vencimiento de las concesiones (supra párrs. 76 a 78). A partir de 2006, en varias de dichas declaraciones que fueron anteriores a la Comunicación Nº 0424 y la Resolución Nº 002 se anunció que la decisión de no renovar la concesión a RCTV ya se encontraba tomada y no sería revaluada o modificada (supra párr. 79 a 86). Asimismo, vale la pena resaltar que no solamente fueron declaraciones de funcionarios estatales en diversos medios de comunicación, sino que además se hicieron publicaciones en diarios nacionales y hasta la divulgación de un libro con el fin de anunciar y justificar la decisión de no renovar la concesión de RCTV. Por lo anterior, el Tribunal puede concluir, en primer lugar, que la decisión fue tomada con bastante anterioridad a la finalización del término de la concesión y que la orden fue dada a CONATEL y al Ministerio para la Telecomunicación desde el ejecutivo.
194. Respecto a las verdaderas razones que habrían motivado la decisión, en las declaraciones y las publicaciones hechas por distintos miembros del gobierno venezolano estas son: i) la no modificación de la línea editorial por parte de RCTV después del golpe de estado de 2002 a pesar de las advertencias realizadas desde ese año, y ii) las alegadas actuaciones irregulares en las que habría incurrido RCTV y que le habrían acarreado sanciones. Sobre la primera razón esgrimida, la Corte considera imperioso manifestar que no es posible realizar una restricción al derecho a la libertad de expresión con base en la discrepancia política que pueda generar una determinada línea editorial a un gobierno. Como fue señalado anteriormente, el derecho a la libertad de expresión no sólo debe garantizarse en lo que respecta a la difusión de información o ideas que son recibidas favorablemente o consideradas como inofensivas o indiferentes, sino especialmente en lo que toca a las que resultan ingratas para el Estado o cualquier sector de la población (supra párr. 140). Con relación a las alegadas actuaciones irregulares en las que habría incurrido RCTV y que le habrían acarreado sanciones, el Tribunal resalta que resulta contradictorio que se hicieran señalamientos y acusaciones sobre las alegadas sanciones y que en la comunicación Nº 0424 se indicara expresamente que estas no eran la justificación de la decisión. En especial, la Corte resalta que a pesar de la gravedad de los hechos relacionados con el golpe de Estado no se probó ante este Tribunal que a nivel interno se hubieran adoptado procedimientos tendientes a sancionar dichas actuaciones irregulares, de forma que no es posible que se utilizara como argumento para fundamentar la decisión lo sucedido durante el golpe, cuando dichas actuaciones no fueron sancionadas en su momento.
195. En este punto, el Tribunal considera necesario reiterar el precedente establecido en otro caso relacionado con este mismo medio de comunicación, según el cual en una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento. Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado.
196. Asimismo, el Tribunal denota que de las declaraciones aportadas en el presente caso contencioso sólo una habría hecho mención a la finalidad declarada en la Comunicación Nº 0424 y la Resolución Nº 002, es decir, la protección a la pluralidad de medios, mientras que en su mayoría las restantes declaraciones coinciden en invocar las otras declaraciones. Lo anterior, le permite concluir a la Corte, en segundo lugar, que la finalidad declarada no era la real y que sólo se dio con el objetivo de dar una apariencia de legalidad a las decisiones.
4. Conclusión sobre el derecho a la libertad de expresión.
197. La Corte concluye entonces, como lo ha hecho en otros casos, que los hechos del presente caso implicaron una desviación de poder, ya que se hizo uso de una facultad permitida del Estado con el objetivo de alinear editorialmente al medio de comunicación con el gobierno. La anterior afirmación se deriva a partir de las dos conclusiones principales a las cuales puede arribar este Tribunal a partir de lo descrito anteriormente, a saber, que la decisión se encontraba tomada con anterioridad y que se fundaba en las molestias generadas por la línea editorial de RCTV, sumado al contexto sobre el “deterioro a la protección a la libertad de expresión” que fue probado en el presente caso (supra párr. 61).
198. Asimismo, este Tribunal considera necesario resaltar que la desviación de poder aquí declarada tuvo un impacto en el ejercicio de la libertad de expresión, no sólo en los trabajadores y directivos de RCTV, sino además en la dimensión social de dicho derecho (supra párr. 136), es decir, en la ciudadanía que se vio privada de tener acceso a la línea editorial que RCTV representaba. En efecto, la finalidad real buscaba acallar voces críticas al gobierno, las cuales se constituyen junto con el pluralismo, la tolerancia y el espíritu de apertura, en las demandas propias de un debate democrático que, justamente, el derecho a la libertad de expresión busca proteger.
199. Se encuentra probado, en consecuencia, que en el presente caso se configuró una restricción indirecta al ejercicio del derecho a la libertad de expresión producida por la utilización de medios encaminados a impedir la comunicación y circulación de la ideas y opiniones, al decidir el Estado que se reservaría la porción del espectro y, por tanto, impedir la participación en los procedimientos administrativos para la adjudicación de los títulos o la renovación de la concesión a un medio que expresaba voces críticas contra el gobierno, razón por la cual el Tribunal declara la vulneración del artículo 13.1 y 13.3 en relación con el artículo 1.1 de la Convención Americana en perjuicio Marcel Granier, Peter Bottome, Jaime Nestares, Inés Bacalao, Eladio Lárez, Eduardo Sapene, Daniela Bergami, Miguel Ángel Rodríguez, Soraya Castellano, María Arriaga y Larissa Patiño. (…)”. (El destacado no forma parte del original).
Este Tribunal Constitucional, por su parte, también ha tenido la oportunidad de condenar este tipo de actuaciones. En la Sentencia No. 1782-2015 de las 11:36 hrs. de 6 de febrero de 2015, esta jurisdicción constitucional conoció un recurso de amparo formulado por un productor de un programa radial de crítica, opinión y denuncia, donde, a su vez, se estaba denunciando e investigando aparentes actos de corrupción llevados a cabo por un diputado. El recurrente acusó en tal ocasión que el referido diputado envió cartas membretadas y selladas con su firma de la Asamblea Legislativa a las instituciones que pautaban publicidad y que hacían posible la existencia del referido programa, amenazándolas de demandarlas si no retiraban dicha publicidad de manera inmediata, habida cuenta que lo consideraba una campaña de desprestigio en su contra. Luego de analizarse el citado caso, esta Sala, en dicha oportunidad, sostuvo que las notas enviadas por dicho diputado a diversas instituciones públicas con el fin que se retirara la publicidad del programa de radio del recurrente (la cual además, se constituía en el principal soporte financiero que permitía la trasmisión de los programas radiales y, a su vez, el sustento económico de las personas que trabajan en dicho programa), constituía una censura indirecta o velada a la libertad de expresión. Lo anterior, conforme los siguientes términos:
“(…) Ahora bien, en la especie, el recurrido dirigió una misiva a varias instituciones públicas, usando papel con el membrete y el sello de la Asamblea Legislativa, en la cual manifestaba:
“(…) 4.- En mi caso particular, en claro derecho de tutelar mi integridad personal, profesional y moral, fundamentaré la querella contra el productor de ese especio radial y solidariamente contra sus patrocinadores, pues basta con que ustedes monitoreen puntualmente a las 8 pm la frecuencia 800 AM y escuchen, dentro de la misma parrilla de patrocinadores a la que esta institución pertenece como auspiciador del programa en cuestión, junto a la cuña que ustedes pagan con dinero público, otra cuña grabada con la voz del propio señor [Nombre 001] en la que le pregunta a los ciudadanos si le creen a un Diputado mentiroso, investigado por falsificador y estafador, aspirante a graduarse de abogado en forma irregular, denunciado por el TSE por querer sustraer millonarias sumas de dinero mediante el uso de documentos falsos y más señalamientos infundados, aprovechando el productor radial al amparo de sus patrocinadores, para presionar de forma temeraria al Señor Fiscal General a que actúe contra el suscrito, evitando así la impunidad, como si el Jefe del Ministerio Público estuviese encubriendo deliberadamente una serie de delitos cometidos por este servidor.
5.- Por la consideración que se merecen, respetuosamente les prevengo de este asunto y les insto a valorar como una responsable medida cautelar, la posibilidad de sacar del aire la publicidad institucional que pagan en este programa radial, mientras resolvemos en los tribunales la querella que estamos por incoar, con el propósito de no empañar judicialmente ni perjudicar la sana imagen que los costarricenses tienen de esta noble institución, la cual debe ser protegida y no debería verse inmiscuida en asuntos tan deplorables y ajenos al honroso quehacer de ustedes, con lo que mis abogados desestimarían de inmediato a petición del suscrito, la eventual demanda solidaria extensiva contra esta entidad pública. (…)” (Extracto de la nota dirigida a Correos de Costa Rica S.A., aportada por el recurrente; lo destacado no corresponde al original).
La excitativa enviada a las instituciones públicas con el fin de que ellas retiraran la publicidad del programa de radio del amparado, se enmarca dentro de los casos de censura indirecta a la libertad de expresión por varias razones.
Primeramente, la publicidad provee el principal soporte financiero que permite la transmisión de los programas radiales y, a la postre, el sustento económico de las personas que trabajan en dicho programa. Es evidente que si se limita el ingreso económico del programa, también se llega a perjudicarlo o –inclusive- eliminarlo, todo en detrimento tanto de la libertad de expresión como de la de información. La situación descrita resulta incluso más grave cuando se trata medios de comunicación pequeños, como periódicos locales o pequeñas estaciones de radio, cuya estabilidad financiera puede llegar a depender en gran medida de la publicidad estatal. En el caso Tristán Donoso, la Corte Interamericana se pronunció en cuanto a las amenazas económicas a la libertad de expresión:
“129. Finalmente, si bien la sanción penal de días-multa no aparece como excesiva, la condena penal impuesta como forma de responsabilidad ulterior establecida en el presente caso es innecesaria. Adicionalmente, los hechos bajo el examen del Tribunal evidencian que el temor a la sanción civil, ante la pretensión del ex Procurador de una reparación civil sumamente elevada, puede ser a todas luces tan o más intimidante e inhibidor para el ejercicio de la libertad de expresión que una sanción penal, en tanto tiene la potencialidad de comprometer la vida personal y familiar de quien denuncia a un funcionario público, con el resultado evidente y disvalioso de autocensura, tanto para el afectado como para otros potenciales críticos de la actuación de un servidor público”.
En segundo lugar, un diputado de la República no es un ciudadano cualquiera, sino que ostenta un poder político particular debido a su incidencia en la aprobación de proyectos de ley, respecto de los cuales existe cantidad de intereses tanto privados como públicos. Ergo, una recomendación o retiro de publicidad de un programa radial, emitido por un funcionario en una particular posición de poder político y teniendo como leitmotiv su disconformidad con las críticas contra él difundidas por determinado medio de comunicación, constituye una forma velada de intimidación que no solo afecta al programa radial directamente aludido, sino que además envía un mensaje intimidante al resto de medios fomentando un ambiente hostil a las libertades de expresión e información esenciales en un sistema democrático. En el sub iudice, tal amenaza incluso pasó a tener efectos concretos, en la medida que, según la prueba aportada por el accionante, la pauta publicitaria del ICAA, programada para el periodo del 15 de octubre al 15 de noviembre de 2014, fue suspendida mientras se respondía el oficio del recurrido. Si las demás entidades a las que el recurrido dirigió su oficio, hubieran actuado de igual manera, eso hubiera derivado en una grave afectación a la estabilidad financiera del citado programa radial, todo ello teniendo como génesis la inconformidad de un funcionario público con las críticas difundidas en el mismo.
Lo anterior no implica que sea de poca importancia la alegada violación al honor del recurrido y de quienes podrían ser eventualmente responsables por ello. Todo lo contrario, lo reclamado por el recurrido es tan relevante que el ordenamiento jurídico ha establecido vías procesales apropiadas y razonables tanto para defender el honor de la persona afectada (por ejemplo a través de un proceso penal), como para velar por la exactitud de la información divulgada (derecho de rectificación y respuesta).
Ahora bien, las notas aclaratorias enviadas por el accionado en octubre pasado a las instituciones públicas, no afectan el razonamiento de esta Sala. Por un lado, son actuaciones ocurridas con posterioridad a la notificación del curso de este proceso –las notas fueron entregadas a dichas instituciones los días 7 y 8 de octubre de 2014; mientras que la notificación acaeció el 6 de octubre de 2014-. Por el otro, la Sala observa que, si bien se aclaró mediante tales notas que la “…anterior carta enviada al respecto de este asunto, no buscaba imponerles necesariamente la obligación de tener que retirar su publicidad de ese programa…”, también se indicó un apercibimiento a las instituciones motivado nuevamente en las críticas hechas al recurrido:
“5.- No omito señalarles respetuosamente su deber de cuidado, entendido en ejercer un mayor control de los recursos que en materia de propaganda, publicidad o información ustedes disponen pautar en medios de comunicación, manteniendo al menos un monitoreo mínimo que les permita conocer como en el caso del CD que les aporto [el cual contiene una edición del programa “Rompiendo El Silencio”], la calidad de manifestaciones proferidas en los espacios en los que ustedes pautan.” (Extracto de la nota dirigida al Instituto Nacional de Aprendizaje, aportada por el recurrido).
Por último, debe acotarse que los funcionarios públicos sí pueden manifestarse en torno a temas de interés público. Sin embargo, ellos son garantes de los derechos fundamentales, de manera que las expresiones que pronuncien deben evitar tornarse en una forma de censura directa o indirecta. Nuevamente, se cita a la Corte Interamericana de Derechos Humanos:
“139. En una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento. Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado.” (Caso Ríos y otros) En conclusión, la Sala estima el recurrido tiene todo el derecho a defender su honor y reputación por medio de los mecanismos legales que prevé la Constitución y la ley, entre ellos, el derecho de rectificación y respuesta y la querella por los delitos de injurias calumnias y difamación regulada en el Código Penal. En ese sentido, el envío de una nota a los patrocinadores del programa indicando que consideren retirar su patrocinio por el contenido negativo del mismo contra su imagen, constituyó una censura indirecta –en los términos señalados en la jurisprudencia de la Corte Interamericana supra citada-, al programa radial “Rompiendo El Silencio”. En la valoración que se hace tiene un peso específico el hecho de que el recurrido ostenta una posición de poder político por su cargo de Diputado de la República, y que efectivamente su misiva causó un efecto negativo más allá de un simple reclamo, al haberse acreditado en autos que produjo efectos sobre uno de los patrocinadores, quien suspendió temporalmente la publicidad (ICAA). Consecuentemente, se declara con lugar dicho extremo (…)”. (El destacado no forma parte del original).
El año siguiente, sea, durante el 2016, la Sala Constitucional conoció otro recurso de amparo donde se hizo alusión a una forma distinta e indirecta de atentar contra la libertad de expresión, el cual, a su vez, fue resuelto mediante el Voto No. 15220-2016 de las 16:00 hrs. de 18 de octubre de 2016. En esta ocasión, el recurrente, en su condición de director de un período de circulación nacional, alegó que, en virtud de una serie de noticias publicadas respecto a varias actuaciones irregulares llevadas a cabo por una entidad bancaria, los directivos de esta última decidieron manipular, presionar y tratar de callar al medio de comunicación a través de la reducción paulatina de la pauta publicitaria en las páginas del diario. Una vez analizadas y estudiadas las argumentaciones vertidas por ambas partes, así como la prueba aportada, este órgano constitucional tuvo por acreditado que el citado medio de comunicación fue efectivamente objeto de una censura velada o indirecta por parte de un funcionario público “(…) como reacción a su línea editorial, con el único propósito de "motivar" un cambio, es decir, manipular al medio para acercarlo a sus propósitos, ya fuera conseguir una cita con uno de los dueños del medio, o un mayor espacio sobre la versión del Banco frente a los cuestionamientos hechos. Todo lo cual sin duda, resulta lesivo del artículo 13.1 de la Convención Americana sobre Derechos Humanos y 28 y 29 de la Constitución Política (…)”. Además, esta jurisdicción, en aquella ocasión, enfatizó en el hecho que la publicidad se consideraba el soporte financiero fundamental en el esquema de funcionamiento de los medios de comunicación, de manera tal que esta era la que permitía la publicación o difusión de su contenido y, por ende, también el sustento de las personas que trabajan en este. De modo expreso, esta Sala, en la mencionada sentencia, expuso lo siguiente:
“(…) VII.- Conviene profundizar en este tema de la censura previa, a fin de dar solución al caso examinado, siguiendo la línea ya establecida en la sentencia 2015-1782. Al respecto, el inciso tercero del artículo 13 de la Convención Americana señala con claridad:
“ 3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” En este sentido, la censura puede ser directa –por ejemplo, la prohibición directa de cierta publicación- o indirecta (también denominada soft censorship, censura sutil, velada) -por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación-. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería “…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” Valga mencionar el caso Ivcher Bronstein a manera de ejemplo, en el cual la Corte Interamericana estimó que una resolución para dejar sin efecto legal el título de nacionalidad del señor Ivcher Bronstein –entre otros hechos- constituía un medio indirecto de restringir su libertad de expresión. También, dentro del derecho comparado, resulta de interés el fallo "Editorial Río Negro contra Provincia de Neuquén" (5/09/07), en el que la Corte Suprema de Justicia de la Nación (Argentina) dispuso, a raíz de que el Poder Ejecutivo de la Provincia del Neuquén privó temporalmente de publicidad oficial a dicho medio sin demostrar la razonabilidad de tal medida, y además se pronunció en contra de la violación indirecta de la libertad de prensa por medios económicos: "La primera opción para un Estado es dar o no publicidad, y esa decisión permanece dentro del ámbito de la discrecionalidad estatal. Si decide darla, debe hacerlo cumpliendo dos criterios constitucionales: 1) no puede manipular la publicidad, dándola y retirándola a algunos medios en base a criterios discriminatorios; 2) no puede utilizar la publicidad como un modo indirecto de afectar la libertad de expresión. Por ello, tiene a su disposición muchos criterios distributivos, pero cualquiera sea el que utilice deben mantener siempre una pauta mínima general para evitar desnaturalizaciones." VIII.- Ahora bien, es de suma importancia para el caso concreto indicar que la publicidad provee un soporte financiero fundamental en el actual esquema de funcionamiento de los medios de comunicación colectiva, pues permite la publicación o difusión de su contenido y a la postre, el sustento económico de las personas que trabajan en dicho medio. Es evidente que si se limita el ingreso económico de un medio de comunicación (en este caso escrito), también se llega a perjudicarlo o –inclusive- eliminarlo, todo en detrimento tanto de la libertad de expresión como de la de información. (…)
Debe, sin embargo, hacerse una precisión para adaptar lo dicho a las particularidades de este caso. El Gerente del Banco recurrido expone que resultaría incorrecto que la Sala venga a señalar la manera en que debe conducirse un aspecto vital para el negocio comercial que opera el Banco, cual es la publicidad, y en este punto le asiste la razón. La Sala entiende que debe tomarse en cuenta la condición jurídica del Banco Nacional de Costa Rica, dentro del entramado administrativo estatal, pues se trata de una institución con autonomía constitucionalmente reconocida y a la cual se ha encargado de llevar a cabo una actividad incuestionablemente comercial y, además de ello, en régimen de competencia con entidades privadas. En esa dinámica, la publicidad comercial que puedan realizar las empresas estatales responde y debe responder claramente a decisiones y valoraciones técnicas y objetivas y sobre tales aspectos no cabe la injerencia de un órgano de protección de Derechos Fundamentales como esta Sala.- No es allí donde se origina el conflicto constitucional y de Derechos Humanos que aquí se analiza, como lo demuestra la posición general expresada en el informe del año 2012 de Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos titulado “Principios sobre la regulación de la publicidad oficial y libertad de expresión”. En dicho documento se deja bien establecida la necesidad de que las distintas instituciones estatales cuenten con planes técnica y objetivamente diseñados para sus finalidades de comunicación y ello se repite en expediente legislativo de la investigación, donde las Diputadas y Diputados y el propio recurrente dejan afirmado que la particular condición de las empresas públicas debe tenerse en cuenta y respetarse las decisiones técnicas y objetivas sobre publicidad. Al respecto, de manera precisa señala el propio recurrente que:
“el criterio para distribuir la pauta publicitaria debe ser criterios de mercado, deben ser planes de medios diseñados por profesionales en la materia y se debe invertir el dinero que haga falta para cumplir ese plan de medios, de manera que lo que la empresa estatal que compite en el mercado quiere comunicar, sea eficientemente comunicado.” (p. 18-36 del Expediente Legislativo 20066) El problema en este caso surge más bien cuando las empresas públicas se separan de ese cauce para gestionar su pauta publicitaria de acuerdo con finalidades ajenas a razones objetivas y técnicas, e incompatibles con marco constitucional de derechos fundamentales.- Es en ese punto donde la participación de esta Sala adquiere plena justificación y ello es lo que se busca confirmar o descartar a través de este recurso de amparo.
IX- El caso concreto.- El amparado manifiesta que el recurrido ha hecho uso de sus influencias y funciones como Gerente General del Banco Nacional de Costa Rica para intentar presionar al Diario La Nación a modificar publicaciones y reportajes efectuados; afirma que esa presión se concretó en la reducción paulatina de la pauta publicitaria y en su virtual reducción a cero en los últimos meses. De los hechos probados y del considerando sobre análisis de prueba, la Sala tiene por demostradas, tanto la realidad de la reducción de la pauta del Banco Nacional al Periódico la Nación, a partir de la publicación hecha a finales de febrero, y en particular durante los meses de junio y julio, como las razones que motivaron la misma.- En este último sentido, según se indicó supra, son suficientemente claras las declaraciones del propio funcionario recurrido, emitidas ante los diversos órganos que inquieron sobre su actuación.- En todas ellas el funcionario expresó la existencia de una disconformidad con la forma en que el medio de comunicación reportó durante los meses de febrero, marzo, abril y mayo de 2016, sobre temas referentes a la entidad bancaria accionada en relación con el caso de la empresa LATCO; actuaciones de la Junta Directiva del banco, así como la participación del BNCR, en el caso BICSA. Según narra el recurrente y confirma el Gerente recurrido, la insatisfacción alcanzó su cima con este último caso, al entenderse que el periódico estaba dejando de lado las respuestas del Banco y omitiendo información importante, todo lo cual podría redundar (como efecto ocurrió) en fuertes erogaciones económicas del Banco para mantener niveles mínimos de confianza en su situación. Es por dicho caso y sus supuestas graves consecuencias para el Banco, que el Gerente recurrido dispuso publicar, el 13 de mayo de 2016, un campo pagado en otros dos medios escritos nacionales, a fin de responder a las citadas publicaciones de La Nación y dar a conocer lo que en su criterio era la situación real en torno al caso BICSA. Con esto último la situación derivó para peor, sumando al conflicto, enconados editoriales del medio de comunicación y respuestas del Banco en el mismo tono. Es en este punto que el Gerente decidió “tener una conversación” con los personeros del medio de comunicación, a raíz de lo cual, dispuso, concomitantemente y mientras tanto, una pausa que denominó "impasse" en la pauta publicitaria al periódico la Nación; esa pausa concluye, (según sus propias palabras) luego de que es atendido por el Director del medio de comunicación. Estos hechos narrados se repiten con consistencia tanto en el escrito del recurrente como en todas las versiones que brindó el propio recurrido ante la Junta Directiva del Banco, ante la Comisión Legislativa que investigó el caso y ante la Sala en el informe rendido y sobre todo consta claramente en el audio aportado por el recurrente.- Dicho lo anterior, la valoración de tales hechos, frente al marco constitucional de la libertad de expresión y el derecho a la información, por parte de este Tribunal no puede ser positiva para el recurrido. Resulta constitucionalmente reprochable que el Gerente General de un Banco púbico, es decir, un funcionario público, haya emitido una orden de retiro de una pauta publicitaria a un determinado diario escrito, sin un fundamento objetivo y técnico válido, sino en razón de su disconformidad, con la forma en que se elaboraban las noticias y reportajes emitidos respecto de las actividades y situación de la entidad bancaria que representa. El Tribunal entiende que lo anterior constituye una censura indirecta, una forma clara de intentar influir en los contenidos informativos del medio de comunicación, y además envía un mensaje intimidante al resto de medios que fomenta un ambiente hostíl a las libertades de expresión e información esenciales en un sistema democrático. Lo anterior, en tanto proviene de un servidor público, resulta totalmente inadmisible frente al necesario respeto y apego a lo que una Diputada apropiadamente definió como “la lógica democrática” a cuya realización deben contribuir las instancias, incluyendo por supuesto las empresas públicas.- (p. 383 del Expendiente Legislativo 20.066) Ella impone la plasmación más amplia posible de la libertad de expresión y el derecho a la información, sin que esto signifique la renuncia a emplear los medios jurídicamente establecidos para combatir las noticias u opiniones que puedan afectar injustamente la labor de las instituciones.
X.- En efecto, si a juicio del recurrido, el medio de comunicación debía darle el debido derecho de respuesta en los momentos en que solicitó reunirse con los representantes de la empresa en razón de la relevancia de lo publicado, podía y puede presentar las acciones judiciales que considere pertinentes, con el fin de que se determine la eventual afectación de su honor, o de perjuicio a la entidad bancaria que representa y la posible responsabilidad de aquellos que hayan excedido los límites de la libertad de expresión. Además, tenía la opción recogida en el ordenamiento jurídico de acudir al proceso de rectificación o respuesta, en favor de las personas que se vean afectadas por informaciones inexactas o agraviantes emitidas en su perjuicio (artículos 14 de la Convención Americana y 66 y siguientes de la Ley de la Jurisdicción Constitucional). No obstante, el recurrido optó primero por la publicación de notas aclaratorias en campos pagados a otros medios de comunicación escrito y no lo hizo así con el Diario La Nación. Con ello dejó de lado el mecanismo formal de rectificación y respuesta ante el Diario La Nación, o algún otro medio de prensa del Grupo Nación, y lo hizo de manera absolutamente deliberada, según lo expresa ante la Comisión que “…(…) alguno de Ustedes, conversaba de que porqué no acudía a la vía judicial. ¿Voy a ir a poner un recurso a la Sala Cuarta para decirles que me den un derecho de respuesta? Estuviéramos en el proceso de admisión todavía.” (p. 383 Expediente Legislativo 20.066). Se trata de desafortunadas consideraciones, no solo porque no responden a la verdadera realidad del proceso de rectificación y respuesta, -el cual contrario a lo que afirma, tiene un proceso de admisión muy expedito-, sino porque con ellas se pretende además justificar la realización de vías de hecho o actos de presión por encima de las vías del derecho, para lograr una modificación en contenido de los reportajes del periódico.- Sobre este tema, cabe recalcar, tal y como se mencionó, que tales intentos de censura, directa o indirecta, no encuentran cabida en nuestro medio, ni en el estado constitucional de derecho.
XI.- Conclusión.-Así las cosas, esta Sala comprueba un acto de censura indirecta ejecutado por un servidor estatal, con el fin de limitar la libertad de información que debe disfrutar el medio de comunicación amparado, mediante una disminución de la pauta publicitaria, sin razones técnicas u objetivas y más bien con la clara intención de incidir en el contenido informativo del medio de prensa en relación con sus reportajes referentes al Banco Nacional de Costa Rica y sus subsidiarias.
En el caso se comprueba lo que claramente la doctrina ha denominado censura indirecta, una forma de acoso ilegítimo de un medio de comunicación de parte de un ente público, que no sólo lesiona la libertad de expresión según se dijo líneas atrás, sino el derecho de los ciudadanos de contar con mecanismos de información veraz en la democracia. Es una forma perversa y antidemocrática de utilizar el poder del Estado para dirigir la opinión, según un sistema de “premio o castigo“, a quienes ejercen la libertad de prensa y libre expresión garantizada constitucional y convencionalmente. Sobre este tema la Comisión de Derechos Humanos y la doctrina más autorizada han sido enfáticas en señalar que “no se puede restringir el derecho de expresión tampoco por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”.
Los mecanismos de censura directa o “indirecta” están claramente prohibidos por el artículo 13.3 de la Convención Americana fueron objeto de atención por parte de distintos órganos del sistema interamericano. Interpretando el artículo 13.3 citado, la Declaración de Principios sobre Libertad de Expresión aprobada por la Comisión Interamericana de Derechos Humanos (en adelante, “CIDH”), establece en su principio 5 que “[l]a censura previa, interferencia o presión directa o indirecta sobre cualquier expresión, opinión o información difundida a través de cualquier medio de comunicación oral, escrito, artístico, visual o electrónico, debe estar prohibida por la ley. Las restricciones en la circulación libre de ideas y opiniones, como así también la imposición arbitraria de información y la creación de obstáculos al libre flujo informativo, violan el derecho a la libertad de expresión”. Y en su principio 13 indica que “la utilización del poder del Estado y los recursos de la hacienda pública; la concesión de prebendas arancelarias; la asignación arbitraria y discriminatoria de publicidad oficial y créditos oficiales; el otorgamiento de frecuencias de radio y televisión, entre otros, con el objetivo de presionar y castigar, o premiar y privilegiar a los comunicadores sociales y a los medios de comunicación en función de sus líneas informativas, atentan contra la libertad de expresión y deben estar expresamente prohibidos por la ley”.
Por su parte la Corte Interamericana ha señalado que “todo acto del poder público que implique una restricción al derecho de buscar, recibir y difundir informaciones e ideas, en mayor medida o por medios distintos de los autorizados por la misma Convención, son ilegítimos.
Es reconocido ampliamente en la doctrina, que la censura indirecta normalmente se ocultan detrás de acciones aparentemente legítimas que, sin embargo, son adelantadas con el propósito de condicionar el ejercicio de la libertad de expresión de los individuos. Cuando eso sucede, se configura una violación del artículo 13.3 de la Convención. Como lo ha sostenido la Corte Interamericana de Derechos Humanos (en adelante, la “Corte Interamericana” o “Corte”), resulta violatorio de la libertad de expresión”. (Corte I.D.H. La Colegiación obligatoria de periodistas (Arts. 13 y 29 Convención Americana sobre Derechos Humanos). Opinión Consultiva OC-5/85 del 13 de noviembre de 1985, Serie A No. 5, párr. 55.)
Estos mecanismos de restricción fueron también objeto de análisis por parte de la Relatoría Especial para la Libertad de Expresión de la CIDH, que en su Informe Anual 2003 llamó la atención sobre estas “obstrucciones oscuras, impuestas silenciosamente [que] no dan lugar a investigaciones ni merecen una censura generalizada”. La cuestión también fue abordada por esta oficina en sus Informes de 2008 y 2009.
La jurisprudencia de la Corte Interamericana por su parte, ha condenado en distintas ocasiones la adopción de medidas estatales que constituyen medios indirectos de restricción de la libertad de expresión. Así, por ejemplo, ha condenado la exigencia de la colegiatura obligatoria de periodistas, el uso arbitrario de las facultades de regulación del Estado cuando éste ha sido utilizado para iniciar acciones intimidatorias contra las directivas de un medio de comunicación, o para revocar la nacionalidad del director de un medio como consecuencia de la línea editorial de los programas que transmite (Caso Ivcher Bronstein vs Perú).
Los relatores para la libertad de expresión de la ONU, la OEA y la OSCE también han abordado el tema de las restricciones indirectas a la libertad de expresión por parte de las autoridades. Por ejemplo, en su Declaración Conjunta de 2002 afirmaron que, “los gobiernos y los órganos públicos nunca deben abusar de su custodia de las finanzas públicas para tratar de influir en el contenido de la información de los medios de prensa; el anuncio de publicidad debe basarse en razones de mercado”.
El uso arbitrario de la publicidad oficial fue uno de los primeros mecanismos de censura indirecta abordados por el sistema interamericano. En efecto, la Relatoría Especial para la Libertad de Expresión en su Informe Anual 2003 dedicó un capítulo especial a estudiar el fenómeno y concluyó que “la obstrucción indirecta a través de la publicidad estatal actúa como un fuerte disuasivo de la libertad de expresión” (CIDH Informe Anual OEA/Ser. L/VI.118. Doc 70, diciembre 2003). Según indicó en ese momento la Relatoría Especial: “este tema merece especial atención en las Américas, donde la concentración de los medios de comunicación ha fomentado, históricamente, el abuso de poder por parte de los gobernantes en la La (sic) distribución arbitraria de publicidad oficial, como otros mecanismos de censura indirecta, opera sobre distintos tipos de necesidades que los medios de comunicación tienen para funcionar e intereses que pueden afectarlos. Es una forma de presión que actúa como premio o castigo que tiene por objeto condicionar la línea editorial de un medio según la voluntad de quien ejerce la presión. Según se dijo, los mecanismos de censura indirecta suelen esconderse detrás del aparente ejercicio legítimo de facultades estatales, muchas de las cuales se ejercen por los funcionarios en forma discrecional. En el caso de la distribución de la publicidad oficial, se configura un caso de censura indirecta cuando la misma es realizada con fines discriminatorios de acuerdo a la posición editorial del medio incluido o excluido en ese reparto y con el objeto de condicionar su posición editorial o línea informativa.
Para determinar cuando hubo o no violación a la libertad de expresión con motivo del ejercicio de esas facultades, es necesario analizar el contexto. Eso es precisamente lo que ha quedado demostrado en este amparo, que el retiro de la publicidad durante el primer semestre del año 2016, pero en particular de los meses posteriores a las publicaciones de finales de febrero, se dio en un contexto de confrontación con el medio, donde se logra comprobar que la estrategia no obedeció a criterios objetivos, sino que se dio, en palabras del propio gerente, con el fin de “motivar” al diario a cambiar su línea editorial y enfoque noticioso, en vez de utilizar los mecanismos legales, existentes como el derecho de rectificación y respuesta si se estimaba que se trataba de informaciones inexactas o agraviantes.
En los casos Baruch Ivcher Bronstein Vs. Perú. Sentencia de 6 de febrero de 2001. Serie C No. 74, párr. 154. En sentido similar, conf. Corte I.D.H, “Caso Perozo y otros Vs. Venezuela”. Sentencia de 28 de enero de 2009. Serie C No. 195, la Corte Interamericana, ha sostenido que “[al] evaluar una supuesta restricción o limitación a la libertad de expresión, el Tribunal no debe sujetarse únicamente al estudio del acto en cuestión, sino que debe igualmente examinar dicho acto a la luz de los hechos del caso en su totalidad, incluyendo las circunstancias y el contexto en los que éstos se presentaron”. Siguiendo el mismo razonamiento, sostuvo que “la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar 'cualesquiera otros medios' o vías indirectas derivados de nuevas tecnologías (…). Para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones”(OC-5/85 y caso Ríos y otros contra Venezuela). por su parte, la Relatoría para la libertad de expresión ha venido denunciando que este tipo de censuras indirectas se dan con frecuencia y ello se debe a la ausencia de normas legales que regulen la distribución de la pauta publicitaria y reduzcan la discrecionalidad de los funcionarios públicos. En el mismo sentido, fue señalada por la Corte Suprema de Justicia de Argentina en el caso Editorial Río Negro S.A. c. Provincia de Neuquén, en el cual el tribunal indicó que la Provincia de Neuquén había violado la libertad de expresión de un diario al eliminar la publicidad oficial que allí tenía contratada como consecuencia de una cobertura crítica. La Corte Suprema señaló que la Provincia de Neuquén debería establecer un marco legal adecuado que limite la discrecionalidad de los funcionarios públicos e impida ese tipo de arbitrariedades.
Asimismo, la Corte Suprema de Chile resolvió un reclamo presentado por la Revista Punto Final contra la distribución de publicidad oficial realizada por algunos ministerios. Allí, el tribunal consideró que el orden jurídico chileno otorga a los funcionarios “un amplio margen de discrecionalidad” y recomendó que la inversión de publicidad estatal se haga “bajo criterios transparentes y no discriminatorios”( caso 9148/09). También se han dado casos en países como Estados Unidos (El Día Vs. Rossello, la Corte Federal de Apelaciones del Primer Circuito), en el que se estableció que el retiro de publicidad oficial por parte de la administración del gobernador de Puerto Rico, Pedro Rossello al diario El Día, como consecuencia de críticas que el periódico había hecho al gobernador, constituía una clara violación del derecho a la libertad de expresión garantizado por la Primera Enmienda a la Constitución de los Estados Unidos. En ese sentido, la Corte de Apelaciones entendió que “usar fondos del gobierno para castigar el discurso político de miembros de la prensa y buscar coaccionar [a los medios de comunicación para que emitan] expresiones favorables al gobierno es contrario a la Primera Enmienda”. Además, la Corte entendió que “el derecho claramente establecido prohíbe al gobierno condicionar la revocación de beneficios [en este caso, la publicidad del Estado] sobre una base que infringe intereses constitucionalmente protegidos (Corte de Apelaciones del Primer Circuito, Puerto Rico, caso El Día vs. Rossello, decisión del 25 de enero de 1999, 165 F.3d 106, pág. 110).
Queda claro de lo expuesto y de los informes de la Relatoría de Libertad de Expresión que el Estado tiene derecho a establecer y modificar su pauta publicitaria, pero que debe hacerlo por medio de criterios objetivos y transparentes, establecidos en forma planificada que aseguren que no se utiliza el poder del Estado o sus fondos, para discriminar, manipular o censurar directa o indirectamente la libertad de expresión y de prensa garantizados convencional y constituiconalmente (sic). Por las razones expuestas, se declara con lugar el recurso en contra del Banco Nacional de Costa Rica, con los efectos que se dirán en la parte dispositiva (…)”. (El destacado no forma parte del original).
En la Sentencia No. 8396-2018 de las 12:40 hrs., de 25 de mayo de 2018, esta Sala expuso:
“(…) I.- Objeto del recurso. La parte recurrente relata que se realizó la entrevista denominada ‘1.a violencia doméstica contra el hombre" en el programa “Café Nacional1' de la empresa pública Radio Nacional de Costa Rica. Acusa que, en reacción a este programa, el Director de Radio Nacional publicó un artículo titulado “Amarga vergüenza", donde advirtió que censuraría de previo el tema de la agresión hacia los hombres e impediría que se volviere a hablar de eso en Radio Nacional. Asimismo, reclama que la entrevista fue borrada por completo del portal de Internet de SINART y de la página de Facebook, lo que vulnera el derecho a la libertad de expresión y pensamiento. Por último, alega que la autoridad recurrida ha realizado actos de represalia en contra del tutelado [Nombre 006], ya que lo separaron del programa “Café Nacional” y su plaza se trasladó al Departamento de Prensa, a pesar de que él pertenece al Departamento de Producción de Radio Nacional. (…)
V.- Sobre el caso concreto. En el sub examine, la parte accionante reclama que se ha visto afectada por la censura practicada por la empresa pública SINART, toda vez que los recurridos manifestaron que se impedirían programas radiales como el efectuado por ellos y, además, se borró dicho programa de la página de Internet y de Facebook. Como parte de la alegada censura, el tutelado Castro fue separado del programa “Café Nacional’' y trasladado al Departamento de Prensa.
Al respecto, la Sala pudo tener por probado que el 13 de setiembre de 2016 se recibió en el programa radiofónico “Café Nacional" de Radio Nacional a la presidenta de la Fundación Instituto de Apoyo al Hombre y al director administrativo de la Fundación Instituto de Apoyo al Hombre. El programa, producido por los tutelados [Nombre 005] y [Nombre 006], fue transmitido en la frecuencia de radio 101.5 FM y por medio de la página oficial de Radio Nacional en la red social Facebook. Asimismo, se corroboró que el Director de Radio Nacional publicó el documento titulado "Amarga vergüenza" en su página personal de Facebook el 14 de setiembre de 2016. En él expresó:
“Ayer martes 13 de setiembre en Radio Nacional de Costa Rica se trató de manera muy lamentable el tema de la violencia intrafamiliar, enfocándolo en la violencia que sufren los hombres en sus hogares. La editorializacion (sic) del espacio no dejó lugar a dudas sobre la posición personal de las personas invitadas y de quienes condujeron (sic) el espacio. En el mismo se justificó de manera increíble (sic) los femicidios, se puso a un mismo nivel la violencia que sufren las mujeres a la que sufren los hombres. se pidió el cierre del lNAMU y se habló de hacer este tipo de programas una vez cada 15 días. cosa que por supuesto no va a suceder. Yo. como Director de Radio Nacional de Costa Rica, no fui consultado para que este tema fuera tratado, quienes me conocen saben que jamás hubiera permitido que esta entrevista saliera al aire. Pero eso no me exime de responsabilidad. Durante mi gestión me he dado cuenta que hay una gran falta de formación a lo interno de la institución en relación con los Derechos Humanos y su tratamiento en medios de comunicación, y lastimosamente los talleres que desde ayer estamos planeando con instituciones como el INAMU', la Defensorio de los Habitantes, el Frente por los Derechos Igualitarios y la asociación ACCEDER, se darán como reacción al daño causado a la sociedad, con la salida al aire de esa entrevista. Es mi culpa no haber actuado con anticipación, no haber dejado clara la visión sobre Derechos Humanos que tenemos en la actual gestión del SINART. y no me queda más que dar mi más sincera disculpa y prometerles, sobretodo (sic) a las mujeres que sistemáticamente sufren violencia por el hecho de ser mujeres, que una situación como esta no volverá a pasar. En los medios de servicio público tenemos una gran responsabilidad. Cada vez que uno de nosotros, trabajadores y trabajadoras de la radio y la tv pública, abrimos micrófonos o nos paramos frente a una cámara, no respondemos a una opinión personal basada en nuestras creencias, principios y valores, sino que habíamos desde una institucionalidad que se rige por principios superiores, políticas públicas y tratados internacionales. No se trata si estoy de acuerdo o no, no se trata de qué pienso yo. Tenemos LA RESPONSABILIDAD, así con mayúsculas, de informarnos y formamos sobre los temas pilares de la construcción social de nuestra actualidad y que ni por acción ni omisión, discursos anti derechos humanos o fomentadores del odio tengan espacio en los medios públicos. Estamos gestionando lo pertinente para que el próximo lunes a las 9 de la mañana especialistas en derechos igualitarios y violencia de género nos acompañen en la emisora y puedan explicarle a nuestra audiencia por qué todo lo que se dijo el pasado martes está equivocado en el enfoque y podamos construir más bien espacios permanentes de promoción de derechos humanos."(E\subrayado es agregado).
Ese mismo día y en la página de Facebook de Radio Nacional, el SINART publicó su postura oficial respecto de lo acontecido:
"En relación con la entrevista realizada ayer martes 13 de septiembre en el programa Café Nacional. referida a diferentes formas de violencia intrafamiliar, la Dirección de Radio Nacional y Dirección General del SINART aclaran: Las expresiones de las personas invitadas y conductoras de dicho espacio que justificaron erróneamente la situación de violencia que sufren miles de mujeres en nuestro país y cuestionaron la pertinencia del Instituto Nacional de las Mujeres. INAMU. no responden de ninguna manera a la posición de estas Direcciones. Reconocemos que el tema de la violencia intrafamiliar debe abordarse desde diversos enfoques, pero nunca desconociendo que la raíz de ese problema se encuentra justamente en una estructura patriarcal machista. y que son por mucho las mujeres y las niñas las principales víctimas de las conductas violentas, sin que esto signifique que desconozcamos que algunos hombres también sufren de violencia y que existen vados en el sistema o mala gestión que les afecte. El SINART reconoce la necesidad de existencia del Instituto Nacional de las Mujeres y respaldamos su pertinencia en la construcción de una sociedad igualitaria y justa, y en la búsqueda de erradicación de todas las formas de discriminación y violencia que sufren las mujeres. Ofrecemos nuestra más sincera disculpa a las audiencias de Radio Nacional, a las personas que con justa razón han reclamado por el enfoque de la entrevista, y nos comprometemos a rectificar aportando en el tratamiento adecuado del tema con información oportuna y veraz desde los micrófonos v pantallas del SINART en su misión de servicio público. Estamos gestionando lo pertinente para que el próximo lunes en el mismo espacio, especialistas en derechos igualitarios y violencia de género nos acompañen en la emisora para referirse al tema desde un enfoque de Derechos Humanos. Como Estado, y más aún como medio de servicio público, tenemos la obligación de hacer cumplir las Convenciones Internacionales en contra de toda forma de discriminación y violencia contra las mujeres, que nuestro país ha suscrito y se ha comprometido a cumplir, como la Convención de Belem do Rara y la CEDA W." (El subrayado es agregado).
Atinente al sub lite, la Sala tuvo por probado que la entrevista a los tutelados fue eliminada de la línea de tiempo del Facebook de la emisora y también del portal web del SINART.
Es claro que la censura a la libertad de expresión se puede dar de manera abierta, particularmente si se trata de una dictadura o una democracia debilitada. Sin embargo, máxime cuando se actúa en el marco de un régimen democrático, es frecuente que la censura se manifieste más bien de forma sutil y velada, verbigracia, afectando los insumos o recursos que permiten su ejercicio, por medio de la emisión de lineamientos restrictivos, efectuando presiones indirectas, etc. Esta característica de la censura velada -que es muy peligrosa, precisamente, por ser subrepticia o disimulada- obliga a los Tribunales a recurrir a la denominada prueba indiciaría a fin de determinar el acto de censura.
En aplicación de lo anterior al sub lite, la Sala advierte suficientes elementos para concluir que las declaraciones de los amparados fueron censurados y, con ello, se lesionaron sus derechos fundamentales. Tal conclusión se desprende de las manifestaciones expresas del Director de Radio Nacional al señalar, que la repetición de entrevistas como la de los tutelados por supuesto no va a suceder", y que él jamás hubiera permitido que esta entrevista saliera al aire... ", pero “...una situación como esta no volverá a pasar...”. La Sala observa que la parte recurrida advierte con absoluta claridad la censura que existirá ante futuras entrevistas como la cuestionada y el arrepentimiento por no haber censurado la efectuada. Para este Tribunal, no existe duda de que las expresiones transcritas constituyen una censura, especialmente por provenir del director del medio que sirvió para la transmisión de la entrevista de marras.
Más sutil es decir que se debe dejar “... clara la visión sobre Derechos Humanos que tenemos en la actual gestión del SINART... “y que “...todo lo que se dijo el pasado martes está equivocado en el enfoque... Igualmente subrepticio fue el comunicado oficial de SINART: “Ofrecemos nuestra más sincera disculpa a las audiencias de Radio Nacional, a las personas que con justa razón han reclamado por el enfoque de la entrevista. y nos comprometemos a rectificar aportando en el tratamiento adecuado del tema con información oportuna y veraz desde los micrófonos y pantallas del SINART en su misión de servicio público." En estas citas se observa que el SINART pretende imponer su “visión” de Derechos Humanos o “rectificar” la actuación de los tutelados “ con información oportuna y veraz asumiendo que las opiniones de los amparados son lo opuesto: inoportunas y falsas.
Finalmente, quedó acreditado que la grabación de la entrevista fue eliminada de la línea de tiempo del Facebook de la emisora y del portal web del SINART. La Sala considera que, con este hecho, la amenaza de censura se concretó en una censura plena, toda vez que se impidió tanto la libertad de expresión de los amparados como el derecho de terceros de informarse y tener acceso a la entrevista.
Es necesario reiterar que los límites a la libertad de expresión deben estar claramente establecidos en la ley, según establece la Convención Americana sobre Derechos Humanos:
“Articulo 13. Libertad de Pensamiento y de Expresión l. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
2. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar:
a. el respeto a los derechos o a la reputación de los demás, o b. la protección de la seguridad nacional, el orden público o la salud o la moral públicas.
3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.
4. Los espectáculos públicos pueden ser sometidos por la ley a censura previa con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2.
5. Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional (El subrayado es agregado).
Según se mencionó en las aclaraciones previas, el contenido del mensaje puede tener un vínculo con las limitaciones a la libertad de expresión. Así, este será de relevancia únicamente cuando esté prohibido por ley y constituya "...propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional." Empero, esta situación no se presenta en el sub examine. Además, si los accionados consideran que el accionar de los tutelados se enmarca en uno de estos supuestos o de aquellos contemplados en el inciso 2 de esa norma, lo procedente seria acudir a las instancias jurisdiccionales a Un de reclamar la responsabilidad ulterior de los sujetos (por aplicación de una ley, como establece la Convención), y no pretender remediar la situación por la vía de la censura previa.
Por otro lado, la Sala recuerda que la labor del SINART, en su condición de empresa pública creada por ley, tiene el deber legal de respetar el pluralismo político, religioso, social y cultural así como de permitir la libre expresión de las opiniones, como de modo explícito se encuentra estatuido en los incisos b) y c) del numeral 4 de la Ley Orgánica del SINART:
“Artículo 4°-Principios. La actividad del SINART, S. A., como sistema de comunicación, se inspirará en los siguientes principios: (...)
b. La separación entre las informaciones y las opiniones, así como la identificación de quienes sustentan estas últimas y su libre expresión.
c. El respeto al pluralismo político, religioso, social y cultural." Por eso, salvo que se trate de una excepción legal o convencional expresa, el SINART debe respetar la discusión de todas las opiniones, incluidas aquellas que la dirección del medio que esté de tuno, considere impopulares, minoritarias, cuestionables, etc. Aparte del tema tratado en la entrevista objeto de este amparo, obsérvese que existen innumerables materias que generan opiniones y respuestas contrastantes, apasionadas y terreas, unas con indignación o repudio, otras más bien con apoyo y admiración, como por ejemplo respecto del uso de drogas para efectos medicinales, el aborto, los derechos de la comunidad LGTB, la secularización del Estado, la política salarial del sector público, los sistema de pensiones, el establecimiento de planes fiscales, etc. Reiterando la jurisprudencia transcrita, “..La libertad de expresión no depende de la verdad popularidad o utilidad social de las ideas y creencias manifestadas, y reconoce que un cierto grado de abuso es inseparable del uso adecuado de esa libertad, a partir de la cual el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos.
En abono a lo anterior, se aclara que la entrevista de los tutelados tampoco puede ser censurada por el abordaje periodístico o la conducción desarrollada, toda vez que ninguno de esos puntos constituye motivo legal para limitar la libertad de expresión.
La Sala no duda en reiterar que la responsabilidad por el ejercicio de la libertad de expresión es ulterior y debe estar prevista en una ley. De esta manera, si alguna persona se considerare afectada por las manifestaciones vertidas en la entrevista objeto de este recurso, ya sea por los moderadores o por los entrevistados, podría hacer valer sus derechos ante los tribunales ordinarios de justicia. Empero, es absolutamente improcedente que la Administración se aleje del principio de legalidad y pretenda limitar el ejercicio de la libertad de expresión pro la vía de la censura, como acaeció en el sub examine.
VI.- Un segundo punto relacionado con la censura es el traslado del tutelado Castro al equipo de Contrapunto. En el expediente quedó acreditado que él fue trasladado a dicha instancia, tal como le fue comunicado mediante oficio PE-DG- 052-2017 del 24 de febrero de 2017 y que existe una notoria proximidad temporal con los demás hechos narrados en el punto anterior. Además, se puso en evidencia la abierta disputa entre la Administración y el tutelado Castro, quien comunicó su disconformidad con las actuaciones de los recurridos mediante un correo del 20 de setiembre de 2016, donde manifestó:
Saludos Pablo. Permítame discrepar con respecto a lo que dice ya que yo en lo particular considero que: CENSURA: es que nuestro director Randall Vega afirmeen su Facebook: "quienes me conocen saben que jamás hubiera permitido que esta entrevista saliera al aire" (...) CENSURA: es que el Director de Radio Nacional nos hubiera "sugerido'' que espaciáramos las invitaciones a la abogada Alexandra Loria por su pensamiento con respecto a temas como el abono y las uniones de la población sexualmente diversa aunque dichos tópicos no eran abordados por ella en nuestro programa." Así, existen suficientes indicios sobre la censura existente y el distanciamiento entre la Administración y el tutelado. Al respecto, si bien la parte accionada afirmó que se trataba de una reorganización completa del recurso", lo cierto es que omitió adjuntar elementos probatorios que permitieran a la Sala llegar a la misma conclusión. La prueba que allegó se refería a las funciones reasignadas (que se encontraban dentro del perfil de un periodista) y a la constancia del salario del amparado.
La Sala reitera que, en materia de control de constitucionalidad, una vez que ab initio se establecen indicios claros de censura, recae en la contraparte una carga probatoria que debe llevar a concluir que las acciones no eran de tal naturaleza, máxime cuando la recurrida se encuentra en mejores posibilidades de aportar prueba a la causa (carga dinámica de la prueba), toda vez que la Administración dispone de caudales de información y recursos públicos para descartar alguna discriminación o violación a un derecho fundamental; pese a lo cual, en el sub examine, la recurrida no logra desacreditar con prueba fehaciente el agravio de los recurrentes. De esta manera, tomando en consideración lo dispuesto en los ya citados incisos b) y c) del numeral 4 de la Ley Orgánica del SINART, que de forma expresa obligan a esa empresa pública a respetar el pluralismo político, religioso, social y cultural así como a permitir la libre expresión de las opiniones , resulta claro que en la especie se ha dado una forma de censura velada a través de la reubicación de un periodista en un puesto que viene a limitar o eliminar su influencia en el contenido transmitido, todo ello luego o con motivo de las referidas manifestaciones en el ejercicio de su quehacer periodístico.
Lo anterior resulta aún más relevante, puesto que por la vía de la censura velada se ejerce una especie de intimidación o amedrentamiento subrepticio al resto del personal periodístico de la empresa pública SINART. De este modo, la libertad de prensa de aquel se ve amenazada ante la posibilidad de ser víctima de represalias derivadas del ejercicio del periodismo en libertad, cuando se formulen opiniones que no comparta la dirección del medio según el gobierno de tumo; ambiente que propicia el flagelo de la autocensura en detrimento de los periodistas, merced a que su estabilidad laboral podría compelerles a evitar represalias. Ello viene a afectar igualmente al destinatario final de los servicios de periodismo, el público, quien por esa vía ve menguada su capacidad de formarse criterio propio de manera fundada a través del estar a la escucha de una diversidad de contenidos informativo y puntos de vista.
VIL- En virtud de lo expuesto, se declara con lugar el recurso, con los efectos que se dirán. Visto que los actos lesivos son imputables solo al SINART, la condenatoria abarca únicamente a dicha instancia. (…)
Por tanto:
Se declara con lugar el recurso únicamente contra el SINART. Se ordena a Mario Alberto Al taro Rodríguez, en su condición de Presidente Ejecutivo del Sistema Nacional de Radio y Televisión S.A., o a quien en su lugar ocupe ese cargo, abstenerse de incurrir nuevamente en los hechos que dieron fundamento a la estimatoria de este recurso de amparo. Además, a dicho recurrido se le ordena que dentro del plazo de VEINTICUATRO HORAS, contado a partir de la notificación de esta sentencia, coloque la entrevista del 13 de setiembre de 2016 del programa "Café Nacional" de Radio Nacional de Costa Rica, objeto de este recurso, así como la entrevista del 19 de setiembre de 2016 (la hecha al INAMU y a ACCEDER), en la página de Facebook del SINART, donde quedará fijada en el muro durante al menos un mes, y en la página principal del sitio de Internet del mismo, donde deberá estar visible en la portada o "landing page" por el mismo plazo. Por otro lado, se le ordena reinstalar de inmediato al tutelado Castro en el puesto que ocupaba al momento de los hechos, en caso de que dicho tutelado manifestare su voluntad en tal sentido; para lo anterior, se le ordena al recurrido comunicar de inmediato al amparado Castro lo resuelto por la Sala. Los Magistrados Cruz Castro y Castillo Víquez dan razones diferentes. El Magistrado Cruz Castro pone nota. Lo anterior se dicta con el apercibimiento de que podría incurrir en el delito tipificado en el artículo 71 de la Ley de la Jurisdicción Constitucional, el cual dispone que se impondrá prisión de tres meses a dos años, o de veinte a sesenta días multa, a quien recibiere una orden que deba cumplir o hacer cumplir, dictada en un recurso de amparo y no la cumpliere o no la hiciere cumplir, siempre que el delito no esté más gravemente penado. Se condena al Sistema Nacional de Radio y Televisión S.A. al pago de las costas, daños y perjuicios causados con los hechos que sirven de base a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. Notifíquese de forma personal a Mario Alberto Al faro Rodríguez, en su condición de Presidente Ejecutivo del Sistema Nacional de Radio y Televisión S.A., o a quien en su lugar ocupe ese cargo. El Magistrado Hernández Gutiérrez salva el voto y declara parcialmente con lugar el recurso. (…). (El destacado no forma parte del original).
Por su parte, en el Voto No. 10961-2020 de las 10:05 hrs. de 16 de junio de 2020, este Tribunal señaló lo siguiente:
“(…) I.- Objeto del recurso.- La parte recurrente acude en tutela el derecho a la libertad de prensa, pues considera que la entidad recurrida dictó una resolución que restringe de manera ilícita la libertad de información y de prensa, del medio periodístico amparado, al ordenarle retirar de sus bases de datos, la imagen utilizada en una noticia de interés público. (…)
V.- Estima la Sala que cuando se produce una colisión entre estos derechos como en el presente caso (imagen y libertad de prensa), partiendo del carácter institucional del derecho a la información, y siempre que la utilización de la imagen que complementa la noticia sea veraz y no afecte la dignidad de la persona titular de ese derecho, debe decantarse por darle un valor preferencial al derecho a la libertad de prensa. En el mismo sentido podemos encontrar precedentes en la jurisprudencia española (STC 165/1988 y STC 59/1989) en los que el Tribunal Constitucional español, en diversos casos ha ponderado a favor la libertad de información ante el conflicto con otros derechos fundamentales, utilizando como argumento central, el carácter institucional del derecho a la información. En el mismo sentido, el Tribunal Supremo Español, frente a la ponderación de éstos dos derechos ha señalado:
“La técnica de ponderación exige valorar el peso abstracto de los respectivos derechos fundamentales que entran en colisión, y desde este punto de vista, la ponderación debe respetar la posición prevalente que ostentan tanto el derecho a la libertad de expresión como el derecho a la libertad de información por resultar esenciales como garantía para la formación de una opinión pública libre, indispensable para el pluralismo político que exige el principio democrático. Además, ese juicio de ponderación en abstracto debe atender a que el ejercicio de la libertad de expresión, según su propia naturaleza, comprende la crítica de la conducta de otro, aun cuando sea desabrida y pueda molestar, inquietar o disgustar a aquel contra quien se dirige pues así lo requieren el pluralismo, la tolerancia y el espíritu de apertura, sin los cuales no existe sociedad democrática". Sentencia Tribunal Supremo 16 de febrero 2016.
En la misma línea de pensamiento, la Corte Europea de Derechos Humanos resaltó la importancia que "la libertad de prensa proporciona a la opinión pública uno de los mejores medios para conocer y juzgar las ideas y actitudes de los dirigentes políticos. En términos más generales, la libertad de las controversias políticas pertenece al corazón mismo del concepto de sociedad democrática" (caso "Lingens vs. Austria", sentencia del 8 de julio de 1986, serie A N° 103, párr. 42).
En efecto, partiendo del contexto jurisprudencial expuesto y de los argumentos externados en los precedentes de cita, esta Sala analiza las consideraciones de del caso y concluye que, lleva razón la parte recurrente en su reclamo. El orden democrático exige, la defensa de la libertad de expresión, como instrumento básico e indispensable para la formación de la opinión pública. Y esa defensa, lleva a la posibilidad de expresar el pensamiento usando los medios que elija el emisor y también en la facultad de difundirlo a través de ellos. Tal y como se indicó en el precedente de cita, el valor de esta defensa, alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa. En ese sentido, se entiende que si bien, el derecho a la expresión, contemplado en el artículo 13 de la Convención Americana, no tiene carácter absoluto, los límites para su ejercicio y controles de su adecuado desempeño no deben de modo alguno limitar su ejercicio, más allá de lo estrictamente necesario, al punto que puedan convertirse en un mecanismo directo o indirecto que afecten la libertad de expresión, información y prensa y constituyan una violación al derecho. Ahora, en el caso bajo estudio, esta Sala considera que la publicación emitida por el periódico Diario Extra el 24 de junio del año 2015, donde se utilizó la imagen del señor Calderón, el medio informativo se limitó a difundir información relacionada con un hecho noticioso de interés para la colectividad, por tratarse de la posible comisión de un delito, por ello la posibilidad de usar la imagen de una persona para referirse a un acontecimiento, está sustentada en su relevancia para el público, sin que el consentimiento del uso de su imagen en ese contexto, sea necesario. La fotografía que se utiliza es parte de un documento público, no una imagen obtenida en un contexto íntimo, familiar o privado, y se utiliza como accesoria a la noticia, como parte de su complemento. En el caso de la noticia en análisis, la fotografía utilizada es parte de la contextualización de una noticia que, además es veraz (hecho no disputado) y funge como su complemento accesorio, como se indicó, sin que se utilice la imagen en una forma que afecte la dignidad de su titular, de tal forma que en esos términos funciona como un límite válido a las excepciones que admite el derecho a la imagen. Hoy en día, no se concibe un medio de comunicación sin imágenes, de solo texto, sin ilustraciones, de tal forma que el análisis de la Prohab, a juicio de este Tribunal, parte de un escenario de descontextualización de la utilización de la imagen en cuestión, es decir, como si ésta no fuera parte de un hecho noticioso de interés público que en ese momento se comunica. Señala la recurrida que la noticia se pudo comunicar igual sin utilizar la imagen aludida, lo cual es una forma ilegítima de interferir con la libertad de prensa; es equivalente a decirle a un medio, qué y cómo comunicar o difundir, lo cual es una flagrante violación al contenido esencial de la libertad de prensa. Su efecto sería anulatorio del denominado Fotoperiodismo y generaría una forma de autocensura de los medios de comunicación, que tendrían que estarse autolimitando de ilustrar sus informaciones como parte del contenido de la noticia, mediante el uso de imágenes de personas, para evitar las demandas ante una oficina del Estado, -que en este contexto- pretende operar como un especie de censor o editor de qué y cómo se puede publicar, generando un efecto reflejo de autocensura permanente, como se indicó, a todas luces, lesiva del derecho a la libertad de prensa, que incluye desde luego, la libertad de escoger el contenido de lo que se publica. Siguiendo la línea ya establecida en la sentencia 2015-1782, de conformidad con el artículo 13 de la Convención Americana:“3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” En este sentido, la censura de la libertad de prensa puede ser directa –por ejemplo, la prohibición directa de cierta publicación- o indirecta (también denominada soft censorship, censura sutil, velada) -por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación-. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería “…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.”( 2015-1782) Considera la Sala que el ejercicio de las competencias de la Prohab para fines de la Ley de Protección de la Persona frente al Tratamiento de sus datos personales, no puede ser utilizada como un censor del ejercicio legítimo de la libertad de prensa, porque ello sería, una censura indirecta, en control del Estado, de un derecho toral, esencial, para el sostenimiento del régimen democrático.
En ese sentido, estima la Sala que si el uso de la imagen (fotografía de la página del pasaporte) como en este caso, se da dentro de un contexto de un hecho noticioso de interés público, insertada en un documento público, relacionado directamente con el contenido de la noticia, -puesto que se trata de un tema migratorio fronterizo-, cuya utilización, además, no denigra ni afecta la imagen de su titular, no es válido, separar o descontextualizar esa imagen de su noticia, ni mucho menos pretender eliminarla, porque forma parte integral de ésta. Lo anterior implicaría una censura de la noticia en sí, -lesiva del artículo 13 de la Convención Americana sobre Derechos Humanos-. En el caso Kimel vs Argentina (FJ 54 y ss) la Corte IDH declaró que las restricciones a la Libertad de Expresión "(...) tienen carácter excepcional y no deben limitar, más allá de lo estrictamente necesario, el pleno ejercicio de lo libertad de expresión y convertirse en un mecanismo directo o indirecto de censura previa (...)'; que "deben formularse en forma expresa, precisa, taxativa y previa; y que “el marco legal debe brindar seguridad jurídica al ciudadano, límites que claramente se violaron en este caso, al pretender limitar el contenido de una información veraz de interés público.
Partiendo de ese razonamiento, es que se estima que en el caso concreto, la decisión del ente recurrido, de ordenar a la parte recurrente eliminar de su base de datos, la fotografía del pasaporte del denunciante, contenida en la noticia de repetida cita, resulta ser una acción que afecta el desempeño periodístico, informativo y noticioso y con ello el contenido esencial de la libertad de prensa del medio de comunicación amparado. En consecuencia, se concluye que la orden dictada por la Agencia Protectora de Datos al declarar CON LUGAR la denuncia presentada por Marco Tulio Calderón Quesada contra diario Extra, y donde le ordena al Diario Extra, que proceda a eliminar de su base de datos, la fotografía del pasaporte del denunciante, contenida en la noticia de repetida cita, resulta violatoria a la libertad de información del medio recurrente, por lo que procede acoger el amparo en estudio, como así se dispone. (…)” (El destacado no forma parte del original).
Esta jurisdicción, en el Voto No. 16167-2020 de las 09:20 hrs. de 28 de agosto de 2020, señaló:
“(…) I.- OBJETO DEL RECURSO. El recurrente estima vulnerados sus derechos fundamentales, toda vez que, ante la pandemia de la covid-19, el gobierno ha dictado medidas que limitan la libertad de tránsito y de comercio. Además, sostiene que las autoridades recurridas vulneran la libertad de prensa, debido a sus actuaciones respecto al Diario Extra, toda vez que el MTSS canceló la suscripción de tal medio y el ICAA ordenó a sus funcionarios no hablar con periodistas del periódico en mención. (…)
IV.- SOBRE EL CASO CONCRETO. En el sub examine, el amparado reclama que el Ministerio de Trabajo y Seguridad Social vulnera los derechos fundamentales, dado que se canceló la suscripción del Diario Extra. Al respecto, en el informe rendido bajo juramento por la Ministra de Trabajo y Seguridad Social se indicó, respecto a la cancelación por parte del MTSS de la suscripción mantenida con el Diario Extra, que: “(…) esa decisión obedeció a que producto del Estado de Emergencia Sanitaria que enfrenta el país, que nos ha causado afectación económica no solo a nivel nacional sino también mundial, el Poder Ejecutivo gestionó días atrás, recorte en el gasto público. Siendo que ese recorte presupuestario, nos obligó cómo Institución a liberar costos en algunas partidas específicas, cuidando desde luego, no afectar el servicio que como Cartera brindamos a la ciudadanía. Siendo entonces, que en virtud de ese recorte presupuestario que realizamos, fue que se adoptó la decisión de eliminar la suscripción que la Institución mantenía con algunos diarios de circulación nacional, tales como: Diario Extra, La Nación, El Financiero y La República. Pues el monto para el pago de las suscripciones invocadas, se acreditaba desde la misma partida con la que se compraban suministros de papel y cartón y ello representaba casi el 50% del presupuesto para esos efectos. Y siendo que a raíz de la pandemia producida por el virus COVID 19, debemos tener disponibles toallas de papel para los lavatorios que tenemos instalados para el lavado de manos de personas funcionarias y usuarias de este Ministerio; fue que se prioriza la compra de suministros citados, con la consecuencia de eliminar las suscripciones mencionadas” (la negrita no es del original).
Así, el Tribunal verifica que, el 14 de julio de 2020, un funcionario del MTSS remitió el oficio DGAF-OF-383-2020 a la representante legal de la Sociedad Periodística Extra Limitada, en el que manifestó: “De la manera más atenta y en marco de la contratación 2019CD-000045-0007000001; bajo la modalidad según demanda para la adquisición ejemplares del periódico La Extra, se informa que en atención a instrucciones superiores y en cumplimiento de las nuevas directrices emitidas por el Gobierno de la República de Costa Rica, que insta hacer recortes presupuestarios mandatorios a efecto de orientarse a la atención de la pandemia COVID-19 nos vemos en la necesidad de solicitar formalmente, la cancelación indefinida de entrega de dicho periódico a partir del día 16 de julio de 2020”. En igual sentido, se observan los oficios DGAD-OF-376-2020 dirigido al representante legal de Properiodicos Limitada y DGAD-OF-382-2020 remitido al representante legal de Grupo Nación GN S.A., mediante los cuales se informó sobre la cancelación de la suscripción que mantenía el MTSS con los periódicos La República, así como La Nación y El Financiero, respectivamente.
De este modo, contrario a lo alegado por el tutelado, este Tribunal estima que la actuación del Ministerio de Trabajo y Seguridad Social no conculca los derechos fundamentales. Nótese que, en el sub iudice, el MTSS canceló la suscripción no solo del Diario Extra, sino de otros medios de comunicación como La República, La Nación y El Financiero. Además, no se verifica que tal decisión haya sido arbitraria, sino que la misma obedece a un recorte presupuestario derivado de la pandemia de la covid-19. Al respecto, cabe reiterar que en el informe rendido bajo juramento por la ministra de Trabajo y Seguridad Social se consignó que “(…) el monto para el pago de las suscripciones invocadas, se acreditaba desde la misma partida con la que se compraban suministros de papel y cartón y ello representaba casi el 50% del presupuesto para esos efectos. Y siendo que a raíz de la pandemia producida por el virus COVID 19, debemos tener disponibles toallas de papel para los lavatorios que tenemos instalados para el lavado de manos de personas funcionarias y usuarias de este Ministerio; fue que se prioriza la compra de suministros citados, con la consecuencia de eliminar las suscripciones mencionadas”. Ergo, dadas las condiciones provocadas por la referida pandemia, tal institución priorizó la compra de toallas de papel, lo que conllevó que se prescindiera de las suscripciones referidas. Por consiguiente, al no haberse verificado la vulneración a los derechos fundamentales, lo procedente es declarar sin lugar el recurso en cuanto a tal extremo.
V.- Por otra parte, en cuanto al reclamo formulado por el recurrente respecto al accionar del ICAA, el Tribunal observa que el 29 de junio de 2020 se emitió la “MINUTA GG-2020-02784”, relativa a una reunión efectuada entre funcionarios del ICAA y representantes del sindicato SITRAA, documento que carece de firmas y en el que se consigna: “Objetivo: Temas variaos SITRAA Lugar: Virtual Fecha:29-06-20 Hora de inicio: 11:00am Hora final: 12:40pm (…) 1. Campaña de refuerzo labor de AyA, acción, SITRAA- AyA. cuadrillas operativas, lema héroes de la higiene. Mario Rodríguez explica la propuesta, desde SITRAA se ha realizado una campaña de comunicación para levantar la imagen del AyA. No están de acuerdo con la campaña y gastos que tiene programado el AyA. Lema: “Héroes de la Higiene”, quieren iniciar con una campaña con este lema y realizarlo con apoyo de los trabajadores operativos en todo el país. Yamileth Astorga le consulta a Mario cuál es el objetivo de la Contratación de Publicidad del AyA, al parecer no lo tiene claro, por ende ella le realiza una explicación detallada, el objetivo es la conectividad de las viviendas a las redes de alcantarillado de AyA. Aclara que la campaña no es para levantar la imagen de AyA, sino para estimular a la población a que se conecte a las redes de alcantarillado. Hace un llamado a no alimentar a los Diarios Extra y CRHoy, ya que el objetivo de éstos es la privatización. Mario comenta que ellos no dan información a la prensa, más bien indica que la prensa les solicita a ellos aclaraciones de cosas que ellos no conocen. Aclara que SITRAA lleva a la prensa las cosas que no reciben respuesta por parte de la Administración. Maritza Alvarado realiza comentarios sobre la campaña, indica que la propuesta de SITRAA le parece bien se puede hacer con recursos propios, recomienda que exista unidad para levantar la imagen de AyA, señala algunas labores que se han desarrollado desde la Dirección de Comunicación Institucional. Se debe reforzar la base interna antes de proyectarnos a lo externo. Marianela de SITRAA comenta que sería bueno que doña Yamileth lea detenidamente los comunicados que salen en prensa, para que se de (sic) cuenta que el SITRAA no está perjudicando la imagen, sino mas (sic) bien defienden la institucionalidad del AyA, por su importancia en la gestión del recurso hídrico. Yamileth indica que los medios solo publican cosas que debilitan la imagen de AyA, solicita hacer una alianza con los sindicatos para levantar la imagen de la Institución (…)” (el énfasis fue suplido).
Al respecto, la Presidenta Ejecutiva del ICAA indica en el informe rendido bajo juramento ante este Tribunal Constitucional que: “En atención a la formalidad establecida a nivel institucional, se levantó un borrador de minuta de la reunión, con número GG-2020-02784, el cual está asociado al número de oficio, dicho borrador no lleva ninguna firma o rúbrica de los participantes y se aclara en este acto, que a pesar de que estaban convocados los funcionarios de la lista contenida en el borrador de la minuta, los señores Annette Henchoz Castro y Alejando Calderón Acuña, no se presentaron a la reunión que había sido convocada de manera virtual, sin embargo; se realizó de forma presencial. El borrador de minuta fue levantado por el funcionario Andrey Vila Abarca, quien consigna en el formato que se acostumbra a estas reuniones, la agenda y una sucinta referencia de los temas abordados. La minuta posteriormente fue comunicada y compartida vía correo electrónico por el SDI con el Memorando GG-2020-02784, suscrito por el funcionario Andrey Vila Abarca de la Gerencia General, quien tiene bajo su responsabilidad dar seguimiento a los temas y acuerdos de las reuniones con los diferentes sindicatos constituidos en el AYA. Del documento denominado “minuta” se desprende claramente que en ningún momento la suscrita manifestó el hecho que se recurre, por lo que es claro que el recurrente descontextualiza una frase de una minuta, de una reunión sostenida entre la Administración Superior y el Sindicato SITRAA, donde se analiza una campaña motivacional interna al personal del AyA, especialmente, dirigida a los trabajadores que están en primera línea de atención de la pandemia. En ese contexto y en el ánimo de unir esfuerzos hice un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso me referí puntualmente cuando indiqué “no alimentar los medios” como lo cita la minuta. Reitero, que ni de la minuta ni de ningún otro documento se desprende jamás que se haya “ordenado no hablar con Diario Extra”, ignoro en qué se basa el recurrente para realizar esa temeraria interpretación a la libertad de expresión. De hecho, todas las consultas de prensa realizadas por Diario Extra han sido atendidas en tiempo y forma; de mayo a la fecha, se han recibido y dado respuesta a 9 solicitudes de información planteadas por correo. Diario Extra y Extra TV 42, durante este año han publicado al menos 183 notas relacionadas a la institución” (la negrita fue suplida).
La Sala también observa que, el 21 de julio de 2020, la presidenta ejecutiva del ICAA dirigió el oficio PRE-2020-01101 a la gerente general de Diario Extra, en el que manifestó: “En ejercicio del derecho de respuesta consagrado en los artículos 29 de la Constitución Política y 14 de la Convención Americana de Derechos Humanos, así como el 66 en adelante de la Ley de Jurisdicción Constitucional, en mi calidad de Presidenta Ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados, solicito el debido espacio para rectificar la nota publicada por Diario Extra el día 21 de julio del 2020 titulada “Presidenta AyA ordena no hablar con DIARIO EXTRA”. Agradezco la publicación del siguiente texto: AyA jamás ha ordenado no hablar con Diario Extra Con respecto a la nota publicada en Diario Extra el 21 de julio del 2020, titulada “Presidenta AyA ordena no hablar con Diario Extra”, como Presidenta Ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados (AyA) califico de absolutamente falso que se haya “ordenado” a algún funcionario o funcionaria no hablar con el Diario Extra. El periodista descontextualiza una frase de una minuta, de una reunión sostenida entre la Administración Superior y el Sindicato SITRAA, donde se analiza una campaña motivacional interna al personal del AyA, especialmente, dirigida a los trabajadores que están en primera línea de atención de la pandemia. En ese contexto y en el ánimo de unir esfuerzos hago un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso se refiere puntualmente con “no alimentar los medios..” como lo cita la minuta. Ni de la minuta ni de ninguna parte se desprende jamás que se haya “ordenado no hablar con Diario Extra”, ignoro en qué se basa el periodista para realizar esa temeraria interpretación a la libertad de expresión. De hecho, todas las consultas de prensa realizadas por Diario Extra han sido atendidas en tiempo y forma; de mayo a la fecha, se han recibido y dado respuesta a 9 solicitudes de información planteadas por correo. Diario Extra y Extra TV 42, durante este año han publicado al menos 183 notas relacionadas a la institución. En el AyA somos respetuosos del derecho a la información y la libertad de expresión, nunca estaríamos de acuerdo en lesionar esos derechos. Durante este año a Diario Extra hemos enviado dos derechos de respuesta, uno con respecto a una publicación del día 15 de enero que jamás se publicó, y otro que si fue publicado en la edición del 27 de junio. Somos conscientes del papel vital que juega la prensa para nuestra democracia. Estamos claros de lo importante que es para el país el fortalecimiento de los medios de comunicación, ya que como nación no nos podemos permitir la interrupción de las operaciones de un medio de comunicación, eso sería contrario al interés público de estar informados, máxime en medio de una pandemia, que exige información veraz y oportuna a diario. Hemos confiado y confiamos en el Grupo Extra para realizar nuestras campañas informativas y de rendición de cuentas a la población y seguiremos en la medida de nuestras posibilidades haciéndolo. Jamás podríamos permitir que se nos acuse de asestarle golpe alguno a la libertad de expresión” (el resaltado fue suplido).
Así las cosas, se estima procedente traer a colación lo preceptuado en la sentencia n.° 2014-011694 de las 9:05 horas del 18 de julio de 2014 dictada por este Tribunal Constitucional, en la que se dispuso:
“III.- SOBRE LA LIBERTAD DE EXPRESIÓN Y RELACION ESTATUTARIA. Los funcionarios o servidores públicos, por la circunstancia de estar sometidos a una relación estatutaria, no pueden ver diezmada o limitada su libertad de expresión y opinión y, en general, ninguno de los derechos fundamentales de los que son titulares por intrínseca dignidad humana. Las organizaciones administrativas no son compartimentos estancos o separados del conglomerado social y la existencia de una carrera administrativa o de una relación estatutaria no justifican el despojo transitorio o las limitaciones de los derechos fundamentales de los funcionarios públicos de los cuales gozan en todas las facetas de su vida. Ciertamente, la libertad de expresión en el ámbito de una relación funcionarial o estatutaria puede sufrir leves modulaciones por razón de la relación de jerarquía inherente a la organización administrativa, la confianza que debe mediar entre el superior y el inferior, los deberes de lealtad de ambos con los fines institucionales y de reserva respecto de las materias que han sido declaradas secreto de Estado por una ley. Sobre el particular, conviene agregar que tal matización ha de ser proporcionada y razonable, y que ni siquiera un interés público podría limitar o restringir los derechos fundamentales de un funcionario público por la vinculación más fuerte, la eficacia directa e inmediata y la superioridad jerárquica de éstos. Los conceptos de buena fe y lealtad no pueden enervar la libertad de expresión de un funcionario público cuando a través de su ejercicio no se causa una lesión antijurídica al ente u órgano público al cual pertenece y representa o a terceros. Los jerarcas o superiores jerárquicos de un ente u órgano público, por sus especiales y acusadas responsabilidades y exposición al público, deben estar sujetos y tolerar la crítica no dañina o antijurídica tanto de los usuarios de los servicios públicos, administrados en general como de los propios funcionarios. Lo anterior es, también, predicable respecto de las formas e instrumentos de gestión o administración de un ente u órgano público. La crítica de los usuarios, administrados en general y de los funcionarios públicos sobre el desempeño individual de algún servidor e institucional del ente u órgano público constituye una poderosa herramienta para el control y fiscalización de la gestión pública y, desde luego, para obtener mayores niveles de rendimiento resultados-, rendición de cuentas y transparencia administrativa. Ningún funcionario público puede ser inquietado, perseguido, recriminado o sancionado por expresar sus opiniones, ideas, pensamientos o juicios de valor acerca de la gestión del ente público o las actuaciones de otro funcionario público.
IV.- SOBRE EL CONTENIDO DEL ARTÍCULO 13 DE LA CONVENCIÓN AMERICANA SOBRE DERECHOS HUMANOS El artículo 13 recoge lo siguiente:
Artículo 13. Libertad de Pensamiento y Expresión 1. Toda persona tiene derecho a la libertad de pensamiento y expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
En el citado numeral se pretende maximizar las posibilidades de participar en el debate público especialmente cuando además de proteger la expresión de ideas, reconoce el derecho colectivo a ser debidamente informado y el derecho a réplica. No obstante, como todo derecho, no es absoluto, sino que admite restricciones para armonizar su ejercicio con los derechos de los demás, la seguridad de todos y las exigencias del bien común en una sociedad democrática (art.32 de la Convención). Pero estas limitaciones no pueden ser más que lo establecido en el mismo numeral o bien las Constituciones Políticas (art.30 de la Convención). Este derecho no puede estar sujeto a previa censura sino a responsabilidades posteriores. La Constitución Política en su artículo 29 recoge ese postulado al establecer que: “Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejrcicio de este derecho, en los casos y del modo que la ley establezca”. La libertad de expresión en este sentido no puede ser sometido a un control a priori. El Estado a tráves (sic) de cualquiera de sus órganos está impedido constitucional y convencionalmente, con las excepciones de protección de otros derechos que dispone el mismo artículo 13 y 27. 1 de la Convención, a realizar censura previa. Ya la Comisión Interamericana Sobre Derechos Humanos ha señalado reiteradamente el doble aspecto de la libertad de expresión: el derecho de toda persona de difundir ideas e informaciones; y el aspecto colectivo, constituido por el derecho de toda la sociedad de recibir tales ideas e informaciones. Y al darse mediante la censura previa la violación del derecho de expresión, se lesiona una gama de derechos, como el que tiene toda la colectividad de recibir información veraz. Así la Corte Interamericana, Opinión Consultiva OC-5/85 ha dicho, que: "...cuando se restringe ilegalmente la libertad de expresión de un individuo, no sólo es el derecho de ese individuo el que está siendo violado, sino también el derecho de todos a "recibir" informaciones e ideas.
V.- SOBRE EL CASO CONCRETO. En el caso bajo estudio, la institución recurrida dispuso mediante la circular número 211-2014, fechada 10 de marzo de 2014, del Director de Relaciones Públicas del Ministerio de Obras Públicas y Transportes, dirigida a directores y jefes de Departamentos del Mopt, que se coordine con la Dirección de Relaciones Públicas cuando los medios de comunicación los contacten directamente, para una oportuna atención a los medios y se traduzca en oportunidades de divulgación institucional; asimismo, se defina conjuntamente el tema a consulta a tratar. El recurrente considera que dicha disposición es contraria al derecho de expresión de los trabajadores del Mopt, porque lo que pretende la Dirección de Relaciones Públicas es ejercer una censura previa sobre las manifestaciones o expresiones que hagan los funcionarios públicos. El Director recurrido dice que se trata de una puesta en conocimiento de los funcionarios cuando la prensa los enlaza sin haber coordinado con Relaciones Públicas; se trata de darles a los funcionarios un manejo idóneo del tema para responder a los medios de información y no ejercer una censura previa como dice el accionante. Pero lo cierto, es que el hecho de que los funcionarios del Ministerio de Obras Públicas y Transportes tengan que adecuar sus manifestaciones, según las reglas de la Dirección de Relaciones Públicas de este ministerio, cada vez que estén de frente a los medios de comunicación colectiva, es una injerencia, a manera de censura previa, que amenaza o no les permite expresar libremente su opinión en temas propios de su quehacer institucional, lo que afecta directamente a la colectividad que recibe una información filtrada o con alguna censura. No puede admitirse que la Circular 211-2014 de la Dirección de Relaciones Públicas – se ubique en uno de los presupuestos contemplados por nuestra Constitución o por los instrumentos internacionales que la complementan (gracias al efecto integrador del artículo 48 según la enmienda de 1989), para legitimar una restricción a la libertad de expresión. Por estas razones el recurso debe estimarse con las consecuencias de ley.” (el énfasis fue suplido).
Además, a los efectos de resolver este amparo resulta oportuno citar lo dispuesto en la sentencia n.° 2015-01782 de las 11:36 horas del 6 de febrero de 2015: (…)
Este Tribunal considera que los precedentes transcritos resultan aplicables al sub lite, toda vez que no encuentra motivos para variar los criterios vertidos ni razones para valorar de manera distinta la situación planteada.
De este modo, en el sub iudice, la Sala estima que se ha producido una lesión de relevancia constitucional. Nótese que si bien la minuta aludida carece de firmas, no menos cierto es que la presidenta ejecutiva del ICAA no desmintió su contenido, sino que se limitó a alegar que se descontextualizó la frase “Hace un llamado a no alimentar a los Diarios Extra y CRHoy, ya que el objetivo de éstos es la privatización”, toda vez que lo que pretendió externar fue “un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso se refiere puntualmente con “no alimentar los medios”. En cuanto al punto, el Tribunal estima que en el sub examine existen indicios suficientes de que la presidenta ejecutiva del ICAA dijo la frase antes transcrita, lo cual, a todas luces, constituye una afectación a los derechos constitucionales a la libertad de pensamiento y expresión, de prensa y a la igualdad, todo esto en relación con los principios constitucionales democrático, de rendición de cuentas y de transparencia en la gestión pública, en virtud de que se trata de una especie de censura velada, dado que el resultado práctico de tal llamado es evitar que los medios de comunicación perjudicados tuviesen acceso a información pública.
En efecto, contrario a lo sostenido por la autoridad recurrida, con la frase en cuestión se exhortó a funcionarios del Instituto Costarricense de Acueductos y Alcantarillados, a que se abstuvieren de remitir información de relevancia pública a ciertos medios de comunicación. En primer término, tal actuación implica una seria amenaza a la libertad de pensamiento y expresión de tales servidores, dado que la iniciativa proviene, ni más ni menos, de la propia presidenta ejecutiva de la institución en mención, a partir de lo cual el “llamado a no alimentar a medios” reviste una particular gravedad merced al rango jerárquico de quien lo externó. En segundo término, se vulnera la libertad de prensa y el derecho a la igualdad, toda vez que se incita a que dos medios de comunicación en particular, CR-Hoy y Diario Extra, no reciban información por parte de los funcionarios del ICAA, al tiempo que de manera absolutamente injustificada coloca a los afectados en una clara situación de desventaja frente al resto de medios. En adición, la situación expuesta lesiona a la población en general, dado que “el llamado a no alimentar a medios” le impide al público acceder a información concerniente a la prestación de servicios públicos esenciales, lo cual es inaceptable en una sociedad que se rige por los principios democrático, de rendición de cuentas, y de transparencia en la gestión pública.
En virtud de lo expuesto, lo procedente es declarar con lugar el recurso, en los términos consignados en la parte dispositiva de esta sentencia. (…)
Por tanto: Se declara parcialmente con lugar el recurso solo en cuanto al Instituto Costarricense de Acueductos y Alcantarillados por violación a los derechos constitucionales a la libertad de pensamiento y expresión, de prensa y a la igualdad, todo esto en relación con los principios constitucionales de rendición de cuentas, democrático y de transparencia en la gestión pública. Se ordena a Yamileth Astorga Espeleta, en su condición de presidenta ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados, o a quien en su lugar ocupa ese cargo, abstenerse de incurrir nuevamente en los hechos que dieron fundamento a la estimatoria de este recurso de amparo. Se advierte a la autoridad recurrida que de no acatar tal orden, incurrirá en el delito de desobediencia y, que de conformidad con el artículo 71 de la Ley de la Jurisdicción Constitucional, se le impondrá prisión de tres meses a dos años, o de veinte a sesenta días multa, a quienes recibieren una orden que deban cumplir o hacer cumplir, dictada en un recurso de amparo y no la cumplieren o no la hicieren cumplir, siempre que el delito no esté más gravemente penado. Se condena al Instituto Costarricense de Acueductos y Alcantarillados al pago de las costas, daños y perjuicios causados, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. En todo lo demás, se declara sin lugar el recurso. Notifíquese. (…)”.
De forma más reciente, este órgano constitucional, en la Sentencia No. 23107-2022 de las 09:30 hrs. de 4 de octubre de 2022, dispuso lo siguiente:
“(…) VI.- Caso concreto. En el sub lite, la recurrente alega como primer agravio, que en su condición de periodista, ejerce la dirección del programa de análisis, opinión y autocrítica llamado "Hablando Claro", que se transmite desde el 1° de febrero de 2007, por Radio Columbia y considera que en esa condición las autoridades recurridas lesionaron sus derechos fundamentales, específicamente, los derechos a la libre expresión y libertad de prensa, dado que entre el 8 y el 9 de julio pasado, recibió llamadas de cinco personas funcionarias públicas, que se desempeñan en puestos de jerarquía dentro del Gobierno de la República o en las oficinas de comunicación de ministerios e instituciones descentralizadas, quienes le manifestaron, en condición de fuentes periodísticas confidenciales, que se encontraban alarmadas por un comunicado que la entonces Ministra de Comunicación, Patricia Navarro Molina, les remitió por WhatsApp, a todos los Ministros y Presidentes Ejecutivos del Gobierno. Aduce que, según le relataron sus fuentes, en la referida comunicación, la Ministra instruía a todos los jerarcas a suspender, con carácter de urgencia, todo tipo de publicidad estatal a los medios "Amelia Rueda, La Nación, CRHoy y Canal 7". Asimismo, que en ese comunicado se les instaba "con carácter de urgencia a no participar en entrevistas en Hablando Claro y Amelia Rueda".
Al respecto, del informe rendido por las autoridades recurridas, -que se tiene por dado bajo fe de juramento con las consecuencias, incluso penales, previstas en el artículo 44 de la Ley que rige esta Jurisdicción- y la prueba aportada para la resolución del asunto, esta Sala no pudo tener por demostrado que se haya girado la orden o directriz que cuestiona la recurrente. Si bien, puede considerarse que, sobre este punto en particular, los informes recibidos resultan escuetos o lacónicos, lo cierto es que sí expresan claramente que no se giró una orden o indicación en ese sentido. La Sala aprecia que tales informes se enfocan en las competencias y potestades del Ministerio de Comunicación y en aspectos procesales de la presentación de este recurso, pero al negar la existencia de la orden, directriz o indicación referida por la amparada, en este caso en particular se carece de toda posibilidad de tener por demostrada su existencia, siendo así que lo procedente es declarar sin lugar el recurso en cuanto a este extremo.
VII.- Sin embargo, por la trascendencia del tema y la gravedad que podría implicar girar desde el poder público alguna orden en los términos reclamados en este proceso, resulta menester recordar a las autoridades del Ministerio de Comunicación y del Ministerio de la Presidencia, que tal y como se expresó en el quinto considerando de esta sentencia, la libertad de expresión e información conlleva una doble dimensión, que se refleja no sólo en la posibilidad de los periodistas de informar sobre los temas de relevancia para la opinión pública, sino también el derecho que tienen los habitantes del país de enterarse de dicha información, por lo que los órganos y entes públicos se encuentran en el deber de adoptar las medidas correspondientes para que pueda informarse a los y las habitantes de la República sobre las acciones y acontecimientos que se producen o desarrollan en el territorio nacional y que son de interés para la colectividad. Máxime que los temas y decisiones que se toman y tratan desde el gobierno central y toda institución, órgano y ente administrativo, tienen una trascendencia y relevancia para el buen funcionamiento del país y el ejercicio de los derechos reconocidos a la población en general y a sus integrantes dentro de sus propios ámbitos de actuación, por lo que, todos estos temas deben ser tratados con absoluta publicidad y transparencia, sin posibilidad alguna de impedirle a la ciudadanía, a la opinión pública y a cualesquier medio de comunicación colectiva, tener conocimiento de estos. Ergo, las prácticas que obstaculizan el acceso a la información, como lo es el impedir informar sobre determinados eventos o decisiones, rehusarse a brindar entrevistas a diversos medios de comunicación, no invitarlos a formar parte de conferencias o ruedas de prensa, limitarles la publicidad, impedir el acceso a insumos necesarios para la divulgación, entre otras variables relacionadas con la censura directa o indirecta, no pueden ni deben ser avaladas por un Tribunal Constitucional, por la elemental razón de que su acceso y entrega oportuna tiene que hacerse a través de un proceso fácil, expedito y sin complicaciones, que garantice a la población y, en general a la opinión pública, el derecho a la información y a la libertad de expresión.
Dicho lo anterior, se les reitera a las autoridades recurridas que “el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos” (Cfr. sentencia No. 2006-5977 de las 15:16 horas de 3 de mayo de 2006). En otras palabras, deben tener presente los recurridos que, en el ejercicio de cargos públicos como los que ostentan, y en la era actual, en donde por el avance tecnológico se tiene mayor facilidad de cobertura y acceso a hechos noticiosos, es normal que alguna de las discusiones que se generen al calor de la prensa, pueden resultarles infortunadas y desagradables; no obstante, en un país democrático como Costa Rica, ese ejercicio de la libertad de expresión y la libertad de prensa es lo que nos caracteriza como un Estado Social de Derecho y un pueblo libre. Por tales razones, en aras de garantizar la libertad de prensa y de libre expresión que tienen tanto los periodistas o medios de comunicación colectiva, como la población de manera general, es que las autoridades recurridas deben velar porque cualquier directriz, orden, acto o instrucción que se gire desde el gobierno central se apegue siempre a la protección de estas libertades y de cualquier derecho fundamental de los que se goza en un país democrático como el nuestro, en los términos que han sido expuestos en esta sentencia (…)”.
Como se ha podido observar, resulta claro que el uso o aplicación por parte de las autoridades estatales o de particulares de las restricciones indirectas aludidas en este considerando, atenta grave y flagrantemente contra la libertad de expresión y la libertad de prensa. De ahí, la importancia del resguardo y protección que les provee nuestra Constitución Política y la Convención Americana sobre Derechos Humanos, entre otros instrumentos; de ahí también la responsabilidad que recae en esta Sala Constitucional de velar porque esto así se cumpla.
VIII.- CONGLOMERADOS O ESTRUCTURAS FINANCIERAS CREADAS PARA FINANCIAR O DIVERSIFICAR LAS FUENTES DE INGRESOS DE LOS MEDIOS DE COMUNICACIÓN Y, CONSECUENTEMENTE, PERMITIR EL EJERCICIO DE LA LIBERTAD DE PRENSA. Los medios de comunicación tradicionales, principalmente los medios impresos, han sufrido en los últimos años un fuerte declive económico con la llegada del internet, la caída de la inversión publicitaria y su migración a las grandes plataformas digitales como lo son Google y Facebook y el consecuente cambio en los hábitos de consumo de la información. Todo esto, sumado, ha generado que el usuario prefiera mayormente acceder a la información vía digital (sea, a través del uso de los teléfonos inteligentes, tabletas electrónicas, computadoras, etc.) y no mediante la compra del periódico impreso o bien, accediendo a otras plataformas (radio o televisión), tal y como regular y tradicionalmente lo venía haciendo.
En virtud de lo anterior, los medios de comunicación se han visto en la necesidad de innovar y buscar nuevos formatos, propuestas o mecanismos para buscar nuevos ingresos (y audiencia) que permitan, a su vez, financiar el periodismo y al medio como tal, sobre todo al periodismo de investigación que resulta costoso. En otros términos, se han debido implementar nuevas estrategias comerciales o poner en funcionamiento modelos mixtos con el fin de “rentabilizar a los medios de comunicación”, tal y como así ha sido llamado por algunos. Tanto es así que muchos medios de comunicación, hoy en día, no generan el dinero con su actividad principal o tradicional, sino con otras que le permiten subsistir. A modo de ejemplo, los medios de comunicación modernamente han recurrido, entre otras, a las siguientes fórmulas o estrategias: a) algunos medios impresos han creado su propia plataforma digital y han instaurado los modelos por suscripción o lo que se ha llamado “pagar por ver”; fórmula a la que han recurrido con éxito grandes medios como The New York Times o The Guardian. b) Se ha recurrido a la creación de contenidos de mayor calidad y exclusividad (sobre temas específicos y de interés para ciertos sectores), que hacen atractiva la búsqueda y el acceso a estos. c) Se ha hecho uso de los podcast (serie de episodios sobre diversos temas grabados en audios y transmitidos online al que ha recurrido por ejemplo el medio The New York Times a través de su programa The Daily). d) Se ha promovido la organización de eventos, foros o congresos sobre determinados temas de la mano de expertos y personalidades, para lo cual, a su vez, se cobra por participar o por ingresar (los medios Texas Tribune o The Economist se han caracterizado por organizar eventos de este tipo). e) Se recurre también a la venta de piezas a terceros (los grandes medios, aprovechándose de la enorme experiencia y el soporte estructural con el que cuentan, cubren cierta información especializada, la procesan y la venden a otros, incluso a su propia competencia). f) Se ha hecho uso del llamado Brand licenser, que permite a los medios de comunicación licenciar su marca para que terceras empresas la utilicen en sus productos o servicios (v.gr. National Geographic vende productos relacionados con viajes y aventura, libros y hasta ha instalado tiendas relacionadas con su línea de cobertura).
Igualmente, cabe destacar que, como parte de esas fórmulas a las que han tenido que apelar los medios de comunicación para diversificar sus fuentes de ingreso y sostenerse financieramente, se ha recurrido también a la adquisición o a la adhesión con otras empresas cuyas actividades principales se encuentran relacionadas o no directamente con el periodismo (conformándose así lo que se ha denominado holdings o grupos de interés económicos). Este tipo de fenómeno en particular se ha manifestado en otras latitudes y también a nivel nacional.
Así, a modo de ejemplo, se tiene el caso del diario The Boston Globe y otros medios (propiedad, a su vez, del periódico estadounidense The New York Times), los cuales fueron adquiridos en el 2013 por John Henry, dueño del equipo de beisbol Red Sox y del equipo de futbol Liverpool FC, con el propósito de afrontar las cuantiosas pérdidas económicas sufridas por el primero, originadas por la migración de lectores y de la publicidad hacia el internet. Igualmente, se tiene que Warren Buffet, a través de su holding Berkshire Hathaway (sociedad dueña total o parcial de las acciones de varios grupos empresariales de textiles, seguros, automóviles, bebidas, etc.) en el año 2012, compró sesenta y tres periódicos del Grupo Media General del sureste de Estados Unidos, los cuales sufrían también una baja rentabilidad. Entre los diarios adquiridos por Buffett figuran el Richmond Times de Virginia, el Winston-Salem Journal de Carolina del Norte y el Morning News of Florence de Carolina del Sur.
Asimismo, se cuenta con el caso de Jeff Bezos (fundador y dueño de Amazon, gigante compañía de comercio electrónico), quien en el año 2013 compró The Washington Post, con el fin de lograr su supervivencia, luego que este medio de comunicación sufriera igualmente los embates de la irrupción de nuevas tecnologías, el descenso de las audiencias y de los ingresos por publicidad. Nótese que, en este caso en particular, pese a que el medio de comunicación –según lo ha anunciado, entre otros, el medio español El País–, no se integrará o adherirá propiamente a Amazon, su adquisición forma parte de esa misma estrategia comercial tendente a ayudar a que el mismo pueda mantenerse funcionando(https://elpais.com/sociedad/2013/08/05/actualidad/1375736883_735938.html).
En Costa Rica, el uso de este tipo de mecanismos o fórmulas se ejemplifican a través de Grupo Nación S.A. (corporación de la cual forma parte el Periódico La Nación), el que dispuso comprar las instalaciones de lo que solía ser el Autódromo La Guácima y las convirtió en el centro de eventos llamado Parque Viva, como medio para diversificar las fuentes de ingresos de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet.
Es entendible que dentro de la coyuntura actual donde los medios de comunicación escritos requieren apoyo financiero ante la pérdida de alguna de sus fuentes tradicionales de ingresos, se creen o establezcan –al amparo del ordenamiento jurídico–, otro tipo de empresas o sociedades que les brinden recursos y sostenibilidad económica o financiera para mantener a los primeros. El caso del Grupo Nación S.A., y la adquisición del hoy llamado Parque Viva arriba referido, representa un claro ejemplo de lo dicho.
Este tipo de estructuras financieras, al igual que el resto de ejemplos supra citados, se convierten en una fuente de ingresos o recursos que coadyuva o hacen posible que la labor periodística pueda ser ejercida, habida cuenta que los ingresos que las primeras generan permiten sufragar o sopesar muchos de los gastos que demanda un medio de comunicación. Por ende, es una realidad que, si este tipo de mecanismos o propuestas se ven afectadas de forma ilegítima o arbitraria, se perjudica, a su vez, el ejercicio del periodismo; en esencia, la libertad de prensa, como manifestación de la libertad de expresión.
Ahora bien, la afectación refleja (indirecta o velada) que pueda concretarse a la libertad de prensa, merced de las medidas adoptadas en contra de dichas estructuras de financiamiento, es un aspecto que ha de ser ponderado en cada caso concreto, siendo claro que no todo acto o conducta administrativa que imponga un gravamen o establezca un contenido de efecto negativo en torno a esas entidades, supone una lesión refleja como la que se ha indicado. En efecto, cabe advertir que como toda persona administrada, estas estructuras se encuentran afectas y sujetas a las normas jurídicas que regulan, precisan y delimitan el ejercicio de sus respectivas actividades económicas. En ese sentido, su funcionamiento debe satisfacer y cumplir con las regulaciones propias de su actividad, lo que incluye, contar con las respectivas habilitaciones administrativas para el despliegue de la materia comercial. De ahí que deben contar con los respectivos títulos que permitan comprobar el cumplimiento de las normas urbanísticas, edilicias (dentro de estas, las atinentes a la Ley No. 7600), sanitarias, seguridad, así como las licencias y patentes comerciales que son debidos en cada caso. Adicionalmente, cumplir con la normativa fiscal atinente. De igual manera, en el curso de su actividad, como toda persona, se encuentran sujetas a la fiscalización y control del ejercicio de la actividad, a fin de verificar que mantienen el nivel de cumplimiento en virtud del cual, les fue habilitada la actividad comercial. En esa dinámica, la desatención de las condiciones de ejercicio que imponen esas regulaciones sectoriales, bien podrían llevar a la imposición de medidas administrativas de restricción o de sanción. Lo anterior, siempre que el ejercicio concreto de esa manifestación del poder de policía administrativa, pueda estimarse legítimo, a partir de la acreditación debida y oportuna de los presupuestos de incumplimiento que darían cabida a cada consecuencia jurídica, y que esa decisión se encuentre acorde al mérito de los antecedentes del caso y al Ordenamiento Jurídico aplicable (relación entre los elementos materiales objetivos motivo-contenido) y que sea congruente con el interés público tutelado. En esos supuestos, en que la función administrativa se establece como el ejercicio legítimo de potestades administrativas que procuran el resguardo del interés público, no podría postularse una suerte de infracción refleja a la libertad de prensa, sino, en la consecuencia lícita y previsible de la desatención de normas de orden público a las que se encuentra expuesta toda persona administrada. Por contraste, cuando esas medidas no encuentren respaldo en los diversos presupuestos de hecho o de derecho que, en cada supuesto, el plexo normativo define como antecedente necesario (presupuesto condicionante) para adoptar determinada decisión sancionatoria o de contenido negativo, o bien, cuando el contenido del acto adoptado a partir de la verificación de aquellas condiciones, sea desbordado, desproporcional, irrazonable en relación con esos antecedentes, antagónico con el interés público o en general, contrario a legalidad (en sentido amplio), se estaría frente a un comportamiento administrativo que puede implicar una desviación de poder (art. 113 LGAP) y supone, como se ha indicado, una lesión indirecta o refleja a la libertad de prensa. Se trata de un cuidadoso análisis de las particularidades de cada caso, como parámetro de una valoración neutral, equitativa y objetiva entre libertades y derechos fundamentales en un esquema de un Estado de Derecho y el ejercicio de las potestades administrativas que tienen, por principio y finalidad, la tutela y satisfacción del interés público. Ergo, no todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen, como tampoco, puede entenderse como legítima, sin más, toda función administrativa de control respecto de aquellas. De esa manera, en casos como el presente, en que se aduce una violación indirecta a la libertad de expresión y de prensa, producto de actividades de control de la Administración Sanitaria, corresponde a esta instancia jurisdiccional, ponderar los matices particulares, para definir si se trata de un ejercicio debido o indebido, como condición sine qua non de un juicio de valor en torno a la existencia o no del deber de tolerar válidamente esas imposiciones administrativas.
IX.- CASO CONCRETO. El estudio de este asunto se encuentra estructurado, para una mejor comprensión, en los siguientes cuatro apartados, a saber: a) aclaraciones previas; b) cierre de Parque Viva a través de una actuación arbitraria, infundada y desproporcionada; c) cierre de Parque Viva y vulneración indirecta a la libertad de expresión y d) aclaraciones finales de interés.
A. ACLARACIONES PREVIAS. En este proceso de amparo se discute medularmente lo tocante a la orden sanitaria de cierre girada en contra de Parque Viva el 8 de julio de 2022, así como los efectos que esta generó o trajo consigo en el medio de comunicación Diario La Nación, particularmente, en cuanto a la libertad de expresión.
Al respecto, es importante aclarar primeramente que este Tribunal Constitucional ha sido del criterio que no le corresponde, por tratarse de un tema de mera legalidad, pronunciarse en relación a los aspectos técnicos (requisitos) que se le exigen cumplir a un determinado local comercial, a la luz de lo dispuesto en el ordenamiento jurídico, a efecto que les sea otorgado un permiso sanitario y entrar así en funcionamiento. También, esta Sala ha dicho que escapa del ámbito de su competencia entrar a valorar y cuestionar los criterios técnicos emitidos para dejar sin efecto eventualmente ese permiso, a través, por ejemplo, del giro de una orden sanitaria.
No obstante, es importante señalar que la anterior postura no obsta para que este órgano constitucional pueda llevar a cabo un análisis de una orden sanitaria y de las circunstancias en que esta fue emitida, desde una perspectiva constitucional, a la luz de aspectos que esta jurisdicción tradicionalmente sí ha abordado, analizado y garantizado desde su creación, tal y como se verá en los apartados siguientes. En ese particular, cabe destacar que esta Sala ha sostenido también que las órdenes sanitarias dictadas por las autoridades del Ministerio de Salud pueden ser revisables ante esta jurisdicción, en casos excepcionales, determinados de forma concreta por su ineludible directa relación con las libertades o derechos fundamentales esenciales en el sostenimiento del sistema democrático. Así, en Sentencia No. 21103-2022 de las 09:20 hrs. de 9 de septiembre de 2022, esta jurisdicción indicó:
“(…) este Tribunal en reiterada jurisprudencia ha señalado que, bajo tesis de principio y salvo determinadas excepciones particulares, determinadas de manera concreta por su ineludible directa relación con libertades o derechos fundamentales esenciales para el sostenimiento del sistema democrático, las órdenes sanitarias dictadas por las autoridades del Ministerio de Salud no son cuestionables en esta jurisdicción. (…)”. (El destacado no forma parte del original).
Cabe destacar que mediante el Voto No. 1515-2021 de las 10:00 hrs. de 26 de enero de 2021, este Tribunal dispuso anular una medida sanitaria girada por el Ministerio de Salud en contra de un recurrente en detrimento de su derecho a la libertad de expresión, al estimarse que dicho acto administrativo carecía de fundamentos técnicos. En esta ocasión, esta Sala dispuso expresamente lo siguiente:
“(…) III.- OBJETO DEL RECURSO. Los recurrentes alegan que el amparado, en ejercicio de su derecho constitucional a la libertad de expresión, ha creado un movimiento en las redes sociales sirviéndose de su perfil público https://www.facebook.com/rolandoarayamonge y su programa radial "Cubaces Tiernos", que se transmite por radio en la frecuencia 89.1 FM y, de forma simultánea, en la plataforma de Facebook Live denominada "streaming", haciendo referencia a la supuesta eficacia del dióxido de cloro (clorito de sodio), para combatir covid-19. Sin embargo, el Ministerio de Salud emitió una orden sanitaria en su contra, por considerar que incita a la población a consumir una sustancia que no ha sido autorizada y, por el contrario, está contraindicada. (…)
V.- Sobre el caso concreto. En su jurisprudencia, este Tribunal no ha escatimado en posicionar la libertad de expresión como un elemento clave del sistema democrático:
“VIII.- La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle contenido a varios principios del Estado constitucional, como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos. Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa. Como lo ha señalado el propio Tribunal Constitucional español, quedarían vaciados de contenido real otros derechos que la Constitución consagra, reducidas a formas huecas las instituciones representativas y absolutamente falseado el principio de legitimidad democrática... que es la base de toda nuestra ordenación jurídico-política (Sentencia 6/1981), si no existieran unas libertades capaces de permitir ese intercambio, que… presupone el derecho de los ciudadanos a contar con una amplia y adecuada información respecto de los hechos, que les permita formar sus convicciones y participar en la discusión relativa a los asuntos públicos (Sentencia 159/1986). (…)
Al igual que los demás derechos fundamentales, la libertad de expresión también está sujeta a limitaciones, como serían aquellas derivadas de la protección de la salud pública, entre otras.
La pregunta que la partes buscan dilucidar en este proceso se refiere a la posibilidad de que el Ministerio de Salud limite la libertad de expresión del amparado Araya. Para contestar tal pregunta, sin embargo, es necesario analizar las manifestaciones de las partes y la orden sanitaria en sí, toda vez que ella fue el medio utilizado para limitar los derechos del tutelado.
Como primer punto, la Sala nota una discrepancia entre lo manifestado por la autoridad recurrida en este proceso y la prueba material. En efecto, el informe señala que la orden sanitaria indica:
“En videos publicado en sus páginas de Facebook: https://www.facebook.com/arayamonge y https://www.facebook.com/rolandoarayamonge, en diferentes fechas. se refiere a la eficacia del producto clorito de sodio e insta a sus seguidores a que lo ingieran ya que elimina los virus y muchas otras cosas. Además, afirma que el producto es inocuo. Trasfiero parte de lo que manifiesta en su video: “…descubrimiento o hallazgo que hicieron algunas personas en torno a la eficacia de un producto llamado clorito de sodio, bueno particularmente el producto activo dióxido de cloro que según resultados que han obtenido, elimina toda clase de gérmenes, probado científicamente porque lo usan en superficies, se usa generalmente para limpieza y purificación de agua…” “ … Resulta que si una persona se toma un poquito de eso, unas gotitas de eso, pues le quita los virus, las bacterias y muchas cosas de estas…” “…pero no estamos pidiendo que lo usen y lo acepten, lo que me parece decente, lógico, aceptable, razonable, para una crisis como la que está viviendo el mundo, es que lo prueben, si nada le pasa a las personas, hay una inocuidad total…” Se le informa: (…)” (El subrayado es agregado).
Empero, la orden sanitaria que fue aportada carece de tales transcripciones, pues textualmente reza en lo conducente:
“En videos publicado en sus páginas de Facebook: https://www.facebook.com/arayamonge y https://www.facebook.com/rolandoarayamonge, en diferentes fechas. se refiere a la eficacia del producto clorito de sodio e insta a sus seguidores a que lo ingieran ya que elimina los virus y muchas otras cosas. Además, afirma que el producto es inocuo y en otras publicaciones compartidas se afirma que el clorito de sodio o dióxido de cloro en organismos, reacciona contra gérmenes patógenos, oxida inmediatamente a los virus a las bacterias, hongos, parásitos y sirve inclusive para cáncer, diabetes y otras enfermedades.
Se le informa: (…)” Este Tribunal observa una clara incongruencia entre ambos textos con respecto a un punto medular para el proceso: cuáles son las expresiones achacadas al tutelado.
Como era debido, la Magistrada Instructora previno a las partes que aportaran los videos relacionados con el sub iudice (resolución de las 16:27 horas del 18 de setiembre de 2020). No obstante, tal prevención fue incumplida por la parte accionada. Al respecto, esta última indicó:
“…En atención a la solicitud de aportar las publicaciones eliminadas por parte del Equipo Legal de Facebook ante el caso del Sr. Rolando Araya Monge, se le indica que debido a que este contenido fue subido a únicamente a sus páginas personales y el Equipo Legal de Facebook procedió a analizarlas y posteriormente eliminarlas, no se cuenta con el detalle de las mismas. Lo que sí se aporta es el oficio MS-DRPIS-UNC-2056-2020 dirigido al Departamento Legal de Facebook, donde se indican los url's de los enlaces de las publicaciones que hacían mención al dióxido de cloro, en este se tomaba como referencia la alerta sanitaria denominada Productos que contienen Clorito de Sodio o Dióxido de Cloro, la Ley General de Salud en sus artículos 107, 111 y 112; y el reglamento para la autorización y control sanitario de la publicidad de productos de interés sanitario N° 36868-S. En este documento se observa lo publicado en dichas páginas de Facebook respaldado por el url de cada publicación, sin embargo, debido a la eliminación por parte del equipo legal de esta empresa no se cuenta con el detalle de las mismas más que lo que en el documento se indica…” Ahora bien, las consecuencias de tal incumplimiento son distintas para la parte recurrente y la recurrida, debido al principio de carga dinámica de la prueba y a la posición procesal de cada una de ellas.
En sede constitucional, dado que la parte recurrente ha acreditado una limitación a los derechos del tutelado (por escrito del 10 de agosto de 2020 cumplió la prevención de la Sala y aportó copia de la orden sanitaria), la carga dinámica de la prueba obliga a la autoridad accionada a justificar tal restricción. En el sub lite, la justificación del accionar de la Administración y la orden administrativa dictada está en los supuestos videos del procedimiento administrativo, por lo que la recurrida debió resguardarlos y aportarlos.
Justamente, desde el punto de vista procesal, la obligación citada recae en la Administración, dado que ella tiene el deber de recabar y asegurar en el expediente administrativo la prueba que sirve de fundamento a sus decisiones en los procedimientos, de manera que el afectado pueda acudir al expediente administrativo seguido en su contra y conocer a cabalidad las circunstancias del caso, requisito sine qua non para el efectivo ejercicio de su derecho constitucional a la defensa.
Empero, los videos que sirvieron de base a la orden sanitaria dictada, objeto de este asunto, no se encuentran en el expediente administrativo, lo que solo le resulta imputable a la Administración. Tal situación impide que el amparado pueda cuestionar cuáles expresiones pudieron generar la reacción estatal y así defenderse. Ahora bien, como cualquier carga procesal, la parte que incumpla con ella en el sub examine, el Estado debe afrontar las consecuencias procesales de su omisión.
La Sala explica a la autoridad recurrida que, cuando se le reprocha a una persona el uso inadecuado de la libertad de expresión y se le imponen limitaciones a tal derecho, de modo inexorable debe existir certeza en cuanto a las razones de tales medidas excepcionales, que solo se pueden imponer en el marco de los casos permitidos por el orden constitucional y el convencional. Se reitera que la libertad de expresión resulta esencial para el sostenimiento de la democracia y, por ende, configura un aspecto cardinal de nuestro sistema político, por lo que toda restricción a ella no solo debe tener un adecuado fundamento jurídico-positivo, sea en la normativa interna o en el marco del derecho internacional de los derechos humanos, sino que, además, la autoridad competente se encuentra obligada a acreditar plenamente el sustento fáctico sobre el cual se basa.
Por el carácter sumario del proceso de amparo, tampoco podría la Sala asumir una posición inquisitoria e investigar cuáles videos pudieron eventualmente servir de fundamento al accionar estatal, en especial porque tal actividad tendría la finalidad de suplir las omisiones de las autoridades estatales, lo que roza con la naturaleza de Tribunal que defiende al individuo frente al Estado.
Finalmente, la Sala advierte que lo anterior no habría obstado para una valoración distinta, si se hubiese comprobado que las manifestaciones del amparado ponían en riesgo la salud de las personas y la actuación de la Administración se hubiese basado en un razonamiento jurídico positivo preciso y bien fundado. La Sala reafirma que el Ministerio accionado puede y debe salvaguardar la salud pública. (…)
POR TANTO: Se declara con lugar el recurso y, en consecuencia, se anula la orden sanitaria No. MS-DRPIS-UNC-2001-2020 del 30 de julio de 2020, dictada por el Ministerio de Salud. (…)”. (El destacado no forma parte del original).
Así las cosas, se evidencia que la línea de esta Sala es brindar tutela cuando una orden sanitaria violenta otras libertades públicas que se encuentren directamente relacionadas con el sostenimiento del sistema democrático, como lo es, por ejemplo, la libertad de expresión.
A partir de lo anterior, es de suma relevancia tomar en consideración que en este amparo nos encontramos ante una situación absolutamente excepcional, ya que se encuentra de por medio uno de los derechos fundamentales de mayor importancia y trascendencia para el pueblo de Costa Rica y su preciado sistema democrático, como lo es la libertad de expresión. De ahí; la plena justificación para que este Tribunal Constitucional conozca por el fondo este asunto vía amparo, y se pronuncie respecto a los hechos acusados.
B. CIERRE DE PARQUE VIVA A TRAVÉS DE UNA ACTUACIÓN ARBITRARIA, INFUNDADA Y DESPROPORCIONADA. El Director del Diario La Nación, Armando González Rodicio, junto con otros periodistas de ese medio de comunicación, acudieron a este Tribunal y formularon el presente amparo en contra del Presidente de la República, así como de la Ministra de Salud, por habérsele girado a Parque Viva (sitio propiedad de Grupo Nación S.A. al cual pertenece también el referido periódico), una orden sanitaria de cierre total de sus actividades en virtud de existir presuntos problemas relacionados con los accesos viales a dicho sitio. Concretamente, argumentan que dicha orden se ejecutó, de manera arbitraria, pese a que aún no se contaban con criterios técnicos de la Cruz Roja y del Cuerpo de Bomberos respecto a la capacidad de la vía de acceso al establecimiento, los cuales fueron aportados y comunicados días después y resultan cuestionables. Además, señalan que se les exigió presentar un plan remedial que abarque la solución a la problemática de los accesos al parque, pese a que los inspectores del Ministerio recurrido, durante la inspección realizada, no encontraron problema alguno con estos y pese a que las autoridades del MOPT emitieron un informe exclusivamente sobre las vías públicas ubicadas afuera de dicho sitio. Mencionan que, tanto el Alcalde de Alajuela como líderes comunales, han coincidido en que los congestionamientos viales no se pueden atribuir solamente a las actividades realizadas en Parque Viva, habida cuenta que se debe tomar en cuenta concomitantemente el rápido desarrollo habitacional y comercial que se ha producido en la misma zona, sea, La Guácima de Alajuela. Indican que fue el Estado el que creó el problema con su anuencia a la expansión urbanística de la zona, sin proveer la infraestructura pública necesaria. Sostienen que Parque Viva, al momento del cierre, contaba con todos los permisos exigidos en su momento (entre estos, el estudio de planificación vial aprobado en el año 2014), y que, incluso, recientemente, se afirmó que las instalaciones son idóneas para llevar a cabo las actividades que se organizan. Agregan que existe un proyecto vial para remediar el problema (construcción de un acceso a la Ruta Nacional No. 27 de cuatro carriles), para el cual se tramitaron la mayoría de los permisos; empero, a la fecha, no ha sido finalmente aprobado por el MOPT e, incluso, el Presidente de la República lo ha descalificado públicamente, refiriéndose a su intención de no permitirlo, pese a que este sería financiado por Grupo Nación. Señalan que como no se logró hallar una deficiencia en el Parque Viva, se decidió que los defectos se encontraban en la vía pública, donde no corresponde a los particulares, sino al Estado, proveer el remedio. Cuestionan que el problema no es Parque Viva, sino la infraestructura pública que poco ha avanzado en estos años para adaptarse a la densidad habitacional desarrollada después de su puesta en funcionamiento. Afirman que todo lo anterior les imposibilita, además, ejercer un adecuado derecho a la defensa. En virtud de lo anterior, solicitan que se acoja este recurso de amparo, y se anule la suspensión temporal del permiso sanitario de funcionamiento del Parque Viva, así como los actos administrativos que la sustentan.
En su descargo, la Ministra de Salud hizo referencia en su informe a la denuncia planteada el 5 de julio de 2022 en contra del funcionamiento de Parque Viva y al trámite realizado con ocasión de esta. Grosso modo, señaló que, en virtud de esa denuncia se realizó una inspección por parte de las autoridades del Área Rectora de Salud de Alajuela 2, en la cual concluyeron que dicho establecimiento cumple con condiciones físico-sanitarias y estructurales a lo interno de estas, por lo que se recomendó trasladar la denuncia al MOPT para que este realizara una valoración de la situación (estado de calles, dificultad de acceso, etc.). Afirma la Ministra que, “así las cosas”, por oficio No. MS-DM-5754-2022, solicitó a las autoridades del MOPT criterio técnico respecto a las calles de acceso al recinto comercial. Menciona dicha autoridad que este último informe fue entregado por las autoridades del MOPT y que en este se indicó que correspondía a la Municipalidad de Alajuela otorgar los permisos de acceso y que la vía de ingreso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado. Asimismo, la Ministra señala que, posteriormente, el Comité Asesor Técnico de Concentraciones Masivas acordó proponer el giro de una orden sanitaria de cierre a Parque Viva para eventos masivos, así como solicitarse un plan remedial. Indica dicha autoridad que, efectivamente, el 8 de julio de 2022, se le notificó al representante de Parque Viva la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022, en la cual se indicó que, en virtud de lo señalado por el MOPT y el citado Comité de Concentraciones Masivas, se ordenaba la suspensión temporal del permiso sanitario de funcionamiento hasta contarse con criterios técnicos requeridos al Cuerpo de Bomberos y a la Cruz Roja respecto a la capacidad de la vía de acceso al establecimiento por las unidades de primera respuesta, los cuales estaban siendo gestionados por el Ministerio de Salud. También, señala que se les solicitó presentar un plan remedial que solvente el problema de accesos al parque. Afirma la Ministra que, posteriormente, fueron emitidos informes técnicos por parte del Cuerpo de Bomberos, de la Cruz Roja y del Sistema de Emergencias 9-1-1, de los cuales se desprende lo siguiente: Que deben existir medidas preventivas para reducir los riesgos como planes de emergencia que definan rutas de acceso suficiente con la amplitud necesaria que permita una respuesta eficaz en caso de una emergencia. Que las vías públicas de la comunidad de La Guácima resultan insuficientes para el rápido acceso de unidades de emergencia, lo cual se puede agravar ante eventos de concentración masiva. Que se requiere un acceso rápido y oportuno de las unidades de rescate especializadas, lo cual se dificulta por la longitud de las unidades extintoras. Adicionalmente, la Ministra de Salud señala que, según lo informado por el Sistema de Emergencias 9-1-1, cuando hay eventos de concentración masiva ingresa un número mayor de denuncias (por vehículos mal estacionados, embotellamientos, riñas por no poder salir, colisiones, etc.. Afirma que, en consecuencia, sí existe una situación de riesgo potencial en el lugar, por falta de un acceso seguro y fluido al sitio y que el acto administrativo en cuestión lo que busca es evitar poner en riesgo la salud, la seguridad y la vida de los que asisten a los eventos, así como la de aquellos que viven en los alrededores de Parque Viva, quienes, a su vez, requieren un acceso fluido a sus comunidades y, de ser necesario, un adecuado acceso de los medios de socorro. Por esto, afirma que es indispensable presentar el plan remedial solicitado “el cual debe abarcar en su contenido la solución a la problemática de acceso en las comunidades de La Guácima de Alajuela, ante la realización de actividades de concentración masiva”. Agrega la Ministra que los actos administrativos fueron recurridos y desestimados en respeto al derecho a la defensa y que la medida de suspensión temporal de actividades se mantendrá hasta que se presente, se apruebe e implemente un plan remedial que garantice que las actividades de concentración masiva de personas en Parque Viva no conlleve el colapso de las vías de acceso, no genere molestias a las comunidades vecinas y permita el ingreso de vehículos y personal de primera respuesta de forma pronta y segura. Menciona también que si existen otras actividades que no colapsan las vías, los representantes legales del establecimiento deben indicar en el plan remedial solicitado cuáles son estas, así como la cantidad de personas por actividad, a efecto que no superen lo señalado en el criterio técnico emitido por el MOPT. Sostiene la Ministra de Salud que lo actuado se ha llevado a cabo para proteger y preservar el medio ambiente, la salud y la vida de las personas, por lo que no es posible alegar la existencia de derechos adquiridos o situaciones jurídicas consolidadas. Además, afirma que su actuación se encuentra ajustada a derecho y no puede brindar un trato diferenciado o privilegiado al medio de comunicación, tal y como se pretende. Finalmente, indica que en este caso se ha aplicado el principio precautorio en materia sanitaria y que la denuncia se atendió y resolvió apegados a lo dispuesto en el ordinal 41 constitucional.
Por su parte, el Presidente de la República, sobre este tema particular, señaló en el informe rendido a esta jurisdicción constitucional que la denuncia planteada en contra de Parque Viva se atendió con la mayor rapidez y disposición posible en aras de proteger a la ciudadanía. Expone que vecinos de La Guácima de Alajuela plantearon ante el Ministerio de Salud una denuncia anónima donde explicaron lo que han sufrido por años con este lugar y las consecuencias que podrían ocurrir en caso que no se tomen las medidas necesarias de forma urgente. Refiere a algunas noticias publicadas sobre el particular, mediante las cuales se refleja el malestar de algunos vecinos con el funcionamiento de dicho establecimiento. Afirma que, una vez recibida la denuncia, el Ministerio de Salud convocó a sesión al Comité Asesor Técnico en Concentraciones Masivas para analizar el caso y este, luego de examinar, a su vez, el informe técnico rendido por la Dirección General de Ingeniería de Tránsito (donde se concluye que cuando se realizan las concentraciones masivas en el Parque Viva, la vía que da acceso no tiene capacidad suficiente para el manejo del tránsito generado), acordó proponerle a las autoridades sanitarias una orden de cierre para eventos masivos y solicitar concomitantemente un plan remedial para las condiciones denunciadas. Por ende, siguiendo dicha recomendación, menciona que el Área Rectora de Salud de Alajuela 2 emitió la orden sanitaria en cuestión, mediante la cual se suspendió de forma temporal el permiso sanitario de funcionamiento para eventos de carácter masivo hasta que se aporte el referido plan remedial, el cual no ha sido presentado. Apunta que las autoridades han exigido a otros grupos comerciales la construcción de accesos de ingreso a centros comerciales de gran envergadura cuando se proyecta que la entrada en operación de estos recintos representará un aumento en el flujo vehicular de la zona en que fueron construidos, tal es el ejemplo de EPA en Desamparados o de City Mall en Alajuela, los que realizaron cuantiosas inversiones para ajustarse a los requerimientos de entrada y salida de vehículos. Agrega el mandatario que se cuenta con el criterio de la Dirección Regional de la Fuerza Pública de Alajuela, donde se señala que La Guácima está catalogada como sensible ya que convergen diferentes acciones delictivas y que las aglomeraciones de vehículos y de personas en las afueras de Parque Viva, reduce la movilidad policial y produce un incremento en las llamadas de vecinos al 911, debido a incidentes de alteración al orden público. Expone que la Fuerza Pública hizo alusión a un incidente ocurrido el 7 de mayo de 2022, donde se debió brindar asistencia a los cuerpos de socorro para trasladar a un paciente, ya que la cantidad de personas impedía el movimiento de la ambulancia con rapidez. Agrega que el Cuerpo de Bomberos, por su parte, sostuvo que las comunidades aledañas a Parque Viva, al igual que el mismo sitio, se ven afectadas, ya que el tiempo de respuesta de las unidades de bomberos aumenta de forma considerable debido a las condiciones de las vías circundantes al recinto. También, aduce que ante la incredulidad que generó el hecho que el gobierno local le otorgara permisos de funcionamiento a Parque Viva, el Instituto Nacional de Vivienda y Urbanismo solicitó a la Municipalidad de Alajuela el expediente del proyecto. Afirma que producto del análisis realizado a dicho expediente se hallaron una serie de situaciones muy preocupantes relacionadas con el permiso de uso de suelo y la viabilidad ambiental otorgada. Igualmente, indica que se demostró la falta de presentación de un estudio de impacto vial (que midiera el impacto de flujo vehicular asociado a las actividades que se desarrollan en Parque Viva), la falta de autorización del Cuerpo de Bomberos, así como que no se exigió o solicitó alguna mejora a la vialidad cantonal que da acceso al parque. Sostiene que no se trata de gestiones antojadizas, sino de acciones tendentes a proteger la vida de los costarricenses. Menciona que el propio Colegio de Periodistas de Costa Rica sostuvo que la situación del Parque Viva debe ser abordada desde el principio de legalidad, para lo cual existe la vía recursiva de impugnación del acto administrativo que ordenó la suspensión del permiso sanitario de funcionamiento, lo cual, además, se resuelve con la presentación de un plan remedial. Refiere que en nota publicada el 27 de abril de 2021, el Grupo Nación aceptó que las condiciones de acceso a las instalaciones del Parque Viva no son las mejores. Sostiene que al Grupo Nación se le otorgó la posibilidad de presentar un plan remedial y, también, ha tenido la posibilidad de recurrir la resolución administrativa. Menciona que no es cierto que la Administración haya clausurado definitivamente el recinto. Afirma que el diario La Nación sigue operando, pero esto no significa que no se les vaya a exigir ajustarse a derecho cuando sea evidente y manifiesto que lo hacen de forma ilegítima y en detrimento de los derechos de los costarricenses. Además, sostiene que todas las decisiones se han tomado de acuerdo con parámetros técnicos, conforme una denuncia presentada por la misma ciudadanía.
Ahora, una vez señalados los argumentos expuestos por ambas partes (recurrentes y autoridades recurridas del Ministerio de Salud y Presidencia de la República), conviene hacer un repaso general por los hechos que se tienen por acreditados en este proceso de amparo, respecto a este reclamo en particular.
Así, conviene destacar primeramente que se tiene por acreditado que Grupo Nación (del cual forma parte el Diario La Nación y, que es precisamente el medio para el cual trabajan los recurrentes), adquirió las instalaciones donde operaba anteriormente el llamado Autódromo La Guácima y creó Parque Viva.
Consta también que el Parque Viva obtuvo los permisos requeridos, por lo que en el año 2015 le fue otorgado el respectivo permiso sanitario de funcionamiento. Ese mismo año, dicho establecimiento fue entonces reinaugurado por el Grupo Nación. Como parte del cumplimiento de estos requisitos, se tiene por demostrado que por oficio No. DGIT-ED-5935-2014 de 1° de septiembre de 2014, una ingeniera de la Unidad de Permisos y el Jefe del Departamento de Estudios y Diseños, ambos de la Dirección General de Ingeniería de Tránsito del MOPT, señalaron lo siguiente:
“(…) SOBRE EL ESTUDIO DE IMPACTO VIAL Una vez realizada la revisión del estudio de impacto vial presentado (para las condiciones de funcionamiento típico del Centro de Eventos La Guácima), esta Unidad indica que desde el punto de vista funcional no tiene objeción alguna con el proyecto. Lo anterior se debe a que esta Unidad comprobó que con la implementación de las medidas de mitigación planteadas a partir del análisis de capacidad realizado, los niveles de servicio (NDS) y longitudes de cola logran mantenerse en niveles adecuados. La aprobación del presente EIV tiene vigencia durante un año si las condiciones del tránsito y la vialidad aledaña no cambian significativamente y el proyecto es construido antes de finalizado este periodo, en caso contrario esta Dirección General se reserva el derecho de solicitar la actualización del estudio. Además, se le recuerda que la autorización corresponde exclusivamente para el proyecto presentado, por lo que cualquier modificación en tamaño, uso o de cualquier otra índole debe ser analizada por la Dirección General de Ingeniería de Tránsito para evaluar las nuevas condiciones, de lo contrario esta autorización pierde su validez (…)”.
Asimismo, se tiene que, por oficio No DVT-DGIT-ED-2015-4056 de 8 de octubre de 2015, ingenieros de la Unidad de Permisos de la Dirección General de Ingeniería de Transito del MOPT, indicaron lo siguiente:
“(…) Se les comunica que, se les recibe las ampliaciones y la señalización en la intersección # 3 con la Ruta Nacional N° 124 para el Proyecto: Centro de Eventos La Guácima. ubicada en el Distrito N° 05: la Guácima, Cantón NB 01: Alajuela, Provincia N° 02: Alajuela, en la propiedad inscrita ante el Catastro Nacional con el numero SJ-1244439- 2007, cuyo permiso fue tramitado por este Departamento bajo el expediente ED-AC-13-0081, según el diseño que consta en las láminas 01/10, 02/10, 03/10, 04/10, 05/10. 06/10, 07/10, 08/10, 09/10, 10/10 firmadas por el profesional responsable, la ingeniera Natalia Marín Villalobos, IC-16371. Lo anterior debido a que en inspección se constató la realización por parte del interesado de la respectiva señalización vertical y horizontal a satisfacción, acorde con las directrices del Departamento de Señalización Vial de esta Dirección General, y de conformidad con el Manual Centroamericano de Dispositivos Uniformes para el Control del Tránsito, (SIECA). Con base en lo anterior, esta Unidad Técnica no tiene objeción alguna, desde el punto de vista funcional y de señalización (no incluye calidad de la demarcación horizontal y vertical), en el uso del acceso en referencia (…)”.
También, consta que las autoridades del Ministerio de Salud renovaron al Parque Viva el permiso sanitario de funcionamiento No. MS-DRRSCN-DARSA2-RPSF-0177-2019 con vigencia hasta febrero de 2024.
Esta Sala tiene igualmente por demostrado que el 16 de diciembre de 2021, por oficio No. MS-DRRSCN-DARSA2-4070-2021, el Director del Área Rectora de Salud Alajuela 2 del Ministerio de Salud otorgó al Parque Viva visto bueno a los aforos declarados para las instalaciones de anfiteatro, salones y graderías del autódromo. En ese particular, se permitieron 18203 ocupantes en el anfiteatro, 12450 ocupantes en salones y 2901 ocupantes en graderías. Aunado a ello, consta que por oficio No. MS-DRRSCN-DARSA2-0163-2022 de 20 de enero del año en curso, esas mismas autoridades dispusieron la ampliación del aforo de graderías de Parque Viva a 8841 ocupantes.
Se tiene también por acreditado que a una hora no precisa del día 5 de julio de 2022, se presentó ante el Despacho de la Ministra de Salud una denuncia anónima en contra del funcionamiento del Parque Viva, a la cual se le asignó el número 243-2022. En tal oportunidad, el denunciante completó, en el machote o formulario establecido para presentar dicha gestión, los siguientes aspectos relacionados con el motivo de su denuncia “2.1. Denuncias por asuntos relacionados con condiciones estructurales de edificios: a) Problemas estructurales (estado de paredes, techos, pisos, entre otros) (…) c) Incumplimiento de plan de emergencias para prevención y protección contra incendios (…) f) Condiciones de seguridad e higiene”. Adicionalmente, el denunciante expuso expresamente su inconformidad respecto al acceso al Parque Viva y los problemas que se suscitan en las calles que conllevan a este sitio cuando se realizan conciertos masivos. Concretamente, manifestó:
“(…) Este recinto es comúnmente utilizado para llevar a cabo conciertos masivos, donde se reúne una gran cantidad de personas. El problema con este lugar son sus puntos de acceso y la poca capacidad que tiene las carreteras, que son de una comunidad rural para recibir una enorme cantidad de vehículos al mismo tiempo. Todas las calles que dan al Parque Viva, son calzadas de un carril por sentido, muy angostas, sin bahías para autobuses, ni condiciones para alto tránsito. Cada vez que hay un concierto, las calles de la comunidad colapsan absolutamente, al punto que las personas tardan horas en desplazarse en distancias cortas o salir del parqueo del lugar. La situación es sumamente grave, pues durante una eventual emergencia, podría verse comprometida la respuesta de los cuerpos de socorro. Y es que estamos hablando de situaciones tan riesgosas como incendios, terremotos, caídas de estructuras, tiroteos, entre otros eventos trágicos que podrían ocurrir en eventos masivos. Las calles de la Guácima de Alajuela no pueden soportar la afluencia masiva de vehículos, pues sus vecinos también podrían ver menoscabados sus derechos por este tipo de eventos, ya que, ante emergencias en sus hogares o comunidades, la respuesta de las autoridades de auxilio tardaría muchísimo más que lo normal, por las enormes presas que genera este lugar. En vista de lo anterior, y ante la gravedad de los hechos denunciados se solicita la clausura definitiva del lugar, hasta tanto no encuentren una solución a la problemática. La solicitud se realiza en aras de proteger la salud pública y el interés común. PARQUE VIVA NO REUNE (sic) LAS CONDICIONES PARA ALBERGAR EVENTOS DE CONVOCATORIA MASIVA. Cierro indicando que es responsabilidad del Estado, de conformidad con el artículo 50 de la Constitución Política, velar porque se tutelen los derechos de los habitantes de la República y otorgarles el mayor grado de bienestar. Como prueba adjunto 8 fotografías de los únicos 2 accesos de lugar, que demuestran las condiciones de las calles circundantes. Además, adjunto 2 notas de medios de comunicación donde se expone la problemática con las presas provocadas por los eventos masivos (…)”. (El destacado no forma parte del original).
Consta que por oficio No. MS-DM-5754-2022, rubricado digitalmente a las 12:24:14 hrs. de 5 de julio de 2022, la Ministra de Salud, con carácter de urgencia, solicitó al Ministro de Obras Públicas y Transportes y a la Viceministra de Transportes y Seguridad Vial, criterio técnico en relación con las calles de acceso al recinto comercial privado, denominado Parque Viva. En tal ocasión, se indicó expresamente lo siguiente: “(…) El criterio técnico se requiere para dilucidar aspectos estructurales y de seguridad humana. Por ello, deben considerarse los aspectos de capacidad que tienen las carreteras en el escenario de la enorme cantidad de vehículos y personas que al mismo tiempo asisten a los eventos masivos de dicho lugar, en relación con aspectos de eventuales emergencias, respuestas de acceso de cuerpos de socorro, riesgos por situaciones de conflictos, etc. (…)”. Se determinó también que, dicha Ministra, mediante oficio No. MS-DM-5756-2022, rubricado digitalmente el 5 de julio de 2022 a las 12:38:24 hrs, trasladó dicha denuncia para su atención a la Directora de la Dirección Regional de Rectoría de la Salud Central Norte de ese mismo Ministerio (oficina ubicada en Heredia). Además, –según el respectivo sello físico–, consta que la mencionada denuncia fue recibida en el Área Rectora de Salud de Alajuela 2 a las 12:41 hrs. de ese mismo día 5 de julio.
Se tiene por acreditado que al ser las 13:50 hrs. de 5 de julio de 2022, autoridades del Área Rectora de Salud de Alajuela 2 llevaron a cabo una inspección físico sanitaria en el Parque Viva, producto de la cual se elaboró el informe No. MS-DRRSCN-DARSA2-1641-2022 de fecha 5 de julio de 2022, donde se consignó lo siguiente:
“(…) Según consta en el acta de inspección ocular MS-DRRSCN-DARSA2-IT-1639-2022 el día 05 de julio del 2022 al ser las 13:50 horas se realizó la visita específica en sitio para valorar lo expuesto por la parte denunciante. Respecto a la problemática denunciada, en cuanto al apartado de problemas estructurales, a lo interno de las instalaciones del recinto durante el recorrido realizado no se constataron problemas estructurales visuales relacionados con aspectos físico-sanitario, el estado de las paredes, pisos, servicios sanitarios y demás espacios de convivencia humana no presentaba problemas observables. En el apartado de incumplimiento del plan de emergencia, en sitio se evidenció la presencia de cuatro planes de emergencias, correspondientes a la propia sectorización que la empresa implementa para sus instalaciones, teniendo un plan específico para el Centro de Eventos, El anfiteatro Coca Cola, el Circuito de Competencias y las Áreas Comunes, en sitio se corroboró que las señalizaciones respectivas se encontraban instaladas, se evidenció la presencia del equipo de combate contra incendios y de los respectivos implementos (comida, botiquín, férulas, entre otros). Con respecto a las condiciones de seguridad e higiene, durante el recorrido no se evidencia presencia de riesgos o condiciones inseguras que puedan afectar la integridad de los colaboradores de la empresa.
En cuanto a lo señalado por el denunciante sobre el problema vial, cabe resaltar que éste no es competencia del Ministerio de Salud, sin embargo, se realizó el análisis de los puntos de acceso y salida de las instalaciones, como se muestra en el anexo 1, las instalaciones cuentan con cuatro puntos de acceso para ingreso y salida de vehículos y se cuenta con una capacidad de 940 automóviles en el parqueo cercano al acceso 2, además de contar con espacio para 3000 vehículos en el sector del circuito de competición que se encuentra cerca del acceso 3 y 4 del Parque Viva, además de esto se muestra que los cuatro accesos se encuentran interconectados a lo largo de las instalaciones (se realizó un recorrido para comprobar esto), lo cual favorece la salida de los vehículos. 3. CONCLUSIÓN. Por lo expuesto, se puede concluir que las instalaciones de Parque Viva cumplen con condiciones físico-sanitarias y estructurales adecuadas a lo interno de estas, se procederá a trasladar los planes de emergencia al Encargado Regional de Salud Ocupacional para su valoración y revisión a profundidad, además se recomienda realizar el traslado de la denuncia al Ministerio de Obras Públicas y Transporte para que estos valoren las condiciones denunciadas que son competencia de esta dependencia (calles en mal estado, un solo carril por sentido vial, dificultad de acceso de cuerpos de emergencias por vía pública, entre otros) (…)”. (El destacado no forma parte del original).
Este Tribunal tiene por demostrado que, en virtud de la gestión planteada el 5 de julio de 2022 a 12:24:14 hrs. por la Ministra de Salud, la Viceministra de Obras Públicas y Transportes le remitió a esta última el oficio No. DVTSV-2022-0341 de fecha 6 de julio del 2022, mediante el cual se solicitó dejar sin efecto el oficio No. DVT-DGIT-2022-DVT-DGIT-2022-334 enviado por correo electrónico el día anterior en la tarde (sea, el 5 de julio de 2022), con el objetivo de incluir más información al análisis del acceso al Parque Viva. Asimismo, en dicha ocasión, se adjuntó el oficio No. DVT-DGIT-2022-339, suscrito ese mismo 6 de julio de 2022 por el Director General de Ingeniería de Tránsito, donde se indicó expresamente lo siguiente:
“(…) 1. El Parque Viva es un recinto que abrió sus puertas en el 2015 y se utiliza para realizar diversos tipos de eventos, como por ejemplo: eventos deportivos de motores, congresos, ferias, así como eventos de concentración masiva como conciertos y festivales. 2. De acuerdo a la información brindada en la página Web del Parque Viva, la capacidad del recinto es de hasta 20.000 mil personas. Además, cuenta con 4.900 espacios para estacionamiento privado, que se puede ampliar hasta en 6.000 espacios utilizando la pista de carreras. 3. En la actualidad, la Dirección General de Ingeniería de Tránsito no tiene ninguna solicitud relacionada con el acceso existente del Parque Viva. Tampoco ha realizado ningún estudio funcional en las vías con el escenario de un evento masivo como los que se realizan en el lugar. 4. El Parque Viva de (sic) localiza frente a una ruta cantonal denominada Calle Rincón Chiquito. Al ser una ruta cantonal, le corresponde a la Municipalidad de Alajuela el otorgamiento de los permisos de acceso (…) 5. La Calle Rincón Chiquito es una calle urbana de dos carriles, un carril por sentido de circulación. Este tipo de vías podría alcanzar una capacidad máxima alrededor de los 1.200 vehículos por hora por sentido. De acuerdo a las condiciones de la vía, un estudio detallado podría arrojar una capacidad menor a la mencionada. De acuerdo a los datos antes indicados, se puede asegurar que en el momento en que se realizan eventos de concentración masiva, la vía que da acceso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado. Bajo un escenario conservador, sin considerar estacionamientos periféricos al parque ni la utilización de la pista de carreras, tendríamos una generación de 4.900 vehículos por hora, lo cual representa más del doble de lo que la vía podría soportar (…)”. (El destacado no forma parte del original).
Consta que en virtud de todo lo anterior, el Comité Asesor Técnico de Concentraciones Masivas celebró una sesión extraordinaria el 7 de julio de 2022 a las 14:30 hrs. con la presencia de la Ministra de Salud en calidad de coordinadora, del Ministro de Obras Públicas y Transportes, de funcionarios de la Cruz Roja Costarricense, de la Dirección de la Policía de Tránsito, de la Comisión Nacional de Emergencias, del Cuerpo de Bomberos, del Sistema de Emergencias 9-1-1 y de Gestión de Riesgo del Ministerio de Salud. En el acta de dicha sesión No. 28643-S-MOPT-SP, se consignó lo siguiente:
“(…) Con base en las competencias que establece el artículo 4° del decreto ejecutivo 28643 se procede a conocer el caso. El señor Keylor Castro Chacón del Ministerio de Salud, a petición de la señora Ministra, lee el documento del Área Rectora de Salud Alajuela número MS-DRRSCN-DARSA2-1641-2022 y que se relaciona con el oficio MS-DM-5756-2022 de la Ministra de Salud. El señor Luis Amador interviene. Pone en perspectiva la situación de las calles de acceso. El señor Keylor Castro lee el informe DVT-DGIT-2022-339 (dirigido a la Ministra de Salud con la nota DVTS-2022-0341). La señora Ministra interviene. Don Alexander Araya del Cuerpo de Bomberos interviene y apunta las dificultades que tiene el cuerpo de bomberos para ingresar, por el tipo de unidades de emergencias que se tienen, las cuales miden 11 metros de largo y 3 metros de ancho, por lo que se nos dificulta el paso en las condiciones de tener vehículos a ambos lados. Tiene que ampliarse las vías de acceso o que exista otro acceso donde haya espacio para el tránsito y acceso de unidades de emergencia. El señor Luis Amador interviene. Señala lo inadecuado del uso del suelo. Debe ser ampliada la ruta para garantizar un flujo adecuado en los eventos y en las emergencias durante los eventos. Debe mejorarse esa ruta cantonal terciaria. Hay riesgo para la vida humana. Interviene don Jorge Rovira de la Comisión Nacional de Emergencias. Hay un permiso de funcionamiento vigente. Hay que tener cautela y ver la realidad del País. Interviene don Keylor Castro Chacón. Hay otros lugares con situaciones similares. Interviene la señora Ministra de Salud, haciendo una réplica de lo manifestado por don Keylor. Interviene don Felipe Venegas. El recinto ha presentado problemas desde que era el autódromo la Guácima. Solo tiene una calle de acceso y eso presenta un problema porque hay que pasar por zonas residenciales. Aún no hay un reglamento de eventos masivos. En este caso Parque Viva no es adecuado para eventos masivos. Johnny Hidalgo González, Interviene he (sic) indica que desde el 01 de enero del 2022, hay 18 reportes en lo que va del año de problemas de tránsito, más de 30 colisiones, 4 reportes de vehículos mal estacionados, 5 riñas, 3 incidentes de eventos contra el orden, entre otros reportes. Interviene don Jim Batres. Manifiesta preocupación por la cantidad de ambulancias que atienen cada evento, donde a veces no supera una sola unidad.
ACUERDO: Vistos los oficios mencionados, y la recomendación del Ministerio de Obras Públicas y Transportes sobre tomar un curso de acción a raíz de la situación presentada con relación a la capacidad de la vía de acceso del recinto denominado Parque Viva, se acuerda proponer a las autoridades correspondientes una orden sanitaria de cierre para eventos masivos del establecimiento denominado Parque Viva, y las medidas que correspondan con otras autoridades pertinentes. Debe solicitarse un plan remedial para las condiciones denunciadas, el cual de ser puesto en conocimiento de este Comité Asesor Técnico de Concentraciones Masivas (…)”. (El destacado no forma parte del original).
Las autoridades del Ministerio de Salud, del MOPT, del Cuerpo de Bomberos, de la Comisión Nacional de Emergencias y de la Cruz Roja Costarricense, a través de sus representantes ante dicho Comité, votaron a favor de dicha propuesta.
Consta también que, con fundamento en lo anterior, las autoridades del Área Rectora de Salud Alajuela 2 del Ministerio de Salud, el 8 de julio de 2022 emitieron la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 (rubricada electrónicamente a las 12:37:21 hrs.), mediante la cual se dispuso el cierre de Parque Viva, conforme los siguientes términos:
“(…) En atención a denuncia anónima N° 243-2022, traslada (sic) mediante oficio MS-DM-5756-2022 desde el Despacho de la Ministra de Salud, por aparentes problemas estructurales, incumplimientos del plan de emergencia y condiciones de seguridad e higiene en el Parque Viva, y según consta en el acta de inspección ocular MS-DRRSCN-DARSA2-1639-2022 del día 05 de julio del 2022 al ser las 13:50 horas se realizó la respectiva visita en el sitio para valorar lo señalado en la denuncia. Así mismo, en concordancia con el principio precautorio y en atención a los oficios: MS-DM5814-2022, mediante el que se remite el Informe Técnico DVT-DGIT-2022-339 emitido por la Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes, el oficio MS-DM-5838-2022 mediante el que se remite el Acta N°28643-SMOPT-SP del Comité Asesor Técnico en Concentraciones Masivas, se ordena mediante el siguiente acto administrativo la suspensión temporal del Permiso Sanitario de Funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 (parque temático, autódromo, anfiteatro, eventos deportivos, culturales, ferias y exposiciones varias) hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los Criterios técnicos emitidos por el Benemérito Cuerpo de Bomberos de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud. Así mismo, su representada deberá presentar un plan remedial que abarque la solución a la problemática de los accesos y el consecuente riesgo a la Seguridad y Salud Publica ante la realización de Actividades de Concentración Masiva, y la generación de una eventual emergencia en dichas actividades (…)”. (El destacado no forma parte del original).
Adicionalmente, se tiene por demostrado que en dicho acto administrativo se hizo referencia a las consecuencias de no cumplir lo ordenado y se indicó que contra este procedía la interposición de los recursos de revocatoria con apelación en subsidio dentro de los cinco días hábiles posteriores a su notificación. Esta orden sanitaria fue notificada al representante de Parque Viva el día 8 de julio de 2022 a las 12:40 hrs. (vía correo electrónico), indicándose que se adjuntaban “anexos de importancia”. Además, la notificación personal se llevó a cabo ese mismo día a las 14:15 hrs..
Ahora, se tiene por acreditado en autos que el mismo 8 de julio de 2022, la Ministra de Salud, por oficio No. MS-DM-5870-2022 firmado digitalmente a las 17:05:24 hrs, solicitó al Director del Cuerpo de Bomberos y a la Presidenta de la Cruz Roja Costarricense “(…) informes detallados y amplios, desde sus respectivos campos de competencias, con relación a la situación de Parque Viva en La Guácima de Alajuela, en el marco de la realización de eventos masivos y las situaciones de riesgo para la salud y la vida humana. Lo anterior como complemento al tema tratado en la reunión del Comité Asesor Técnico en Concentraciones Masivas del pasado jueves 7 de julio de 2022. Lo anterior a la mayor brevedad posible (…)”.
Consta que, en atención a la anterior solicitud, se presentaron ante el Ministerio recurrido los siguientes informes técnicos:
“(…) Con relación a la situación del Parque Viva, ubicado en La Guácima de Alajuela, en el marco de la realización de eventos masivos y situaciones de riesgo para la salud y la vida Humana, indicó (sic): Las unidades extintoras del Benemérito Cuerpo de Bomberos de Costa Rica, tienen una longitud aproximada de 11 metros y un ancho de 3 metros; esto hace que se requiera de suficiente espacio para poder maniobrar, ya sea cerca de la escena de incendio o durante la trayectoria hacia el lugar de la emergencia. La medida de ancho de la calle que se utiliza de forma normal para llegar a Parque Viva en la mayoría de su trayectoria mide aproximadamente seis metros, como se puede observar en esta fotografía, un autobús y un vehículo liviano, no pueden transitar de forma normal, para transitar, uno de ellos dos debe detenerse y dar paso (…) Igualmente existen tramos donde las medidas se reducen casi a cuatro metros, es decir una unidad de Bomberos requiere de todo el espacio para poder transitar, tomando como referencia las siguientes fotografías (…) Debido al ancho de la calle, existen tramos donde no se puede realizar las maniobras de adelantamiento (…) Debido a las situaciones planteadas anteriormente, como consecuencia, existen varias comunidades como Rincón Chiquito, Rincón Herrera, Guácima centro, al igual que las propias instalaciones del Parque Viva, se podrían ver afectadas debido a que el tiempo de respuesta de las unidades de Bomberos aumenta de forma considerable, además, cuando se dan bloqueos en las carreteras, se imposibilita el acceso a las comunidades, situación que pone en riesgo las vidas y las propiedades (…)”.
“(…) Como institución de primera respuesta se cuenta con amplia experiencia en la atención de eventos masivos en diferentes eventos y lugares, la Cruz Roja Costarricense ha tenido que atender pacientes en función de las actividades realizadas en el mismo, esto obedece a la cantidad de personas que asisten a las diferentes actividades que dependiendo del mismo, pueden ser varios miles de personas. (…) En el caso de los eventos que se desarrollan en el Parque Viva, es necesario aclarar que la Cruz Roja Costarricense no cubre tales actividades, sino que las empresas organizadoras del evento, contratan empresas privadas de ambulancias que brindan este tipo de servicios, siendo necesario indicar que en el país existen cerca de 70 empresas privadas que brindan servicio prehospitalario de traslado de pacientes, en consecuencia se aclara los videos de varias ambulancias que circulan en redes sociales, ligadas a la atención de casos de emergencia en Parque Viva no son de Cruz Roja. Así las cosas, nuestra recomendación en este Comité Asesor Técnico ha sido históricamente manifestar la importancia de que se genere una regulación para el tema de eventos masivos, sabemos que el Ministerio de Salud tiene el Reglamento General para Autorizaciones y Permisos Sanitarios de Funcionamiento Otorgados por el Ministerio de Salud y que el Ministerio de Seguridad Pública cuenta con el Manual de Tramitación para la Aprobación de los Planes de Seguridad los Eventos Temporales con Asistencia Masiva de Personas. Sin embargo, hace unos 6 años se sugirió trabajar con el Algoritmo de Maurer que lo trabajan en Alemania. En términos generales, según la experiencia de la Cruz Roja Costarricense, cualquier lugar en el que se realizan eventos masivos debe tener una entrada y una salida para todos los vehículos que asisten a los eventos, y que permitan una adecuada circulación para los vehículos de emergencia, tanto para atender incidentes en el lugar del evento, como en zonas circundantes, así como vías que permitan la evacuación masiva de los participantes en caso de activarse alguna amenaza y contar con un Plan de Emergencias actualizado, que contemple una adecuada proporción de ambulancias en función de la cantidad de asistencias al evento (…)”.
“(…) En el caso específico objeto de la presente consulta, se conoce que las vías públicas de la comunidad de La Guácima de Alajuela y zonas aledañas son insuficientes para el rápido acceso de nuestras unidades de emergencia en la atención ordinaria de incidentes, que se puede agravar cuando se realizan eventos masivos, puesto que hemos conocido de situaciones en las cuales el simple desperfecto mecánico de un vehículo particular atrasa sustancialmente el ingreso de nuestras ambulancias. Históricamente los tiempos de respuesta para atender emergencias por parte de las diferentes instituciones se han visto afectados por la congestión vial en diversos puntos del territorio nacional, situación que sucede también en La Guácima de Alajuela, experimentando un incremento en el tiempo de traslado de los vehículos de emergencia de forma variable, generándose atrasos que van desde 10 minutos hasta los 30 minutos. En algunos casos específicos, el tiempo de llegada o salida de nuestros vehículos se ha extendido hasta más tiempo, ocasionado por la cantidad de vehículos que se ubican en los costados de las vías públicas aledañas al sitio del evento, e incluso por personas que transitan en las vías públicas, lo cual hace que se tenga que circular con mayor cautela. Para el caso concreto la estructura operativa de la Benemérita Cruz Roja Costarricense ha trabajado en tres escenarios que se atienden para un análisis de la situación que le permite a las autoridades tomar las decisiones según sus competencias. 1. Accidentes de tránsito: en la atención de un accidente de tránsito dependiendo de la gravedad del mismo, se hace necesario la llegada de diferentes recursos, ambulancias, camiones de rescate, e incluso la presencia del Cuerpo de Bomberos de Costa Rica. Cabe destacar que se pueden presentar casos en lo que los pacientes se encuentran prensados consecuencia del incidente, requiriéndose que a la escena se sume el equipo de rescate especializado según las necesidades. En cualquiera de los casos los pacientes requieren ser atendidos de forma inmediata, ya que en algunos casos la vida puede estar en riesgo inminente. 2. Incendios estructurales: en la atención de incendios estructurales generalmente responde el Cuerpo de Bomberos para extinguir el fuego y la Cruz Roja Costarricense acude a la escena para la atención de pacientes, por lo que dependiendo del tamaño del incidente, la cantidad de recurso que se hace presente se podría ver afectado por la dificultad de acceso a las instalaciones en riesgo y la evacuación de pacientes. 3. Casos médicos: Dependiendo de la gravedad del caso, se requiere que el paciente reciba atención de forma expedita dado que el retraso en los tiempos de respuesta genera un impacto negativo en el pronóstico de la persona, afectando potencialmente la vida. Por ejemplo, en el caso de un paro cardiorespiratorio se requiere acceso al paciente idealmente en menos de 10 minutos. Por otro lado, dependiendo de las circunstancias, existe la posibilidad de que la Unidad de Soporte Avanzado de Vida (USAV), en sitio, requiera del apoyo de una Unidad de Soporte Avanzado de Vida (USAV), dado que esta segunda ambulancia cuenta con personal de mayor nivel de capacitación, más equipamiento y por ende, mayor nivel resolutivo, ofreciéndole así una mejor oportunidad a la salud del paciente. Caba destacar que al haber dos unidades o más en el lugar del siniestro se requerirá un espacio amplio y seguro para que los socorristas puedan brindar su atención (…)”.
También, consta que se aportaron ante la Ministra de Salud otros informes relacionados con este mismo tema, sea, los siguientes:
El informe técnico No. 911-DI-2022-2202 de 11 de julio de 2022, a través del cual la Directora del Sistema de Emergencias 9-1-1 se refirió a eventos acaecidos en zonas circundantes al Parque Viva durante unas fechas específicas, sea, 7, 14 y 21 de mayo y 17 y 18 de junio de 2022 (v. gr. situaciones relacionadas con problemas de tránsito, vehículos mal estacionados, riñas de personas, una persona inconsciente y otra extraviada, etc.).
Y también, el oficio No. DM-2022-3121 de 11 de julio de 2022, a través del cual el Ministro de Obras Públicas y Transportes señaló lo siguiente:
“(…) En relación con la situación que se ha presentado con el cierre temporal sujeto a acciones remediales del Parque Viva, el Ministerio de Obras Públicas y Transportes emite el siguiente criterio considerando que: El Parque Viva contiene múltiples usos de suelo que pueden producir concentración masiva, entendida como eventos temporales que reúnen extraordinariamente a una cantidad de personas bajo condiciones de aglomeración en espacios físicos abiertos y/o cerrados, que por sus características de sitio suponen un escenario de riesgo o de amenaza que obligan a medidas preventivas de control de uso del espacio. El Parque Viva tiene 9000 m2 de nave industrial, lo cual tiene una atracción estimada de 6593 vehículos basado en referencia de 3 eventos similares en Reino Unido (…) El Parque Viva tiene una capacidad de 20.000 personas y usando una tasa de ocupación de 3 personas por vehículo (…) nos da 6667 vehículos por hora. Se estima que la calle adyacente tiene capacidad máxima de 800 vehículos por hora para un nivel de servicio E, pues es una vía de 4 m a 6 m de ancho en doble sentido de circulación. SE RECOMIENDA: Una concentración máxima de 2400 personas en evento (sic) masivos de acuerdo a situación actual de accesos y vías aledañas para poder garantizar un flujo adecuado de vehículos de acceso y salida al sitio (…)”.
Ahora, se demostró igualmente que los anteriores cinco informes técnicos (No. CBCR-027150-2022-OPB-00741 del Cuerpo de Bomberos, No. CRC-GG-SO-OF-074-2022 y No. CRC-GG-OF-012-2022 de la Cruz Roja Costarricense, No. 911-DI-2022-2202 del Sistema de Emergencias 9-1-1 y el No. DM-2022-3121 del Ministerio de Obras Públicas y Transportes), fueron puestos en conocimiento del representante legal de Parque Viva hasta el día 15 de julio de 2022, mediante oficio No. MS-DRRSCN-DARSA2-1724-2022. En este último oficio se confirmó también lo dispuesto en la citada orden sanitaria y se consignó expresamente lo siguiente:
“(…) Una vez conocidos y analizados dichos documentos de acuerdo con lo indicado en la orden de cita, queda demostrado que los mismos señalan que existe un evidente problema para la atención de emergencias (accidentes de tránsito, incendios estructurales, casos médicos, entre otros), por parte de las Instancias de Primera Respuesta tanto en las comunidades aledañas, como para los mismos asistentes a los eventos de concentración masiva que se realizan en el Parque Viva, debido a problemas de tránsito y acceso al lugar, por lo tanto, en concordancia con el principio precautorio y en aras de garantizar el cumplimiento de los artículos 21 y 50 de la Constitución Política, el artículo 11, 152, 153 y 154 de la Ley General de la Administración Pública y los artículos 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357 y 364 de la Ley General de Salud, se confirma en todos sus extremos y alcances la Orden Sanitaria MS-DRRSCN-DARSA2-OS-0386-2022 (sic) (…)”.
Asimismo, se ha tenido por demostrado que un día antes de notificarse este último oficio, sea, el 14 de julio de 2022, los representantes del Grupo Nación formularon un recurso de revocatoria y de apelación en subsidio en contra de lo dispuesto en la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 de fecha 8 de julio de 2022. Recursos que, según informó la Ministra de Salud, ya fueron resueltos y desestimados.
Adicionalmente, es importante tomar en cuenta otros hechos que se han tenido por demostrado en este amparo, los cuales guardan relación con los anteriormente expuestos.
Así, nótese que consta en autos que a manos del Presidente de la República llegó el oficio No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 de 10 de julio de 2022, mediante el cual el Subdirector Regional de la Dirección de la Fuerza Pública de Alajuela le informó el Viceministro de Seguridad Pública sobre el entorpecimiento que se presenta en la atención de incidentes de carácter policial en el perímetro externo a Parque Viva cuando se realizan actividades en dicho establecimiento. En este oficio se afirmó que las actividades referidas generan enormes embotellamientos, lo cual representa un aumento sustancial en los tiempos de respuesta policial ante las emergencias reportadas vía 911 y que son resorte de la Fuerza Pública. Además, se indicó que las actividades masivas provocan un incremento de los delitos contra la propiedad y se recurre más a la Fuerza Pública por alteración al orden público, riñas, violencia contra mujeres, conducción temeraria, consumo de alcohol y drogas en vía pública, etc.. Por ende, se sostuvo que “(…) la afectación al servicio policial durante los eventos masivos en la zona referida, es evidente, notoria, frecuente y repetitiva; dado que el impacto de incidencia delictiva diversa, que se genera por el conglomerado enorme de visitantes; afecta el normal desenvolvimiento de las actividades de la población de la zona, y las acciones policiales de carácter diaria (…)”. Asimismo, consta que por oficio No. PE-243-07-2022 de 29 de julio de 2022, la Presidenta Ejecutiva del INVU le informó al Presidente Rodrigo Chaves, una serie de aspectos relacionados con el llamado Parque Viva, luego de haberse realizado una revisión del expediente que consta en la Municipalidad de Alajuela. Grosso modo, en dicha ocasión, se indicó que los usos de suelo otorgados no son conformes con el plan regulador aprobado en el 2004; que la viabilidad ambiental fue otorgada solo para mejoras en el autódromo; que no existe registro de la presentación de un estudio de impacto vial al MOPT o al municipio que midiera el impacto del flujo vehicular, pues no fue solicitado y que, tampoco, fue requerida alguna mejora a la viabilidad cantonal que da acceso al complejo. Se demostró también que el Municipio de Alajuela, el 3 de agosto de 2022, a través de su página oficial de Facebook, se pronunció y refutó lo consignado por el INVU. Esto, conforme los siguientes términos:
“(…) CON RELACIÓN A LAS PUBLICACIONES DEL CRITERIO EMITIDO POR EL INVU SOBRE PARQUE VIVA, QUE HAN CIRCULADO EN DIVERSOS MEDIOS DE COMUNICACIÓN EL DÍA DE HOY. Sobre la información que ha circulado en diversos medios de comunicación sobre el proyecto PARQUE VIVA basado en un informe emitido por Instituto de Vivienda y Urbanismo, INVU, como primero de los aspectos, debe indicarse que la Municipalidad de Alajuela no ha sido notificada de dicho informe, de manera que nuestro conocimiento se limita a las publicaciones realizadas por esos medios de comunicación, asimismo, se trata de apreciaciones de dicha institución sin consultas a este municipio. Es de importancia aclarar algunos puntos. 1. USO DE SUELO. La zonificación de la finca 2-198873, no fue modificada, pues según el Plan Regulador Urbano vigente que aplica a la especie, la mencionada finca se encuentra en una zona denominada zona verde, Regulada en el Art 56, Plan Regulador Urbano. Pasa por alto en el análisis el INVU, lo establecido en el artículo 60 del Plan Regulador Urbano, que señala que, si pasados 5 años desde la publicación del Plan Regulador la Municipalidad no adquiere estos terrenos destinados a zonas verdes, estos adquieren la zonificación cercana que menos afecte al usuario, lo que fue aplicado en este caso, tal como y se indicó en los usos de suelo, se trata de zona residencial de media densidad. Por lo tanto, los usos de suelo del proyecto son correctos. 2. SOBRE LA VIABILIDAD AMBIENTAL, la resolución de aprobación de la viabilidad ambiental revisada por la Municipalidad de Alajuela para la tramitación del permiso de construcción del Proyecto Parque Viva, es correcta, y describe las obras de manera general, mismas que coinciden con los planos presentados y debidamente aprobados por las otras instituciones de manera previa y por el Colegio Federado de Ingenieros y Arquitectos, según consta en la plataforma APC. El título del proyecto, es decir, el nombre con el que se conoce el mismo en el expediente, fue el que varió con el tiempo, lo que no efecto la naturaleza de lo analizado, y mucho menos la naturaleza de las obras (nombre de fantasía). No porque la empresa cambiara el nombre del proyecto, cambia la naturaleza de las obras. 3. SOBRE “LA FALTA DE UNIFORMIDAD EN LOS USOS DE SUELO” El análisis se realizó de forma coincidente y consistente en todos los casos, bajo el principio de legalidad y de inderogabilidad singular de las leyes. Lo único que varió desde el año 2014 y en los sucesivos usos de suelo fue la forma en que se presentó la información. Al expediente se adjuntó una minuta de los usos de suelo que puede corroborarse para confirmar lo indicado. 4. IMPACTO VIAL, El Plan regulador urbano de Alajuela en su articulo (sic) 12.7 solicita la presentación de un estudio de impacto vial para LA APROBACION (sic) FINAL del proyecto, no para el otorgamiento de usos de suelo, es decir, aplica para el permiso de construcción. Sobre el tema puede observarse los requisitos que solicita la Municipalidad para este proyecto o cualquiera otro, y con base en la normativa que regula la materia. Para la aprobación del final del permiso (sic) de construcción este gobierno local revisa la Viabilidad ambiental otorgada por SETENA, siendo que dicha entidad en su análisis, siempre verifica el impacto vial de los nuevos proyectos. Según la revisión del expediente de SETENA, esta entidad consideró que con lo presentado en planos fue suficiente, y con ello dieron la respectiva aprobación, por lo que se respeta lo indicado en la Ley 8220 y sus reformas, y su Reglamento, de manera que, en apego al principio de respeto de competencias, se respetó el criterio de SETENA. Además, es importante recordar que el proyecto contó con la debida aprobación del Estudio de Impacto Vial por parte de la Dirección de Ingeniería de Tránsito del MOPT, mediante resolución N° DGIT-ED-5935-2014. 5. ACTAS SOBRE PROCESO CONSTRUCTIVO, Si se otorgó el permiso final, implica la corrección de cualquiera situación que pudo haberse notificado. 6. SOBRE LAS ANOTACIONES DE OTRAS INSTITUCIONES, La Municipalidad de Alajuela no sustituye en sus labores a otras instituciones las cuales pueden revisar el expediente y realizar las inspecciones respectivas en campo para el cumplimiento de estas. Es importante indicar en todo caso que, según se observa en el expediente cada anotación fue subsanada por la institución respectiva lo que genero (sic) la aprobación por parte del CFIA. Según el expediente el contrato OC626867, con fecha del 13-11-2013, se determina que “el proyecto se aprueba con las observaciones institucionales subsanadas por el profesional”. En definitiva, este gobierno local a través de la Actividad Control Constructivo está en la mejor disposición de aclarar cualquier duda que se genere al respecto de este proyecto, ratificamos que todas nuestras actuaciones han sido consecuentes y ajustadas a la normativa que regula la materia (…)”.
Asimismo, es importante tomar en consideración que en este asunto se ha demostrado que Grupo Nación (desde al menos el año 2019, muchos meses previos a que le fuera notificada la orden sanitaria bajo estudio), dio inicio a un proyecto para construir en los próximos años un acceso de cuatro carriles que comunica la Ruta No. 27 con el Parque Viva (o con el proyecto a futuro denominado Ciudad Viva). Este proyecto en el año 2021 y a inicios de 2022, contó preliminarmente con el visto bueno de una serie de instancias gubernamentales. Así, consta que mediante oficio No. DVT-DGIT-ED-2021-1845 de 21 de septiembre de 2021, un ingeniero y el sub jefe del Departamento de Estudios y Diseños de la Dirección General de Ingeniería de Tránsito del Ministerio de Obras Públicas y Transportes, consignaron lo siguiente: “(…) Esta Dirección mantiene su criterio de no objeción con la propuesta realizada desde el punto de vista funcional y de seguridad vial, emitida el 13 de julio del año en curso mediante oficio DVT-DGIT-ED-2021-1347; por lo que razona pertinente la aprobación del anteproyecto en mención (…)”. Por oficio No. GCTT 34-2021-0340 de 28 de septiembre de 2021, el Gerente a.i. de Contratación de Vías y Puentes del Consejo Nacional de Vialidad señaló lo siguiente “(…) En relación al proyecto indicado en la referencia, una vez revisado por los ingenieros de las diferentes áreas técnicas de la Dirección de Diseño de Vías y Puentes, se determina que: Se cumplió con la información solicitada; sin embargo, se aclara que, en la etapa de diseño se deben respetar los radios mínimos de rotondas, radios de giro y ejes geométricos para el vehículo de diseño del proyecto. En virtud de lo anterior indicado, se recomienda aprobar este Anteproyecto (…)”. Por oficio No. CNC-APM-SJC-0608-2021 de 12 de octubre de 2021, la Gerente de Proyecto del Concejo Nacional de Concesiones, entre otros aspectos, dispuso otorgar la “No objeción” al anteproyecto de acceso desde la ruta nacional No. 27 a Ciudad Viva. Mediante oficio No. CCAR-2021-373 de 28 de octubre de 2021 el Secretario de la Comisión de Carreteras de Acceso Restringido del Consejo Nacional de Vialidad indicó que dicha comisión había acordado “(…) aprobar el anteproyecto de conformidad con los informes de las unidades técnicas (…)”. Por oficio No. DVT-DGIT-ED-2022-0088 de 18 de enero de 2022, un ingeniero y el sub jefe del Departamento de Estudios y Diseños de la Dirección General de Ingeniería de Tránsito del Ministerio de Obras Públicas y Transportes, señalaron lo siguiente “(…) Esta Dirección no tiene objeción con la propuesta realizada desde el punto de vista funcional y de seguridad vial, por lo que razona pertinente la aprobación del proyecto en mención (…)”. Este proyecto, según se desprende de los autos, a la fecha no se ha aprobado.
Consta también que, respecto a este proyecto vial, el Presidente, en conferencia de prensa celebrada el 13 de julio de 2022, manifestó lo siguiente:
“(…) ¿Oyeron la mentira descarada que publicó La Nación que tiene desde hace dos años de pedir un acceso a la ruta 27 para arreglar el Parque Viva? Ah no, idiay si metemos un gol metamos cuatro goles más porque es cuatro veces el volumen de área lo que querían conseguir el permiso., ¿No les da vergüenza colapsar la Ruta 27 arriesgando todo el Occidente, Grecia, Naranjo, Atenas, San Carlos, todo Guanacaste y todo Puntarenas? (…)”.
Para efectos de resolver este extremo del recurso, igualmente, es importante tomar en cuenta lo consignado en la noticia publicada el 13 de julio del presente año, titulada “Alcalde de Alajuela: Parque Viva recibió permiso antes de expansión urbanística en la Guácima”, cuyo contenido es el siguiente:
“(…) Humberto Soto, alcalde de Alajuela, aseguró que el congestionamiento vial que se genera en la Guácima, Alajuela, no es causado únicamente por el Parque Viva, sino que se debe también al gran crecimiento habitacional del distrito y a los nuevos condominios que se levantaron en la zona. “Ha habido un crecimiento muy importante en el distrito de la Guácima que, sumado a las actividades a la gran cantidad de personas que ingresan al distrito, pues sí, es evidente que genera un congestionamiento vial. “Estoy abierto a negociar y poner el tema sobre la mesa; que hay que generar soluciones viables para el distrito, no hay que achacarlos a X o Y, ni generalizarlo”, explicó Soto. “Hay que ver la realidad. El parque tiene casi diez años de construido y, en estos diez años, ha habido un cambio sustancial en el desarrollo urbanístico del distrito de La Guácima, es decir, hay más población y más condominios”, agregó. Desde el 2014, se han aprobado 44 condominios en el distrito, por ejemplo. Asimismo, el jerarca municipal dijo que, aunque el ayuntamiento ha invertido en ese distrito casi 1000 millones y pronto se iniciará la construcción de un puente que conduce a la comunidad de San Antonio de Alajuela, eso no es suficiente y necesitan más recursos para todo el cantón. “El municipio ha hecho unas inversiones, pero tal vez no las suficientes. ¿Por qué? Porque como gobierno local tenemos recursos limitados y 14 distritos, con una red de más de 421 kilómetros a nivel cantonal que atender. Para esa red, en un municipio como el de Alajuela, no hay recursos suficientes y hay que atender los 14 distritos del cantón, no sólo uno. Hay que hacer mejoras; de eso como alcalde estoy consciente”, informó Soto. En setiembre del 2014, el Ministerio de Obras Públicas y Transportes (MOPT) aprobó el estudio de planificación vial del Parque Viva y solicitó que se construyeran accesos al sitio desde las distintas rutas que llevan al lugar y se instalara señalización vertical y horizontal, las cuales debían estar listas un año después. En una inspección realizada por el Ministerio en el 2015, se constató que el inmueble había cumplido lo solicitado. Este miércoles, el presidente Rodrigo Chaves, aseguró en conferencia de prensa en Casa Presidencial, que el permiso nunca debió darse y que solicitará el expediente a la Municipalidad de Alajuela, al tiempo que solicitará la intervención de la defensora de los Habitantes, Catalina Crespo. En aquella época, el hoy alcalde era regidor y dijo al respecto: “El permiso se dio por competencia de la administración municipal que era el órgano competente de la aprobación del mismo; en el expediente hay permiso de Salud y de muchas instituciones (…)”. (El destacado no forma parte del original).
En ese mismo orden de consideraciones, consta que en sesión de concejo de distrito ampliada celebrada el 13 de julio de 2022, el regidor y residente de La Guácima de Alajuela, Alonso Castillo, se refirió al problema relacionado con el crecimiento urbanístico en dicha zona. Se demostró que, en tal ocasión, dicho regidor manifestó que, de 2010 a fecha, en la Guácima se han aprobado 48 proyectos urbanísticos “(…) sin contar Parque Viva, sin contar desarrollos comerciales, sin contar Automercado, sin contar centros comerciales (…)”, lo cual, según su criterio, refleja una realidad vehicular que no es acorde con las carreteras diseñadas hace treinta años. Expresamente, dicho regidor, en aquella oportunidad, señaló además lo siguiente:
“(…) Aquí hay presas todos los días, a las siete de la mañana y a las cinco de la tarde, con concierto, o sin concierto. Si aquí pasa un accidente en Guácima centro hoy, colapsa La Guácima porque no hay para dónde coger. Si hoy pasa un accidente o se cae un poste como pasó hace unos meses (…) tenemos que ir a dar la vuelta por San Miguel, con el riesgo de que el carro que tengamos no tenga las condiciones para poder ir a dar esa vuelta (…) Esa es la realidad del distrito, que tiene serias limitaciones viales. Cuando yo llegué al Concejo Municipal de Alajuela, prometí que no iba a votar un solo proyecto urbanísticos más en el Concejo Municipal hasta que se aprobaran las rutas alternas (…) Al día de hoy (…) La municipalidad me dice que no tiene presupuesto para rutas alternas, entonces ¿qué quiere decir esto? La realidad continúa en las mismas condiciones que estamos hoy, con Parque Viva o sin Parque Viva, porque no hay presupuesto, no hay dinero para estas rutas alternas (…) Yo sinceramente me siento muy contento de que haya pasado lo de Parque Viva (…) porque hoy toda la prensa nacional está hablando de un problema que La Guácima tiene todos los días. Porque fue Parque Viva, porque si (…) se hubiera volcado un bus o hubiera pasado lo que sea, a nadie le interesa, el problema sigue. Y por dicha fue Parque Viva, porque Parque Viva tiene la voz para poder decir aquí hay un problema, pero hay problema real, que cuando hay un evento también colapsamos (…)”. (El destacado no forma parte del original).
Finalmente, en lo que al elenco probatorio se refiere, es de relevancia observar lo señalado por la Contraloría General de la República en el denominado Informe de Auditoría Operativa Sobre la Eficacia y la Eficiencia en el Uso de los Recursos de la Red Vial Cantonal en la Municipalidad de Alajuela de fecha 14 de julio de 2022 (informe No. DFOE-LOC-IF-00014-2022). Concretamente, en el aparatado de conclusiones, se señaló lo siguiente:
“(…) 3.1. Se determinó a partir de los indicadores y criterios establecidos, que no es posible garantizar que la gestión del servicio de red vial cantonal a cargo de la Municipalidad de Alajuela sea eficaz en el cumplimiento de sus fines y objetivos relacionados con la movilidad, la seguridad vial y la resiliencia de esta red, y que el uso de los recursos asignados se realice en apego al principio de eficiencia. 3.2. En este sentido, si bien se han realizado intervenciones de conservación vial principalmente en la superficie de ruedo y actividades de seguridad vial, aún persisten importantes limitaciones en la cobertura y mejora de la superficie de ruedo, en la atención de otras estructuras esenciales en la infraestructura vial (puentes y aceras) y en el abordaje de la seguridad vial y la resiliencia de la red vial cantonal, sustentado en elementos técnicos que garanticen razonablemente la eficacia de las acciones municipales en estas materias. 3.3. En cuanto a la eficiencia, se evidenció que la Municipalidad de Alajuela carece de elementos mínimos fundamentales y de sanas prácticas necesarias para implementar una gestión orientada al cumplimiento de este principio; situación que refleja la necesidad de generar una cultura organizacional que considere el uso de datos e indicadores de gestión como un mecanismo indispensable para la mejora de la gestión en aras de satisfacer el interés público. 3.4. Finalmente, para cumplir con los retos que enfrenta nuestro país como el Objetivo del Desarrollo Sostenible n.° 11 (Ciudades y Comunidades Sostenibles) y avanzar en el propósito de no dejar a nadie atrás, se hace necesario ampliar la visión con la que se gestiona la red vial cantonal, de manera que esta gestión tenga una perspectiva integral de las problemáticas y una visión inclusiva y participativa de todas las poblaciones que habitan en el territorio, con especial énfasis en aquellas poblaciones con mayores rezagos y más vulnerables (…)”.
Aunado a lo anterior, es importante señalar que en este asunto no se ha tenido por demostrado que, de previo a entrar en funcionamiento Parque Viva, se les haya exigido a sus representantes construir –fuera del recinto–, accesos de ingreso o bien, presentar un plan que solventara los problemas de índole vial. Tampoco, que le haya sido notificado a los representantes de Parque Viva lo dispuesto en los oficios No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 de la Dirección de la Fuerza Pública de Alajuela y No. PE-243-07-2022 suscrito por la Presidencia Ejecutiva del INVU.
Ahora bien, analizados los argumentos expuestos por los promoventes, los informes rendidos bajo juramento por las autoridades recurridas y las pruebas aportadas por ambas partes, esta Sala Constitucional estima que, efectivamente, tal y como se alega, la emisión de la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 de fecha 8 de julio de 2022 (rubricada electrónicamente a las 12:37:21 hrs.), se traduce en un acto administrativo abiertamente arbitrario, carente de fundamento certero, atropellado y absolutamente desproporcionado. A esta conclusión, se arriba, a partir de las siguientes consideraciones de interés:
En ese mismo orden de consideraciones, es importante hacer notar que la clausura de Parque Viva tampoco podría compararse con cierres que se han llevado a cabo recientemente de otros establecimientos que albergan o reúnen grandes cantidades de asistentes (v.gr. el Gimnasio Nacional o el Estadio Ricardo Saprissa). Nótese que si bien esta Sala entiende muy bien la atención que el Ministerio de Salud y otras instituciones competentes en la materia deben mantener y mantienen sobre recintos dispuestos para la realización de actividades que aglutinan una buena cantidad de público, lo cierto es que en esos casos se tienen circunstancias particulares de abordaje y atención que lo distinguen plenamente del caso que ahora se conoce. Esto, en el tanto estos últimos cierres –de índole total o parcial–, se han sustentado en presuntas irregularidades o deficiencias halladas en tales instalaciones o inmuebles propiamente, sea, dentro de cada uno de estos sitios, por motivos relacionados, entre otros, con los sistemas eléctricos, las salidas de emergencia, los sistemas de iluminación, etc., los que, en ningún momento, se mencionan en el caso de Parque Viva.
De otra parte, no debe dejarse pasar por alto la noticia consignada el 10 de julio de 2022 en el Diario La Nación (días luego de cerrado Parque Viva), mediante la cual una vecina de La Guácima afirmó que un funcionario de una institución pública la contactó y le facilitó un machote de carta dirigido a la Ministra de Salud a efecto de pronunciarse a favor del cierre del citado establecimiento, la cual, además, solamente debía ser firmada por su persona. Llama la atención de esta Sala que dicha vecina haya exclamado, al momento de ser entrevistada por la periodista, que, desde su perspectiva, “el Gobierno quiere “desembarrar” lo que ellos “embarraron”, con el cierre del centro de eventos”.
Adicionalmente y, como dato de interés, cabe destacar que el Presidente de la República, en el informe rendido a este Tribunal, sostuvo con propiedad que la denuncia “anónima” formulada el 5 de julio de 2022 en contra de Parque Viva, fue presentada por vecinos de La Guácima de Alajuela, cuando, precisamente, al ser anónima, no tendría por qué ser necesariamente personas de dicho lugar las que formularon la gestión. Nótese que dicha denuncia la pudo haber interpuesto, por ejemplo, algún asistente al centro de eventos que resida en otra parte del país y que se encontrara disconforme con la operación de este sitio o bien, cualquier otra persona.
Ahora, cabe destacar también que los aspectos supra señalados, en estricto sentido, no devienen en una violación a ningún derecho fundamental. Sin embargo, esta jurisdicción consideró importante mencionarlos, a efecto que sean valorados y analizados, de consuno con el resto de consideraciones expuestas en esta sentencia.
Ahora bien, a partir de lo anteriormente señalado, esta Sala considera pertinente analizar la cuestión objeto de este amparo conforme lo dispuesto, a su vez, por los principios de razonabilidad y proporcionalidad. En esencia, examinar si la actuación supra citada –sea, el dictado de la orden sanitaria de cierre de Parque Viva para cualquier tipo de actividad–, supera o no el llamado test de razonabilidad y proporcionalidad, el cual, a tenor de lo dispuesto, entre otros votos, en la Sentencia No. 1276-2013 de las 14:50 hrs. de 29 de enero de 2013, comprende realizar un análisis de los aspectos de legitimidad, idoneidad, necesidad y proporcionalidad en sentido estricto. En este último voto, se explicaron los alcances de tal examen de la siguiente manera: “(…) La legitimidad se refiere a que el objetivo pretendido con el acto o disposición impugnado no debe estar, al menos, legalmente prohibido; la idoneidad indica que la medida estatal cuestionada deber ser (sic) apta para alcanzar efectivamente el objetivo pretendido; la necesidad significa que entre varias medidas igualmente aptas para alcanzar tal objetivo, la autoridad competente debe elegir aquella que afecte lo menos posible la esfera jurídica de la persona; y la proporcionalidad en sentido estricto dispone que aunque una medida sea idónea y necesaria, será irrazonables (sic) si lesiona el contenido esencial de otro derecho fundamental, si lo vacía de contenido (…)” (en similar sentido, se pueden consultar los Votos Nos. 3951-2012 de las 16:31 hrs. de 21 de marzo de 2012 y 27601-2021 de las 12:15 hrs. de 8 de diciembre de 2021). Por su parte, cabe indicar que en la Sentencia No. 3564-2015 de las 09:20 hrs. de 13 de marzo de 2015, este Tribunal aclaró, sobre el particular, que “(…) Este protocolo se aplica por fases, de manera que si el examen de una primera fase es insatisfactorio, resulta innecesario proseguir con el estudio del resto de aspectos, aunque, en algunos casos, para mayor contundencia del fallo se puede ahondar en ello (…)”.
En aplicación de dicho test y, conforme lo señalado líneas arriba, es claro que la medida sanitaria bajo estudio no es legítima, pues, pese a argumentarse para su emisión la protección a la vida e integridad de las personas, lo cierto es que fue dictada, como ya se explicó, de forma atropellada, abiertamente arbitraria y sin fundamento certero alguno, contraviniendo así lo dispuesto en el ordenamiento jurídico. La conducta impugnada alude a presupuestos fácticos y jurídicos que, por un lado, no son atribuibles de manera exclusiva al Parque Viva, tal y como lo pretende enfocar y establecer la orden sanitaria, pero, además, no fueron debidamente acreditados ni sustentados al momento de adoptar ese acto formal. Es decir, el antecedente sobre el cual pretende ampararse esa decisión, parte de una conclusión o juicio de valor que no cuenta con el soporte probatorio de orden técnico, que resulta fundamental e impostergable para sostener ese resultado. Se observa, por tanto, una inexistencia del elemento motivo del acto, en los términos que impone el canon 133 de la LGAP y con ello, por derivación, el contenido adoptado, que impone una consecuencia gravosa, desproporcionada e irrazonable, resulta ilegítimo, al establecer una consecuencia jurídica que no encuentra respaldo en el ordenamiento jurídico. En suma, sobre este punto, el acto cuestionado contraviene la necesaria relación entre los elementos materiales objetivos motivo-contenido, incorporando una deficiencia insalvable, que, en modo alguno, se puede entender superada por la generación ulterior de dictámenes de otras instancias administrativas, que buscaban acreditar aspectos que debieron establecerse como base legítima de la orden sanitaria impugnada. Estado de cosas anterior que, por consiguiente, no permite, tampoco, ser considerada una medida idónea. Asimismo, esta medida no satisface el criterio de necesidad, toda vez que existen alternativas menos lesivas o menos drásticas para alcanzar la finalidad aducida (protección de la vida y la salud de las personas) y que pudieren ser adoptadas en el cumplimiento de las potestades que tiene el Ministerio de Salud para la protección de la salud y de la integridad sin necesidad de afectar el ejercicio de otros derechos fundamentales. No obstante, la parte recurrida, sea, el Ministerio de Salud, escogió imponer –sin que medie justificación válida alguna–, la opción más lesiva al establecimiento Parque Viva, pues le impide tajantemente realizar cualquier tipo de evento de forma indefinida, hasta tanto, según se ha explicado, se presente y se ejecute un plan remedial a un problema que no sólo es causado por las actividades que ahí se organizan, y que, a su vez, al tratarse de calles cantonales, le corresponde atenderlo al municipio de Alajuela. Aunado a ello, cabe destacar que la medida bajo estudio adoptada por la Administración reprueba igualmente el examen de proporcionalidad en sentido estricto, ya que la misma lesiona el contenido esencial de otros derechos fundamentales, vaciándola así de su contenido protector. En este particular, ya se ha demostrado que la medida bajo estudio deviene en arbitraria, carece de motivación o sustento (pues refiere a criterios técnicos que no han sido de recibo para este Tribunal) y atenta, en consecuencia y, de forma flagrante, contra los derechos fundamentales a la defensa y al debido proceso.
Así las cosas, en criterio de este Tribunal Constitucional, los recurridos debieron realizar una adecuada ponderación y adoptar la medida menos gravosa para los derechos fundamentales, propiciando su equilibrio y limitando su afectación al mínimo. Nótese que si bien, cabe destacar, este órgano constitucional, de forma reiterada, ha señalado que la vida, la salud y la integridad de las personas, son bienes jurídicos de suma relevancia, por lo que claramente merecen su protección, no por ello y, en nombre de estos, se pueden atropellar otros derechos fundamentales de forma indistinta, intempestiva y arbitrariamente, a través de una clara desviación de poder que constituye, a su vez, una violación al principio constitucional de seguridad jurídica.
Medidas para resguardar tales esenciales bienes, siempre y obligatoriamente se deben tomar, pero, bajo ningún concepto, pueden emitirse a la ligera, de forma precipitada, atropellada, sin mayor fundamento y atentando gravemente contra otros derechos fundamentales. Mucho menos, dictarse medidas tan drásticas como las analizadas en este asunto, cuando existen otras posibilidades –menos lesivas–, que se pueden adoptar a efecto de resguardar la vida y la salud de las personas.
Ciertamente, es un hecho que en las cercanías de Parque Viva se deben realizar mejoras en la red vial cantonal que permitan el tránsito expedito de vehículos de emergencia; sin embargo, como se ha dicho también, este problema no puede atribuírsele o achacársele en su totalidad a Parque Viva, muchos menos, trasladarle a los representantes de este recinto la responsabilidad de acabar con el mismo a través de la imposición de una medida tan gravosa y extrema como lo es el cierre absoluto de sus instalaciones.
Por estas consideraciones descritas, es que esta Sala estima pertinente acoger este extremo del recurso, con las consecuencias que se dirán en la parte dispositiva de esta sentencia.
C. CIERRE DE PARQUE VIVA Y VIOLACIÓN INDIRECTA A LA LIBERTAD DE EXPRESIÓN. El Director del Periódico La Nación, así como el resto de recurrentes, aducen también a este Tribunal que la orden de cierre de Parque Viva (dispuesta mediante la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022), se traduce en una violación indirecta a la libertad de expresión. En ese particular, explican primeramente que Parque Viva forma parte del Grupo Nación S.A. (del cual es parte también dicho diario) y fue creado como una fuente complementaria de ingresos, menos dependiente de la venta de publicidad en el medio de comunicación. Específicamente, exponen que dicho centro de eventos se puso en funcionamiento para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de entradas o ganancias experimentada por los medios de comunicación en todo el mundo, debido a la migración de publicidad a los gigantes de la internet. Explican los accionantes que el referido diario, realizó una serie de publicaciones de evidente interés público del entonces candidato a la Presidencia de la República, Rodrigo Chaves Robles, relacionadas con sanciones impuestas a este por acoso sexual en el Banco Mundial y con las estructuras paralelas de financiamiento de la campaña política de su partido, entre otros temas. Afirman que se trató de publicaciones periodísticas serias, bien documentadas y pertinentes, de manera tal que el hecho de no difundirlas habría afectado directamente el derecho de los ciudadanos a informarse sobre temas de interés público, así como el principio del votante informado. Refieren también, que, en virtud de lo anterior, el mandatario amenazó públicamente con destruir “las estructuras corruptas de La Nación y de Canal 7”, y ha propinado ataques verbales contra la prensa y periodistas, a quienes ha calificado como “canallas”. Seguidamente, acusan que el mandatario comenzó a materializar la amenaza girada en su contra, a través de la emisión, el día 8 de julio de 2022, de la ya citada y arbitraria orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022, mediante la cual se dispuso el cierre de Parque Viva. Por ende, sostienen que este recinto (creado para diversificar las fuentes de ingresos de la empresa), fue una de las estructuras del periodismo independiente de Grupo Nación que resultó afectada como consecuencia de la amenaza emitida por el actual mandatario. Exponen que con las medidas adoptadas en contra de Parque Viva, no se persigue la satisfacción de intereses públicos, sino la de intereses espurios consistentes en intimidar a un medio de comunicación para que no ejerza libremente su derecho a informar. Apuntan que esos actos no solo afectan económicamente a la empresa dueña de Parque Viva, sino también al medio de información en el que laboran, por ende, se les lesiona su derecho a informar. Afirman que este es el verdadero fin que tienen los actos adoptados. Refieren que la presión ejercida sobre las finanzas de la empresa, pone en riesgo el ejercicio periodístico futuro, e invita a entendimientos que lo comprometen. Acusan que lo anteriormente descrito ha implicado un claro propósito de limitar la libertad de expresión por medios indirectos. Añaden que el 6 de julio de 2022, días antes de emitirse dicha orden, el mandatario públicamente sembró dudas sobre la salud financiera de Grupo Nación, al realizar cuestionamientos relacionados con los bonos emitidos por dicha empresa y que adquirió la CCSS y su operadora de pensiones. Incluso, afirman que, en esa ocasión, insinuó el debilitamiento de la garantía de la deuda por el futuro traspaso de algunos terrenos de la empresa a un fideicomiso para hacer un prometedor desarrollo inmobiliario. Mencionan que el accionar del Presidente Rodrigo Chaves, en dicha ocasión, no tuvo otro fin que perjudicar a Grupo Nación, poniendo en duda sus finanzas, para coartar la libertad de expresión. Concomitantemente, sostienen que el mandatario ha realizado otras manifestaciones públicas en contra del Grupo Nación (con el fin de continuar persiguiéndolo e intimidándolo), como fue el 13 de julio de 2022, cuando sostuvo su oposición al proyecto de construir un acceso de cuatro carriles a la Ruta Nacional No. 27. Además, señalan que el 20 de julio del año en curso, el Presidente citó, entre los motivos para cancelar el plan del tren eléctrico, la existencia de un ramal que pasa por Parque Viva. Argumentan que es más que evidente la amenaza de destruir a las empresas, como represalia por las líneas editoriales de los medios de su propiedad y las actuaciones de sus directores periodísticos. Señalan que se ha vulnerado la libertad de expresión estatuida en el ordinal 29 constitucional y, a su vez, se ha configurado un ataque indirecto a esta, el cual está prohibido en el ordinal 13.3 de la Convención Americana sobre Derechos Humanos. Refieren a lo dispuesto por la Corte Interamericana de Derechos Humanos, entre otros, en el caso Ivcher Bronstein vs, Perú, en el caso Ríos y otros vs. Venezuela, así como en la opinión consultiva No. OC-5/85. Asimismo, en escrito posterior presentado a esta Sala, el Director del Diario La Nación reiteró que se trata de un grupo de profesionales a quienes se les pretende limitar la libertad de expresión mediante acciones arbitrarias contra las estructuras que sustentan el libre ejercicio del periodismo. Aclara que no han hecho referencia a un ataque directo, sino a uno indirecto y que, contrario a lo manifestado por el mandatario, el pago de sus salarios no depende de Parque Viva. Sin embargo, afirma que el cierre de Parque Viva pondría fin al molesto periodismo que hacen “y que motivó la amenaza proferida en campaña”. En virtud de lo expuesto, solicitan que se le ordene al Presidente de la República, abstenerse de ejecutar actos tendentes a lesionar la libertad de expresión.
Por su parte, el Presidente de la República, en descargo a lo acusado, señala que las situaciones referidas por los recurrentes no guardan relación con coartar la libertad de prensa del medio de comunicación. Indica que, más bien, los accionantes, escudados en ese equivocado discurso, exigen sin ningún reparo, que el Estado les debe permitir operar de la manera que ellos quieran, aun cuando esto sea contrario a la ley y en detrimento del bienestar público. Afirma que a Grupo Nación no se le puede exigir, como a cualquier otro comercio costarricense, ajustarse a los parámetros de la ley, porque inmediatamente a su parecer, se convierte en un ataque a la libertad de prensa. Sostiene que no es posible que Grupo Nación diga que cifran sus esperanzas económicas en lo que pueda generar la actividad económica de Parque Viva para poder pagarle a sus empleados y, que, clausurar temporalmente ese lugar para la celebración de eventos masivos por incumplir con las condiciones mínimas de salubridad, es un ataque directo a la libertad de prensa. Señala que eso solamente demuestra que la salud financiera de La Nación no es como quieren hacerlo ver y que dependen de este lugar para subsistir financieramente. Indica que el hecho de proteger la vida de cientos de familias vecinas de Parque Viva no tiene ninguna relación con atacar, limitar o censurar la libertad de prensa de Grupo Nación. Refiere que el Colegio de Periodistas de Costa Rica, luego de analizar el tema, concluyó que la libertad de prensa en nuestro país goza de buena salud y que, en ningún momento, se está atentando contra ese derecho. Agrega que las manifestaciones realizadas respecto a la capacidad financiera de Grupo Nación y las declaraciones realizadas por funcionarios de la CCSS al respecto, resultan válidas y justificadas. Argumenta que, al cierre del primer trimestre del 2022, Grupo Nación visualiza una pérdida neta de 350 millones de colones, casi un 35% superior a la pérdida reflejada en marzo de 2021. Por otra parte, señala como preocupante que el mayor activo que posee Grupo Nación, es decir, la propiedad en Llorente de Tibás, esté siendo traspasada a un fideicomiso junto con otras propiedades que este grupo ha estado adquiriendo, aun cuando vienen reportando pérdidas desde hace varios años atrás. Sostiene que Grupo Nación, como cualquier otro emisor de deuda que participa en el mercado nacional de valores, está en la obligación de aportar información veraz que respalde su salud financiera, y no escudarse en su supuesta actividad central como medio de comunicación para alegar ataques a la libertad de prensa cuando se le exija ajustarse a la legalidad. También, indica que la necesidad de sentir persecución por parte de los recurrentes defendiendo los intereses del Grupo Nación, llega al punto de asegurar que la cancelación del proyecto del tren eléctrico impulsado por el anterior gobierno, pasa por el hecho que una ramificación de la ruta pasaba por Parque Viva. Sin embargo, esa afirmación es falsa y sostiene que la decisión de no continuar con dicho proyecto fue pensada en beneficio de la ciudadanía, donde un proyecto mejor pensado y elaborado representaría mayores beneficios para todos. Refiere que los recurrentes olvidan indicar que, según noticia publicada en el medio de comunicación CRhoy.com, el gobierno de turno y el Grupo Nación firmaron un convenio que incrementaría el costo del tren eléctrico en casi 150 mil millones de colones para que la línea férrea pasara por las inmediaciones de Parque Viva. Menciona que, como costarricense y funcionario público, tiene la obligación y el derecho de pronunciarse enérgicamente ante situaciones que pongan en peligro la salud pública del pueblo. Indica que este es un derecho constitucional que le asiste de manifestar de manera libre sus pensamientos, cosa que hará de la forma más vehemente, cuando se trate de proteger los derechos de las familias costarricenses. Señala que recientemente, la Sala Constitucional, en la Sentencia No. 9855-2022, se pronunció sobre el derecho de los servidores públicos a expresar sus opiniones. Asimismo, refiere a lo dispuesto por la Corte Interamericana de Derechos Humanos en el caso Ríos y otros vs. Venezuela, donde se indicó que, a pesar que los pronunciamientos vertidos hayan tenido un contenido fuerte y crítico que, incluso, puede ser valorado de ofensivo, constituyen expresiones legítimas de pensamiento. Agrega que resulta inevitable cuestionarse si Grupo Nación está actuando ajustado al principio noveno de la Declaración de Chapultepec y si, una vez analizados todos los criterios de las entidades especializadas, la credibilidad y compromiso con la verdad no está en entredicho. Afirma, entonces, que no se está ejerciendo ninguna clase de censura, ni directa o indirecta en contra de Grupo Nación. Señala que el medio de comunicación continúa operando de forma normal, informando al pueblo costarricense de acuerdo con su línea editorial y esta garantía nunca será trasgredida.
Visto lo anterior, tenemos entonces el agravio formulado por los recurrentes, en el sentido que el cierre de Parque Viva (aunado a otras manifestaciones vertidas por el Presidente de la República), representó una materialización a las amenazas giradas por esta autoridad tendente a destruir a Grupo Nación S.A. (del cual, a su vez, forma parte el Diario La Nación) provocando, en consecuencia, un quebranto indirecto a la libertad de expresión, habida cuenta que dicho establecimiento se creó para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de estos experimentada en los últimos años. De otra parte, contamos con la versión del mandatario de la República, quien sostiene que no se ha violentado la libertad de expresión, que el medio de comunicación continúa a la fecha funcionando normalmente y que el dictado de la orden sanitaria en cuestión y el cierre de Parque Viva lo que busca es proteger la vida de cientos de familias vecinas de dicho recinto. Además, el señor Presidente argumenta que cuenta con pleno derecho a manifestar de forma libre lo que piensa, sobre todo cuando se trata de proteger los derechos de las familias costarricenses.
Cabe recordar que, en el apartado anterior de esta sentencia, se indicó que el cierre de Parque Viva llevado a cabo por el Ministerio de Salud el 8 de julio del presente año mediante la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 (emitida el 8 de julio de 2022 y rubricada electrónicamente a las 12:37:21 hrs.)., se realizó, a su vez, mediante un acto administrativo considerado por este Tribunal como arbitrario, carente de sustento y, también, desproporcionado (a esta conclusión, se aclara, arribó esta jurisdicción independientemente de lo que se conozca en este nuevo apartado). Ahora, estima esta Sala que, para determinar si dicha actuación supuso igualmente una restricción o limitación indirecta (censura velada) a la libertad de expresión, esta se debe examinar, de manera concomitante, conforme el resto de acontecimientos acaecidos, incluyendo las circunstancias y el contexto en el cual se presentaron. De este modo, se hará primeramente un repaso por algunos de los principales hechos que han rodeado la emisión concreta de dicha orden sanitaria.
Así, es importante señalar en primer término, que, en este asunto, se ha tenido por demostrado que el Diario La Nación forma parte del Grupo Nación S.A.; corporación última que, a su vez, adquirió hace algunos años Parque Viva, como medio, en este caso en particular, para diversificar las fuentes de ingreso de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet.
Asimismo, consta en autos que, a la luz de la contienda electoral (en específico las votaciones realizadas en nuestro país para elegir Presidente de la República este año 2022), el Diario La Nación realizó una serie de publicaciones en contra del entonces candidato –hoy, Presidente de la República–, Rodrigo Chaves Robles. En particular, se demostró que el día 30 de agosto de 2021, dicho periódico publicó una noticia respecto a las sanciones por acoso sexual impuestas al citado candidato mientras era funcionario del Banco Mundial. Posteriormente, sobre este mismo tema, el diario realizó otras publicaciones los días 31 de agosto de 2021, 4 y 7 de septiembre de 2021, 18 y 19 de octubre de 2021, 4 de febrero de 2022, 8 y 28 de marzo de 2022, 1° y 25 de abril de 2022. Asimismo, consta que una noticia mediante la cual se criticaba la propuesta de Chaves Robles de gobernar mediante referendos, fue publicada por dicho medio el día 13 de febrero de 2022. Por su parte, noticias tocantes a las estructuras paralelas de financiamiento de la campaña política del hoy Presidente, fueron publicadas por el Diario Nación, entre otros, los días 5 de marzo y 29 de marzo de 2022.
Se ha demostrado también que, de forma paralela o concomitante a las anteriores publicaciones periodísticas, Chaves Robles, siendo candidato presidencial, realizó una serie de manifestaciones en contra directamente del Diario La Nación. Así, consta que el 29 de enero de 2022, Chaves Robles pronunció públicamente lo siguiente ante un grupo de seguidores:
“(…) Somos un tsunami y sí, vamos a causar destrucción. Vamos a causar la destrucción de las estructuras corruptas de La Nación y de Canal 7. Óigame Ignacio Santos, óigame el otro (…) René Picado, óigame Armando González. Aquí estamos. Sígannos invisibilizando en lo nuevo, en lo bueno y acusando injuriosamente en lo malo, porque ustedes ya no ponen presidentes en Costa Rica (…)”. (El destacado no forma parte del original).
Igualmente, se acreditó que el 6 de febrero de 2022, el entonces candidato presidencial, al momento de emitir su voto, manifestó expresamente al medio de comunicación AM Prensa lo siguiente:
“(…) Yo no dije que la prensa fuera canalla. En Costa Rica hay prensa canalla (…) porque hay prensa que miente (…) que está al servicio de los grupos poderosos, que han estado dedicados a quitar y poner presidentes y eso se les acabó (…)”. (El destacado no forma parte del original).
Además, ante una consulta planteada al efecto por el periodista, Rodrigo Chaves, en esta última ocasión, aclaró concretamente que se refería a “(…) La Nación, Canal 7, CRhoy (…)” y sostuvo que esto lo decía “(…) transparente y claramente (…)”. (El destacado no forma parte del original).
En esa misma línea (aunque sin mencionar nombres concretos de medios de comunicación), se demostró que el 30 de enero de ese mismo año, en cierre de campaña (correspondiente a la primera ronda electoral), el candidato presidencial Rodrigo Chaves públicamente señaló lo siguiente:
“(…) pasamos de la sociedad más igualitaria de América Latina a una de las más desiguales del mundo (…) para ser más millonarios a (…) quienes controlan a esos medios de desinformación de difamación y de mentira (…) lo dijimos, dijimos que había que limpiar la casa y se asustaron porque al principio ¿a quién le importaba Rodrigo Chaves? a nadie (…) el mismo día que Pilar Cisneros anunció su candidatura empezaron a soltar el veneno, el odio, la mentira y la calumnia, ahí fue donde (…) empezaron a temblar, por eso lo hacen (…) por este tsunami que los va a barrer como la basura de la casa (…) tinta y no sangre, pero que no va a tener menos relevancia histórica (…) porque aquí le estamos diciendo a los mismos de siempre: se les acabó la fiesta se les acabó la fiesta (…)”. (El destacado no forma parte del original).
Aunado a ello, es importante tener presente que en este asunto se ha demostrado también que el hoy Presidente de la República, se ha referido a la prensa, en términos generales, como “la prensa canalla y vendida”. Esto, por ejemplo, quedó de manifiesto en la noticia publicada por el medio de comunicación Columbia en su plataforma digital el día 7 de febrero de 2022; oportunidad en la cual, además, el mandatario indicó que dos o tres medios de este país se iban a ver muy afectados en un gobierno liderado por su persona. En esta noticia, se consignaron las siguientes manifestaciones expresas realizadas por Rodrigo Chaves:
“(…) En Costa Rica, óigame claro y duro, hay prensa canalla comprada y vendida, no toda la prensa es así, aquí hay gente honesta en este país, la enorme mayoría, pero hay gente que no es honesta, lo mismo con la prensa (…) en Costa Rica (…) existen dos o tres medios muy importantes que están al servicio de intereses que se van a ver muy afectados en un gobierno de Rodrigo Chaves y que nos han hecho lo imposible por un fusilamiento y un linchamiento político (…)”. (El destacado no forma parte del original).
Asimismo, el actual Presidente de la República ha comparado públicamente a la prensa de este país con ratas y otras especies de la fauna. En ese particular, consta que el 3 de agosto de 2022, en conferencia de prensa, dicha autoridad, dirigiéndose a la Ministra de Salud, sostuvo:
“(…) La veo afectada con los medios y la entiendo, pero le voy a ser muy franco, yo a esos medios y a los de su especie, porque son una especie (…) la gente habla de la prensa, eso es como hablar de la fauna, hay rinocerontes, hay mapaches, hay ratas, hay aves (…) A la especie de prensa que usted está hablando yo no les creo (…) no se moleste con ellos, déjelos que sigan hundiéndose (…)”. (El destacado no forma parte del original).
Adicionalmente a lo supra citado, conviene tener presente una serie de eventos que han acontecido, relacionados con este mismo tema. En ese particular, debe tenerse presente que el día 6 de julio de 2022, en conferencia de prensa, un periodista del medio El Guardián CR, consultó al ya Presidente de la República su criterio tocante al tema de la Caja Costarricense de Seguro Social y la solicitud que se hizo a la SUGEVAL respecto a los bonos emitidos por Grupo Nación. Al respecto, consta que el mandatario manifestó que efectivamente existe un tema muy serio con bonos que gobiernos anteriores compraron emitidos por La Nación. También indicó que se encuentra preocupado respecto a la capacidad de pago que tendría ese medio (la cual, en su criterio, “parece muy muy leve”), en virtud de algunas acciones contables y de desviación de activos que debilitan la probabilidad que el pueblo de Costa Rica pueda recuperar esos recursos que son sustanciosos. Luego de emitir criterio al respecto Álvaro Ramos, Presidente Ejecutivo de la CCSS, el Presidente de la República señaló expresamente lo siguiente:
“(…) La rentabilidad de la Nación va en caída libre y eso significa que está incurriendo en pérdidas constantes, constantes, constantes. Y entonces uno se pregunta si esa tendencia de pérdidas continúa, yo no sé, tal vez tengan una varita mágica y logren levantar el flujo de caja (…) ¿qué pasa si a la Nación se le ahorca el flujo de caja y no está la propiedad porque está en otra parte? Esa es la pregunta y yo creo que don Álvaro lo expresó en términos técnicos muy bien pero idiay, él tiene la obligación de hacer eso. Y yo le pedí, además, de que ya lo estaba haciendo cuando yo lo llamé para preguntarle, me dice no, ya lo estamos haciendo y está la consulta (…)”.
Se ha demostrado también, que, en virtud de lo ocurrido ese 6 de julio del presente año en conferencia de prensa, el día 7 de julio de 2022, en la sección de política del Diario La Nación, se publicó una nota en la cual, entre otros aspectos, se explicó porqué las argumentaciones vertidas por el mandatario presidencial respecto a la capacidad financiera del Grupo Nación no eran certeras. Aunado a ello, consta que, en esa misma nota, se consignó que el Director Ejecutivo de Grupo Nación señaló que “(…) Parque Viva volvió a tener actividad, a partir de marzo de 2022, después de estar dos años sin eventos producto de la pandemia de coronavirus. Asimismo, recordó que la crisis sanitaria provocó una afectación generalizada en el mundo. Pese a ello, enfatizó, la compañía logró generar flujo de caja (…)”. (El destacado no forma parte del original).
En este punto, hay que recordar que, al día siguiente, sea, el 8 de julio de 2022, el Ministerio de Salud giró la orden sanitaria que dispuso el cierre de Parque Viva para cualquier tipo de actividad.
Aunado a lo anteriormente señalado, cabe reiterar que en este asunto se ha demostrado que el día 13 de julio de 2022, el Presidente de la República, en conferencia de prensa, se manifestó en contra del proyecto vial propuesto por Grupo Nación para atender los problemas de congestionamiento que se generan en la zona de La Guácima, donde está ubicado Parque Viva. Consta que, en tal ocasión, dicha autoridad indicó:
“(…) ¿Oyeron la mentira descarada que publicó La Nación que tiene desde hace dos años de pedir un acceso a la ruta 27 para arreglar el Parque Viva? Ah no, idiay si metemos un gol metamos cuatro goles más porque es cuatro veces el volumen de área lo que querían conseguir el permiso., ¿No les da vergüenza colapsar la Ruta 27 arriesgando todo el Occidente, Grecia, Naranjo, Atenas, San Carlos, todo Guanacaste y todo Puntarenas? (…)”.
Asimismo, se tiene por acreditado que el 20 de julio de 2022, el Presidente, en conferencia de prensa, sostuvo que uno de los motivos para cancelar el plan del tren eléctrico se debe a la existencia de un ramal que pasa por Parque Viva, cuyo costo sería de 150.000 millones de colones. Específicamente, dicha autoridad manifestó:
“(…) Entendemos que el gran área metropolitana necesita una solución al transporte. Cuando uno ve que a este trencito le tenían un ramal de 150.000 millones de colones al Parque Viva, uno todavía se preocupa más. Entonces todo junto nos dice “esto no va” (…)”.
Analizados los eventos supra citados, de forma conjunta, resulta claro para este Tribunal que el señor Rodrigo Chaves Robles, tanto como candidato presidencial como en ejercicio de la presidencia de la República, ha emitido una serie de manifestaciones claras, directas y contundentes en contra del Diario La Nación, mediante las cuales externó su intención de destruir a dicho medio de comunicación, tal y como lo hace un tsunami, según los términos empleados expresamente por este. Esta intención es clara al observarse lo declarado por Chaves Robles públicamente los días 29 de enero y 6 de febrero del año en curso, oportunidades en las que no solo hizo referencia a La Nación, sino también a Canal 7 y al medio CRhoy, a los que, además, tildó como “prensa canalla”. Igualmente, no puede dejarse pasar por desapercibido que el entonces candidato presidencial, el día 30 de enero de 2022, durante el cierre de su campaña, pese a no mencionar nombres en concreto, sí indicó públicamente que barrería a los medios de comunicación “como la basura de la casa”, por el tsunami que él y su partido representan o ejecutarían para acabar con su “fiesta”. De consuno con lo anterior, es importante también hacer notar que el hoy mandatario, en esta misma época, en particular, el día 7 de febrero del presente año, lanzó nuevamente epítetos en contra de la prensa, a la que tildó de canalla y vendida y afirmó, de manera contundente, que dos o tres medios de comunicación se verían muy afectados ante un posible gobierno liderado por su persona. Además, el día 3 de agosto de 2022, Chaves Robles aprovechó su intervención junto con la Ministra de Salud para comparar a la prensa con ratas y otras especies de la fauna.
Aunado a esto, esta jurisdicción observa también que, precisamente, el estado de cosas anterior coincidió con la misma época en que el Diario La Nación publicó varias noticias respecto a Chaves Robles, cuando, para entonces, ostentaba la condición de candidato presidencial (a saber, desde agosto de 2021 hasta, al menos, abril de 2022). Noticias que, como se dijo, no podrían, de modo alguno, ser del agrado del hoy mandatario, mucho menos, en plena campaña electoral, ya que estas, tal y como se dijo, guardaban relación, entre otros, con temas de acoso sexual por las que este había sido sancionado durante su paso como empleado del Banco Mundial o bien, con las estructuras paralelas de financiamiento de su campaña política (noticias sobre las que, además, se aclara, esta jurisdicción no emite criterio ni pronunciamiento alguno respecto a su veracidad o no, pues escapa de su competencia, ni es el objeto de este amparo).
Así las cosas, no cabe la menor duda para este órgano constitucional que el mandatario giró una serie de amenazas en contra de la prensa, en particular, del Diario La Nación, como medio para amedrentarlo e intimidarlo. El hoy Presidente, al sentirse ofendido o agraviado con las divulgaciones realizadas por dicho medio de comunicación (línea editorial), optó, entonces, tal y como se ha demostrado, por atacarlo abierta y públicamente, “claro y duro” como él mismo lo ha dicho. Esto, cabe destacar, tal y como también se ha demostrado, no se llevó a cabo de forma aislada, pues, por el contrario, es evidente que se trata de una serie de manifestaciones (ataques y amenazas directas e indirectas), dirigidas en un mismo sentido y vertidas en una misma época, paralela o concomitantemente a la publicación de las referidas noticias.
Ahora, en este contexto, se puede pensar o sería válido entender que la orden sanitaria emitida en contra de Parque Viva (a través de la cual se dispuso su cierre para cualquier tipo de evento), materializa el cierre del medio de comunicación.
Esto, por cuanto dicho cierre –además de tener las particularidades ya descritas–, perjudica por supuesto las finanzas de Parque Viva y, por ende, del Grupo Nación S.A, pero también, de forma concomitante, genera una afectación al medio de comunicación Diario La Nación. Cabe recordar en este punto, una vez más, que, tanto el Periódico La Nación como el referido parque, forman parte de dicha sociedad o conglomerado financiero (llamado Grupo Nación S.A.), y que, precisamente, este recinto comercial de eventos fue adquirido para diversificar las fuentes de ingreso y compensar la pérdida de ganancias sufridas en virtud de la migración de la publicidad hacia las plataformas digitales; es decir, como mecanismo para coadyuvar o cooperar con el financiamiento o mantenimiento actual de este tipo en particular de medio de prensa, según los términos ampliamente explicados en el considerando VIII de esta sentencia. De modo tal que, si se afecta Parque Viva tal y como ha ocurrido (y este deja de producir ingresos por encontrarse cerrado totalmente, al prohibírsele realizar cualquier tipo de actividad, según así se ordenó), se afecta económicamente también e, ineludiblemente, el Diario La Nación, como parte que es del conglomerado financiero que representa Grupo Nación S.A.. En otras palabras, si se perjudica la fórmula o el mecanismo utilizado por Grupo Nación para generar ingresos y coadyuvar con los gastos que genera Diario La Nación, obviamente, esto repercutirá negativamente en este último medio. En estos mismos términos lo explicó esta Sala en los ya citados Votos Nos. 1782-2015 y 15220-2016, al indicar que, si se limita el ingreso económico de un medio de comunicación, también se llega a perjudicarlo o, inclusive, a eliminarlo. Nótese que si bien los recurrentes han sido claros al indicar que sus salarios, como periodistas, en este momento, no dependen absolutamente del funcionamiento de Parque Viva (tal y como así lo entiende y menciona el mandatario en el informe rendido a este Tribunal), lo cierto es que sí han manifestado que el cierre del recinto genera una afectación de índole económica que perjudica e incide negativamente en el medio de comunicación. Aunado a ello, los accionantes han señalado que Parque Viva forma parte de las estructuras a las que hace referencia el Presidente de la República y que son, precisamente, las que “sustentan su libre ejercicio del periodismo”. Además, han sido claros al indicar que la presión ejercida sobre las finanzas de la empresa con su cierre, “pone en riesgo el ejercicio periodístico futuro e invita a entendimientos que lo comprometen”. En este particular, resulta menester apuntar que, tal y como se demostró en el elenco de hechos probados de esta sentencia, para este tercer cuatrimestre del año 2022 se estaban organizando, al menos, cuatro eventos de relevancia en el Parque Viva, los cuales representan la captación de importantes ingresos para Grupo Nación, de los que, igualmente, se ve beneficiado el medio de comunicación Diario La Nación, según los términos ya explicados. No obstante, tal y como igualmente se acreditó, el Ministerio de Salud, los días 14 y 15 de julio de 2022, denegó a los productores de tales eventos la entrega de las certificaciones de aforos solicitados, en virtud de la orden de cierre girada en contra del referido recinto, provocando con esto, claramente, una significativa afectación económica al Grupo Nación y, por ende, al medio de comunicación.
Cabe indicar, también, sobre este último aspecto, que llama la atención de este Tribunal Constitucional que el cierre de Parque Viva se haya ordenado el día 8 de julio de 2022, tan sólo un día después de que el Diario La Nación publicara una nota mediante la cual se defendió de las manifestaciones relacionadas con sus finanzas externadas el 6 de julio de 2022 por el Presidente de la República, en la cual, a su vez, el Director Ejecutivo de Grupo Nación señaló que el recinto bajo estudio había vuelto a tener actividad en marzo de 2022 y que había logrado generar flujo de caja. Igualmente, no puede perderse de vista que el mandatario, en el informe rendido a esta Sala, concluyó que La Nación sí depende de Parque Viva para subsistir financieramente, lo cual reafirma que el cierre realizado a este sitio le perjudica, y que las secuelas producidas con dicho acto no resultaban ajenas a su conocimiento. En consecuencia, se está ante la emisión de un acto atropellado, arbitrario y desproporcionado que debilita la estabilidad financiera del Diario La Nación.
Ahora, según lo analizado ampliamente en los considerandos VII y VIII de esta sentencia, lo ocurrido con Parque Viva y la afectación que le provoca al medio de prensa, se traduce, a su vez, sin lugar a dudas, en una violación indirecta a la libertad de expresión, sea, en una censura velada. Esto, principalmente, porque las repercusiones negativas a nivel económico que se generan en Diario La Nación podrían conllevar, a modo de ejemplo y ante una crisis financiera, a tomarse la decisión, a corto, mediano o largo plazo, de recortar o prescindir de personal –entre ellos periodistas–, hasta, incluso, proceder con el cierre de sus operaciones de forma definitiva, impidiendo con esto que dicho medio y, por ende, los que en este trabajan, continúen ejerciendo la libertad de prensa, como manifestación de la libertad de expresión. Tal y como la Corte IDH lo dejó manifiesto en el ya citado caso Granier y otros vs. Venezuela, la restricción a la libertad de expresión en este tipo de situaciones no sólo afecta al medio de comunicación (persona jurídica), sino también a las personas naturales (desde accionistas hasta los periodistas que allí laboran). Concomitantemente, es claro que el cierre de Parque Viva, según los términos acá expuestos, se traduce también en una especie de llamada de atención o de advertencia para el medio de comunicación Diario La Nación en virtud de su línea editorial, pretendiéndose con esto su giro a favor del gobierno o, simplemente, producir un efecto disuasivo o atemorizador y, con ello, callar o aplacar por completo las voces de su director y de los periodistas. Un claro e incuestionable aviso girado al Periódico La Nación para que se abstenga de incurrir en los hechos ya descritos, sea, la publicación de noticias que perjudiquen la imagen del mandatario o del gobierno en general. Se castiga, entonces, por lo ya publicado y dado a conocer respecto al mandatario, su partido político y su forma de pretender gobernar, pero, también, se gira una advertencia para que este tipo de noticias no se vuelvan a divulgar a la ciudadanía. Además, es importante hacer notar que este mensaje amenazante que atenta contra la libertad de expresión no sólo se envía al Diario La Nación, sino, también, peligrosamente, al resto de medios de comunicación del país que osen publicar alguna noticia en contra del Presidente y de su gobierno.
Así las cosas, es evidente que el cierre de Parque Viva es un mecanismo indirecto, atropellado e ilegítimo que violenta la libertad de expresión. Estado de cosas anterior que proscribe la propia Convención Americana sobre Derechos Humanos en su numeral 13.3 y que, según también aclara, no solo se puede llevar a cabo a través del “abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información”, sino también, “por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”. La clausura de Parque Viva, encaja perfectamente en esta última descripción y se convierte así en un ejemplo más, al igual que los citados en el considerando VII de esta sentencia, de cómo se puede violentar indirectamente el derecho fundamental a la libertad de expresión.
Hemos de deparar acá que, pese a que el Presidente de la República sostiene que en el cierre de Parque Viva medió un fin legítimo (como es salvaguardar la vida y la salud de las personas), lo cierto es que no puede dejarse pasar por alto que dicho acto, también (aparte de haber sido dictado de forma arbitraria, carezca de fundamento y resulte desproporcionado según los términos ya descritos), vulnera uno de los derechos fundamentales más relevantes en nuestro Estado Constitucional de Derecho como lo es la libertad de expresión y la libertad de prensa, como manifestación de esta última. El mandatario argumenta que se actuó salvaguardando esos bienes jurídicos haciéndose uso, incluso, de una potestad permitida por el Estado (como lo es el giro de órdenes sanitarias); sin embargo, lo cierto es que, en el fondo, con dicha tesis se perjudica y castiga (de la mano del Ministerio de Salud), al medio de comunicación, configurándose así, a todas luces, una clara y evidente desviación ilegítima del poder. En esencia, se revistió de una aparente legalidad, la afectación a las libertades públicas señaladas.
El cierre de Parque Viva se llevó a cabo con abuso de poder, a través de un mecanismo indirecto (disfrazado de acción legítima), con un propósito claramente distinto al que se señaló, tanto en la orden sanitaria como ante esta Sala Constitucional, y esto, esta última jurisdicción, lo tiene absolutamente claro. Así las cosas, nos encontramos frente a lo que este Tribunal ya ha denominado “(…) una forma perversa y antidemocrática de utilizar el poder del Estado para dirigir la opinión, según un sistema de “premio o castigo“, a quienes ejercen la libertad de prensa y libre expresión garantizada constitucional y convencionalmente (…)” (Voto No. 15220-2016).
Nótese que se hace uso de un discurso absolutamente creíble para terceros (como es la defensa de intereses públicos), para justificar el cierre arbitrario que se hizo de Parque Viva, pero, para, concomitantemente, perjudicar flagrantemente al medio de comunicación Diario La Nación, como represalia por las noticias publicadas en contra del mandatario y su partido político, las cuales, se destaca, no dejaron de ser divulgadas pese a las amenazas giradas por este último. Amenazas que, cabe reiterar, fueron emitidas en varias oportunidades, de forma clara y directa en contra del medio de comunicación Diario La Nación, hasta que finalmente se materializaron o ejecutaron, tal y como así lo hizo en su oportunidad el gobierno venezolano, al arremeter en contra del medio de comunicación Radio Caracas Televisión por difundir noticias en contra de su régimen, y cuya actuación fue condenada por la Corte IDH al sostener, entre otros aspectos de interés, que no es posible restringir arbitrariamente el derecho a la libertad de expresión con fundamento en la discrepancia política que pueda generar al gobierno una determinada línea editorial (caso Granier y otros vs. Venezuela, sentencia de 22 de junio de 2015 a la que se hizo referencia ampliamente en el considerando VII de este voto y cuyo contenido resulta plenamente aplicable a este proceso de amparo).
Adicionalmente, debe tomarse en cuenta que el Presidente también se ha referido a la prensa de forma despectiva (utilizando palabras confrontativas o comparándola con ratas y otras especias de fauna) y que, incluso, hizo públicas amenazas al Grupo Nación a través de otras distintas formas, como lo ha sido cuestionando públicamente el estado de sus finanzas (a propósito de bonos emitidos y comprados por el Estado), arremetiendo contra el proyecto vial propuesto para coadyuvar en el problema de congestionamiento vial que se genera en La Guácima y señalando, como una de las causas para cancelar el plan del tren eléctrico, el hecho de existir un ramal que pasa por Parque Viva. En esencia, llevando a cabo una campaña para desacreditar públicamente al citado medio de prensa haciendo alusión a diversos temas de interés nacional (respecto a los cuales, se aclara también, esta Sala omite pronunciarse, por escapar del ámbito de sus competencias y no ser el meollo de este amparo).
Tocante a estas manifestaciones, el Presidente de la República argumenta que le asiste el derecho constitucional de exteriorizar de manera libre sus pensamientos y, en ese particular, cita la Sentencia No. 9855-2022 dictada por esta jurisdicción constitucional (donde se hizo referencia al derecho de los servidores públicos a manifestar sus opiniones), así como lo dispuesto por la Corte IDH en el caso Ríos y otros vs. Venezuela, donde se indicó que pronunciamientos realizados por altos funcionarios del Estado “(…) aunque pueden tener un contenido fuerte y crítico que incluso puede ser valorado como ofensivo, constituyen expresiones legitimas de pensamientos y opiniones sobre las formas particulares que puede tener un medio de comunicación de ejercer el periodismo que se encuentran protegidas y garantizadas bajo el artículo 13 de la Convención Americana (…)”. No obstante lo anterior, es importante destacar que en ese mismo pronunciamiento al que alude el mandatario, la Corte IDH también dispuso que:
“(…) 139. En una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento. Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado (…)”. (sentencia de 28 de enero de 2009) (El destacado no forma parte del original).
Además, debe tomarse en cuenta que si bien, esta Sala, en la citada Sentencia No. 9855-2022 de las 14:17 hrs. de 29 de abril de 2022, hizo referencia al derecho que le asiste a los funcionarios públicos de manifestar sus opiniones, lo cierto es que los hechos analizados en dicha oportunidad y por los cuales se acogió el entonces recurso de amparo formulado, distan muchísimo de las circunstancias estudiadas en este nuevo asunto. Esto, habida cuenta que, en tal ocasión, se conoció el caso de una funcionaria judicial a quien se le inició un procedimiento administrativo en virtud de manifestaciones giradas en contra de una ex alta autoridad de la misma institución para la cual presta servicios. Cosa muy distinta a lo que ocurre en este caso, donde ha sido el propio Presidente de la República –funcionario público de más alto rango en nuestro país, con gran poder e influencia–, quien ha hecho las manifestaciones arriba señaladas y a quien si bien le asiste el derecho a opinar lo que piensa, lo cierto es que esto lo debe llevar a cabo bajo ciertos límites en virtud de su investidura (según así lo explicó la Corte IDH en la sentencia supra descrita) y, además, sin vulnerar otros derechos o en demérito de otras libertades igualmente esenciales, sobre todo, en un Estado Democrático de Derecho.
A propósito de lo anteriormente consignado, cabe recordarle al mandatario presidencial algo muy importante sobre lo cual esta Sala Constitucional deparó y explicó ampliamente en el considerando VI de esta Sentencia, y es el hecho que los funcionarios públicos que ostentan una alta jerarquía, tal y como es su caso, se encuentran obligados a tolerar, con mayor margen o amplitud, las críticas a la cuales son sometidos y están continuamente expuestos precisamente por el cargo que ostentan y en virtud del interés público que envuelve las actuaciones que llevan a cabo. Así fue consignado por este Tribunal en la Sentencia No. 15220-2016 supra citada e, incluso, por la Corte Europea de Derechos Humanos, al referirse a lo dispuesto en el artículo 10.2 de la Convención Europea, tal y como también se consignó líneas arriba. Además, cabe reiterar que la misma Corte Europea de Derechos Humanos (citada por la Corte IDH en el caso Herrera Ulloa vs. Costa Rica), ha sostenido que la libertad de expresión no debe ser garantizada solamente respecto a la difusión de información o ideas que son recibidas favorablemente o se estiman inofensivas, sino también respecto a aquellas que ofenden, resultan ingratas o perturban el Estado. Aunado a esto, es importante también destacar que este derecho a la crítica –por así denominarlo–, del cual gozan, entre otros, los medios de prensa, toma mayor fuerza ante distintas circunstancias, como lo es, por ejemplo, en una contienda electoral, donde los ciudadanos tienen el derecho a conocer quiénes son los candidatos o los postulados a ocupar uno de los más importantes puestos en el país, de hecho, como se dijo, el de más alto rango. Esto, precisamente, fue lo que la Corte IDH explicó amplia y claramente en el también ya citado caso Ricardo Canese vs Paraguay; oportunidad en la cual, cabe recordar, se hizo referencia a la importancia de la libertad de expresión en el marco de una campaña electoral y se sostuvo, entre otros aspectos de sumo interés, lo siguiente:
“(…) 90. (…) El debate democrático implica que se permita la circulación libre de ideas e información respecto de los candidatos y sus partidos políticos por parte de los medios de comunicación, de los propios candidatos y de cualquier persona que desee expresar su opinión o brindar información. Es preciso que todos puedan cuestionar e indagar sobre la capacidad e idoneidad de los candidatos, así como disentir y confrontar sus propuestas, ideas y opiniones de manera que los electores puedan formar su criterio para votar (…) Al respecto, la Corte Europea ha establecido que (…) Por esta razón (…) es particularmente importante que las opiniones y la información de toda clase puedan circular libremente en el período que antecede a las elecciones (…)”. (El destacado no forma parte del original).
También, cabe apuntar que, en dicha ocasión, la Corte IDH señaló claramente que aquellas personas que se postulan a una candidatura para ocupar el puesto a la Presidencia de la República se han expuesto voluntariamente al escrutinio público, por lo que, consecuentemente, corren el riesgo de ser sometidas a mayores críticas, ya que sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público.
Debe observarse que en este caso resulta claro que, pese a lo consignado supra, Rodrigo Chaves Robles, desde que las noticias en cuestión fueron divulgadas, se ha dedicado a amenazar públicamente al Diario La Nación e, incluso, a justificar la emisión de actos tan lamentables como lo es el cierre arbitrario del Parque Viva. Todo esto, a pesar que el mandatario, como cualquier otro ciudadano que se sienta agraviado por publicaciones emitidas en su contra, cuenta con una serie de medios o mecanismos que le provee el ordenamiento jurídico y a los que puede recurrir legítimamente de forma ulterior para defender su honor o bien, para velar por la exactitud de la información divulgada (ejerciendo el derecho de rectificación y respuesta estatuido en los ordinales 66 y siguientes de la Ley de la Jurisdicción Constitucional y 14 de la Convención Americana sobre Derechos Humanos). Pese a tener a disposición estos instrumentos, no consta que el mandatario haya hecho uso de los mismos, dirigiendo por el contrario sus manifestaciones en contra del Diario La Nación de la forma arbitraria en que lo hizo y así ha quedado plenamente acreditado.
Bajo este estado de cosas, se observa entonces, que lo consignado en este asunto ha representado un quebranto al Estado Constitucional de Derecho, quien cuenta con una tradición democrática reconocida, incluso, a nivel internacional. Por ende, resulta imperiosa la intervención de este Tribunal Constitucional, sobre todo, si se toma en consideración, como también ya se ha dicho, que los ataques a los medios de comunicación independientes –como es precisamente el caso del Diario La Nación–, suelen ser los primeros objetivos de los sistemas políticos antidemocráticos y autoritarios o, al menos, de aquellos que se encaminan o se dirigen hacia eso. Esto, la historia y lo ocurrido en otras latitudes, así lo demuestran.
Las amenazas giradas por el mandatario de la República contra el Diario La Nación hasta llegar a la afectación del Parque Viva, generando con ello una violación a la libertad de expresión y a la libertad de prensa, ha erosionado y resquebrajado indiscutiblemente nuestra democracia –la que, cabe destacar, con tanto esfuerzo forjaron nuestros antepasados– y, por ello, resulta imprescindible hacer este tipo de señalamiento para evitar que situaciones similares se repitan. Esto, pues hoy fue el Diario La Nación, pero, mañana, puede ser cualquier otro medio de comunicación.
Aunado a lo anterior, es importante destacar que, en este caso, no solo se ha vulnerado el derecho que tiene Diario La Nación de expresarse, de emitir críticas y divulgar, entre otras, noticias relacionadas con el hoy Presidente de la República y la gestión realizada por su persona, antes y después de asumir dicho cargo (como medio, a su vez, para fiscalizar sus actuaciones en una sociedad democrática), sino que, también, se ha quebrantado el derecho que tienen los habitantes, en un Estado Constitucional de Derecho, de recibir este tipo de información; sea, la libertad de expresión vista desde su dimensión social. Si la prensa es callada arbitrariamente, pues entonces los habitantes se ven desprovistos de un importante y valioso mecanismo para conocer qué ocurre, sobre todo respecto a la gestión del gobierno (como mecanismo, a su vez, para ejercer control sobre sus actos y hacerse una opinión al respecto) y esto, sin lugar a dudas, representa igualmente una afrenta al sistema democrático costarricense.
Por todos los argumentos supra señalados, esta Sala estima que, en la especie, se ha producido un claro quebranto a lo dispuesto en el ordinal 29 de nuestra Carta Magna y a lo señalado en el numeral 13.3 de la Convención Americana sobre Derechos Humanos, el cual proscribe expresamente la censura velada o las restricciones indirectas realizadas “por cualquier medio”, al derecho a la libertad de expresión. Por consiguiente, lo que procede es acoger también este extremo del recurso, con las consecuencias que se dirán infra. Esto, no sin antes traer a colación lo que señala la Declaración de Chapultepec y resulta plenamente aplicable en este caso:
“La lucha por la libertad de expresión y de prensa, por cualquier medio, no es tarea de un día; es afán permanente. Se trata de una causa esencial para la democracia y la civilización en nuestro hemisferio. No sólo es baluarte y antídoto contra todo abuso de autoridad: es el aliento cívico de una sociedad. Defenderla día a día es honrar a nuestra historia y dominar nuestro destino”.
D. ACLARACIONES FINALES DE INTERÉS. Finalmente, esta Sala Constitucional estima pertinente, en este punto de la sentencia, dejar claros los siguientes aspectos:
Primero: A través de este voto, esta jurisdicción constitucional no está diciendo que se puede actuar en contra de lo que dicta el ordenamiento jurídico; no se propone o insta a actuar fuera del marco de la ley. Por el contrario, la Sala, lo que señala, es que la ley se debe aplicar correctamente y no de forma intempestiva, atropellada o arbitraria, tal y como se demostró que sucedió en el caso bajo estudio.
Segundo: Lo que se dispone en esta sentencia, no impide que se pueda continuar fiscalizando el ejercicio de emprendimientos comerciales, estén o no relacionados con medios de comunicación. Las potestades de control, supervisión y verificación del cumplimiento de los requisitos y permisos para el funcionamiento de estos establecimientos, se debe seguir haciendo, pero ajustándose al marco jurídico ya establecido, y no de la manera atropellada, arbitraria e intempestiva en que se llevó a cabo recientemente en el caso valorado en este proceso.
Tercero: En el sentido supraexpuesto, para el caso concreto, este Tribunal es consciente que se deben proteger y resguardar la vida, la salud y la integridad de los habitantes de la zona de La Guácima de Alajuela, y de los asistentes a las actividades que se realizan en el establecimiento denominado Parque Viva. Esta jurisdicción, tal y como se dijo líneas arriba, a través de copiosa jurisprudencia, ha procurado siempre salvaguardar estos derechos fundamentales y, esto es absolutamente indiscutible. Ahora, el ejercicio de las potestades públicas de que dispone la administración, se debe llevar a cabo de forma ajustada al bloque de legitimidad, y no de la manera atropellada en que se ha hecho en este caso en particular.
Cuarto: Debe quedar absolutamente claro, que esta sentencia no indica que cualquier actividad comercial ligada a un medio de comunicación queda abstraída de los controles que exige el ordenamiento jurídico. Además, como también se ha explicado, no todo acto o conducta administrativa que imponga un gravamen o establezca un contenido de efecto negativo en torno a las estructuras de financiamiento de los medios de comunicación, supone, en sí misma, una lesión refleja como la que se ha indicado. La lectura íntegra de esta sentencia no establece ni sugiere esa regla de manera alguna. Lo que sí se ha establecido y debe enfatizarse, es que el cierre de un negocio o establecimiento comercial, con el fin de acallar o silenciar a un medio de comunicación, significa en realidad un subterfugio para violar las libertades públicas y los derechos fundamentales, en particular, a la libertad de expresión y de prensa, y con ello, limitar, de manera indebida e indirecta, a estas libertades, las cuales, según lo explicado reiteradamente, son consustanciales con la existencia misma de la democracia; de ahí, la protección que merece ser brindada por este Tribunal Constitucional.
X.- COROLARIO. En mérito de lo expuesto, se impone acoger el presente proceso de amparo, al haberse demostrado que el cierre de Parque Viva se llevó a cabo de forma arbitraria, sin un fundamento objetivo válido, como represalia por la línea editorial que ha sostenido Diario La Nación respecto al hoy Presidente Rodrigo Chaves Robles y con el único objetivo de silenciar las voces de dicho medio, en claro detrimento de la libertad de expresión y la libertad de prensa protegidas constitucional y convencionalmente. (…)” ... Ver más Otras Referencias: Corte Interamericana de Derechos Humanos (en adelante Corte IDH), en el caso Herrera Ulloa vs. el Estado de Costa Rica (sentencia de 2 de julio de 2004)Corte de Apelaciones del Primer Circuito, Puerto Rico, caso El Día vs. Rossello, decisión del 25 de enero de 1999, 165 F.3d 106, pág. 110 Citas de Legislación y Doctrina Sentencias Relacionadas Contenido de Interés:
Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 029- Libertad de expresión Subtemas:
NO APLICA.
ARTÍCULO 29 DE LA CONSTITUCIÓN POLÍTICA “(…) IV.- SOBRE LA LIBERTAD DE EXPRESIÓN. La libertad de expresión es uno de los pilares sobre los cuales está fundado el Estado de Derecho y comprende, tanto la garantía fundamental y universal de manifestar los pensamientos o las opiniones propias, como conocer los de otros. En otros términos, refiere a la libertad de buscar, recibir y difundir informaciones e ideas, ya sea oralmente o por escrito. Por esto se dice que la libertad de expresión se caracteriza por ser un derecho con una doble dimensión: una dimensión individual, consistente en el derecho de cada persona a buscar información y expresar los propios pensamientos, ideas e informaciones; y una dimensión colectiva o social, consistente en el derecho de la sociedad a procurar y recibir cualquier información, a conocer los pensamientos, ideas e informaciones ajenos y a estar bien informada. Sobre esta doble dimensión de la libertad bajo estudio, la Corte Interamericana de Derechos Humanos (en adelante Corte IDH), en el caso Herrera Ulloa vs. el Estado de Costa Rica (sentencia de 2 de julio de 2004), sostuvo lo siguiente:
“(…) 109. Al respecto, la Corte ha indicado que la primera dimensión de la libertad de expresión “no se agota en el reconocimiento teórico del derecho a hablar o escribir, sino que comprende además, inseparablemente, el derecho a utilizar cualquier medio apropiado para difundir el pensamiento y hacerlo llegar al mayor número de destinatarios”. En este sentido, la expresión y la difusión de pensamientos e ideas son indivisibles, de modo que una restricción de las posibilidades de divulgación representa directamente, y en la misma medida, un límite al derecho de expresarse libremente.
110. Con respecto a la segunda dimensión del derecho a la libertad de expresión esto es, la social, es menester señalar que la libertad de expresión es un medio para el intercambio de ideas e informaciones entre las personas; comprende su derecho a tratar de comunicar a otras sus puntos de vista, pero implica también el derecho de todos a conocer opiniones, relatos y noticias vertidas por terceros. Para el ciudadano común tiene tanta importancia el conocimiento de la opinión ajena o de la información de que disponen otros como el derecho a difundir la propia.
111. Este Tribunal ha afirmado que ambas dimensiones poseen igual importancia y deben ser garantizadas plenamente en forma simultánea para dar efectividad total al derecho a la libertad de expresión en los términos previstos por el artículo 13 de la Convención (…)”.
Por su parte, la Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos (Marco jurídico interamericano sobre el derecho a la libertad de expresión, diciembre 2009), se refirió a este derecho conforme los siguientes términos:
“(…) se trata de uno de los derechos individuales que de manera más clara refleja la virtud que acompaña –y caracteriza– a los seres humanos: la virtud única y preciosa de pensar al mundo desde nuestra propia perspectiva y de comunicarnos con los otros para construir a través de un proceso deliberativo, no solo el modelo de vida que cada uno tiene derecho a adoptar, sino el modelo de sociedad en el cual queremos vivir. Todo el potencial creativo en el arte, en la ciencia, en la tecnología, en la política, en fin, toda nuestra capacidad creadora individual y colectiva, depende, fundamentalmente, de que se respete y promueva el derecho a la libertad de expresión en todas sus dimensiones. Se trata entonces de un derecho individual sin el cual se estaría negando la primera y más importante de nuestras libertades: el derecho a pensar por cuenta propia y a compartir con otros nuestro pensamiento (…)”.
Nuestra Constitución Política garantiza la libertad de expresión y pensamiento en los artículos 28 y 29, los cuales señalan lo siguiente:
“ARTÍCULO 28.- Nadie puede ser inquietado ni perseguido por la manifestación de sus opiniones ni por acto alguno que no infrinja la ley.
Las acciones privadas que no dañen la moral o el orden públicos, o que no perjudiquen a tercero, están fuera de la acción de la ley.
No se podrá, sin embargo, hacer en forma alguna propaganda política por clérigos o seglares invocando motivos de religión o valiéndose, como medio, de creencias religiosas”.
“ARTÍCULO 29.- Todos pueden comunicar sus pensamientos de palabra o por escrito, y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca”.
En el ámbito internacional, la libertad de expresión ha sido consagrada en diversos instrumentos. En lo que respecta al sistema interamericano, el Pacto Internacional de Derechos Civiles y Políticos dispone en su artículo 19 lo siguiente:
“1. Nadie podrá ser molestado a causa de sus opiniones.
2. Toda persona tiene derecho a la libertad de expresión; este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
3. El ejercicio del derecho previsto en el párrafo 2 de este artículo entraña deberes y responsabilidades especiales. Por consiguiente, puede estar sujeto a ciertas restricciones que deberán, sin embargo, estar expresamente fijadas por la ley y ser necesarias para:
La Declaración Universal de Derechos Humanos en su ordinal 19 señala también:
“Todo individuo tiene derecho a la libertad de opinión y de expresión; este derecho incluye el de no ser molestado a causa de sus opiniones, el de investigar y recibir informaciones y opiniones, y el de difundirlas, sin limitación de fronteras, por cualquier medio de expresión”.
Por su parte, la Convención Americana sobre Derechos Humanos, en su artículo 13, consigna lo siguiente:
“1. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
2. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar:
3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.
4. Los espectáculos públicos pueden ser sometidos por la ley a censura previa con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2.
5. Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional”.
En el artículo IV de la Declaración Americana de los Derechos y Deberes del Hombre, se señala lo siguiente:
“Toda persona tiene derecho a la libertad de investigación, de opinión y de expresión y de difusión del pensamiento por cualquier medio”.
Asimismo, instrumentos internacionales de soft law han resguardado esta libertad. Así, la Declaración de Chapultepec (adoptada por la conferencia hemisférica sobre libertad de expresión celebrada en México, D.F. el 11 de marzo de 1994), en su primer principio refiere que:
“1. No hay personas ni sociedades libres sin libertad de expresión y de prensa. El ejercicio de ésta no es una concesión de las autoridades; es un derecho inalienable del pueblo”.
Por su parte, la Declaración de Principios sobre Libertad de Expresión (aprobada por la Comisión Interamericana de Derechos Humanos en octubre de 2000, en el 108 período ordinario), dispone lo siguiente:
“1. La libertad de expresión, en todas sus formas y manifestaciones, es un derecho fundamental e inalienable, inherente a todas las personas. Es, además, un requisito indispensable para la existencia misma de una sociedad democrática”.
En otro contexto, dentro del ordenamiento jurídico europeo, se destaca la Convención Europea sobre Derechos Humanos, que en su ordinal 10 precisa la titularidad universal de este derecho, conforme los siguientes términos:
“Libertad de expresión 1. Toda persona tiene derecho a la libertad de expresión. Este derecho comprende la libertad de opinión y la libertad de recibir o de comunicar informaciones o ideas sin que pueda haber injerencia de autoridades públicas y sin consideración de fronteras. El presente artículo no impide que los Estados sometan a las empresas de radiodifusión, de cinematografía o de televisión a un régimen de autorización previa.
2. El ejercicio de estas libertades, que entrañan deberes y responsabilidades, podrá ser sometido a ciertas formalidades, condiciones, restricciones o sanciones, previstas por la ley, que constituyan medidas necesarias, en una sociedad democrática, para la seguridad nacional, la integridad territorial o la seguridad pública, la defensa del orden y la prevención del delito, la protección de la salud o de la moral, la protección de la reputación o de los derechos ajenos, para impedir la divulgación de informaciones confidenciales o para garantizar la autoridad y la imparcialidad del poder judicial”.
Igualmente, la Carta de los Derechos Fundamentales de la Unión Europea, en su ordinal 11, cita lo siguiente:
“Artículo 11 Libertad de expresión y de información 1. Toda persona tiene derecho a la libertad de expresión. Este derecho comprende la libertad de opinión y la libertad de recibir o de comunicar informaciones o ideas sin que pueda haber injerencia de autoridades pœblicas y sin consideración de fronteras.
2. Se respetan la libertad de los medios de comunicación y su pluralismo”.
El derecho a la libertad de expresión ha sido ampliamente desarrollado en la jurisprudencia constitucional costarricense. Así, en la Sentencia No. 8196-2000 de las 15:08 hrs. de 13 de septiembre de 2000, el Tribunal Constitucional hizo referencia a las distintas formas en que se puede manifestar la libertad de expresión, conforme los siguientes términos:
“(…) IV.- De la Libertad de Expresión. La doctrina caracteriza a la libertad de expresión como una libertad presupuesto del ejercicio de otras libertades, que opera como legitimadora del funcionamiento del sistema democrático y de la eficacia de sus instituciones y que jurídicamente adopta pluralidad de formas. La vinculación más clara se da con la libertad de pensamiento, que es la condición previa e indispensable para la existencia de la libertad de expresión. En ejercicio de ambas libertades, el individuo puede escoger o elaborar las respuestas que pretende dar a todas aquellas cuestiones que le plantea la conducción de su vida en sociedad, de conformar a estas respuestas sus actos y, comunicar a los demás aquello que considera verdadero, sin censura previa. El ámbito de acción de esas libertades es muy amplio, pues comprende las manifestaciones de los individuos sobre política, religión, ética, técnica, ciencia, arte, economía, etc. La libertad de expresión, entonces, implica la posibilidad de que el sujeto transmita sus pensamientos (ideas, voliciones, sentimientos), y comprende la libertad de creación artística o literaria, la libertad de palabra, la libre expresión cinematográfica y también las manifestaciones vertidas por medio de la prensa escrita, la radio y la televisión, en tanto son medios de difusión de ideas. Así también, de la libertad de expresión se infiere el derecho de dar y recibir información y el derecho a comunicar con propósito diverso ya sea económico, político, recreativo, profesional, etc., sin que se impongan medidas restrictivas que resulten irrazonables. La libertad de expresión no sólo protege al individuo aislado, sino las relaciones entre los miembros de la sociedad y es por ello que tiene una gran trascendencia, ya que contribuye a la formación de la opinión pública. Es a su vez presupuesto de la libertad de prensa y de la libertad de información, pues de la libertad de expresión derivaron en sucesión histórica la libertad de prensa (o de escritos periódicos dirigidos al público en general) y la libertad de información, que es como hoy día se denomina a la libertad de expresión concretada en los medios de comunicación social. La libertad de información entonces, comprende la prensa escrita, oral, audiovisual y por su naturaleza, se encuentra relacionada con el derecho de crónica, de crítica, a la industria o comercio de la prensa y al fenómeno de la publicidad. Este aspecto ha adquirido mucha importancia en las últimas décadas, pues debido al alto costo de instalación y mantenimiento de los medios de comunicación colectiva, cuando son propiedad privada sólo pueden subsistir por el uso intensivo de la publicidad. Asimismo, existe el fenómeno del derecho social a la información, que reside precisamente en la comunidad y en cada uno de sus miembros, y que les da la posibilidad de ajustar su conducta a las razones y sentimientos por esa información sugeridos, para la toma de decisiones y a la vez cumple una función de integración, ya que unifica una multitud de opiniones particulares en una gran corriente de opinión, estimulando así la integración social (…)”. (El destacado no forma parte del original).
Asimismo, en ese mismo voto, la Sala Constitucional se pronunció sobre la prohibición de la censura previa, así como a los límites a los que está sometida la libertad bajo estudio:
“(…) V.- Una de las principales garantías que protegen la libertad de expresión es la prohibición de censura previa, ocurriendo así, que cualquier control debe darse a posteriori. Como censura previa entiende esta Sala aquel control, examen o permiso a que se somete una publicación, texto u opinión, con anterioridad a su comunicación al público, mediante el cual se pretende realizar un control preventivo de las manifestaciones hechas por un medio de comunicación colectiva, ya bien sea radiofónico, televisivo o impreso. Este concepto no sólo está plasmado en nuestra Constitución Política en el artículo 29, sino que también se incorporó en el Pacto de San José, cuyo artículo 13 inciso 2, dispone que el ejercicio de la libertad de expresión no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por ley y ser necesarias para asegurar ya sea el respeto a los derechos o a la reputación de los demás, o la protección de la seguridad nacional, el orden público o la salud o la moral pública. El artículo 29 de la Constitución Política consagra lo que parte de la doctrina califica como libertad de prensa, mientras que otra señala como libertad de información, y dispone:
"Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca." La Sala se refirió a este tema en la sentencia No. 1292-90 de las horas del de mil novecientos noventa y dijo:
"La libertad de expresión contenida en el artículo 29 de nuestra Constitución, permite la comunicación de pensamientos de palabra o por escrito y su publicación sin previa censura, garantía que refuerza el artículo 28 del mismo cuerpo normativo al prohibir la persecución por el ejercicio de esa libertad. No obstante, como todo derecho, esa libertad no es absoluta, y tiene su límite, de tal forma que el abuso que se haga de ella hará incurrir en responsabilidad a su autor, según la legislación que rige la materia." (…)
Ahora bien, a pesar de la gran libertad de que goza el individuo para formar opiniones basado en criterios personales y a su vez comunicarlas con toda amplitud, no debe pensarse que el ejercicio de estas libertades no tiene límite alguno, pues la libertad de expresión, al igual que el resto de las libertades públicas no es irrestricta: sus límites vienen dados por el mismo Orden Constitucional, y así lo consideró esta Sala en la sentencia N° 3173-93, al indicar que “II.- Los derechos fundamentales de cada persona, deben coexistir con todos y cada uno de los derechos fundamentales de los demás; por lo que en aras de la convivencia se hace necesario muchas veces un recorte en el ejercicio de esos derechos y libertades, aunque sea únicamente en la medida precisa y necesaria para que las otras personas los disfruten en iguales condiciones. Sin embargo, el principio de la coexistencia de las libertades públicas -el derecho de terceros- no es la única fuente justa para imponer limitaciones a éstas; los conceptos "moral", concebida como el conjunto de principios y de creencias fundamentales vigentes en la sociedad, cuya violación ofende gravemente a la generalidad de sus miembros-, y "orden público", también actúan como factores justificantes de las limitaciones de los derechos fundamentales. VI- No escapa a esta Sala la dificultad de precisar de modo unívoco el concepto de orden público, ni que este concepto puede ser utilizado, tanto para afirmar los derechos de la persona frente al poder público, como para justificar limitaciones en nombre de los intereses colectivos a los derechos. No se trata únicamente del mantenimiento del orden material en las calles, sino también del mantenimiento de cierto orden jurídico y moral, de manera que está constituido por un mínimo de condiciones para una vida social, conveniente y adecuada. Constituyen su fundamento la seguridad de las personas, de los bienes, la salubridad y la tranquilidad.” Asimismo, en la sentencia N° 3550-92 de las dieciséis horas de veinticuatro de noviembre de mil novecientos noventa y dos, este Tribunal desarrolló el tema de los límites legítimos a las libertades públicas y se refirió al principio de reserva de ley enfatizando que " solamente mediante ley formal, emanada del Poder Legislativo por el procedimiento previsto en la Constitución para la emisión de las leyes, es posible regular y, en su caso restringir los derechos y libertades fundamentales -todo, por supuesto, en la medida en que la naturaleza y régimen de éstos lo permita, y dentro de las limitaciones constitucionales aplicables (…)”. El destacado no forma parte del original).
Asimismo, más recientemente, en el Voto No. 9512-2020 de las 13:02 hrs. de 22 de mayo de 2022, este Tribunal dispuso lo siguiente:
“(…) V.- SOBRE LA LIBERTAD DE EXPRESIÓN Y LOS LÍMITES IMPONIBLES.- Este Tribunal ha entendido la libertad de expresión e información tal y como se dispuso en la sentencia No. 8109-98 de las 14:21 horas del 13 de noviembre de 1998, en la que se indicó lo siguiente: “...IV.- El Derecho de Información es aquel que permite a todas las personas recibir información suficientemente amplia sobre determinados hechos y sobre las corrientes de pensamiento y a partir de ellos escoger y formarse sus propias opiniones. Ello se logra a partir de dos vías diferentes: mediante la exposición objetiva de los hechos y por el pluralismo de las corrientes ideológicas. Asimismo, la Libertad de Expresión y de Pensamiento constituye un derecho fundamental que le permite al individuo dentro de un amplio ámbito de libertad, formular criterios personales de lo que éste considere adecuado o no, para responder a determinadas situaciones; permitiendo a la vez, poder comunicar sin censura previa, el resultado de su planteamiento ideológico. Este derecho tiene una gran trascendencia, ya que contribuye a la formación de la opinión pública, mediante los aportes intelectuales del individuo que ejerce opiniones o conceptos ya establecidos, o bien criticándolos. El ámbito de libertad es muy amplio, pues en él se comprenden todas las manifestaciones que realizan los individuos sobre política, religión, ética, técnica, ciencia, arte, economía, etc, por lo que de lo anterior se desprende que el ejercicio de la Libertad de Expresión y la Libertad de Pensamiento excluye la censura previa, ocurriendo que el control existente se da a posteriori y sobre los excesos sujetos al abuso de tales libertades, excluyéndose de tal prohibición los considerados espectáculos públicos.” Aunado a ello, en la misma sentencia se señaló que: “... La libertad de expresión forma parte de la libertad de información y en un Estado de Derecho, implica una ausencia de control por parte de los poderes públicos, y de órganos administrativos al momento de ejercitar ese derecho, lo que quiere decir que no es necesaria autorización alguna para hacer publicaciones, y que no se puede ejercer la censura previa, salvo que este de por medio la salud, la seguridad nacional, la moral y las buenas costumbres, como es el caso de los espectáculos públicos. El ejercicio de la libertad de expresión no puede ser ilimitado, ya que de ser así, los medios de comunicación ó cualquier sujeto de derecho, se podría prestar para propagar falsedades, difamar o promover cualquier tipo de desordenes y escándalos. Es por ello que la libertad de información trae implícito un límite, que funciona como una especie de autocontrol para el ciudadano que ejercita ese derecho, en el sentido de que si comete un abuso será responsable de él, en los casos y del modo en que la ley lo establezca. De allí que existan, en nuestro ordenamiento, figuras penales como la injuria, la calumnia o la difamación, que pueden ser la consecuencia de un abuso en el ejercicio del derecho de información. (…)
La Corte Interamericana de Derechos Humanos en el caso de Mauricio Herrera Ulloa contra el Estado de Costa Rica, en su sentencia del 2 de julio de 2004, sobre la libertad de expresión, indicó que la libertad de expresión es un medio para el intercambio de ideas e informaciones entre las personas; comprende su derecho a tratar de comunicar a otras sus puntos de vista, pero implica también el derecho de todos a conocer opiniones, relatos y noticias vertidas por terceros. Para el ciudadano común tiene tanta importancia el conocimiento de la opinión ajena o de la información de que disponen otros, como el derecho a difundir la propia. (…)
Ahora bien, la libertad de pensamiento y de expresión en una sociedad democrática, es un tema que como ya se ha mencionado supra, ha sido desarrollado en la Convención Americana, específicamente, en su artículo 13.2, que prevé la posibilidad de establecer restricciones a la libertad de expresión.
La jurisprudencia de la Corte Interamericana de Derechos Humanos ha señalado que, a través de la aplicación de responsabilidades ulteriores por el ejercicio abusivo del derecho de libertad de pensamiento y de expresión, no se debe de modo alguno limitar, más allá de lo estrictamente necesario, el alcance pleno de dichos derechos.
Se ha mencionado que la legalidad de las restricciones a la libertad de expresión fundadas sobre el artículo 13.2 de la Convención Americana, dependerá de que estén orientadas a satisfacer un interés público imperativo, por lo que se debe escoger aquella que restrinja en menor escala el derecho protegido.
Además, para que deban justificarse, es necesaria su ponderación sobre la necesidad social del pleno goce del derecho y no limitar el derecho tutelado más allá, de lo estrictamente necesario. Es decir, que la restricción debe ser proporcionada al interés que la justifica y ajustarse estrechamente al logro de ese objetivo, interfiriendo en la menor medida posible en el efectivo ejercicio del derecho a la libertad de expresión e información (ver en este sentido la Opinión Consultiva OC-5/85). (…)”. (El destacado no forma parte del original).
Por su parte, la Corte IDH en el caso Moya Chacón y otros vs. Costa Rica (sentencia de 23 de mayo de 2022), indicó lo siguiente:
“(…) b.3 Restricciones permitidas a la libertad de expresión y la aplicación de responsabilidades ulteriores en casos que haya afectación de la honra y de la dignidad en asuntos de interés público 71. El Tribunal recuerda que, con carácter general, el derecho a la libertad de expresión no puede estar sujeto a censura previa sino, en todo caso, a responsabilidades ulteriores en casos muy excepcionales y bajo el cumplimiento de una serie de estrictos requisitos. Así, el artículo 13.2 de la Convención Americana establece que las responsabilidades ulteriores por el ejercicio de la libertad de expresión, deben cumplir con los siguientes requisitos de forma concurrente: (i) estar previamente fijadas por ley, en sentido formal y material; (ii) responder a un objetivo permitido por la Convención Americana y (iii) ser necesarias en una sociedad democrática (para lo cual deben cumplir con los requisitos de idoneidad, necesidad y proporcionalidad).
72. Respecto a la estricta legalidad, la Corte ha establecido que las restricciones deben estar previamente fijadas en la ley como medio para asegurar que las mismas no queden al arbitrio del poder público. Para esto, la tipificación de la conducta debe ser clara y precisa, más aún si se trata de condenas del orden penal y no del orden civil. Sobre los fines permitidos o legítimos, los mismos están indicados en el referido artículo 13.2 y son (a) el respeto a los derechos o a la reputación de los demás, o (b) la protección de la seguridad nacional, el orden público o la salud o la moral públicas. Asimismo, las restricciones a la libertad de expresión deben ser idóneas, esto es, efectivamente conducentes para alcanzar la finalidad legítimamente permitida. En lo que respecta al análisis de necesidad, el Tribunal ha sostenido que, para que una restricción a la libre expresión sea compatible con la Convención Americana, aquella debe ser necesaria en una sociedad democrática, entendiendo por “necesaria” la existencia de una necesidad social imperiosa que justifique la restricción. En este sentido, la Corte deberá examinar las alternativas existentes para alcanzar el fin legítimo perseguido y precisar la mayor o menor lesividad de aquéllas. Finalmente, en relación con la proporcionalidad de la medida, la Corte ha entendido que las restricciones impuestas sobre el derecho a la libertad de expresión deben ser proporcionales al interés que las justifican y ajustarse estrechamente al logro de ese objetivo, interfiriendo en la menor medida posible en el efectivo goce del derecho. En ese sentido, no es suficiente que tenga una finalidad legítima, sino que la medida en cuestión debe respetar la proporcionalidad al momento de afectar la libertad de expresión. En otras palabras, “en este último paso del análisis se considera si la restricción resulta estrictamente proporcional, de tal forma que el sacrificio inherente a aquella no resulte exagerado o desmedido frente a las ventajas que se obtienen mediante tal limitación”. El Tribunal recuerda que estas restricciones tienen carácter excepcional y no deben limitar, más allá de lo estrictamente necesario, el pleno ejercicio de la libertad de expresión y convertirse en un mecanismo directo o indirecto de censura previa.
73. En este sentido, la Corte ha establecido que se pueden imponer tales responsabilidades ulteriores en tanto se pudiera haber afectado el derecho a la honra y la reputación. Así, el artículo 11 de la Convención establece, en efecto, que toda persona tiene derecho a la protección de su honra y al reconocimiento de su dignidad. La Corte ha señalado que el derecho a la honra “reconoce que toda persona tiene derecho al respeto de esta, prohíbe todo ataque ilegal contra la honra o reputación e impone a los Estados el deber de brindar la protección de la ley contra tales ataques”. En términos generales, este Tribunal ha indicado que “el derecho a la honra se relaciona con la estima y valía propia, mientras que la reputación se refiere a la opinión que otros tienen de una persona”. En este sentido, este Tribunal ha sostenido que, “tanto la libertad de expresión como el derecho a la honra, derechos ambos protegidos por la Convención, revisten suma importancia, por lo cual es necesario garantizar ambos derechos, de forma que coexistan de manera armoniosa”. El ejercicio de cada derecho fundamental tiene que hacerse con respeto y salvaguarda de los demás derechos fundamentales. Por ende, la Corte ha señalado que “la solución del conflicto que se presenta entre ambos derechos requiere de una ponderación entre los mismos, para lo cual deberá examinarse cada caso, conforme a sus características y circunstancias, a fin de apreciar la existencia e intensidad de los elementos en que se sustenta dicho juicio”.
74. El Tribunal recuerda a este respecto que, para determinar la convencionalidad de una restricción a la libertad de expresión cuando este colisione con el derecho a la honra, es de vital importancia analizar si las declaraciones efectuadas poseen interés público, toda vez que en estos casos el juzgador debe evaluar con especial cautela la necesidad de limitar la libertad de expresión. En su jurisprudencia, la Corte ha considerado de interés público aquellas opiniones o informaciones sobre asuntos en los cuales la sociedad tiene un legítimo interés de mantenerse informada, de conocer lo que incide sobre el funcionamiento del Estado, o afecta derechos o intereses generales o le acarrea consecuencias importantes. Determinar lo anterior tiene consecuencias en el análisis de la convencionalidad de la restricción al derecho a la libertad de expresión, toda vez que las expresiones que versan sobre cuestiones de interés público -como, por ejemplo, las concernientes a la idoneidad de una persona para el desempeño de un cargo público o a los actos realizados por funcionarios públicos en el desempeño de sus labores- gozan de mayor protección, de manera tal que se propicie el debate democrático.
75. Así, la Corte ha señalado que, en una sociedad democrática, aquellas personas que influyen en cuestiones de interés público están más expuestas al escrutinio y la crítica del público. Este diferente umbral de protección se explica porque sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público y, por tanto, se han expuesto voluntariamente a este escrutinio más exigente. Esto no significa, de modo alguno, que el honor de las personas participantes en asuntos de interés público no deba ser jurídicamente protegido, sino que éste debe serlo de manera acorde con los principios del pluralismo democrático.
76. Por otro lado, en relación con el carácter necesario y el riguroso análisis de proporcionalidad que debe regir entre la limitación al derecho a la libertad de expresión y la protección del derecho a la honra, se deberá buscar aquella intervención que, siendo la más idónea para restablecer la reputación dañada, contenga, además, un grado mínimo de afectación en el ámbito de la libertad de expresión. A este respecto, en el marco de la libertad de información, el Tribunal considera que existe un deber del periodista de constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos que divulga. Ahora bien, esto no significa una exigencia estricta de veracidad, por lo menos en lo que hace referencia a cuestiones de interés público, reconociendo como descargo el que la publicación se haga de buena fe o justificadamente y siempre de conformidad con unos estándares mínimos de ética y profesionalidad en la búsqueda de la verdad. Asimismo, el Tribunal advierte que, para que exista el periodismo de investigación en una sociedad democrática, es necesario dejar a los periodistas “espacio para el error”, toda vez que sin ese margen de error no puede existir un periodismo independiente ni la posibilidad, por tanto, del necesario escrutinio democrático que dimana de este.
77. Adicionalmente, la Corte también considera que nadie podrá ser sometido a responsabilidades ulteriores por la difusión de información relacionada con un asunto público y que tenga como base material que es accesible al público o que proviene de fuentes oficiales.
78. Por último, también se debe destacar la necesidad de que, en caso de estimarse adecuado otorgar una reparación a la persona agraviada en su honra, la finalidad de esta no debe ser la de castigar al emisor de la información, sino la de restaurar a la persona afectada. A este respecto, los Estados deben ejercer la máxima cautela al imponer reparaciones, de tal manera que no disuadan a la prensa de participar en la discusión de asuntos de legítimo interés público (…)”.
Aunado a lo anterior cabe destacar que la libertad de expresión, conforme lo dispone el artículo 13.3 de la Convención Americana sobre Derechos Humanos, no puede ser restringida o coartada a través del uso de medidas o vías indirectas. Sin embargo, este aspecto en particular, será desarrollado más adelante.
V.- EN CUANTO A LA LIBERTAD DE PRENSA COMO MANIFESTACIÓN DEL DERECHO A LA LIBERTAD DE EXPRESIÓN. La libertad de prensa se fundamenta en la libertad de expresión y, al mismo tiempo, es uno de sus vehículos naturales. Es una de las principales y más importantes manifestaciones de la libertad de expresión. La ya citada Declaración de Chapultepec ha sido contundente en el resguardo que merece particularmente la libertad de prensa, por lo que, en su primer principio dispone que “1. No hay personas ni sociedades libres sin libertad de expresión y de prensa. El ejercicio de ésta no es una concesión de las autoridades; es un derecho inalienable del pueblo”.
Se trata de un derecho fundamental que defiende que cualquier persona pueda, de una parte, acceder a información y, de otra, difundir esta a través de cualquier medio de expresión, sea medios impresos (publicaciones periodísticas, revistas, folletos, etc.), radio, televisión e, incluso, más modernamente, haciendo uso del internet y de las plataformas digitales, entre otros. Particularmente, esta Sala ha definido este derecho como aquel que tienen los administrados “(…) de buscar y difundir las informaciones y las ideas a un número indeterminado de personas sobre hechos que por su naturaleza son de interés de la generalidad por considerarse noticiosos (...)” (Sentencias Nos. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006 y 8396-2018 de las 12:40 hrs. de 25 de mayo de 2018).
En virtud de lo anterior, esta libertad permite a las personas la posibilidad de organizarse y crear medios de comunicación independientes del poder gubernamental, en los cuales tienen el derecho de expresarse libremente, sin censura. Todo esto, además, sin temor a las represalias del Estado o de otras entidades o individuos. La finalidad de este este derecho, es garantizar a la población recibir y difundir una información que no está manipulada ni, tampoco, al servicio de una persona, entidad o interés particular.
Desde sus primeros pronunciamientos, la Corte IDH, al resolver la opinión consultiva No. OC-5/85 sobre la colegiatura obligatoria de periodistas mediante sentencia de 13 de noviembre de 1985, aludió a esta libertad desde el ejercicio periodístico e indicó que:
“(…) 72. (...) La profesión de periodista -lo que hacen los periodistas- implica precisamente el buscar, recibir y difundir información. El ejercicio del periodismo, por tanto, requiere que una persona se involucre en actividades que están definidas o encerradas en la libertad de expresión garantizada en la Convención (...)
74. (...) El ejercicio del periodismo profesional no puede ser diferenciado de la libertad de expresión, por el contrario ambas cosas están evidentemente imbricadas, pues el periodista profesional no es ni puede ser, otra cosa que una persona que ha decidido ejercer la libertad de expresión de modo continuo, estable y remunerado (...)”.
Asimismo, en el caso Herrera Ulloa vs. Costa Rica (sentencia de 2 de julio de 2004), la Corte IDH sostuvo, sobre el rol de los medios de comunicación y el periodismo en relación con la libertad de expresión, lo siguiente:
“(…) 117. Los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. Los referidos medios, como instrumentos esenciales de la libertad de pensamiento y de expresión, deben ejercer con responsabilidad la función social que desarrollan.
118. Dentro de este contexto, el periodismo es la manifestación primaria y principal de esta libertad y, por esa razón, no puede concebirse meramente como la prestación de un servicio al público a través de la aplicación de los conocimientos o la capacitación adquiridos en la universidad. Al contrario, los periodistas, en razón de la actividad que ejercen, se dedican profesionalmente a la comunicación social. El ejercicio del periodismo, por tanto, requiere que una persona se involucre responsablemente en actividades que están definidas o encerradas en la libertad de expresión garantizada en la Convención.
119. En este sentido, la Corte ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca. (…)”. (El destacado no forma parte del original).
Más recientemente, en el caso Moya Chacón y otros vs. Costa Rica (sentencia de 23 de mayo de 2022), la Corte IDH reiteró parte de lo anteriormente citado y sostuvo, sobre este mismo tema, lo siguiente:
“(…) b.2 Importancia del rol del periodista en una sociedad democrática 66. La Corte ha destacado que el ejercicio profesional del periodismo “no puede ser diferenciado de la libertad de expresión, por el contrario, ambas cosas están evidentemente imbricadas, pues el periodista profesional no es, ni puede ser, otra cosa que una persona que ha decidido ejercer la libertad de expresión de modo continuo, estable y remunerado”. El Tribunal ha afirmado que los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. En efecto, la Corte ha caracterizado los medios de comunicación social como verdaderos instrumentos de la libertad de expresión y, además, ha señalado que “[s]on los medios de comunicación social los que sirven para materializar el ejercicio de la libertad de expresión, de tal modo que sus condiciones de funcionamiento deben adecuarse a los requerimientos de esa libertad. Para ello es indispensable, inter alia, la pluralidad de medios, la prohibición de todo monopolio respecto de ellos, cualquiera sea la forma que pretenda adoptar, y la garantía de protección a la libertad e independencia de los periodistas”.
67. El Tribunal recuerda que, para que la prensa pueda desarrollar su rol de control periodístico, debe no solo ser libre de impartir informaciones e ideas de interés público, sino que también debe ser libre para reunir, recolectar y evaluar esas informaciones e ideas. En su informe de 2012 al Consejo de Derechos Humanos de las Naciones Unidas, el Relator especial sobre la promoción y protección del derecho a la libertad de opinión y expresión de las Naciones Unidas se refirió a que las personas que desarrollan una actividad periodística “observan, describen, documentan y analizan los acontecimientos y documentan y analizan declaraciones, políticas y cualquier propuesta que pueda afectar a la sociedad, con el propósito de sistematizar esa información y reunir hechos y análisis para informar a los sectores de la sociedad o a esta en su conjunto”. Lo anterior implica que cualquier medida que interfiera con las actividades periodísticas de personas que están cumpliendo con su función obstruirá inevitablemente con el derecho a la libertad de expresión en sus dimensiones individual y colectiva.
68. Adicionalmente, en el marco de la libertad de información, esta Corte considera que existe un deber del periodista de constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos que divulga. Es decir, resulta válido reclamar equidad y diligencia en la confrontación de las fuentes y la búsqueda de información. Esto implica el derecho de las personas a no recibir una versión manipulada de los hechos. En consecuencia, los periodistas tienen el deber de tomar alguna distancia crítica respecto a sus fuentes y contrastarlas con otros datos relevantes. Por su lado, el Tribunal Europeo de Derechos Humanos ha señalado que la libertad de expresión no garantiza una protección ilimitada a los periodistas, inclusive en asuntos de interés público. En efecto, dicho Tribunal ha indicado que, aun cuando están amparados bajo la protección de la libertad de expresión, los periodistas deben ejercer sus labores obedeciendo a los principios de un “periodismo responsable” y ético, lo cual resulta de particular relevancia en una sociedad contemporánea donde los medios no sólo informan sino también pueden sugerir, a través de la manera cómo presentan la información, la forma en que dicha información debe ser entendida.
69. Además, dada la importancia de la libertad de expresión en una sociedad democrática y la elevada responsabilidad que ello entraña para quienes ejercen profesionalmente labores de comunicación social, el Estado no sólo debe minimizar las restricciones a la circulación de la información sino también equilibrar, en la mayor medida de lo posible, la participación de las distintas informaciones en el debate público, impulsando el pluralismo informativo. Por último, la Corte ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca.
70. En el marco de esta protección que deben otorgar los Estados, resulta fundamental la protección de fuentes periodísticas, piedra angular de la libertad de prensa y, en general, de una sociedad democrática, toda vez que permiten a las sociedades beneficiarse del periodismo de investigación con el fin de reforzar la buena gobernanza y el Estado de Derecho. La confidencialidad de las fuentes periodísticas es, por lo tanto, esencial para el trabajo de los periodistas y para el rol que cumplen de informar a la sociedad sobre asuntos de interés público (…)”. (El destacado no forma parte del original).
Así las cosas, la libertad de prensa en relación con la libertad de expresión, hacen referencia al derecho de toda persona, y de los medios de comunicación en particular, a través de sus periodistas, de investigar e informar, sin limitaciones irrazonables o coacciones.
La Corte Constitucional Colombiana, ha hecho alusión también a esta libertad destacando tres de sus más importantes características. Particularmente, en la Sentencia No. C-135/21 de 13 de mayo de 2021, sostuvo que la prensa cumple un rol educador, es un mecanismo que contribuye a la construcción del diálogo social pacífico y, a su vez, es un guardián de la democracia. Además, explicó expresamente lo siguiente sobre estas características:
“(…) 57.1. Rol de educador. Los medios de comunicación y la prensa actúan como difusores del conocimiento. Esto permite que el público en general pueda acceder a información sobre hechos, conocimiento científico, las leyes que los regulan e información pública en sentido amplio, que de otro modo no podrían conocer. Es una fuente que centraliza y luego difunde el conocimiento, lo que permite que la ciudadanía se eduque y la democracia se fortalezca.
57.2. Mecanismo de contribución al diálogo social. El acceso al conocimiento que la prensa y los medios masivos de comunicación permiten, junto con el análisis investigativo adoptado por la misma, llevan a un mayor diálogo y debate pacífico de la ciudadanía en torno a los asuntos de interés público.
57.3. Guardián de la democracia. La prensa y los medios masivos de comunicación han sido denominados “el cuarto poder” o el “guardián de la democracia”, en alusión a la función que ejercen de control a la Administración Pública, y su designación como instrumento de rendición de cuentas a aquellos que detentan el poder (…)”.
Este órgano constitucional igualmente se ha pronunciado sobre esta libertad. Así, en el Voto No. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006 señaló:
“(…) La libertad de prensa engloba de manera genérica todos los tipos de impresos, impresión, edición, circulación de periódicos, folletos, revistas y publicaciones de toda clase. Es por su naturaleza vehículo natural de la libertad de expresión de los ciudadanos. Se traduce en el derecho para los administrados de buscar y difundir las informaciones y las ideas a un número indeterminado de personas sobre hechos que por su naturaleza son de interés de la generalidad por considerarse noticiosos. Por su naturaleza, está sujeta a las mismas limitaciones que la libertad de expresión. Tiene como funciones en la democracia: informar (hechos, acontecimientos noticiosos), integrar la opinión (estimulando la integración social) y controlar el poder político, en cuanto es permanente guardián de la honestidad y correcto manejo de los asuntos públicos. Dado su vínculo simbiótico con la ideología democrática, un sin fin de instrumentos internacionales y prácticamente todas las Constituciones del mundo libre, desde la Declaración Francesa de 1789 (art.11) la han reconocido.
Nuestra Constitución Política por su parte, la tutela por medio de diversas normas: “Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en las condiciones y modos que establezca la ley” (artículo 29) “Nadie puede ser inquietado ni perseguido por la manifestación de sus opiniones ni por acto alguno que no infrinja la ley. Las acciones privadas que no dañen la moral o el orden público o que no perjudiquen a tercero, están fuera de la acción de la ley. No se podrá, sin embargo, hacer en forma alguna propaganda política por clérigos o seglares invocando motivos de religión o valiéndose, como medio, de creencias religiosas” (artículo 28). Otras normas constitucionales relacionada con este derecho son: “Se garantiza la libertad de petición, en forma individual o colectiva, ante cualquier funcionario público o entidad oficial, y el derecho a obtener pronta resolución (artículo 27). “Se garantiza el libre acceso a los departamentos administrativos con propósitos de información sobre asuntos de interés público. Quedan a salvo los secretos de Estado” (artículo 30).
La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca; la no censurabilidad de los contenidos, si bien no se da en forma previa, encuentra algunas limitaciones, sin embargo, éstas deben ser tales que la libertad siga teniendo sentido o no sea vaciada de su contenido, básicamente, como toda libertad, debe ejercerse con responsabilidad, en fin para perseguir fines legítimos dentro del sistema (…)”.
Asimismo, en el Voto No. 10961-2020 de las 10:05 hrs. de 16 de junio de 2020, esta jurisdicción hizo referencia a la libertad de prensa y a su relación intrínseca con la libertad de información, señalando lo siguiente:
“(…) IV.- Por su parte, en cuanto a la libertad de información y de prensa existe también un profuso desarrollo que refiere este derecho como un derecho preferente, que no sólo es un derecho fundamental, sino que funge como garantía esencial del funcionamiento del sistema democrático. Como referencia pueden citarse las sentencias 2004-08229 y 2007-017324 que lo definen como:
"(...) El Derecho a la Información, que guarda una estrecha relación con la Libertad de Expresión y el Derecho de Prensa, consiste en la facultad de buscar, recibir y difundir información e ideas de toda índole, y puede ejercitarse mediante la palabra impresa, las emisiones de radio y de televisión. Sobre este particular, en sentencia número 2001–09250 de las 10:22 horas del 14 de setiembre de 2001, la Sala dijo lo siguiente:
“...la libertad de información es un medio de formación de opinión pública en asuntos de interés general. Este valor preferente alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa, entendida en su más amplia acepción. Esto, sin embargo, no significa que la misma libertad pueda ser entendida de manera absoluta, sino más bien debe de analizarse cada caso concreto para ponderar si la información se ha llevado a cabo dentro del ámbito protegido constitucionalmente, o por el contrario si ha transgredido ese ámbito, afectando el derecho al honor, a la intimidad o a la imagen, entre otros derechos también constitucionalmente protegidos.” En efecto, la doctrina sobre el tema señala que la Libertad de Prensa ampara la posibilidad de publicar noticias con veracidad, buenos motivos y fines justificables. No obstante, si bien la misión de la prensa en una sociedad abierta y democrática es informar a la opinión pública en forma objetiva y veraz, esto no debe entenderse como una exigencia de carácter absoluto, pues, en la práctica, claramente existen dificultades de todo tipo que harían totalmente irracional el exigirle semejante logro a los medios de comunicación. Por esta razón, se ha aceptado que éstos solamente están obligados a buscar leal y honradamente la verdad, en la forma más imparcial que les sea posible. En otras palabras, el deber de veracidad únicamente les impone la obligación de procurar razonablemente la verdad, y no la de realizar ese cometido en forma absoluta. Por consiguiente, el deber de veracidad entraña una obligación de medios, no de resultados (…)
El orden democrático exige, la defensa de la libertad de expresión, como instrumento básico e indispensable para la formación de la opinión pública. Y esa defensa, lleva a la posibilidad de expresar el pensamiento usando los medios que elija el emisor y también en la facultad de difundirlo a través de ellos. (…) el valor de esta defensa, alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa. En ese sentido, se entiende que si bien, el derecho a la expresión, contemplado en el artículo 13 de la Convención Americana, no tiene carácter absoluto, los límites para su ejercicio y controles de su adecuado desempeño no deben de modo alguno limitar su ejercicio, más allá de lo estrictamente necesario, al punto que puedan convertirse en un mecanismo directo o indirecto que afecten la libertad de expresión, información y prensa y constituyan una violación al derecho (…)”. (El destacado no forma parte del original).
Igualmente, en la Sentencia No. 9512-2020 de las 13:02 hrs. de 22 de mayo de 2022, este Tribunal Constitucional dispuso lo siguiente:
“(…) es claro que el ejercicio de las libertades de expresión e información adquiere características distintivas, cuando se realiza a través de un medio de comunicación, características que variarán dependiendo de cada tipo de medio. Estas variaciones repercuten, a su vez, sobre el alcance de los derechos que se ejercen, su contenido, y las posibles limitaciones de las que eventualmente son susceptibles. Es claro que, el objeto jurídico de la protección de la libertad de expresión, en el marco de la libertad de prensa, es la posibilidad de obtener información, como insumo necesario para informarse y poder informar a una colectividad. Es decir que, en stricto senso, la libertad de expresión protege la transmisión de todo tipo de pensamientos, opiniones, ideas e informaciones personales de quien se expresa, mientras que la libertad de información permite a las personas recibir y poseer información sobre hechos, eventos, acontecimientos, personas, grupos y en general situaciones, en aras de que el receptor se entere de lo que está ocurriendo. La libertad de información abarca actividades como la búsqueda de información e investigación, a través de fuentes, donde puede hallarse, procesarse y transmitirse a través de un medio determinado. Por eso, el derecho a informar ocupa un lugar especial dentro del ordenamiento constitucional costarricense, particularmente cuando su ejercicio se apareja con el de la libertad de prensa, es decir, cuando se ejerce a través de los medios de comunicación. Los diferentes tribunales internacionales de derechos humanos, han reconocido que los medios de comunicación ostentan una función social importante, en la construcción y sostenibilidad de los sistemas democráticos, por lo que en numerosas oportunidades se ha reconocido que los medios de comunicación colectiva, como personas jurídicas, pueden ser titulares de derechos fundamentales, según su naturaleza particular; en consecuencia, es claro que la libertad de expresión sí cobija a los medios de comunicación en tanto personas jurídicas, así como a quienes se expresan, a través de ellos. Es igualmente pertinente destacar, en este ámbito, la relación entre la libertad de expresión del medio de comunicación como “persona jurídica”, y la libertad de expresión de las personas naturales que forman parte de la estructura organizacional de tales personas jurídicas, por ejemplo, los editores, redactores, reporteros y otros periodistas o comunicadores sociales, que contribuyen a la transmisión de expresiones de terceros, a la vez que ejercen su propia libertad de expresión. La relación existente entre ambas libertades, y a su vez entre dichas libertades y la libertad de expresión de quien efectivamente está comunicando un mensaje a través de tales medios o personas, ha de dilucidarse en cada caso concreto con especial atención a los distintos intereses en juego, para llegar a una solución que logre el máximo nivel de armonización concreta entre todos ellos, y a su vez con los intereses del receptor y, en especial, del público en general. La difusión masiva que alcanzan las informaciones transmitidas a través de los medios y su poder de penetración, el impacto profundo que pueden tener sobre las personas en general, garantiza el desarrollo democrático de un estado constitucional y a su vez, propicia el fortalecimiento de la libertad de expresión.
En este sentido, la Corte Interamericana de Derechos Humanos ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca, pues los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual, es indispensable que recojan las más diversas informaciones y opiniones (Caso Ivcher Bronstein vs Panamá- Corte I.D.H.-).
A su vez, la Corte Europea de Derechos Humanos, al interpretar el artículo 10 de la Convención Europea, concluyó que "necesarias", sin ser sinónimo de "indispensables", implica la" existencia de una ‘necesidad social imperiosa’ y que para que una restricción sea "necesaria" no es suficiente demostrar que sea "útil", "razonable" u "oportuna" (21). Este concepto de “necesidad social imperiosa” fue hecho suyo por la Corte en su opinión consultiva OC-5/85, La Colegiación Obligatoria de Periodistas (artículos 13 y 29 de la Convención Americana sobre Derechos Humanos). (…)
Ha destacarse que es a través de los medios de comunicación, que la libertad de expresión contribuye a la consolidación de la sociedad democrática. Por lo tanto, las condiciones de su uso, deben conformarse con los requisitos de esta libertad, lo que significa que debe garantizarse la libertad e independencia de los periodistas y los medios de comunicaciones (opinión consultiva OC-5/85 Corte IDH, La Colegiación Obligatoria de Periodistas).
De acuerdo con la jurisprudencia de la Corte Interamericana, la libertad de expresión no está completa en el reconocimiento teórico del derecho a hablar o escribir, sino cuando también incluye, en forma inseparable, el derecho a usar todo medio adecuado para divulgar información y garantizar que llegue a la audiencia más amplia posible (…) (Caso Ivcher Bronstein vs Panamá- Corte I.D.H.-). No obstante, como cualquier otro derecho humano, la libertad de expresión no es un derecho absoluto, y puede estar sujeta a limitaciones por parte de cualquiera autoridad estatal o eventualmente de particulares, previamente adoptadas por el legislador bajo estrictas condiciones. (…)”. (El destacado no forma parte del original).
VI.- TOCANTE A LA LIBERTAD DE EXPRESIÓN (Y DE PRENSA) COMO GARANTES DEL SISTEMA DEMOCRÁTICO. La libertad de expresión y, concomitantemente, el ejercicio de la libertad de prensa, devienen en pilares fundamentales sobre los que se erige una sociedad democrática. Resulta prácticamente incuestionable la intrínseca relación que existe entre tales libertades y la democracia; de ahí que, esta última se debilita y erosiona arbitrariamente cuando dichas libertades no se pueden ejercer plenamente ni, tampoco, se respetan y garantizan en los ordenamientos jurídicos.
La Carta Democrática Interamericana (aprobada por los Estados Miembros de la OEA durante una sesión extraordinaria de la Asamblea General que se llevó a cabo el 11 de septiembre de 2001 en Lima, Perú), sobre este particular, dispone en su artículo 4 que: “Son componentes fundamentales del ejercicio de la democracia la transparencia de las actividades gubernamentales, la probidad, la responsabilidad de los gobiernos en la gestión pública, el respeto por los derechos sociales y la libertad de expresión y de prensa”. Además, hay que recordar que la ya dictada Declaración de Principios sobre Libertad de Expresión establece en su primer principio que la libertad de expresión es “(…) un requisito indispensable para la existencia misma de una sociedad democrática”.
La libertad de prensa (o lo que algunos denominan una prensa libre), como manifestación de la libertad de expresión, constituye un elemento esencial para fiscalizar –sin represiones–, las actuaciones de los terceros, sean de índole privada o funcionarios públicos, principalmente de los que ocupan altos cargos o aspiran a este, permitiendo así, consecuentemente, la rendición de cuentas, combatir la corrupción, la transparencia en el manejo de fondos públicos, entre otros muchos aspectos que resultan fundamentales para mantener vigente un sistema democrático. Parte de ese deber, reside en el investigar a las personas en el poder, principalmente al gobierno, formulando los cuestionamientos difíciles e intentar así revelarle a la ciudadanía lo que realmente está sucediendo, como medio, a su vez, para que tomen las decisiones correctas, principalmente, a la hora de votar y, también posteriormente, cuando se está en ejercicio del poder. Tal y como lo ha manifestado la llamada Unión por las Libertades Civiles de Europa (organización no gubernamental que promueve las libertades civiles para todas las personas en la Unión Europea) “(…) Una prensa libre ayuda en cada paso de este proceso. Proporciona información a los votantes antes de votar; fomenta el diálogo y el debate para enriquecer la comprensión de esta información; y luego informa a la ciudadanía sobre la labor del gobierno y si realmente están llevando a cabo sus promesas. En democracia, la ciudadanía delega el poder de decisión en sus cargos electos, y la prensa es una forma de controlarlos (…)”. En esencia, es factible afirmar, entonces, que la libertad de prensa resulta fundamental en los sistemas democráticos, pues permite a los ciudadanos formarse opiniones y criterios en relación con la realidad en que viven. Por este motivo, lamentablemente los medios de comunicación independientes son precisamente uno de los objetivos principales de los sistemas políticos antidemocráticos o, al menos, de aquellos que quieren perfilarse y van encaminados hacia ello.
Esta Sala Constitucional se ha manifestado específicamente sobre la libertad de expresión y su función como garante de la democracia. Así, en el emblemático Voto No. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006, señaló lo siguiente:
“(…) VIII.- La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle contenido a varios principios del Estado constitucional, como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos. Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa. Como lo ha señalado el propio Tribunal Constitucional español, quedarían vaciados de contenido real otros derechos que la Constitución consagra, reducidas a formas huecas las instituciones representativas y absolutamente falseado el principio de legitimidad democrática... que es la base de toda nuestra ordenación jurídico-política (Sentencia 6/1981), si no existieran unas libertades capaces de permitir ese intercambio, que… presupone el derecho de los ciudadanos a contar con una amplia y adecuada información respecto de los hechos, que les permita formar sus convicciones y participar en la discusión relativa a los asuntos públicos (Sentencia 159/1986) (…)”. (El destacado no forma parte del original).
Aunado a ello, respecto estrictamente a los medios de comunicación y su responsabilidad a la hora de informar y contribuir así con los procesos democráticos, en ese mismo voto se sostuvo lo siguiente:
“(…) XI .- La responsabilidad social de los medios de comunicación como detentadores de poder frente al ciudadano. La lucha por la defensa de los derechos fundamentales de los habitantes, tradicionalmente surge contra el poder político, no obstante, posteriormente evoluciona para proteger a la persona de otros sujetos particulares que tienen una relación de poder con respecto al ciudadano, en aquellos casos que lesionen algún derecho fundamental. Hay que tener claro que en las democracias, los medios de comunicación no tienen un papel simplemente pasivo en el tema de la libertad de expresión; no se limitan a ser víctimas de los atentados contra tan importante libertad. Tienen por el contrario una gran responsabilidad y poder al ser los vehículos naturales para que las libertades comunicativas (expresión, imprenta, información, etcétera) sean una realidad, que puedan servir al desarrollo de los procesos democráticos formando una ciudadanía bien informada, que conozca sus derechos y sus obligaciones, que tenga las herramientas necesarias para poder elegir bien a sus gobernantes. La responsabilidad social de los medios y el lugar de la libertad de expresión en el desarrollo democrático es lo que justifica que el estatuto jurídico de los medios y de los profesionales que en ellos trabajan sea distinto al del resto de las personas. Pero ese estatus, como se indicó no es invocable frente a fines ilegítimos, que incluyen el atentar contra libertades fundamentales de mala fe o con negligencia evidente. A tenor de estas razones y fundamentos, es que cabe concluir que el Estado, y concretamente el legislador, tiene derecho y el deber de proteger a los individuos, frente al uso ilegítimo de este derecho, el cual, mal utilizado, es tan dañino para la democracia como la censura misma, no sólo porque su ejercicio de mala fe, puede lesionar el honor de la persona afectada, sino el de la sociedad entera de recibir información adecuada capaz de ayudarla a conformar la opinión pública en forma transparente. El peligro que representa un mal uso de este derecho para la democracia es tan grave como su no ejercicio, y ese mal uso no está determinado sólo por la negligencia evidente o mala fe que afecte otras libertades, sino también frente a otros factores, como la posibilidad que la falta de un pluralismo mediático afecte la capacidad de la prensa de generar una opinión pública libre e informada. Naturalmente que la exigencia de ese pluralismo, no se reduce a una vertiente puramente cuantitativa, sino que también conlleva algún factor cualitativo que se concreta en la "presencia de diversidad de opiniones y de fuentes de información”. Sin duda alguna que por su rol en la democracia, su posibilidad de difusión, los medios de comunicación están en una relación de poder con respecto al ciudadano y a la sociedad, y aunque su existencia es fundamental para fines legítimos y esenciales de la democracia, tienen el potencial, como cualquier poder, de desviarse ocasionalmente, frente a actuaciones individuales, en cuyo caso el Estado tiene la obligación de establecer las previsiones necesarias para la protección del sistema y del individuo. Evidentemente que como se indicó, la protección del Estado no puede darse como lo ha señalado la Corte de Derechos Humanos, con el derecho a censurar previamente las informaciones, lo cual será a todas luces inconstitucional (art. 28), sino que se refiere a su control a posteriori, en el caso que haya existido intención de infligir daño o actuado con pleno conocimiento de que se estaban difundiendo noticias falsas o se condujo con manifiesta negligencia en la búsqueda de la verdad o falsedad de las mismas y con ella resultó afectado el honor y reputación de alguna persona. La Sala comparte la opinión de la Corte Interamericana de Derechos Humanos (opinión consultiva 5/85) en el sentido de que:
33. ...No sería lícito invocar el derecho de la sociedad a estar informada verazmente para fundamentar un régimen de censura previa supuestamente destinado a eliminar las informaciones que serían falsas a criterio del censor. Como tampoco sería admisible que, sobre la base del derecho a difundir informaciones e ideas, se constituyeran monopolios públicos o privados sobre los medios de comunicación para intentar moldear la opinión pública según un solo punto de vista.
De igual forma reconoce la jurisprudencia sentada en el caso New York Times vs. Sullivan de 1964 en la que se señala que la protección que la Constitución ofrece a la libertad de expresión no depende de la verdad, popularidad o utilidad social de las ideas y creencias manifestadas, y reconoce que un cierto grado de abuso es inseparable del uso adecuado de esa libertad, a partir de la cual el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos. Los enunciados erróneos son inevitables en un debate libre, y deben ser protegidos para dejar a la libertad de expresión aire para que pueda respirar y sobrevivir. Las normas deben impedir que un funcionario público pueda demandar a un medio de comunicación o a un particular por daños causados por una difamación falsa relativa a su comportamiento oficial, a menos que se pruebe con claridad convincente que la expresión se hizo con malicia real, es decir, con conocimiento de que era falsa o con indiferente desconsideración de si era o no falsa. Esta salvedad que se hace es indispensable frente a la obligación del Estado de proteger la reputación y honra de las personas y más aún, dentro de la obligación que tiene de velar porque el mal uso o desvío de esta libertad no se utilice para violar fines igualmente esenciales del sistema democrático, entre los que se incluye el sistema de derechos fundamentales. Es reconocida en doctrina la interdependencia que existe entre los derechos fundamentales y su valor sistémico, en ese sentido, la protección de una libertad en demérito de otras por falta de una visión hermenéutica tiene un efecto negativo sobre todo el sistema de libertad (ver sentencia 2771-03 de esta Sala)". (…)”. (El destacado no forma parte del original).
Asimismo, en la Sentencia No. 15220-2016 de las 16:00 hrs de 18 de octubre de 2016, este órgano constitucional señaló muy atinadamente lo siguiente:
“(…) La libertad de expresión es un pilar fundamental del Estado democrático, ya que permite la circulación de ideas e información –aun aquellas de oposición al gobierno de turno-, la formación de la opinión pública, la transparencia, la fiscalización y denuncia de las acciones del gobierno, entre otras. No en vano señala Bobbio que la democracia es el ejercicio de poder en público (…) tratándose de funcionarios públicos, y en particular aquellos de alta jerarquía, el umbral de la libertad de expresión y el deber de tolerancia a la crítica aumentan. Esto es así porque un elemento fundamental del sistema democrático, que lo distingue de las dictaduras, consiste en la amplia libertad de que gozan tanto la ciudadanía en general como la prensa en particular, con respecto de exteriorizar sus críticas y cuestionar la idoneidad (técnica o moral) de los funcionarios públicos y sus decisiones, sin temor a censura ni represalias, lo que evidentemente no obsta que la persona que se sienta afectada, acuda al derecho de rectificación o a otras vías judiciales ordinarias en defensa de su imagen y buen nombre. En el caso concreto de los funcionarios públicos, se encuentran más expuestos al escrutinio público, toda vez que el ejercicio de sus funciones trasciende el ámbito privado y, por su impacto en el desarrollo y acontecer político y nacional, se incorpora a la esfera pública, esto es tiene consecuencias de interés para la ciudadanía en general. Asimismo, el control ciudadano sobre la Administración Pública y el deber de rendición de cuentas de los funcionarios públicos (artículo 11 de la Constitución Política), solo pueden darse en un sistema democrático de amplia libertad de expresión e información. Esa es la relevancia de la dimensión social del derecho de información, íntimamente ligado al de expresión. En tal sentido, precisamente, la Corte Interamericana de Derechos Humanos se expresó en el caso Tristán Donoso:
“115. Por último, respecto del derecho a la honra, la Corte recuerda que las expresiones concernientes a la idoneidad de una persona para el desempeño de un cargo público o a los actos realizados por funcionarios públicos en el desempeño de sus labores gozan de mayor protección, de manera tal que se propicie el debate democrático. La Corte ha señalado que en una sociedad democrática los funcionarios públicos están más expuestos al escrutinio y la crítica del público. Este diferente umbral de protección se explica porque se han expuesto voluntariamente a un escrutinio más exigente. Sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público. Este umbral no se asienta en la calidad del sujeto, sino en el interés público de las actividades que realiza (…)
122. Como ya se ha indicado, el derecho internacional establece que el umbral de protección al honor de un funcionario público debe permitir el más amplio control ciudadano sobre el ejercicio de sus funciones (supra párr. 115). Esta protección al honor de manera diferenciada se explica porque el funcionario público se expone voluntariamente al escrutinio de la sociedad, lo que lo lleva a un mayor riesgo de sufrir afectaciones a su honor, así como también por la posibilidad, asociada a su condición, de tener una mayor influencia social y facilidad de acceso a los medios de comunicación para dar explicaciones o responder sobre hechos que los involucren.” De igual forma, en el caso Ricardo Canese, la Corte indicó:“ 97. El control democrático, por parte de la sociedad a través de la opinión pública, fomenta la transparencia de las actividades estatales y promueve la responsabilidad de los funcionarios sobre su gestión pública, razón por la cual debe existir un mayor margen de tolerancia frente a afirmaciones y apreciaciones vertidas en el curso de los debates políticos o sobre cuestiones de interés público.
98. El Tribunal ha establecido que es lógico y apropiado que las expresiones concernientes a funcionarios públicos o a otras personas que ejercen funciones de una naturaleza pública deben gozar, en los términos del artículo 13.2 de la Convención, de un margen de apertura a un debate amplio respecto de asuntos de interés público, el cual es esencial para el funcionamiento de un sistema verdaderamente democrático. (…)”. (El destacado no forma parte del original).
A mayor abundamiento, esta Sala, en la Sentencia No. 12926-2017 de las 09:30 hrs. de 18 de agosto de 2017, indicó, sobre tema en particular, que:
"(…) la libertad de prensa es un pilar fundamental del Estado democrático al punto de que no puede existir el segundo sin la garantía efectiva a favor de todos los habitantes de la República del ejercicio del derecho de buscar, recibir y difundir información e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección, sin que dicho derecho pueda ser sometido a la previa censura (...)”.
La Corte Interamericana de Derechos Humanos ha hecho también alusión a la estrecha relación que existe entre democracia y libertad de expresión, y ha referido que se trata de un elemento fundamental sobre el cual se basa la existencia de una sociedad democrática. En ese particular, en la opinión consultiva No. OC-5/85 sobre la colegiatura obligatoria de periodistas (sentencia de 13 de noviembre de 1985), dispuso que es conditio sine qua non para que quienes deseen influir sobre la colectividad puedan desarrollarse plenamente, razón por la cual afirma que una sociedad que no está bien informada no es plenamente libre. Es decir, que dentro de los sistemas democráticos el ejercicio de la libertad de expresión permite el desarrollo y proyección del ser humano, contribuye al funcionamiento de la democracia y es un medio o instrumento para el ejercicio de los otros derechos humanos. Por su parte, en el caso Herrera Ulloa vs. Costa Rica, la Corte sostuvo lo siguiente:
“(…) 113. En iguales términos a los indicados por la Corte Interamericana, la Corte Europea de Derechos Humanos se ha manifestado sobre la importancia que reviste en la sociedad democrática la libertad de expresión, al señalar que “(…) la libertad de expresión constituye uno de los pilares esenciales de una sociedad democrática y una condición fundamental para su progreso y para el desarrollo personal de cada individuo. Dicha libertad no sólo debe garantizarse en lo que respecta a la difusión de información o ideas que son recibidas favorablemente o consideradas como inofensivas o indiferentes, sino también en lo que toca a las que ofenden, resultan ingratas o perturban al Estado o a cualquier sector de la población. Tales son las demandas del pluralismo, la tolerancia y el espíritu de apertura, sin las cuales no existe una sociedad democrática. (…) Esto significa que (…) toda formalidad, condición, restricción o sanción impuesta en la materia debe ser proporcionada al fin legítimo que se persigue (…)”. (Es destacado no forma parte del original).
De igual manera, en esta última ocasión, la Corte IDH señaló que la Comisión Africana de Derechos Humanos y de los Pueblos y el Comité de Derechos Humanos también se han pronunciado en ese mismo sentido; de ahí que haya concluido que existe una coincidencia en los diferentes sistemas regionales de protección a los derechos humanos y en el universal, en cuanto al papel esencial que juega la libertad de expresión en la consolidación y dinámica de una sociedad democrática. Además, indicó expresamente que:
“(…) 116. (…) Sin una efectiva libertad de expresión, materializada en todos sus términos, la democracia se desvanece, el pluralismo y la tolerancia empiezan a quebrantarse, los mecanismos de control y denuncia ciudadana se empiezan a tornar inoperantes y, en definitiva, se empieza a crear el campo fértil para que sistemas autoritarios se arraiguen en la sociedad (…)”.
En el caso Ivcher Bronstein vs. Perú (sentencia de 6 de febrero de 2001), la Corte IDH mencionó que, a su vez, la Corte Europea ha puesto énfasis en que el artículo 10.2 de la Convención Europea, referente a la libertad de expresión, deja un margen muy reducido a cualquier restricción del debate político o del debate sobre cuestiones de interés público y explicó que, según dicho Tribunal: “(…) 155. (…) los límites de críticas aceptables son más amplios con respecto al gobierno que en relación a un ciudadano privado o inclusive a un político. En un sistema democrático las acciones u omisiones del gobierno deben estar sujetas a exámenes rigurosos, no sólo por las autoridades legislativas y judiciales, sino también por la opinión pública (…)”.
Asimismo, en la sentencia Moya Chacón y otro vs. Costa Rica (sentencia de 23 de mayo de 2022), la Corte IDH confirmó lo anteriormente citado, de la siguiente manera:
“(…) b.1 Importancia de la libertad de expresión en una sociedad democrática (…)
63. (…) la Corte ha establecido que la libertad de expresión, particularmente en asuntos de interés público, “es una piedra angular en la existencia misma de una sociedad democrática”63. La Corte Interamericana, en su Opinión Consultiva OC-5/85, hizo referencia a la estrecha relación existente entre democracia y libertad de expresión, al establecer que este derecho es indispensable para la formación de la opinión pública, así como también es conditio sine qua non para que los partidos políticos, los sindicatos, las sociedades científicas y culturales, y en general, quienes deseen influir sobre la colectividad puedan desarrollarse plenamente, y para que, en suma, la comunidad esté suficientemente informada a la hora de ejercer sus opciones. Y es que el control democrático por parte de la sociedad a través de la opinión pública fomenta la transparencia de las actividades estatales y promueve la responsabilidad de los funcionarios sobre su gestión pública, razón por la cual debe existir un margen reducido a cualquier restricción del debate político o del debate sobre cuestiones de interés público.
64. El Tribunal recuerda que, en una sociedad democrática, los derechos y libertades inherentes a la persona, sus garantías y el Estado de Derecho constituyen una tríada, cada uno de cuyos componentes se define, completa y adquiere sentido en función de los otros. En ese sentido, el Tribunal advierte que los artículos 3 y 4 de la Carta Democrática Interamericana resaltan la importancia de la libertad de expresión en una sociedad democrática, al establecer que “[s]on elementos esenciales de la democracia representativa, entre otros, el respeto a los derechos humanos y las libertades fundamentales; el acceso al poder y su ejercicio con sujeción al Estado de Derecho; la celebración de elecciones periódicas, libres, justas y basadas en el sufragio universal y secreto como expresión de la soberanía del pueblo; el régimen plural de partidos y organizaciones políticas; y la separación e independencia de los poderes públicos”. Asimismo, indica que “[s]on componentes fundamentales del ejercicio de la democracia la transparencia de las actividades gubernamentales, la probidad, la responsabilidad de los gobiernos en la gestión pública, el respeto por los derechos sociales y la libertad de expresión y de prensa”.
65. Así, sin una efectiva garantía de la libertad de expresión se debilita el sistema democrático y sufren quebranto el pluralismo y la tolerancia; los mecanismos de control y denuncia ciudadana pueden volverse inoperantes y, en definitiva, se crea un campo fértil para que arraiguen sistemas autoritarios. En consecuencia, una sociedad que no está bien informada no es plenamente libre (…)”.
Por su parte, la Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos (Marco jurídico interamericano sobre el derecho a la libertad de expresión, diciembre 2009), señaló lo siguiente:
“(…) la CIDH y la Corte Interamericana han subrayado en su jurisprudencia que la importancia de la libertad de expresión dentro del catálogo de los derechos humanos se deriva también de su relación estructural con la democracia. Esta relación, que ha sido calificada por los órganos del sistema interamericano de derechos humanos como “estrecha”, “indisoluble”, “esencial” y “fundamental”, entre otras, explica gran parte de los desarrollos interpretativos que se han otorgado a la libertad de expresión por parte de la CIDH y la Corte Interamericana en sus distintas decisiones sobre el particular. Es tan importante el vínculo entre la libertad de expresión y la democracia que, según ha explicado la CIDH, el objetivo mismo del artículo 13 de la Convención Americana es el de fortalecer el funcionamiento de sistemas democráticos pluralistas y deliberativos mediante la protección y el fomento de la libre circulación de información, ideas y expresiones de toda índole (…) si el ejercicio del derecho a la libertad de expresión no solo tiende a la realización personal de quien se expresa, sino a la consolidación de sociedades verdaderamente democráticas, el Estado tiene la obligación de generar las condiciones para que el debate público no solo satisfaga las legítimas necesidades de todos como consumidores de determinada información (de entretenimiento, por ejemplo), sino como ciudadanos. Es decir, tienen que existir condiciones suficientes para que pueda producirse una deliberación pública, plural y abierta, sobre los asuntos que nos conciernen a todos en tanto ciudadanos de un determinado Estado (…)”. (El destacado no forma parte del original).
También, dicha Relatoría expuso lo siguiente:
“(…) en una sociedad democrática, la prensa tiene derecho a informar libremente y criticar al gobierno, y el pueblo tiene derecho a ser informado sobre distintas visiones de lo que ocurre en la comunidad (…)”.
En la misma línea de pensamiento, la Corte Europea de Derechos Humanos, en el caso Lingens vs. Austria (sentencia de 8 de julio de 1986), resaltó que "(…) la libertad de prensa proporciona a la opinión pública uno de los mejores medios para conocer y juzgar las ideas y actitudes de los dirigentes políticos. En términos más generales, la libertad de las controversias políticas pertenece al corazón mismo del concepto de sociedad democrática (…)”.
Asimismo, la Corte Constitucional Colombiana, ha hecho referencia al tema bajo estudio en varias oportunidades. Así, en la Sentencia No. T-256/13 30 de abril de 2013, sostuvo que: “(…) el derecho a la libertad de expresión, es un principio del ejercicio de la democracia pues es en el marco de un estado democrático donde la participación de la ciudadanía adquiere especial relevancia, y en desarrollo de ella, se garantiza la libertad de expresar las distintas opiniones y de manifestar los pensamientos minoritarios sin miedo a ser reprimido por poderes estatales (…)” y explicó que:
“(…) Por ello, los pronunciamientos de la Comisión Interamericana y la jurisprudencia de la Corte Interamericana de Derechos Humanos han resaltado que la libertad de expresión cumple una triple función en el sistema democrático: a) asegura el derecho individual de toda persona a pensar por cuenta propia y a compartir con otros el pensamiento y la opinión personal, b) tiene una relación estrecha, indisoluble, esencial, fundamental y estructural con la democracia, y en esa medida, el objetivo mismo del artículo 13 de la Convención Americana es el de fortalecer el funcionamiento de sistemas democráticos, pluralistas y deliberativos, mediante la protección y fomento de la libre circulación de ideas y opiniones, y c) finalmente, es una herramienta clave para el ejercicio de los demás derechos fundamentales, toda vez que “se trata de un mecanismo esencial para el ejercicio del derecho a la participación, a la libertad religiosa, a la educación, a la identidad étnica o cultural y, por supuesto, a la igualdad no sólo entendida como el derecho a la no discriminación, sino como el derecho al goce de ciertos derechos sociales básicos (…)”.
Igualmente, este órgano constitucional agregó que:
“(…) Esta Corporación desde muy temprano en su jurisprudencia reconoció el valor de este derecho en el marco de una democracia con las siguientes palabras: “Aunque la libertad de expresar y difundir el propio pensamiento y opiniones es un derecho de toda persona, no es sólo un derecho individual, sino también garantía de una institución política fundamental: "la opinión pública libre". Una opinión pública libre está indisolublemente ligada con el pluralismo político, que es un valor fundamental y un requisito de funcionamiento del estado democrático. Sin una comunicación pública libre quedarían vaciados de contenido real otros derechos que la Constitución consagra, reducidos a formas hueras las institucionales representativas y participativas y absolutamente falseado el principio de la legitimidad democrática (…)”. (El destacado no forma parte del original).
En la Sentencia No. T-543 de 2017 de 25 de agosto de 2017, la Corte Constitucional Colombiana señaló que la libertad de expresión cumple las siguientes funciones en una sociedad democrática: “(…) (i) permite buscar la verdad y desarrollar el conocimiento; (ii) hace posible el principio de autogobierno; (iii) promueve la autonomía personal; (iv) previene abusos de poder; y (v) es una “válvula de escape” que estimula la confrontación pacífica de las decisiones estatales o sociales que no se compartan (…)”. Por su parte, en la Sentencia No. C-135/21 de 13 de mayo de 2021, dicha Corte mencionó que algunos de los aportes del derecho fundamental a la libertad de expresión al funcionamiento democrático, son los siguientes: “(…) i) permite buscar la verdad y desarrollar el conocimiento; ii) crea un espacio de sano diálogo y protesta para la ciudadanía, que consolida sociedades pluralistas y deliberativas; iii) permite establecer mecanismos de control y rendición de cuentas ante los gobernantes; iv) promueve el autogobierno ciudadano; y v) contribuye a mejores elecciones populares (…)”.
También, en la Sentencia No. T-145/19 de 2 de abril de 2019, la Corte Colombiana sostuvo que la libertad de expresión “(…) es un pilar del Estado Social de Derecho y un principio fundamental de los regímenes democráticos, donde se respeta la dignidad humana y se valora la participación de la ciudadanía y de todos los sectores, lo que permite consolidar sociedades pluralistas y deliberativas (…)”. Asimismo, en esta última ocasión, dicho órgano señaló que “(…) El fundamento principal del amparo jurídico de la libertad de expresión encuentra sustento en la dignidad humana, en la autonomía de la persona y en su carácter instrumental para el ejercicio de múltiples derechos, y en las distintas funciones que cumple en los sistemas democráticos (…)”.
VII.- SOBRE LA PROHIBICIÓN DE IMPONER RESTRICCIONES POR VÍAS INDIRECTAS A LA LIBERTAD DE EXPRESIÓN (Y A LA LIBERTAD DE PRENSA). La libertad de expresión y, por ende, la libertad de prensa, no son considerados derechos irrestrictos y absolutos, sino que –tal y como se analizó supra–, se encuentran sujetos a ciertos límites o controles ulteriores. Al respecto, el ordinal 29 de nuestra Carta Política estatuye que las personas serán responsables de los abusos que cometan en el ejercicio del derecho a la libertad de expresión y, por su parte, el artículo 13.2 de la Convención Americana sobre Derechos Humanos dispone que el referido derecho está sujeto a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar el respeto a los derechos o la reputación de los demás o proteger la seguridad nacional, el orden público, la salud o la moral pública.
Sin embargo, igualmente, estas limitaciones, ha dicho este Tribunal Constitucional, gozan de carácter excepcional y no pueden restringir tales derechos más allá de lo estrictamente necesario, vaciándolos de contenido y convirtiéndose así en un mecanismo directo o indirecto de censura, el cual no tiene cabida en nuestro medio. Estas libertades, en consecuencia, no pueden ser objeto de restricciones ilegítimas directas (como sería, por ejemplo, la censura previa, el asesinato de periodistas en virtud del ejercicio de sus funciones, etc.) ni, tampoco, de restricciones de índole indirecto (también llamada soft censorship, censura sutil, velada). Estas últimas medidas –de índole indirecto–, se caracterizan por ser menos evidentes, pero que igualmente tienen como propósito reducir o coartar arbitrariamente la libertad de expresión. Se podrían considerar formas más sutiles en que las autoridades públicas o particulares buscan restringir final y efectivamente la libertad de expresión. Los autores García Ramírez y Gonza las definen muy acertadamente como aquellas “(…) acciones u omisiones que traen consigo la inhibición del sujeto, como consecuencia de la intimidación, la obstrucción de canales de expresión o la “siembra” de obstáculos que impiden o limitan severamente el ejercicio de aquella libertad (…)” (GARCÍA RAMÍREZ (Sergio) y GONZA (Alejandra). La libertad de expresión de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, primera edición, 2007, p. 42). Por su parte, la Relatoría para la Libertad de Expresión explica que “(…) Estas medidas (…) no han sido diseñadas estrictamente para restringir la libertad de expresión. En efecto, éstas per se no configuran una violación de este derecho. No obstante ello, sus efectos generan un impacto adverso en la libre circulación de ideas que con frecuencia es poco investigado y, por ende, más difícil de descubrir (…)” (Informe Anual de la Relatoría para la Libertad de Expresión, 2004).
Como ejemplos de este tipo de restricciones indirectas o censura velada se puede citar, entre otros muchos, el uso de diversos medios para intimidar y, de este modo, evitar una publicación, los controles de papel para periódicos o de frecuencias radioeléctricas, la restricción a la libertad de circulación, la concesión o supresión de publicidad estatal, las limitaciones de ingresos económicos a medios de comunicación, la imposición de altas e injustificadas cargas tributarias. Sobre este tipo de restricciones indirectas, los citados autores García Ramírez y Gonza explican que estas puede ocurrir cuando“(…) se vulnera un derecho diferente de la libertad de expresión misma, en forma que ésta resulta afectada –por ejemplo, en un caso, la privación de la nacionalidad del sujeto–, se practican investigaciones indebidas o excesivas, se prohíbe el acceso a determinados medios de los que regularmente se ha valido el titular del derecho, se restringe la libertad de circulación, se desconocen los efectos de un contrato o se impide a los titulares de ciertos bienes la disposición de éstos (…)” (GARCÍA RAMÍREZ (Sergio) y GONZA (Alejandra). La libertad de expresión en la jurisprudencia de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, primera edición, 2007, p. 42). Por su parte, el Magistrado Rueda Leal, en las razones adicionales consignadas en la Sentencia No. 15220-2016 de las 16:00 hrs. de 18 de octubre de 2016, hizo también referencia a algunas modalidades de este tipo de censura indirecta o velada, enumerando las siguientes: “(…) a) La negativa de acceso a las instituciones y a la información pública como represalia por una cobertura crítica, lo que obliga al medio a acudir a instancias jurisdiccionales. De esta forma, aunque finalmente se obligue a una entidad a entregar determinada información si se demuestra su carácter público, no menos cierto es que la Administración “gana” tiempo, logrando así una divulgación en un “timing” político más favorable. b) La asignación inequitativa de frecuencias de radio y televisión. c) La obstaculización del acceso a recursos elementales para la producción de un medio (como el papel o el servicio telefónico) vía fijación de requerimientos arbitrarios o imposiciones tributarias irrazonables. d) La amenaza de entablar procesos judiciales, condicionada a la divulgación o no de reportajes críticos (…)”.
En cuanto a estas restricciones de índole propiamente indirecto, el artículo 13.3 de la Convención Americana sobre Derechos Humanos, señala expresamente lo siguiente:
“3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”. (El destacado no forma parte del original).
La Declaración de Chapultepec (adoptada por la conferencia hemisférica sobre libertad de expresión celebrada en México, D.F. el 11 de marzo de 1994), estatuye que no debe existir ninguna ley o acto de poder que coarte la libertad de expresión o de prensa, cualquiera sea el medio de comunicación. Asimismo, en el elenco de principios menciona lo siguiente:
“4. El asesinato, el terrorismo, el secuestro, las presiones, la intimidación, la prisión injusta de los periodistas, la destrucción material de los medios de comunicación, la violencia de cualquier tipo y la impunidad de los agresores, coartan severamente la libertad de expresión y de prensa. Estos actos deben ser investigados con prontitud y sancionados con severidad”.
“5. La censura previa, las restricciones a la circulación de los medios o a la divulgación de sus mensajes, la imposición arbitraria de información, la creación de obstáculos al libre flujo informativo y las limitaciones al libre ejercicio y movilización de los periodistas, se oponen directamente a la libertad de prensa”.
“6. Los medios de comunicación y los periodistas no deben ser objeto de discriminaciones o favores en razón de lo que escriban o digan.” “7. Las políticas arancelarias y cambiarias, las licencias para la importación de papel o equipo periodístico, el otorgamiento de frecuencias de radio y televisión y la concesión o supresión de publicidad estatal, no deben aplicarse para premiar o castigar a medios o periodistas”.
“10. Ningún medio de comunicación o periodista debe ser sancionado por difundir la verdad o formular críticas o denuncias contra el poder público”. (El destacado no forma parte del original).
Igualmente, la Declaración de Principios sobre Libertad de Expresión (aprobada por la Comisión Interamericana de Derechos Humanos en octubre de 2000, en el 108 período ordinario), dispone, sobre este mismo tema, lo siguiente:
“5. La censura previa, interferencia o presión directa o indirecta sobre cualquier expresión, opinión o información difundida a través de cualquier medio de comunicación oral, escrito, artístico, visual o electrónico, debe estar prohibida por la ley. Las restricciones en la circulación libre de ideas y opiniones, como así también la imposición arbitraria de información y la creación de obstáculos al libre flujo informativo, violan el derecho a la libertad de expresión”.
“9. El asesinato, secuestro, intimidación, amenaza a los comunicadores sociales, así como la destrucción material de los medios de comunicación, viola los derechos fundamentales de las personas y coarta severamente la libertad de expresión. Es deber de los Estados prevenir e investigar estos hechos, sancionar a sus autores y asegurar a las víctimas una reparación adecuada”.
“13. La utilización del poder del Estado y los recursos de la hacienda pública; la concesión de prebendas arancelarias; la asignación arbitraria y discriminatoria de publicidad oficial y créditos oficiales; el otorgamiento de frecuencias de radio y televisión, entre otros, con el objetivo de presionar y castigar o premiar y privilegiar a los comunicadores sociales y a los medios de comunicación en función de sus líneas informativas, atenta contra la libertad de expresión y deben estar expresamente prohibidos por la ley. Los medios de comunicación social tienen derecho a realizar su labor en forma independiente. Presiones directas o indirectas dirigidas a silenciar la labor informativa de los comunicadores sociales son incompatibles con la libertad de expresión”. (El destacado no forma parte del original).
Como se puede observar con meridiana claridad, existen múltiples formas en que se puede manipular a los medios de forma indirecta. Incluso, la Convención Americana sobre Derechos Humanos es clara al indicar que los ejemplos citados en el ordinal 13.3 no son taxativos, al señalar que este tipo de restricciones indirectas se pueden configurar también “por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”.
Ahora, la Corte Interamericana de Derechos Humanos se ha pronunciando en distintas ocasiones respecto a la censura velada o restricciones propiamente indirectas, condenándolas contundentemente. Así, en la Sentencia Ivcher Bronstein vs. Perú (sentencia de 6 de febrero de 2001), la Corte IDH conoció un caso planteado por Baruch Ivcher Bronstein, ciudadano naturalizado del Perú y accionista mayoritario de la empresa que operaba entonces el canal 2 de la televisión de ese país. Ivcher Bronstein, en esa condición, ejercía control editorial sobre los programas, particularmente, uno llamado Contrapunto (mediante el cual se difundieron varios informes periodísticos sobre torturas, un supuesto asesinato y casos de corrupción cometidos por los Servicios de Inteligencia del Gobierno Peruano) y se demostró que, en virtud de lo anterior, este fue sometido a varios actos intimidatorios que concluyeron con la emisión de un decreto que revocó su ciudadanía peruana. En tal oportunidad, la Corte IDH dispuso que la resolución que dejó sin efecto legal la nacionalidad otorgada a Ivcher Bronstein constituyó precisamente un medio indirecto para restringir su liberad de expresión, así como la de los periodistas que laboraban en dicho programa. En tal ocasión, la Corte IDH vertió los siguientes argumentos de interés:
“(…) 158. De igual manera se ha demostrado que, como consecuencia de la línea editorial asumida por el Canal 2, el señor Ivcher fue objeto de acciones intimidatorias de diverso tipo. Por ejemplo, luego de la emisión de uno de los reportajes mencionados en el párrafo anterior, el Comando Conjunto de las Fuerzas Armadas emitió un comunicado oficial en el que denunciaba al señor Ivcher por llevar a cabo una campaña difamatoria tendiente a desprestigiar a las Fuerzas Armadas (supra párr. 76.k). Además, el mismo día en que el Ejército emitió dicho comunicado, el Poder Ejecutivo del Perú expidió un decreto supremo que reglamentó la Ley de Nacionalidad, estableciendo la posibilidad de cancelar ésta a los peruanos naturalizados (supra párr. 76.l).
159. Ha sido probado también que días después de que el Canal 2 anunciara la presentación de un reportaje sobre grabaciones ilegales de conversaciones telefónicas sostenidas por candidatos de la oposición, el Director General de la Policía Nacional informó que no se había localizado el expediente en el que se tramitó el título de nacionalidad del señor Ivcher, y que no se había acreditado que éste hubiera renunciado a su nacionalidad israelí, razón por la cual, mediante una “resolución directoral”, se dispuso dejar sin efecto el mencionado título de nacionalidad.
160. Como consecuencia de lo anterior, el 1 de agosto de 1997 el Juez Percy Escobar ordenó que se suspendiera el ejercicio de los derechos del señor Ivcher como accionista mayoritario y Presidente de la Compañía y se revocara su nombramiento como Director de la misma, se convocara judicialmente a una Junta General Extraordinaria de Accionistas para elegir un nuevo Directorio y se prohibiera la transferencia de las acciones de aquél. Además, otorgó la administración provisional de la Empresa a los accionistas minoritarios, hasta que se nombrase un nuevo Directorio, retirando así al señor Ivcher Bronstein del control del Canal 2.
161. La Corte ha constatado que, después de que los accionistas minoritarios de la Compañía asumieron la administración de ésta, se prohibió el ingreso al Canal 2 de periodistas que laboraban en el programa Contrapunto y se modificó la línea informativa de dicho programa (supra párr. 76.v).
162. En el contexto de los hechos señalados, esta Corte observa que la resolución que dejó sin efecto legal el título de nacionalidad del señor Ivcher constituyó un medio indirecto para restringir su libertad de expresión, así como la de los periodistas que laboraban e investigaban para el programa Contrapunto del Canal 2 de la televisión peruana.
163. Al separar al señor Ivcher del control del Canal 2, y excluir a los periodistas del programa Contrapunto, el Estado no sólo restringió el derecho de éstos a circular noticias, ideas y opiniones, sino que afectó también el derecho de todos los peruanos a recibir información, limitando así su libertad para ejercer opciones políticas y desarrollarse plenamente en una sociedad democrática.
164. Por todo lo expuesto, la Corte concluye que el Estado violó el derecho a la libertad de expresión consagrado en el artículo 13.1 y 13.3 de la Convención, en perjuicio de Baruch Ivcher Bronstein (…)”. (El destacado no forma parte del original).
Otro claro ejemplo de este tipo de restricciones indirectas se consigna en el caso Ricardo Canese vs. Paraguay (sentencia de 31 de agosto de 2004). El señor Ricardo Canese, quien era candidato presidencial durante la contienda electoral para las elecciones del Paraguay del año 1993, relacionó a Juan Carlos Wasmosy (también candidato), con acciones ilícitas presuntamente cometidas por este último cuando ejercía como presidente de un consorcio, las cuales, a su vez, fueron publicadas en dos diarios paraguayos. Esto originó que Canese (quien trabajaba en un medio de comunicación), fuera procesado penalmente por la comisión de los delitos de difamación e injuria, siendo condenado en primera instancia en 1994 y en segunda instancia en 1997; oportunidad en la cual, a su vez, se le impuso dos meses de prisión y una multa. Además, como consecuencia de este proceso, Canese fue sometido a una restricción permanente para salir del país (y, también, paralelamente, fue despedido del medio donde laboraba). Estas sentencias, posteriormente, fueron anuladas en diciembre de 2002 por la Sala Penal de la Corte Suprema de Justicia de Paraguay. La Corte IDH, hizo referencia a la importancia de garantizar la libertad de expresión durante una campaña electoral y, luego de analizar el caso bajo estudio, sostuvo que la sanción penal a la cual fue sometida Canese era considerada como un método indirecto de restricción a dicho derecho. Expresamente, en dicha ocasión, se indicó lo siguiente:
“(…) 3) La importancia de la libertad de pensamiento y de expresión en el marco de una campaña electoral.
88. La Corte considera importante resaltar que, en el marco de una campaña electoral, la libertad de pensamiento y de expresión en sus dos dimensiones constituye un bastión fundamental para el debate durante el proceso electoral, debido a que se transforma en una herramienta esencial para la formación de la opinión pública de los electores, fortalece la contienda política entre los distintos candidatos y partidos que participan en los comicios y se transforma en un auténtico instrumento de análisis de las plataformas políticas planteadas por los distintos candidatos, lo cual permite una mayor transparencia y fiscalización de las futuras autoridades y de su gestión. (…)
90. El Tribunal considera indispensable que se proteja y garantice el ejercicio de la libertad de expresión en el debate político que precede a las elecciones de las autoridades estatales que gobernarán un Estado. La formación de la voluntad colectiva mediante el ejercicio del sufragio individual se nutre de las diferentes opciones que presentan los partidos políticos a través de los candidatos que los representan. El debate democrático implica que se permita la circulación libre de ideas e información respecto de los candidatos y sus partidos políticos por parte de los medios de comunicación, de los propios candidatos y de cualquier persona que desee expresar su opinión o brindar información. Es preciso que todos puedan cuestionar e indagar sobre la capacidad e idoneidad de los candidatos, así como disentir y confrontar sus propuestas, ideas y opiniones de manera que los electores puedan formar su criterio para votar. En este sentido, el ejercicio de los derechos políticos y la libertad de pensamiento y de expresión se encuentran íntimamente ligados y se fortalecen entre sí. Al respecto, la Corte Europea ha establecido que:
Las elecciones libres y la libertad de expresión, particularmente la libertad de debate político, forman juntas el cimiento de cualquier sistema democrático (Cfr. Sentencia del caso Mathieu-Mohin y Clerfayt c. Belgica, de 2 de marzo de 1987, Serie A no. 113, p.22, párr. 47, y sentencia del caso Lingens c. Austria de 8 de julio 1986, Serie A no. 103, p. 26, párrs. 41-42). Los dos derechos están interrelacionados y se refuerzan el uno al otro: por ejemplo, como ha indicado la Corte en el pasado, la libertad de expresión es una de las “condiciones” necesarias para “asegurar la libre expresión de opinión del pueblo en la elección del cuerpo legislativo” (ver la sentencia mencionada más arriba del caso Mathieu-Mohin y Clerfayt, p. 24, párr. 54). Por esta razón[,] es particularmente importante que las opiniones y la información de toda clase puedan circular libremente en el período que antecede a las elecciones.
91. La Corte observa que, en sus declaraciones, la presunta víctima hizo referencia a que la empresa CONEMPA, cuyo presidente era el señor Juan Carlos Wasmosy, en ese entonces candidato presidencial, le “pasaba” “dividendos” al ex dictador Stroessner. Ha quedado demostrado, así como también es un hecho público, que dicho consorcio era una de las dos empresas encargadas de ejecutar las obras de construcción de la central hidroeléctrica de Itaipú, una de las mayores represas hidroeléctricas del mundo y la principal obra pública del Paraguay.
92. La Corte estima que no queda duda de que las declaraciones que hiciera el señor Canese en relación con la empresa CONEMPA atañen a asuntos de interés público, pues en el contexto de la época en que las rindió dicha empresa se encargaba de la construcción de la mencionada central hidroeléctrica. Conforme fluye del acervo probatorio del presente caso (supra párr. 69.4), el propio Congreso Nacional, a través de su Comisión Bicameral de Investigación de Ilícitos, se encargó de la investigación sobre corrupción en Itaipú, en la cual se involucraba al señor Juan Carlos Wasmosy y a la referida empresa.
93. La Corte observa que la Sala Penal de la Corte Suprema de Justicia del Paraguay, al emitir la decisión por la cual anuló las sentencias condenatorias dictadas en 1994 y 1997 (supra párr. 69.49), indicó que las declaraciones que el señor Canese rindió en el marco político de una campaña electoral a la Presidencia de la República, “necesariamente importan en una Sociedad Democrática, encaminada a una construcción participativa y pluralista del Poder, una cuestión de interés público”.
94. En el presente caso, al emitir las declaraciones por las que fue querellado y condenado, el señor Canese estaba ejercitando su derecho a la libertad de pensamiento y de expresión en el marco de una contienda electoral, en relación con una figura pública como es un candidato presidencial, sobre asuntos de interés público, al cuestionar la capacidad e idoneidad de un candidato para asumir la Presidencia de la República. Durante la campaña electoral, el señor Canese fue entrevistado sobre la candidatura del señor Wasmosy por periodistas de dos diarios nacionales, en su carácter de candidato presidencial. Al publicar las declaraciones del señor Canese, los diarios “ABC Color” y “Noticias” jugaron un papel esencial como vehículos para el ejercicio de la dimensión social de la libertad de pensamiento y de expresión, pues recogieron y transmitieron a los electores la opinión de uno de los candidatos presidenciales respecto de otro de ellos, lo cual contribuye a que el electorado cuente con mayor información y diferentes criterios previo a la toma de decisiones.
98. El Tribunal ha establecido que es lógico y apropiado que las expresiones concernientes a funcionarios públicos o a otras personas que ejercen funciones de una naturaleza pública deben gozar, en los términos del artículo 13.2 de la Convención, de un margen de apertura a un debate amplio respecto de asuntos de interés público, el cual es esencial para el funcionamiento de un sistema verdaderamente democrático. Este mismo criterio se aplica respecto de las opiniones o declaraciones de interés público que se viertan en relación con una persona que se postula como candidato a la Presidencia de la República, la cual se somete voluntariamente al escrutinio público, así como respecto de asuntos de interés público en los cuales la sociedad tiene un legítimo interés de mantenerse informada, de conocer lo que incide sobre el funcionamiento del Estado, afecta intereses o derechos generales, o le acarrea consecuencias importantes. Como ha quedado establecido, no hay duda de que las declaraciones que hiciera el señor Canese en relación con la empresa CONEMPA atañen a asuntos de interés público (supra párr. 92).
99. En este sentido, la Sala Penal de la Corte Suprema de Justicia del Paraguay, al emitir el 11 de diciembre de 2002 (supra párr. 69.49) la decisión por la cual anuló las sentencias condenatorias dictadas en 1994 y 1997 y absolvió a la presunta víctima de culpa y pena, se refirió al carácter y relevancia de las declaraciones de ésta, al señalar, inter alia, que [l]as afirmaciones del Ing. Canese, -en el marco político de una campaña electoral a la primera magistratura-, necesariamente importan en una Sociedad Democrática, encaminada a una construcción participativa y pluralista del Poder, una cuestión de interés público. Nada más importante y público que la discusión y posterior elección popular del Primer Magistrado de la República.
100. Las anteriores consideraciones no significan, de modo alguno, que el honor de los funcionarios públicos o de las personas públicas no deba ser jurídicamente protegido, sino que éste debe serlo de manera acorde con los principios del pluralismo democrático. Asimismo, la protección de la reputación de particulares que se encuentran inmiscuidos en actividades de interés público también se deberá realizar de conformidad con los principios del pluralismo democrático. (…)
103. Es así que tratándose de funcionarios públicos, de personas que ejercen funciones de una naturaleza pública y de políticos, se debe aplicar un umbral diferente de protección, el cual no se asienta en la calidad del sujeto, sino en el carácter de interés público que conllevan las actividades o actuaciones de una persona determinada. Aquellas personas que influyen en cuestiones de interés público se han expuesto voluntariamente a un escrutinio público más exigente y, consecuentemente, en ese ámbito se ven sometidos a un mayor riesgo de sufrir críticas, ya que sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público. En este sentido, en el marco del debate público, el margen de aceptación y tolerancia a las críticas por parte del propio Estado, de los funcionarios públicos, de los políticos e inclusive de los particulares que desarrollan actividades sometidas al escrutinio público debe ser mucho mayor que el de los particulares. En esta hipótesis se encuentran los directivos de la empresa CONEMPA, consorcio al cual le fue encargada la ejecución de gran parte de las obras de construcción de la central hidroeléctrica de Itaipú 104. Con base en las anteriores consideraciones, corresponde al Tribunal determinar si, en este caso, la aplicación de responsabilidades penales ulteriores respecto del supuesto ejercicio abusivo del derecho a la libertad de pensamiento y de expresión a través de declaraciones relativas a asuntos de interés público, puede considerarse que cumple con el requisito de necesariedad en una sociedad democrática. Al respecto, es preciso recordar que el Derecho Penal es el medio más restrictivo y severo para establecer responsabilidades respecto de una conducta ilícita.
105. El Tribunal estima que en el proceso seguido contra el señor Canese los órganos judiciales debieron tomar en consideración que aquel rindió sus declaraciones en el contexto de una campaña electoral a la Presidencia de la República y respecto de asuntos de interés público, circunstancia en la cual las opiniones y críticas se emiten de una manera más abierta, intensa y dinámica acorde con los principios del pluralismo democrático. En el presente caso, el juzgador debía ponderar el respeto a los derechos o a la reputación de los demás con el valor que tiene en una sociedad democrática el debate abierto sobre temas de interés o preocupación pública.
106. El proceso penal, la consecuente condena impuesta al señor Canese durante más de ocho años y la restricción para salir del país aplicada durante ocho años y casi cuatro meses, hechos que sustentan el presente caso, constituyeron una sanción innecesaria y excesiva por las declaraciones que emitió la presunta víctima en el marco de la campaña electoral, respecto de otro candidato a la Presidencia de la República y sobre asuntos de interés público; así como también limitaron el debate abierto sobre temas de interés o preocupación pública y restringieron el ejercicio de la libertad de pensamiento y de expresión del señor Canese de emitir sus opiniones durante el resto de la campaña electoral. De acuerdo con las circunstancias del presente caso, no existía un interés social imperativo que justificara la sanción penal, pues se limitó desproporcionadamente la libertad de pensamiento y de expresión de la presunta víctima sin tomar en consideración que sus declaraciones se referían a cuestiones de interés público. Lo anterior constituyó una restricción o limitación excesiva en una sociedad democrática al derecho a la libertad de pensamiento y de expresión del señor Ricardo Canese, incompatible con el artículo 13 de la Convención Americana.
107. Asimismo, el Tribunal considera que, en este caso, el proceso penal, la consecuente condena impuesta al señor Canese durante más de ocho años y las restricciones para salir del país durante ocho años y casi cuatro meses constituyeron medios indirectos de restricción a la libertad de pensamiento y de expresión del señor Canese. Al respecto, después de ser condenado penalmente, el señor Canese fue despedido del medio de comunicación en el cual trabajaba y durante un período no publicó sus artículos en ningún otro diario.
108. Por todo lo expuesto, la Corte considera que el Estado violó el derecho a la libertad de pensamiento y de expresión consagrado en el artículo 13 de la Convención Americana, en relación con el artículo 1.1 de dicho tratado, en perjuicio del señor Ricardo Canese, dado que las restricciones al ejercicio de este derecho impuestas a éste durante aproximadamente ocho años excedieron el marco contenido en dicho artículo (…)”. (El destacado no forma parte del original).
Igualmente, de sumo y gran interés resulta el caso Granier y otros (Radio Caracas Televisión) vs. Venezuela (sentencia de 22 de junio de 2015). En este asunto, la Corte IDH tuvo por probada la existencia de un ambiente conflictivo y de tensión en Venezuela, producto del golpe de Estado sufrido, el cual, a su vez, originó una polarización política (radicalización de las posturas de los sectores involucrados) y coadyuvó a que el gobierno acusara a los medios de comunicación privados, entre ellos a RCTV (Radio Caracas Televisión), de ser enemigos del gobierno, golpistas y fascistas. La Corte tuvo por demostrado también que el Estado de Venezuela buscó la forma de silenciar a dicho medio de comunicación (habida cuenta que expresaba ideas diferentes a las políticas de gobierno manteniendo una línea crítica a la Presidencia de Hugo Chávez), a través de la no renovación, en el año 2007, de la concesión de uso del espectro radioeléctrico (la cual poseía desde su fundación en el año 1953), lo cual, evidentemente, coartó a este, de forma indirecta o velada, la posibilidad de continuar funcionando y continuar difundiendo información disidente, en clara violación a la libertad de expresión. En esta sentencia, de forma relevante, la Corte IDH sostuvo que dicha decisión fue precedida por diversas declaraciones públicas emitidas, tanto por el Presidente de la República como por otros funcionarios, quienes generaron un ambiente de intimidación. Particularmente, se indicó que el entonces Presidente Chávez, realizó, entre otras, las siguientes manifestaciones:
“(…) 75. (…) a) la declaración del Presidente Chávez de 9 de junio de 2002 en su Programa “Aló Presidente”, en la que afirmó: “las televisoras y las radios, las emisoras, aún cuando sean privadas sólo hacen uso de una concesión, el Estado es el dueño [...], y el Estado le da permiso a un grupo de empresarios que así lo piden para que operen, para que lancen la imagen por esa tubería, pero el Estado se reserva el permiso. Es como si alguien quisiera utilizar una tubería de aguas para surtir agua a un pueblo que sea del Estado, y el Estado le da el permiso. [...] Suponte tú que […] le demos el permiso para que use la tubería de agua [y] comience a envenenar el agua. […] [Hay que] inmediatamente no sólo quitarle el permiso, meterlo preso. Está envenenando a la gente, eso pasa, igualito es el caso [y] la misma lógica, la misma explicación con un canal de televisión”; b) la declaración del Presidente Chávez de 12 de enero de 2003 en su programa “Aló Presidente”, en la que expresó: “Igual pasa con estos dueños de canales de televisión y los dueños de las emisoras de radio; ellos también tienen una concesión del Estado, pero no les pertenece la señal. La señal le pertenece al Estado. Eso quiero dejarlo bien claro, quiero dejarlo bien claro porque si los dueños de estas televisoras y emisoras de radio continúan en su empeño irracional por desestabilizar nuestro país, por tratar de darle pie a la subversión, porque es subversión, sin duda, […] es subversión en este caso fascista y es alentada por los medios de comunicación, por estos señores que he mencionado y otros más que no voy a mencionar. Así lo adelanto a Venezuela. He ordenado revisar todo el procedimiento jurídico a través de los cuales se les dio la concesión a estos señores. La estamos revisando y si ellos no recuperan la normalidad en la utilización de la concesión, si ellos siguen utilizando la concesión para tratar de quebrar el país, o derrocar el gobierno, pues yo estaría en la obligación de revocarles la concesión que se les ha dado para que operen los canales de televisión”; c) la declaración del Presidente Chávez de 9 de noviembre de 2003 en su programa “Aló Presidente”, a través de la cual manifestó: “no voy a permitir que ustedes lo hagan de nuevo, […] ustedes: Globovisión, Televén, Venevisión y RCTV mañana o pasado mañana [Ministro] Jesse Chacón, le di una orden, usted debe tener un equipo de analistas y de observadores 24 horas al día mirando todos los canales simultáneamente y debemos tener claro, yo lo tengo claro, cual es la raya de la cual ellos no deben pasarse, y ellos deben saber, es la raya de la ley pues. En el momento en que pasen la raya de la ley serán cerrados indefectiblemente para asegurarle la paz a Venezuela, para asegurarle a Venezuela la tranquilidad”, y d) el 9 de mayo de 2004, el Presidente Chávez declaró en su programa “Aló Presidente”: [a]quí los que violan el derecho a la información, el derecho a la libertad de expresión, son los dueños de los medios de comunicación privados, son algunas excepciones, pero sobretodo los grandes canales de televisión Venevisión, Globovisión, RCTV […] los dueños de estos medios de comunicación están comprometidos con el golpismo, el terrorismo y la desestabilización, y yo pudiera decir a estas alturas no me queda ninguna duda, que los dueños de esos medios de comunicación nosotros bien podemos declararlos enemigos del pueblo de Venezuela (…)
80. (…) a) la declaración del Presidente Chávez de 28 de diciembre de 2006, por ocasión de su saludo de fin de año a las Fuerzas Armadas, en la cual expresó: “Hay un señor por ahí de esos representantes de la oligarquía, que quería ser presidente de la oligarquía, y que luego esos Gobiernos adecos-copeyanos le dieron concesiones para tener un canal de televisión y él ahora anda diciendo que esa concesión es eterna, se le acaba en marzo la concesión de televisión, se le acaba en marzo, así que mejor que vaya preparando sus maletas y vaya viendo a ver qué va a hacer a partir de marzo, no habrá nueva concesión para ese canal golpista de televisión que se llamó Radio Caracas Televisión, se acaba la concesión, ya está redactada la medida, así que vayan preparándose, apagando los equipos pues, no se va tolerar aquí ningún medio de comunicación que esté al servicio del golpismo, contra el pueblo, contra la nación, contra la independencia nacional, contra la dignidad de la República, Venezuela se respeta, lo anuncio antes que llegue la fecha para, para que no sigan ellos con su cuentito de que no que son 20 años más, 20 años más yo te aviso chirulí, 20 años más si es bueno, se te acabo, se te acabo (…)
Asimismo, en esta oportunidad y, conforme los siguientes términos, la Corte explicó cómo, en este caso en particular, se dio una violación al artículo 13.3 de la Convención Americana sobre Derechos Humanos:
“(…) 148. Al respecto, la Corte ha señalado anteriormente que los medios de comunicación son verdaderos instrumentos de la libertad de expresión, que sirven para materializar este derecho y que juegan un papel esencial como vehículos para el ejercicio de la dimensión social de esta libertad en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. En efecto, este Tribunal coincide con la Comisión respecto a que los medios de comunicación son, generalmente, asociaciones de personas que se han reunido para ejercer de manera sostenida su libertad de expresión, por lo que es inusual en la actualidad que un medio de comunicación no esté a nombre de una persona jurídica, toda vez que la producción y distribución del bien informativo requieren de una estructura organizativa y financiera que responda a las exigencias de la demanda informativa. De manera semejante, así como los sindicatos constituyen instrumentos para el ejercicio del derecho de asociación de los trabajadores y los partidos políticos son vehículos para el ejercicio de los derechos políticos de los ciudadanos, los medios de comunicación son mecanismos que sirven al ejercicio del derecho a la libertad de expresión de quienes los utilizan como medio de difusión de sus ideas o informaciones. (…)
151. En consecuencia, la Corte Interamericana considera que las restricciones a la libertad de expresión frecuentemente se materializan a través de acciones estatales o de particulares que afectan, no solo a la persona jurídica que constituye un medio de comunicación, sino también a la pluralidad de personas naturales, tales como sus accionistas o los periodistas que allí trabajan, que realizan actos de comunicación a través de la misma y cuyos derechos también pueden verse vulnerados (…)
152. Al respecto, debe advertirse que hoy en día una parte importante del periodismo se ejerce a través de personas jurídicas y se reitera que es fundamental que los periodistas que laboran en estos medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos los que mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad. En especial, teniendo en cuenta que su actividad es la manifestación primaria de la libertad de expresión del pensamiento y se encuentra garantizada específicamente por la Convención Americana (…)
1.3. Restricciones indirectas – alcances del artículo 13.3 de la Convención 161. En el presente caso se ha argumentado que se estaría frente a una posible restricción indirecta al derecho a la libertad de expresión, razón por la cual la Corte resalta que el artículo 13.3 de la Convención hace referencia expresa a tal situación al señalar que “[n]o se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”. Este Tribunal considera que el alcance del artículo 13.3 de la Convención debe ser el resultado de una lectura conjunta con el artículo 13.1 de la Convención, en el sentido que una interpretación amplia de esta norma permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas.
162. Al respecto, la Corte señala que lo que busca este inciso es ejemplificar formas más sutiles de restricción al derecho a la libertad de expresión por parte de autoridades estatales o particulares. En efecto, este Tribunal ha tenido la oportunidad de declarar en casos anteriores la restricción indirecta producida, por ejemplo, mediante una decisión que dejó “sin efecto legal el título de nacionalidad” del accionista mayoritario de un canal de televisión o por “el proceso penal, la consecuente condena impuesta […] durante más de ocho años y las restricciones para salir del país durante ocho años” en contra de un candidato presidencial.
163 Por otra parte, la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. En este sentido, el artículo 13 de la Declaración de Principios sobre la Libertad de Expresión indica otros ejemplos de medios o vías indirectas (…)
Igualmente, el perito García Belaunde durante la audiencia pública hizo referencia a otras posibles formas de restricción indirecta relacionadas con: i) “la publicidad, [ya que] los Estados son importantes agentes de publicidad y […] dar mucha publicidad o quitarla puede ser importante y, dado el caso, puede haber una especie de asfixia para los medios que básicamente viven de la publicidad”, o ii) “la tributación [cuando se dan] casos [en] que [las] empresas […] han sido cargadas tributariamente” con el fin de generar molestias o enviar mensajes al medio de comunicación.
164. Asimismo, la Corte recuerda que para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, en forma indirecta, la comunicación y la circulación de ideas y opiniones. Además, la Corte reitera que el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también controles particulares que produzcan el mismo resultado. Al respecto, la Corte resalta que la restricción indirecta puede llegar a generar un efecto disuasivo, atemorizador e inhibidor sobre todos los que ejercen el derecho a la libertad de expresión, lo que, a su vez, impide el debate público sobre temas de interés de la sociedad. (…)
170. (…) Este Tribunal estima que, dado que el espacio radioeléctrico es un bien escaso, con un número determinado de frecuencias, esto limita el número de medios que pueden acceder a ellas, por lo que es necesario asegurar que en ese número de medios se halle representada una diversidad de visiones o posturas informativas o de opinión. La Corte resalta que el pluralismo de ideas en los medios no se puede medir a partir de la cantidad de medios de comunicación, sino de que las ideas y la información transmitidas sean efectivamente diversas y estén abordadas desde posturas divergentes sin que exista una única visión o postura. Lo anterior debe tenerse en cuenta en los procesos de otorgamiento, renovación de concesiones o licencias de radiodifusión. En este sentido, el Tribunal considera que los límites o restricciones que se deriven de la normatividad relacionada con la radiodifusión deben tener en cuenta la garantía del pluralismo de medios dada su importancia para el funcionamiento de una sociedad democrática (…)
3. Alegada restricción indirecta a la libertad de expresión establecida en el artículo 13.3 de la Convención Americana (…)
193. Ahora bien, para efectuar un análisis del recuento de declaraciones reseñado anteriormente es imperioso realizar una lectura conjunta de las declaraciones y señalamientos, por cuanto de manera aislada no podrían configurar autónomamente hechos constitutivos de una vulneración a la Convención Americana. Esto debido a que el hecho de que varios funcionarios hayan realizado declaraciones en el mismo sentido durante un mismo lapso, demuestra que no fueron declaraciones aisladas. Teniendo en cuenta lo anterior, la Corte procederá a efectuar una valoración de lo allí expuesto con el fin de determinar si existieron razones o motivos por los cuales se arribó a dicha decisión distintos a la finalidad declarada, por cuanto, como ya lo señaló, tener en cuenta el motivo o propósito es relevante para el análisis jurídico de un caso, en especial si se busca determinar si se configuró una actuación arbitraria o una desviación de poder (supra párr. 189). En primer lugar, la Corte resalta que desde el año 2002 se venía advirtiendo que a los canales de televisión que no modificaran su línea editorial no se les renovaría su concesión (supra párr. 75) y que este tipo de declaraciones se acrecentaron cuando se acercó la fecha del vencimiento de las concesiones (supra párrs. 76 a 78). A partir de 2006, en varias de dichas declaraciones que fueron anteriores a la Comunicación Nº 0424 y la Resolución Nº 002 se anunció que la decisión de no renovar la concesión a RCTV ya se encontraba tomada y no sería revaluada o modificada (supra párr. 79 a 86). Asimismo, vale la pena resaltar que no solamente fueron declaraciones de funcionarios estatales en diversos medios de comunicación, sino que además se hicieron publicaciones en diarios nacionales y hasta la divulgación de un libro con el fin de anunciar y justificar la decisión de no renovar la concesión de RCTV. Por lo anterior, el Tribunal puede concluir, en primer lugar, que la decisión fue tomada con bastante anterioridad a la finalización del término de la concesión y que la orden fue dada a CONATEL y al Ministerio para la Telecomunicación desde el ejecutivo.
194. Respecto a las verdaderas razones que habrían motivado la decisión, en las declaraciones y las publicaciones hechas por distintos miembros del gobierno venezolano estas son: i) la no modificación de la línea editorial por parte de RCTV después del golpe de estado de 2002 a pesar de las advertencias realizadas desde ese año, y ii) las alegadas actuaciones irregulares en las que habría incurrido RCTV y que le habrían acarreado sanciones. Sobre la primera razón esgrimida, la Corte considera imperioso manifestar que no es posible realizar una restricción al derecho a la libertad de expresión con base en la discrepancia política que pueda generar una determinada línea editorial a un gobierno. Como fue señalado anteriormente, el derecho a la libertad de expresión no sólo debe garantizarse en lo que respecta a la difusión de información o ideas que son recibidas favorablemente o consideradas como inofensivas o indiferentes, sino especialmente en lo que toca a las que resultan ingratas para el Estado o cualquier sector de la población (supra párr. 140). Con relación a las alegadas actuaciones irregulares en las que habría incurrido RCTV y que le habrían acarreado sanciones, el Tribunal resalta que resulta contradictorio que se hicieran señalamientos y acusaciones sobre las alegadas sanciones y que en la comunicación Nº 0424 se indicara expresamente que estas no eran la justificación de la decisión. En especial, la Corte resalta que a pesar de la gravedad de los hechos relacionados con el golpe de Estado no se probó ante este Tribunal que a nivel interno se hubieran adoptado procedimientos tendientes a sancionar dichas actuaciones irregulares, de forma que no es posible que se utilizara como argumento para fundamentar la decisión lo sucedido durante el golpe, cuando dichas actuaciones no fueron sancionadas en su momento.
195. En este punto, el Tribunal considera necesario reiterar el precedente establecido en otro caso relacionado con este mismo medio de comunicación, según el cual en una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento. Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado.
196. Asimismo, el Tribunal denota que de las declaraciones aportadas en el presente caso contencioso sólo una habría hecho mención a la finalidad declarada en la Comunicación Nº 0424 y la Resolución Nº 002, es decir, la protección a la pluralidad de medios, mientras que en su mayoría las restantes declaraciones coinciden en invocar las otras declaraciones. Lo anterior, le permite concluir a la Corte, en segundo lugar, que la finalidad declarada no era la real y que sólo se dio con el objetivo de dar una apariencia de legalidad a las decisiones.
4. Conclusión sobre el derecho a la libertad de expresión.
197. La Corte concluye entonces, como lo ha hecho en otros casos, que los hechos del presente caso implicaron una desviación de poder, ya que se hizo uso de una facultad permitida del Estado con el objetivo de alinear editorialmente al medio de comunicación con el gobierno. La anterior afirmación se deriva a partir de las dos conclusiones principales a las cuales puede arribar este Tribunal a partir de lo descrito anteriormente, a saber, que la decisión se encontraba tomada con anterioridad y que se fundaba en las molestias generadas por la línea editorial de RCTV, sumado al contexto sobre el “deterioro a la protección a la libertad de expresión” que fue probado en el presente caso (supra párr. 61).
198. Asimismo, este Tribunal considera necesario resaltar que la desviación de poder aquí declarada tuvo un impacto en el ejercicio de la libertad de expresión, no sólo en los trabajadores y directivos de RCTV, sino además en la dimensión social de dicho derecho (supra párr. 136), es decir, en la ciudadanía que se vio privada de tener acceso a la línea editorial que RCTV representaba. En efecto, la finalidad real buscaba acallar voces críticas al gobierno, las cuales se constituyen junto con el pluralismo, la tolerancia y el espíritu de apertura, en las demandas propias de un debate democrático que, justamente, el derecho a la libertad de expresión busca proteger.
199. Se encuentra probado, en consecuencia, que en el presente caso se configuró una restricción indirecta al ejercicio del derecho a la libertad de expresión producida por la utilización de medios encaminados a impedir la comunicación y circulación de la ideas y opiniones, al decidir el Estado que se reservaría la porción del espectro y, por tanto, impedir la participación en los procedimientos administrativos para la adjudicación de los títulos o la renovación de la concesión a un medio que expresaba voces críticas contra el gobierno, razón por la cual el Tribunal declara la vulneración del artículo 13.1 y 13.3 en relación con el artículo 1.1 de la Convención Americana en perjuicio Marcel Granier, Peter Bottome, Jaime Nestares, Inés Bacalao, Eladio Lárez, Eduardo Sapene, Daniela Bergami, Miguel Ángel Rodríguez, Soraya Castellano, María Arriaga y Larissa Patiño. (…)”. (El destacado no forma parte del original).
Este Tribunal Constitucional, por su parte, también ha tenido la oportunidad de condenar este tipo de actuaciones. En la Sentencia No. 1782-2015 de las 11:36 hrs. de 6 de febrero de 2015, esta jurisdicción constitucional conoció un recurso de amparo formulado por un productor de un programa radial de crítica, opinión y denuncia, donde, a su vez, se estaba denunciando e investigando aparentes actos de corrupción llevados a cabo por un diputado. El recurrente acusó en tal ocasión que el referido diputado envió cartas membretadas y selladas con su firma de la Asamblea Legislativa a las instituciones que pautaban publicidad y que hacían posible la existencia del referido programa, amenazándolas de demandarlas si no retiraban dicha publicidad de manera inmediata, habida cuenta que lo consideraba una campaña de desprestigio en su contra. Luego de analizarse el citado caso, esta Sala, en dicha oportunidad, sostuvo que las notas enviadas por dicho diputado a diversas instituciones públicas con el fin que se retirara la publicidad del programa de radio del recurrente (la cual además, se constituía en el principal soporte financiero que permitía la trasmisión de los programas radiales y, a su vez, el sustento económico de las personas que trabajan en dicho programa), constituía una censura indirecta o velada a la libertad de expresión. Lo anterior, conforme los siguientes términos:
“(…) Ahora bien, en la especie, el recurrido dirigió una misiva a varias instituciones públicas, usando papel con el membrete y el sello de la Asamblea Legislativa, en la cual manifestaba:
“(…) 4.- En mi caso particular, en claro derecho de tutelar mi integridad personal, profesional y moral, fundamentaré la querella contra el productor de ese especio radial y solidariamente contra sus patrocinadores, pues basta con que ustedes monitoreen puntualmente a las 8 pm la frecuencia 800 AM y escuchen, dentro de la misma parrilla de patrocinadores a la que esta institución pertenece como auspiciador del programa en cuestión, junto a la cuña que ustedes pagan con dinero público, otra cuña grabada con la voz del propio señor [Nombre 001] en la que le pregunta a los ciudadanos si le creen a un Diputado mentiroso, investigado por falsificador y estafador, aspirante a graduarse de abogado en forma irregular, denunciado por el TSE por querer sustraer millonarias sumas de dinero mediante el uso de documentos falsos y más señalamientos infundados, aprovechando el productor radial al amparo de sus patrocinadores, para presionar de forma temeraria al Señor Fiscal General a que actúe contra el suscrito, evitando así la impunidad, como si el Jefe del Ministerio Público estuviese encubriendo deliberadamente una serie de delitos cometidos por este servidor.
5.- Por la consideración que se merecen, respetuosamente les prevengo de este asunto y les insto a valorar como una responsable medida cautelar, la posibilidad de sacar del aire la publicidad institucional que pagan en este programa radial, mientras resolvemos en los tribunales la querella que estamos por incoar, con el propósito de no empañar judicialmente ni perjudicar la sana imagen que los costarricenses tienen de esta noble institución, la cual debe ser protegida y no debería verse inmiscuida en asuntos tan deplorables y ajenos al honroso quehacer de ustedes, con lo que mis abogados desestimarían de inmediato a petición del suscrito, la eventual demanda solidaria extensiva contra esta entidad pública. (…)” (Extracto de la nota dirigida a Correos de Costa Rica S.A., aportada por el recurrente; lo destacado no corresponde al original).
La excitativa enviada a las instituciones públicas con el fin de que ellas retiraran la publicidad del programa de radio del amparado, se enmarca dentro de los casos de censura indirecta a la libertad de expresión por varias razones.
Primeramente, la publicidad provee el principal soporte financiero que permite la transmisión de los programas radiales y, a la postre, el sustento económico de las personas que trabajan en dicho programa. Es evidente que si se limita el ingreso económico del programa, también se llega a perjudicarlo o –inclusive- eliminarlo, todo en detrimento tanto de la libertad de expresión como de la de información. La situación descrita resulta incluso más grave cuando se trata medios de comunicación pequeños, como periódicos locales o pequeñas estaciones de radio, cuya estabilidad financiera puede llegar a depender en gran medida de la publicidad estatal. En el caso Tristán Donoso, la Corte Interamericana se pronunció en cuanto a las amenazas económicas a la libertad de expresión:
“129. Finalmente, si bien la sanción penal de días-multa no aparece como excesiva, la condena penal impuesta como forma de responsabilidad ulterior establecida en el presente caso es innecesaria. Adicionalmente, los hechos bajo el examen del Tribunal evidencian que el temor a la sanción civil, ante la pretensión del ex Procurador de una reparación civil sumamente elevada, puede ser a todas luces tan o más intimidante e inhibidor para el ejercicio de la libertad de expresión que una sanción penal, en tanto tiene la potencialidad de comprometer la vida personal y familiar de quien denuncia a un funcionario público, con el resultado evidente y disvalioso de autocensura, tanto para el afectado como para otros potenciales críticos de la actuación de un servidor público”.
En segundo lugar, un diputado de la República no es un ciudadano cualquiera, sino que ostenta un poder político particular debido a su incidencia en la aprobación de proyectos de ley, respecto de los cuales existe cantidad de intereses tanto privados como públicos. Ergo, una recomendación o retiro de publicidad de un programa radial, emitido por un funcionario en una particular posición de poder político y teniendo como leitmotiv su disconformidad con las críticas contra él difundidas por determinado medio de comunicación, constituye una forma velada de intimidación que no solo afecta al programa radial directamente aludido, sino que además envía un mensaje intimidante al resto de medios fomentando un ambiente hostil a las libertades de expresión e información esenciales en un sistema democrático. En el sub iudice, tal amenaza incluso pasó a tener efectos concretos, en la medida que, según la prueba aportada por el accionante, la pauta publicitaria del ICAA, programada para el periodo del 15 de octubre al 15 de noviembre de 2014, fue suspendida mientras se respondía el oficio del recurrido. Si las demás entidades a las que el recurrido dirigió su oficio, hubieran actuado de igual manera, eso hubiera derivado en una grave afectación a la estabilidad financiera del citado programa radial, todo ello teniendo como génesis la inconformidad de un funcionario público con las críticas difundidas en el mismo.
Lo anterior no implica que sea de poca importancia la alegada violación al honor del recurrido y de quienes podrían ser eventualmente responsables por ello. Todo lo contrario, lo reclamado por el recurrido es tan relevante que el ordenamiento jurídico ha establecido vías procesales apropiadas y razonables tanto para defender el honor de la persona afectada (por ejemplo a través de un proceso penal), como para velar por la exactitud de la información divulgada (derecho de rectificación y respuesta).
Ahora bien, las notas aclaratorias enviadas por el accionado en octubre pasado a las instituciones públicas, no afectan el razonamiento de esta Sala. Por un lado, son actuaciones ocurridas con posterioridad a la notificación del curso de este proceso –las notas fueron entregadas a dichas instituciones los días 7 y 8 de octubre de 2014; mientras que la notificación acaeció el 6 de octubre de 2014-. Por el otro, la Sala observa que, si bien se aclaró mediante tales notas que la “…anterior carta enviada al respecto de este asunto, no buscaba imponerles necesariamente la obligación de tener que retirar su publicidad de ese programa…”, también se indicó un apercibimiento a las instituciones motivado nuevamente en las críticas hechas al recurrido:
“5.- No omito señalarles respetuosamente su deber de cuidado, entendido en ejercer un mayor control de los recursos que en materia de propaganda, publicidad o información ustedes disponen pautar en medios de comunicación, manteniendo al menos un monitoreo mínimo que les permita conocer como en el caso del CD que les aporto [el cual contiene una edición del programa “Rompiendo El Silencio”], la calidad de manifestaciones proferidas en los espacios en los que ustedes pautan.” (Extracto de la nota dirigida al Instituto Nacional de Aprendizaje, aportada por el recurrido).
Por último, debe acotarse que los funcionarios públicos sí pueden manifestarse en torno a temas de interés público. Sin embargo, ellos son garantes de los derechos fundamentales, de manera que las expresiones que pronuncien deben evitar tornarse en una forma de censura directa o indirecta. Nuevamente, se cita a la Corte Interamericana de Derechos Humanos:
“139. En una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento. Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado.” (Caso Ríos y otros) En conclusión, la Sala estima el recurrido tiene todo el derecho a defender su honor y reputación por medio de los mecanismos legales que prevé la Constitución y la ley, entre ellos, el derecho de rectificación y respuesta y la querella por los delitos de injurias calumnias y difamación regulada en el Código Penal. En ese sentido, el envío de una nota a los patrocinadores del programa indicando que consideren retirar su patrocinio por el contenido negativo del mismo contra su imagen, constituyó una censura indirecta –en los términos señalados en la jurisprudencia de la Corte Interamericana supra citada-, al programa radial “Rompiendo El Silencio”. En la valoración que se hace tiene un peso específico el hecho de que el recurrido ostenta una posición de poder político por su cargo de Diputado de la República, y que efectivamente su misiva causó un efecto negativo más allá de un simple reclamo, al haberse acreditado en autos que produjo efectos sobre uno de los patrocinadores, quien suspendió temporalmente la publicidad (ICAA). Consecuentemente, se declara con lugar dicho extremo (…)”. (El destacado no forma parte del original).
El año siguiente, sea, durante el 2016, la Sala Constitucional conoció otro recurso de amparo donde se hizo alusión a una forma distinta e indirecta de atentar contra la libertad de expresión, el cual, a su vez, fue resuelto mediante el Voto No. 15220-2016 de las 16:00 hrs. de 18 de octubre de 2016. En esta ocasión, el recurrente, en su condición de director de un período de circulación nacional, alegó que, en virtud de una serie de noticias publicadas respecto a varias actuaciones irregulares llevadas a cabo por una entidad bancaria, los directivos de esta última decidieron manipular, presionar y tratar de callar al medio de comunicación a través de la reducción paulatina de la pauta publicitaria en las páginas del diario. Una vez analizadas y estudiadas las argumentaciones vertidas por ambas partes, así como la prueba aportada, este órgano constitucional tuvo por acreditado que el citado medio de comunicación fue efectivamente objeto de una censura velada o indirecta por parte de un funcionario público “(…) como reacción a su línea editorial, con el único propósito de "motivar" un cambio, es decir, manipular al medio para acercarlo a sus propósitos, ya fuera conseguir una cita con uno de los dueños del medio, o un mayor espacio sobre la versión del Banco frente a los cuestionamientos hechos. Todo lo cual sin duda, resulta lesivo del artículo 13.1 de la Convención Americana sobre Derechos Humanos y 28 y 29 de la Constitución Política (…)”. Además, esta jurisdicción, en aquella ocasión, enfatizó en el hecho que la publicidad se consideraba el soporte financiero fundamental en el esquema de funcionamiento de los medios de comunicación, de manera tal que esta era la que permitía la publicación o difusión de su contenido y, por ende, también el sustento de las personas que trabajan en este. De modo expreso, esta Sala, en la mencionada sentencia, expuso lo siguiente:
“(…) VII.- Conviene profundizar en este tema de la censura previa, a fin de dar solución al caso examinado, siguiendo la línea ya establecida en la sentencia 2015-1782. Al respecto, el inciso tercero del artículo 13 de la Convención Americana señala con claridad:
“ 3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” En este sentido, la censura puede ser directa –por ejemplo, la prohibición directa de cierta publicación- o indirecta (también denominada soft censorship, censura sutil, velada) -por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación-. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería “…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” Valga mencionar el caso Ivcher Bronstein a manera de ejemplo, en el cual la Corte Interamericana estimó que una resolución para dejar sin efecto legal el título de nacionalidad del señor Ivcher Bronstein –entre otros hechos- constituía un medio indirecto de restringir su libertad de expresión. También, dentro del derecho comparado, resulta de interés el fallo "Editorial Río Negro contra Provincia de Neuquén" (5/09/07), en el que la Corte Suprema de Justicia de la Nación (Argentina) dispuso, a raíz de que el Poder Ejecutivo de la Provincia del Neuquén privó temporalmente de publicidad oficial a dicho medio sin demostrar la razonabilidad de tal medida, y además se pronunció en contra de la violación indirecta de la libertad de prensa por medios económicos: "La primera opción para un Estado es dar o no publicidad, y esa decisión permanece dentro del ámbito de la discrecionalidad estatal. Si decide darla, debe hacerlo cumpliendo dos criterios constitucionales: 1) no puede manipular la publicidad, dándola y retirándola a algunos medios en base a criterios discriminatorios; 2) no puede utilizar la publicidad como un modo indirecto de afectar la libertad de expresión. Por ello, tiene a su disposición muchos criterios distributivos, pero cualquiera sea el que utilice deben mantener siempre una pauta mínima general para evitar desnaturalizaciones." VIII.- Ahora bien, es de suma importancia para el caso concreto indicar que la publicidad provee un soporte financiero fundamental en el actual esquema de funcionamiento de los medios de comunicación colectiva, pues permite la publicación o difusión de su contenido y a la postre, el sustento económico de las personas que trabajan en dicho medio. Es evidente que si se limita el ingreso económico de un medio de comunicación (en este caso escrito), también se llega a perjudicarlo o –inclusive- eliminarlo, todo en detrimento tanto de la libertad de expresión como de la de información. (…)
Debe, sin embargo, hacerse una precisión para adaptar lo dicho a las particularidades de este caso. El Gerente del Banco recurrido expone que resultaría incorrecto que la Sala venga a señalar la manera en que debe conducirse un aspecto vital para el negocio comercial que opera el Banco, cual es la publicidad, y en este punto le asiste la razón. La Sala entiende que debe tomarse en cuenta la condición jurídica del Banco Nacional de Costa Rica, dentro del entramado administrativo estatal, pues se trata de una institución con autonomía constitucionalmente reconocida y a la cual se ha encargado de llevar a cabo una actividad incuestionablemente comercial y, además de ello, en régimen de competencia con entidades privadas. En esa dinámica, la publicidad comercial que puedan realizar las empresas estatales responde y debe responder claramente a decisiones y valoraciones técnicas y objetivas y sobre tales aspectos no cabe la injerencia de un órgano de protección de Derechos Fundamentales como esta Sala.- No es allí donde se origina el conflicto constitucional y de Derechos Humanos que aquí se analiza, como lo demuestra la posición general expresada en el informe del año 2012 de Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos titulado “Principios sobre la regulación de la publicidad oficial y libertad de expresión”. En dicho documento se deja bien establecida la necesidad de que las distintas instituciones estatales cuenten con planes técnica y objetivamente diseñados para sus finalidades de comunicación y ello se repite en expediente legislativo de la investigación, donde las Diputadas y Diputados y el propio recurrente dejan afirmado que la particular condición de las empresas públicas debe tenerse en cuenta y respetarse las decisiones técnicas y objetivas sobre publicidad. Al respecto, de manera precisa señala el propio recurrente que:
“el criterio para distribuir la pauta publicitaria debe ser criterios de mercado, deben ser planes de medios diseñados por profesionales en la materia y se debe invertir el dinero que haga falta para cumplir ese plan de medios, de manera que lo que la empresa estatal que compite en el mercado quiere comunicar, sea eficientemente comunicado.” (p. 18-36 del Expediente Legislativo 20066) El problema en este caso surge más bien cuando las empresas públicas se separan de ese cauce para gestionar su pauta publicitaria de acuerdo con finalidades ajenas a razones objetivas y técnicas, e incompatibles con marco constitucional de derechos fundamentales.- Es en ese punto donde la participación de esta Sala adquiere plena justificación y ello es lo que se busca confirmar o descartar a través de este recurso de amparo.
IX- El caso concreto.- El amparado manifiesta que el recurrido ha hecho uso de sus influencias y funciones como Gerente General del Banco Nacional de Costa Rica para intentar presionar al Diario La Nación a modificar publicaciones y reportajes efectuados; afirma que esa presión se concretó en la reducción paulatina de la pauta publicitaria y en su virtual reducción a cero en los últimos meses. De los hechos probados y del considerando sobre análisis de prueba, la Sala tiene por demostradas, tanto la realidad de la reducción de la pauta del Banco Nacional al Periódico la Nación, a partir de la publicación hecha a finales de febrero, y en particular durante los meses de junio y julio, como las razones que motivaron la misma.- En este último sentido, según se indicó supra, son suficientemente claras las declaraciones del propio funcionario recurrido, emitidas ante los diversos órganos que inquieron sobre su actuación.- En todas ellas el funcionario expresó la existencia de una disconformidad con la forma en que el medio de comunicación reportó durante los meses de febrero, marzo, abril y mayo de 2016, sobre temas referentes a la entidad bancaria accionada en relación con el caso de la empresa LATCO; actuaciones de la Junta Directiva del banco, así como la participación del BNCR, en el caso BICSA. Según narra el recurrente y confirma el Gerente recurrido, la insatisfacción alcanzó su cima con este último caso, al entenderse que el periódico estaba dejando de lado las respuestas del Banco y omitiendo información importante, todo lo cual podría redundar (como efecto ocurrió) en fuertes erogaciones económicas del Banco para mantener niveles mínimos de confianza en su situación. Es por dicho caso y sus supuestas graves consecuencias para el Banco, que el Gerente recurrido dispuso publicar, el 13 de mayo de 2016, un campo pagado en otros dos medios escritos nacionales, a fin de responder a las citadas publicaciones de La Nación y dar a conocer lo que en su criterio era la situación real en torno al caso BICSA. Con esto último la situación derivó para peor, sumando al conflicto, enconados editoriales del medio de comunicación y respuestas del Banco en el mismo tono. Es en este punto que el Gerente decidió “tener una conversación” con los personeros del medio de comunicación, a raíz de lo cual, dispuso, concomitantemente y mientras tanto, una pausa que denominó "impasse" en la pauta publicitaria al periódico la Nación; esa pausa concluye, (según sus propias palabras) luego de que es atendido por el Director del medio de comunicación. Estos hechos narrados se repiten con consistencia tanto en el escrito del recurrente como en todas las versiones que brindó el propio recurrido ante la Junta Directiva del Banco, ante la Comisión Legislativa que investigó el caso y ante la Sala en el informe rendido y sobre todo consta claramente en el audio aportado por el recurrente.- Dicho lo anterior, la valoración de tales hechos, frente al marco constitucional de la libertad de expresión y el derecho a la información, por parte de este Tribunal no puede ser positiva para el recurrido. Resulta constitucionalmente reprochable que el Gerente General de un Banco púbico, es decir, un funcionario público, haya emitido una orden de retiro de una pauta publicitaria a un determinado diario escrito, sin un fundamento objetivo y técnico válido, sino en razón de su disconformidad, con la forma en que se elaboraban las noticias y reportajes emitidos respecto de las actividades y situación de la entidad bancaria que representa. El Tribunal entiende que lo anterior constituye una censura indirecta, una forma clara de intentar influir en los contenidos informativos del medio de comunicación, y además envía un mensaje intimidante al resto de medios que fomenta un ambiente hostíl a las libertades de expresión e información esenciales en un sistema democrático. Lo anterior, en tanto proviene de un servidor público, resulta totalmente inadmisible frente al necesario respeto y apego a lo que una Diputada apropiadamente definió como “la lógica democrática” a cuya realización deben contribuir las instancias, incluyendo por supuesto las empresas públicas.- (p. 383 del Expendiente Legislativo 20.066) Ella impone la plasmación más amplia posible de la libertad de expresión y el derecho a la información, sin que esto signifique la renuncia a emplear los medios jurídicamente establecidos para combatir las noticias u opiniones que puedan afectar injustamente la labor de las instituciones.
X.- En efecto, si a juicio del recurrido, el medio de comunicación debía darle el debido derecho de respuesta en los momentos en que solicitó reunirse con los representantes de la empresa en razón de la relevancia de lo publicado, podía y puede presentar las acciones judiciales que considere pertinentes, con el fin de que se determine la eventual afectación de su honor, o de perjuicio a la entidad bancaria que representa y la posible responsabilidad de aquellos que hayan excedido los límites de la libertad de expresión. Además, tenía la opción recogida en el ordenamiento jurídico de acudir al proceso de rectificación o respuesta, en favor de las personas que se vean afectadas por informaciones inexactas o agraviantes emitidas en su perjuicio (artículos 14 de la Convención Americana y 66 y siguientes de la Ley de la Jurisdicción Constitucional). No obstante, el recurrido optó primero por la publicación de notas aclaratorias en campos pagados a otros medios de comunicación escrito y no lo hizo así con el Diario La Nación. Con ello dejó de lado el mecanismo formal de rectificación y respuesta ante el Diario La Nación, o algún otro medio de prensa del Grupo Nación, y lo hizo de manera absolutamente deliberada, según lo expresa ante la Comisión que “…(…) alguno de Ustedes, conversaba de que porqué no acudía a la vía judicial. ¿Voy a ir a poner un recurso a la Sala Cuarta para decirles que me den un derecho de respuesta? Estuviéramos en el proceso de admisión todavía.” (p. 383 Expediente Legislativo 20.066). Se trata de desafortunadas consideraciones, no solo porque no responden a la verdadera realidad del proceso de rectificación y respuesta, -el cual contrario a lo que afirma, tiene un proceso de admisión muy expedito-, sino porque con ellas se pretende además justificar la realización de vías de hecho o actos de presión por encima de las vías del derecho, para lograr una modificación en contenido de los reportajes del periódico.- Sobre este tema, cabe recalcar, tal y como se mencionó, que tales intentos de censura, directa o indirecta, no encuentran cabida en nuestro medio, ni en el estado constitucional de derecho.
XI.- Conclusión.-Así las cosas, esta Sala comprueba un acto de censura indirecta ejecutado por un servidor estatal, con el fin de limitar la libertad de información que debe disfrutar el medio de comunicación amparado, mediante una disminución de la pauta publicitaria, sin razones técnicas u objetivas y más bien con la clara intención de incidir en el contenido informativo del medio de prensa en relación con sus reportajes referentes al Banco Nacional de Costa Rica y sus subsidiarias.
En el caso se comprueba lo que claramente la doctrina ha denominado censura indirecta, una forma de acoso ilegítimo de un medio de comunicación de parte de un ente público, que no sólo lesiona la libertad de expresión según se dijo líneas atrás, sino el derecho de los ciudadanos de contar con mecanismos de información veraz en la democracia. Es una forma perversa y antidemocrática de utilizar el poder del Estado para dirigir la opinión, según un sistema de “premio o castigo“, a quienes ejercen la libertad de prensa y libre expresión garantizada constitucional y convencionalmente. Sobre este tema la Comisión de Derechos Humanos y la doctrina más autorizada han sido enfáticas en señalar que “no se puede restringir el derecho de expresión tampoco por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”.
Los mecanismos de censura directa o “indirecta” están claramente prohibidos por el artículo 13.3 de la Convención Americana fueron objeto de atención por parte de distintos órganos del sistema interamericano. Interpretando el artículo 13.3 citado, la Declaración de Principios sobre Libertad de Expresión aprobada por la Comisión Interamericana de Derechos Humanos (en adelante, “CIDH”), establece en su principio 5 que “[l]a censura previa, interferencia o presión directa o indirecta sobre cualquier expresión, opinión o información difundida a través de cualquier medio de comunicación oral, escrito, artístico, visual o electrónico, debe estar prohibida por la ley. Las restricciones en la circulación libre de ideas y opiniones, como así también la imposición arbitraria de información y la creación de obstáculos al libre flujo informativo, violan el derecho a la libertad de expresión”. Y en su principio 13 indica que “la utilización del poder del Estado y los recursos de la hacienda pública; la concesión de prebendas arancelarias; la asignación arbitraria y discriminatoria de publicidad oficial y créditos oficiales; el otorgamiento de frecuencias de radio y televisión, entre otros, con el objetivo de presionar y castigar, o premiar y privilegiar a los comunicadores sociales y a los medios de comunicación en función de sus líneas informativas, atentan contra la libertad de expresión y deben estar expresamente prohibidos por la ley”.
Por su parte la Corte Interamericana ha señalado que “todo acto del poder público que implique una restricción al derecho de buscar, recibir y difundir informaciones e ideas, en mayor medida o por medios distintos de los autorizados por la misma Convención, son ilegítimos.
Es reconocido ampliamente en la doctrina, que la censura indirecta normalmente se ocultan detrás de acciones aparentemente legítimas que, sin embargo, son adelantadas con el propósito de condicionar el ejercicio de la libertad de expresión de los individuos. Cuando eso sucede, se configura una violación del artículo 13.3 de la Convención. Como lo ha sostenido la Corte Interamericana de Derechos Humanos (en adelante, la “Corte Interamericana” o “Corte”), resulta violatorio de la libertad de expresión”. (Corte I.D.H. La Colegiación obligatoria de periodistas (Arts. 13 y 29 Convención Americana sobre Derechos Humanos). Opinión Consultiva OC-5/85 del 13 de noviembre de 1985, Serie A No. 5, párr. 55.)
Estos mecanismos de restricción fueron también objeto de análisis por parte de la Relatoría Especial para la Libertad de Expresión de la CIDH, que en su Informe Anual 2003 llamó la atención sobre estas “obstrucciones oscuras, impuestas silenciosamente [que] no dan lugar a investigaciones ni merecen una censura generalizada”. La cuestión también fue abordada por esta oficina en sus Informes de 2008 y 2009.
La jurisprudencia de la Corte Interamericana por su parte, ha condenado en distintas ocasiones la adopción de medidas estatales que constituyen medios indirectos de restricción de la libertad de expresión. Así, por ejemplo, ha condenado la exigencia de la colegiatura obligatoria de periodistas, el uso arbitrario de las facultades de regulación del Estado cuando éste ha sido utilizado para iniciar acciones intimidatorias contra las directivas de un medio de comunicación, o para revocar la nacionalidad del director de un medio como consecuencia de la línea editorial de los programas que transmite (Caso Ivcher Bronstein vs Perú).
Los relatores para la libertad de expresión de la ONU, la OEA y la OSCE también han abordado el tema de las restricciones indirectas a la libertad de expresión por parte de las autoridades. Por ejemplo, en su Declaración Conjunta de 2002 afirmaron que, “los gobiernos y los órganos públicos nunca deben abusar de su custodia de las finanzas públicas para tratar de influir en el contenido de la información de los medios de prensa; el anuncio de publicidad debe basarse en razones de mercado”.
El uso arbitrario de la publicidad oficial fue uno de los primeros mecanismos de censura indirecta abordados por el sistema interamericano. En efecto, la Relatoría Especial para la Libertad de Expresión en su Informe Anual 2003 dedicó un capítulo especial a estudiar el fenómeno y concluyó que “la obstrucción indirecta a través de la publicidad estatal actúa como un fuerte disuasivo de la libertad de expresión” (CIDH Informe Anual OEA/Ser. L/VI.118. Doc 70, diciembre 2003). Según indicó en ese momento la Relatoría Especial: “este tema merece especial atención en las Américas, donde la concentración de los medios de comunicación ha fomentado, históricamente, el abuso de poder por parte de los gobernantes en la La (sic) distribución arbitraria de publicidad oficial, como otros mecanismos de censura indirecta, opera sobre distintos tipos de necesidades que los medios de comunicación tienen para funcionar e intereses que pueden afectarlos. Es una forma de presión que actúa como premio o castigo que tiene por objeto condicionar la línea editorial de un medio según la voluntad de quien ejerce la presión. Según se dijo, los mecanismos de censura indirecta suelen esconderse detrás del aparente ejercicio legítimo de facultades estatales, muchas de las cuales se ejercen por los funcionarios en forma discrecional. En el caso de la distribución de la publicidad oficial, se configura un caso de censura indirecta cuando la misma es realizada con fines discriminatorios de acuerdo a la posición editorial del medio incluido o excluido en ese reparto y con el objeto de condicionar su posición editorial o línea informativa.
Para determinar cuando hubo o no violación a la libertad de expresión con motivo del ejercicio de esas facultades, es necesario analizar el contexto. Eso es precisamente lo que ha quedado demostrado en este amparo, que el retiro de la publicidad durante el primer semestre del año 2016, pero en particular de los meses posteriores a las publicaciones de finales de febrero, se dio en un contexto de confrontación con el medio, donde se logra comprobar que la estrategia no obedeció a criterios objetivos, sino que se dio, en palabras del propio gerente, con el fin de “motivar” al diario a cambiar su línea editorial y enfoque noticioso, en vez de utilizar los mecanismos legales, existentes como el derecho de rectificación y respuesta si se estimaba que se trataba de informaciones inexactas o agraviantes.
En los casos Baruch Ivcher Bronstein Vs. Perú. Sentencia de 6 de febrero de 2001. Serie C No. 74, párr. 154. En sentido similar, conf. Corte I.D.H, “Caso Perozo y otros Vs. Venezuela”. Sentencia de 28 de enero de 2009. Serie C No. 195, la Corte Interamericana, ha sostenido que “[al] evaluar una supuesta restricción o limitación a la libertad de expresión, el Tribunal no debe sujetarse únicamente al estudio del acto en cuestión, sino que debe igualmente examinar dicho acto a la luz de los hechos del caso en su totalidad, incluyendo las circunstancias y el contexto en los que éstos se presentaron”. Siguiendo el mismo razonamiento, sostuvo que “la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar 'cualesquiera otros medios' o vías indirectas derivados de nuevas tecnologías (…). Para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones”(OC-5/85 y caso Ríos y otros contra Venezuela). por su parte, la Relatoría para la libertad de expresión ha venido denunciando que este tipo de censuras indirectas se dan con frecuencia y ello se debe a la ausencia de normas legales que regulen la distribución de la pauta publicitaria y reduzcan la discrecionalidad de los funcionarios públicos. En el mismo sentido, fue señalada por la Corte Suprema de Justicia de Argentina en el caso Editorial Río Negro S.A. c. Provincia de Neuquén, en el cual el tribunal indicó que la Provincia de Neuquén había violado la libertad de expresión de un diario al eliminar la publicidad oficial que allí tenía contratada como consecuencia de una cobertura crítica. La Corte Suprema señaló que la Provincia de Neuquén debería establecer un marco legal adecuado que limite la discrecionalidad de los funcionarios públicos e impida ese tipo de arbitrariedades.
Asimismo, la Corte Suprema de Chile resolvió un reclamo presentado por la Revista Punto Final contra la distribución de publicidad oficial realizada por algunos ministerios. Allí, el tribunal consideró que el orden jurídico chileno otorga a los funcionarios “un amplio margen de discrecionalidad” y recomendó que la inversión de publicidad estatal se haga “bajo criterios transparentes y no discriminatorios”( caso 9148/09). También se han dado casos en países como Estados Unidos (El Día Vs. Rossello, la Corte Federal de Apelaciones del Primer Circuito), en el que se estableció que el retiro de publicidad oficial por parte de la administración del gobernador de Puerto Rico, Pedro Rossello al diario El Día, como consecuencia de críticas que el periódico había hecho al gobernador, constituía una clara violación del derecho a la libertad de expresión garantizado por la Primera Enmienda a la Constitución de los Estados Unidos. En ese sentido, la Corte de Apelaciones entendió que “usar fondos del gobierno para castigar el discurso político de miembros de la prensa y buscar coaccionar [a los medios de comunicación para que emitan] expresiones favorables al gobierno es contrario a la Primera Enmienda”. Además, la Corte entendió que “el derecho claramente establecido prohíbe al gobierno condicionar la revocación de beneficios [en este caso, la publicidad del Estado] sobre una base que infringe intereses constitucionalmente protegidos (Corte de Apelaciones del Primer Circuito, Puerto Rico, caso El Día vs. Rossello, decisión del 25 de enero de 1999, 165 F.3d 106, pág. 110).
Queda claro de lo expuesto y de los informes de la Relatoría de Libertad de Expresión que el Estado tiene derecho a establecer y modificar su pauta publicitaria, pero que debe hacerlo por medio de criterios objetivos y transparentes, establecidos en forma planificada que aseguren que no se utiliza el poder del Estado o sus fondos, para discriminar, manipular o censurar directa o indirectamente la libertad de expresión y de prensa garantizados convencional y constituiconalmente (sic). Por las razones expuestas, se declara con lugar el recurso en contra del Banco Nacional de Costa Rica, con los efectos que se dirán en la parte dispositiva (…)”. (El destacado no forma parte del original).
En la Sentencia No. 8396-2018 de las 12:40 hrs., de 25 de mayo de 2018, esta Sala expuso:
“(…) I.- Objeto del recurso. La parte recurrente relata que se realizó la entrevista denominada ‘1.a violencia doméstica contra el hombre" en el programa “Café Nacional1' de la empresa pública Radio Nacional de Costa Rica. Acusa que, en reacción a este programa, el Director de Radio Nacional publicó un artículo titulado “Amarga vergüenza", donde advirtió que censuraría de previo el tema de la agresión hacia los hombres e impediría que se volviere a hablar de eso en Radio Nacional. Asimismo, reclama que la entrevista fue borrada por completo del portal de Internet de SINART y de la página de Facebook, lo que vulnera el derecho a la libertad de expresión y pensamiento. Por último, alega que la autoridad recurrida ha realizado actos de represalia en contra del tutelado [Nombre 006], ya que lo separaron del programa “Café Nacional” y su plaza se trasladó al Departamento de Prensa, a pesar de que él pertenece al Departamento de Producción de Radio Nacional. (…)
V.- Sobre el caso concreto. En el sub examine, la parte accionante reclama que se ha visto afectada por la censura practicada por la empresa pública SINART, toda vez que los recurridos manifestaron que se impedirían programas radiales como el efectuado por ellos y, además, se borró dicho programa de la página de Internet y de Facebook. Como parte de la alegada censura, el tutelado Castro fue separado del programa “Café Nacional’' y trasladado al Departamento de Prensa.
Al respecto, la Sala pudo tener por probado que el 13 de setiembre de 2016 se recibió en el programa radiofónico “Café Nacional" de Radio Nacional a la presidenta de la Fundación Instituto de Apoyo al Hombre y al director administrativo de la Fundación Instituto de Apoyo al Hombre. El programa, producido por los tutelados [Nombre 005] y [Nombre 006], fue transmitido en la frecuencia de radio 101.5 FM y por medio de la página oficial de Radio Nacional en la red social Facebook. Asimismo, se corroboró que el Director de Radio Nacional publicó el documento titulado "Amarga vergüenza" en su página personal de Facebook el 14 de setiembre de 2016. En él expresó:
“Ayer martes 13 de setiembre en Radio Nacional de Costa Rica se trató de manera muy lamentable el tema de la violencia intrafamiliar, enfocándolo en la violencia que sufren los hombres en sus hogares. La editorializacion (sic) del espacio no dejó lugar a dudas sobre la posición personal de las personas invitadas y de quienes condujeron (sic) el espacio. En el mismo se justificó de manera increíble (sic) los femicidios, se puso a un mismo nivel la violencia que sufren las mujeres a la que sufren los hombres. se pidió el cierre del lNAMU y se habló de hacer este tipo de programas una vez cada 15 días. cosa que por supuesto no va a suceder. Yo. como Director de Radio Nacional de Costa Rica, no fui consultado para que este tema fuera tratado, quienes me conocen saben que jamás hubiera permitido que esta entrevista saliera al aire. Pero eso no me exime de responsabilidad. Durante mi gestión me he dado cuenta que hay una gran falta de formación a lo interno de la institución en relación con los Derechos Humanos y su tratamiento en medios de comunicación, y lastimosamente los talleres que desde ayer estamos planeando con instituciones como el INAMU', la Defensorio de los Habitantes, el Frente por los Derechos Igualitarios y la asociación ACCEDER, se darán como reacción al daño causado a la sociedad, con la salida al aire de esa entrevista. Es mi culpa no haber actuado con anticipación, no haber dejado clara la visión sobre Derechos Humanos que tenemos en la actual gestión del SINART. y no me queda más que dar mi más sincera disculpa y prometerles, sobretodo (sic) a las mujeres que sistemáticamente sufren violencia por el hecho de ser mujeres, que una situación como esta no volverá a pasar. En los medios de servicio público tenemos una gran responsabilidad. Cada vez que uno de nosotros, trabajadores y trabajadoras de la radio y la tv pública, abrimos micrófonos o nos paramos frente a una cámara, no respondemos a una opinión personal basada en nuestras creencias, principios y valores, sino que habíamos desde una institucionalidad que se rige por principios superiores, políticas públicas y tratados internacionales. No se trata si estoy de acuerdo o no, no se trata de qué pienso yo. Tenemos LA RESPONSABILIDAD, así con mayúsculas, de informarnos y formamos sobre los temas pilares de la construcción social de nuestra actualidad y que ni por acción ni omisión, discursos anti derechos humanos o fomentadores del odio tengan espacio en los medios públicos. Estamos gestionando lo pertinente para que el próximo lunes a las 9 de la mañana especialistas en derechos igualitarios y violencia de género nos acompañen en la emisora y puedan explicarle a nuestra audiencia por qué todo lo que se dijo el pasado martes está equivocado en el enfoque y podamos construir más bien espacios permanentes de promoción de derechos humanos."(E\subrayado es agregado).
Ese mismo día y en la página de Facebook de Radio Nacional, el SINART publicó su postura oficial respecto de lo acontecido:
"En relación con la entrevista realizada ayer martes 13 de septiembre en el programa Café Nacional. referida a diferentes formas de violencia intrafamiliar, la Dirección de Radio Nacional y Dirección General del SINART aclaran: Las expresiones de las personas invitadas y conductoras de dicho espacio que justificaron erróneamente la situación de violencia que sufren miles de mujeres en nuestro país y cuestionaron la pertinencia del Instituto Nacional de las Mujeres. INAMU. no responden de ninguna manera a la posición de estas Direcciones. Reconocemos que el tema de la violencia intrafamiliar debe abordarse desde diversos enfoques, pero nunca desconociendo que la raíz de ese problema se encuentra justamente en una estructura patriarcal machista. y que son por mucho las mujeres y las niñas las principales víctimas de las conductas violentas, sin que esto signifique que desconozcamos que algunos hombres también sufren de violencia y que existen vados en el sistema o mala gestión que les afecte. El SINART reconoce la necesidad de existencia del Instituto Nacional de las Mujeres y respaldamos su pertinencia en la construcción de una sociedad igualitaria y justa, y en la búsqueda de erradicación de todas las formas de discriminación y violencia que sufren las mujeres. Ofrecemos nuestra más sincera disculpa a las audiencias de Radio Nacional, a las personas que con justa razón han reclamado por el enfoque de la entrevista, y nos comprometemos a rectificar aportando en el tratamiento adecuado del tema con información oportuna y veraz desde los micrófonos v pantallas del SINART en su misión de servicio público. Estamos gestionando lo pertinente para que el próximo lunes en el mismo espacio, especialistas en derechos igualitarios y violencia de género nos acompañen en la emisora para referirse al tema desde un enfoque de Derechos Humanos. Como Estado, y más aún como medio de servicio público, tenemos la obligación de hacer cumplir las Convenciones Internacionales en contra de toda forma de discriminación y violencia contra las mujeres, que nuestro país ha suscrito y se ha comprometido a cumplir, como la Convención de Belem do Rara y la CEDA W." (El subrayado es agregado).
Atinente al sub lite, la Sala tuvo por probado que la entrevista a los tutelados fue eliminada de la línea de tiempo del Facebook de la emisora y también del portal web del SINART.
Es claro que la censura a la libertad de expresión se puede dar de manera abierta, particularmente si se trata de una dictadura o una democracia debilitada. Sin embargo, máxime cuando se actúa en el marco de un régimen democrático, es frecuente que la censura se manifieste más bien de forma sutil y velada, verbigracia, afectando los insumos o recursos que permiten su ejercicio, por medio de la emisión de lineamientos restrictivos, efectuando presiones indirectas, etc. Esta característica de la censura velada -que es muy peligrosa, precisamente, por ser subrepticia o disimulada- obliga a los Tribunales a recurrir a la denominada prueba indiciaría a fin de determinar el acto de censura.
En aplicación de lo anterior al sub lite, la Sala advierte suficientes elementos para concluir que las declaraciones de los amparados fueron censurados y, con ello, se lesionaron sus derechos fundamentales. Tal conclusión se desprende de las manifestaciones expresas del Director de Radio Nacional al señalar, que la repetición de entrevistas como la de los tutelados por supuesto no va a suceder", y que él jamás hubiera permitido que esta entrevista saliera al aire... ", pero “...una situación como esta no volverá a pasar...”. La Sala observa que la parte recurrida advierte con absoluta claridad la censura que existirá ante futuras entrevistas como la cuestionada y el arrepentimiento por no haber censurado la efectuada. Para este Tribunal, no existe duda de que las expresiones transcritas constituyen una censura, especialmente por provenir del director del medio que sirvió para la transmisión de la entrevista de marras.
Más sutil es decir que se debe dejar “... clara la visión sobre Derechos Humanos que tenemos en la actual gestión del SINART... “y que “...todo lo que se dijo el pasado martes está equivocado en el enfoque... Igualmente subrepticio fue el comunicado oficial de SINART: “Ofrecemos nuestra más sincera disculpa a las audiencias de Radio Nacional, a las personas que con justa razón han reclamado por el enfoque de la entrevista. y nos comprometemos a rectificar aportando en el tratamiento adecuado del tema con información oportuna y veraz desde los micrófonos y pantallas del SINART en su misión de servicio público." En estas citas se observa que el SINART pretende imponer su “visión” de Derechos Humanos o “rectificar” la actuación de los tutelados “ con información oportuna y veraz asumiendo que las opiniones de los amparados son lo opuesto: inoportunas y falsas.
Finalmente, quedó acreditado que la grabación de la entrevista fue eliminada de la línea de tiempo del Facebook de la emisora y del portal web del SINART. La Sala considera que, con este hecho, la amenaza de censura se concretó en una censura plena, toda vez que se impidió tanto la libertad de expresión de los amparados como el derecho de terceros de informarse y tener acceso a la entrevista.
Es necesario reiterar que los límites a la libertad de expresión deben estar claramente establecidos en la ley, según establece la Convención Americana sobre Derechos Humanos:
“Articulo 13. Libertad de Pensamiento y de Expresión l. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
2. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar:
a. el respeto a los derechos o a la reputación de los demás, o b. la protección de la seguridad nacional, el orden público o la salud o la moral públicas.
3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.
4. Los espectáculos públicos pueden ser sometidos por la ley a censura previa con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2.
5. Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional (El subrayado es agregado).
Según se mencionó en las aclaraciones previas, el contenido del mensaje puede tener un vínculo con las limitaciones a la libertad de expresión. Así, este será de relevancia únicamente cuando esté prohibido por ley y constituya "...propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional." Empero, esta situación no se presenta en el sub examine. Además, si los accionados consideran que el accionar de los tutelados se enmarca en uno de estos supuestos o de aquellos contemplados en el inciso 2 de esa norma, lo procedente seria acudir a las instancias jurisdiccionales a Un de reclamar la responsabilidad ulterior de los sujetos (por aplicación de una ley, como establece la Convención), y no pretender remediar la situación por la vía de la censura previa.
Por otro lado, la Sala recuerda que la labor del SINART, en su condición de empresa pública creada por ley, tiene el deber legal de respetar el pluralismo político, religioso, social y cultural así como de permitir la libre expresión de las opiniones, como de modo explícito se encuentra estatuido en los incisos b) y c) del numeral 4 de la Ley Orgánica del SINART:
“Artículo 4°-Principios. La actividad del SINART, S. A., como sistema de comunicación, se inspirará en los siguientes principios: (...)
b. La separación entre las informaciones y las opiniones, así como la identificación de quienes sustentan estas últimas y su libre expresión.
c. El respeto al pluralismo político, religioso, social y cultural." Por eso, salvo que se trate de una excepción legal o convencional expresa, el SINART debe respetar la discusión de todas las opiniones, incluidas aquellas que la dirección del medio que esté de tuno, considere impopulares, minoritarias, cuestionables, etc. Aparte del tema tratado en la entrevista objeto de este amparo, obsérvese que existen innumerables materias que generan opiniones y respuestas contrastantes, apasionadas y terreas, unas con indignación o repudio, otras más bien con apoyo y admiración, como por ejemplo respecto del uso de drogas para efectos medicinales, el aborto, los derechos de la comunidad LGTB, la secularización del Estado, la política salarial del sector público, los sistema de pensiones, el establecimiento de planes fiscales, etc. Reiterando la jurisprudencia transcrita, “..La libertad de expresión no depende de la verdad popularidad o utilidad social de las ideas y creencias manifestadas, y reconoce que un cierto grado de abuso es inseparable del uso adecuado de esa libertad, a partir de la cual el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos.
En abono a lo anterior, se aclara que la entrevista de los tutelados tampoco puede ser censurada por el abordaje periodístico o la conducción desarrollada, toda vez que ninguno de esos puntos constituye motivo legal para limitar la libertad de expresión.
La Sala no duda en reiterar que la responsabilidad por el ejercicio de la libertad de expresión es ulterior y debe estar prevista en una ley. De esta manera, si alguna persona se considerare afectada por las manifestaciones vertidas en la entrevista objeto de este recurso, ya sea por los moderadores o por los entrevistados, podría hacer valer sus derechos ante los tribunales ordinarios de justicia. Empero, es absolutamente improcedente que la Administración se aleje del principio de legalidad y pretenda limitar el ejercicio de la libertad de expresión pro la vía de la censura, como acaeció en el sub examine.
VI.- Un segundo punto relacionado con la censura es el traslado del tutelado Castro al equipo de Contrapunto. En el expediente quedó acreditado que él fue trasladado a dicha instancia, tal como le fue comunicado mediante oficio PE-DG- 052-2017 del 24 de febrero de 2017 y que existe una notoria proximidad temporal con los demás hechos narrados en el punto anterior. Además, se puso en evidencia la abierta disputa entre la Administración y el tutelado Castro, quien comunicó su disconformidad con las actuaciones de los recurridos mediante un correo del 20 de setiembre de 2016, donde manifestó:
Saludos Pablo. Permítame discrepar con respecto a lo que dice ya que yo en lo particular considero que: CENSURA: es que nuestro director Randall Vega afirmeen su Facebook: "quienes me conocen saben que jamás hubiera permitido que esta entrevista saliera al aire" (...) CENSURA: es que el Director de Radio Nacional nos hubiera "sugerido'' que espaciáramos las invitaciones a la abogada Alexandra Loria por su pensamiento con respecto a temas como el abono y las uniones de la población sexualmente diversa aunque dichos tópicos no eran abordados por ella en nuestro programa." Así, existen suficientes indicios sobre la censura existente y el distanciamiento entre la Administración y el tutelado. Al respecto, si bien la parte accionada afirmó que se trataba de una reorganización completa del recurso", lo cierto es que omitió adjuntar elementos probatorios que permitieran a la Sala llegar a la misma conclusión. La prueba que allegó se refería a las funciones reasignadas (que se encontraban dentro del perfil de un periodista) y a la constancia del salario del amparado.
La Sala reitera que, en materia de control de constitucionalidad, una vez que ab initio se establecen indicios claros de censura, recae en la contraparte una carga probatoria que debe llevar a concluir que las acciones no eran de tal naturaleza, máxime cuando la recurrida se encuentra en mejores posibilidades de aportar prueba a la causa (carga dinámica de la prueba), toda vez que la Administración dispone de caudales de información y recursos públicos para descartar alguna discriminación o violación a un derecho fundamental; pese a lo cual, en el sub examine, la recurrida no logra desacreditar con prueba fehaciente el agravio de los recurrentes. De esta manera, tomando en consideración lo dispuesto en los ya citados incisos b) y c) del numeral 4 de la Ley Orgánica del SINART, que de forma expresa obligan a esa empresa pública a respetar el pluralismo político, religioso, social y cultural así como a permitir la libre expresión de las opiniones , resulta claro que en la especie se ha dado una forma de censura velada a través de la reubicación de un periodista en un puesto que viene a limitar o eliminar su influencia en el contenido transmitido, todo ello luego o con motivo de las referidas manifestaciones en el ejercicio de su quehacer periodístico.
Lo anterior resulta aún más relevante, puesto que por la vía de la censura velada se ejerce una especie de intimidación o amedrentamiento subrepticio al resto del personal periodístico de la empresa pública SINART. De este modo, la libertad de prensa de aquel se ve amenazada ante la posibilidad de ser víctima de represalias derivadas del ejercicio del periodismo en libertad, cuando se formulen opiniones que no comparta la dirección del medio según el gobierno de tumo; ambiente que propicia el flagelo de la autocensura en detrimento de los periodistas, merced a que su estabilidad laboral podría compelerles a evitar represalias. Ello viene a afectar igualmente al destinatario final de los servicios de periodismo, el público, quien por esa vía ve menguada su capacidad de formarse criterio propio de manera fundada a través del estar a la escucha de una diversidad de contenidos informativo y puntos de vista.
VIL- En virtud de lo expuesto, se declara con lugar el recurso, con los efectos que se dirán. Visto que los actos lesivos son imputables solo al SINART, la condenatoria abarca únicamente a dicha instancia. (…)
Por tanto:
Se declara con lugar el recurso únicamente contra el SINART. Se ordena a Mario Alberto Al taro Rodríguez, en su condición de Presidente Ejecutivo del Sistema Nacional de Radio y Televisión S.A., o a quien en su lugar ocupe ese cargo, abstenerse de incurrir nuevamente en los hechos que dieron fundamento a la estimatoria de este recurso de amparo. Además, a dicho recurrido se le ordena que dentro del plazo de VEINTICUATRO HORAS, contado a partir de la notificación de esta sentencia, coloque la entrevista del 13 de setiembre de 2016 del programa "Café Nacional" de Radio Nacional de Costa Rica, objeto de este recurso, así como la entrevista del 19 de setiembre de 2016 (la hecha al INAMU y a ACCEDER), en la página de Facebook del SINART, donde quedará fijada en el muro durante al menos un mes, y en la página principal del sitio de Internet del mismo, donde deberá estar visible en la portada o "landing page" por el mismo plazo. Por otro lado, se le ordena reinstalar de inmediato al tutelado Castro en el puesto que ocupaba al momento de los hechos, en caso de que dicho tutelado manifestare su voluntad en tal sentido; para lo anterior, se le ordena al recurrido comunicar de inmediato al amparado Castro lo resuelto por la Sala. Los Magistrados Cruz Castro y Castillo Víquez dan razones diferentes. El Magistrado Cruz Castro pone nota. Lo anterior se dicta con el apercibimiento de que podría incurrir en el delito tipificado en el artículo 71 de la Ley de la Jurisdicción Constitucional, el cual dispone que se impondrá prisión de tres meses a dos años, o de veinte a sesenta días multa, a quien recibiere una orden que deba cumplir o hacer cumplir, dictada en un recurso de amparo y no la cumpliere o no la hiciere cumplir, siempre que el delito no esté más gravemente penado. Se condena al Sistema Nacional de Radio y Televisión S.A. al pago de las costas, daños y perjuicios causados con los hechos que sirven de base a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. Notifíquese de forma personal a Mario Alberto Al faro Rodríguez, en su condición de Presidente Ejecutivo del Sistema Nacional de Radio y Televisión S.A., o a quien en su lugar ocupe ese cargo. El Magistrado Hernández Gutiérrez salva el voto y declara parcialmente con lugar el recurso. (…). (El destacado no forma parte del original).
Por su parte, en el Voto No. 10961-2020 de las 10:05 hrs. de 16 de junio de 2020, este Tribunal señaló lo siguiente:
“(…) I.- Objeto del recurso.- La parte recurrente acude en tutela el derecho a la libertad de prensa, pues considera que la entidad recurrida dictó una resolución que restringe de manera ilícita la libertad de información y de prensa, del medio periodístico amparado, al ordenarle retirar de sus bases de datos, la imagen utilizada en una noticia de interés público. (…)
V.- Estima la Sala que cuando se produce una colisión entre estos derechos como en el presente caso (imagen y libertad de prensa), partiendo del carácter institucional del derecho a la información, y siempre que la utilización de la imagen que complementa la noticia sea veraz y no afecte la dignidad de la persona titular de ese derecho, debe decantarse por darle un valor preferencial al derecho a la libertad de prensa. En el mismo sentido podemos encontrar precedentes en la jurisprudencia española (STC 165/1988 y STC 59/1989) en los que el Tribunal Constitucional español, en diversos casos ha ponderado a favor la libertad de información ante el conflicto con otros derechos fundamentales, utilizando como argumento central, el carácter institucional del derecho a la información. En el mismo sentido, el Tribunal Supremo Español, frente a la ponderación de éstos dos derechos ha señalado:
“La técnica de ponderación exige valorar el peso abstracto de los respectivos derechos fundamentales que entran en colisión, y desde este punto de vista, la ponderación debe respetar la posición prevalente que ostentan tanto el derecho a la libertad de expresión como el derecho a la libertad de información por resultar esenciales como garantía para la formación de una opinión pública libre, indispensable para el pluralismo político que exige el principio democrático. Además, ese juicio de ponderación en abstracto debe atender a que el ejercicio de la libertad de expresión, según su propia naturaleza, comprende la crítica de la conducta de otro, aun cuando sea desabrida y pueda molestar, inquietar o disgustar a aquel contra quien se dirige pues así lo requieren el pluralismo, la tolerancia y el espíritu de apertura, sin los cuales no existe sociedad democrática". Sentencia Tribunal Supremo 16 de febrero 2016.
En la misma línea de pensamiento, la Corte Europea de Derechos Humanos resaltó la importancia que "la libertad de prensa proporciona a la opinión pública uno de los mejores medios para conocer y juzgar las ideas y actitudes de los dirigentes políticos. En términos más generales, la libertad de las controversias políticas pertenece al corazón mismo del concepto de sociedad democrática" (caso "Lingens vs. Austria", sentencia del 8 de julio de 1986, serie A N° 103, párr. 42).
En efecto, partiendo del contexto jurisprudencial expuesto y de los argumentos externados en los precedentes de cita, esta Sala analiza las consideraciones de del caso y concluye que, lleva razón la parte recurrente en su reclamo. El orden democrático exige, la defensa de la libertad de expresión, como instrumento básico e indispensable para la formación de la opinión pública. Y esa defensa, lleva a la posibilidad de expresar el pensamiento usando los medios que elija el emisor y también en la facultad de difundirlo a través de ellos. Tal y como se indicó en el precedente de cita, el valor de esta defensa, alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa. En ese sentido, se entiende que si bien, el derecho a la expresión, contemplado en el artículo 13 de la Convención Americana, no tiene carácter absoluto, los límites para su ejercicio y controles de su adecuado desempeño no deben de modo alguno limitar su ejercicio, más allá de lo estrictamente necesario, al punto que puedan convertirse en un mecanismo directo o indirecto que afecten la libertad de expresión, información y prensa y constituyan una violación al derecho. Ahora, en el caso bajo estudio, esta Sala considera que la publicación emitida por el periódico Diario Extra el 24 de junio del año 2015, donde se utilizó la imagen del señor Calderón, el medio informativo se limitó a difundir información relacionada con un hecho noticioso de interés para la colectividad, por tratarse de la posible comisión de un delito, por ello la posibilidad de usar la imagen de una persona para referirse a un acontecimiento, está sustentada en su relevancia para el público, sin que el consentimiento del uso de su imagen en ese contexto, sea necesario. La fotografía que se utiliza es parte de un documento público, no una imagen obtenida en un contexto íntimo, familiar o privado, y se utiliza como accesoria a la noticia, como parte de su complemento. En el caso de la noticia en análisis, la fotografía utilizada es parte de la contextualización de una noticia que, además es veraz (hecho no disputado) y funge como su complemento accesorio, como se indicó, sin que se utilice la imagen en una forma que afecte la dignidad de su titular, de tal forma que en esos términos funciona como un límite válido a las excepciones que admite el derecho a la imagen. Hoy en día, no se concibe un medio de comunicación sin imágenes, de solo texto, sin ilustraciones, de tal forma que el análisis de la Prohab, a juicio de este Tribunal, parte de un escenario de descontextualización de la utilización de la imagen en cuestión, es decir, como si ésta no fuera parte de un hecho noticioso de interés público que en ese momento se comunica. Señala la recurrida que la noticia se pudo comunicar igual sin utilizar la imagen aludida, lo cual es una forma ilegítima de interferir con la libertad de prensa; es equivalente a decirle a un medio, qué y cómo comunicar o difundir, lo cual es una flagrante violación al contenido esencial de la libertad de prensa. Su efecto sería anulatorio del denominado Fotoperiodismo y generaría una forma de autocensura de los medios de comunicación, que tendrían que estarse autolimitando de ilustrar sus informaciones como parte del contenido de la noticia, mediante el uso de imágenes de personas, para evitar las demandas ante una oficina del Estado, -que en este contexto- pretende operar como un especie de censor o editor de qué y cómo se puede publicar, generando un efecto reflejo de autocensura permanente, como se indicó, a todas luces, lesiva del derecho a la libertad de prensa, que incluye desde luego, la libertad de escoger el contenido de lo que se publica. Siguiendo la línea ya establecida en la sentencia 2015-1782, de conformidad con el artículo 13 de la Convención Americana:“3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” En este sentido, la censura de la libertad de prensa puede ser directa –por ejemplo, la prohibición directa de cierta publicación- o indirecta (también denominada soft censorship, censura sutil, velada) -por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación-. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería “…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.”( 2015-1782) Considera la Sala que el ejercicio de las competencias de la Prohab para fines de la Ley de Protección de la Persona frente al Tratamiento de sus datos personales, no puede ser utilizada como un censor del ejercicio legítimo de la libertad de prensa, porque ello sería, una censura indirecta, en control del Estado, de un derecho toral, esencial, para el sostenimiento del régimen democrático.
En ese sentido, estima la Sala que si el uso de la imagen (fotografía de la página del pasaporte) como en este caso, se da dentro de un contexto de un hecho noticioso de interés público, insertada en un documento público, relacionado directamente con el contenido de la noticia, -puesto que se trata de un tema migratorio fronterizo-, cuya utilización, además, no denigra ni afecta la imagen de su titular, no es válido, separar o descontextualizar esa imagen de su noticia, ni mucho menos pretender eliminarla, porque forma parte integral de ésta. Lo anterior implicaría una censura de la noticia en sí, -lesiva del artículo 13 de la Convención Americana sobre Derechos Humanos-. En el caso Kimel vs Argentina (FJ 54 y ss) la Corte IDH declaró que las restricciones a la Libertad de Expresión "(...) tienen carácter excepcional y no deben limitar, más allá de lo estrictamente necesario, el pleno ejercicio de lo libertad de expresión y convertirse en un mecanismo directo o indirecto de censura previa (...)'; que "deben formularse en forma expresa, precisa, taxativa y previa; y que “el marco legal debe brindar seguridad jurídica al ciudadano, límites que claramente se violaron en este caso, al pretender limitar el contenido de una información veraz de interés público.
Partiendo de ese razonamiento, es que se estima que en el caso concreto, la decisión del ente recurrido, de ordenar a la parte recurrente eliminar de su base de datos, la fotografía del pasaporte del denunciante, contenida en la noticia de repetida cita, resulta ser una acción que afecta el desempeño periodístico, informativo y noticioso y con ello el contenido esencial de la libertad de prensa del medio de comunicación amparado. En consecuencia, se concluye que la orden dictada por la Agencia Protectora de Datos al declarar CON LUGAR la denuncia presentada por Marco Tulio Calderón Quesada contra diario Extra, y donde le ordena al Diario Extra, que proceda a eliminar de su base de datos, la fotografía del pasaporte del denunciante, contenida en la noticia de repetida cita, resulta violatoria a la libertad de información del medio recurrente, por lo que procede acoger el amparo en estudio, como así se dispone. (…)” (El destacado no forma parte del original).
Esta jurisdicción, en el Voto No. 16167-2020 de las 09:20 hrs. de 28 de agosto de 2020, señaló:
“(…) I.- OBJETO DEL RECURSO. El recurrente estima vulnerados sus derechos fundamentales, toda vez que, ante la pandemia de la covid-19, el gobierno ha dictado medidas que limitan la libertad de tránsito y de comercio. Además, sostiene que las autoridades recurridas vulneran la libertad de prensa, debido a sus actuaciones respecto al Diario Extra, toda vez que el MTSS canceló la suscripción de tal medio y el ICAA ordenó a sus funcionarios no hablar con periodistas del periódico en mención. (…)
IV.- SOBRE EL CASO CONCRETO. En el sub examine, el amparado reclama que el Ministerio de Trabajo y Seguridad Social vulnera los derechos fundamentales, dado que se canceló la suscripción del Diario Extra. Al respecto, en el informe rendido bajo juramento por la Ministra de Trabajo y Seguridad Social se indicó, respecto a la cancelación por parte del MTSS de la suscripción mantenida con el Diario Extra, que: “(…) esa decisión obedeció a que producto del Estado de Emergencia Sanitaria que enfrenta el país, que nos ha causado afectación económica no solo a nivel nacional sino también mundial, el Poder Ejecutivo gestionó días atrás, recorte en el gasto público. Siendo que ese recorte presupuestario, nos obligó cómo Institución a liberar costos en algunas partidas específicas, cuidando desde luego, no afectar el servicio que como Cartera brindamos a la ciudadanía. Siendo entonces, que en virtud de ese recorte presupuestario que realizamos, fue que se adoptó la decisión de eliminar la suscripción que la Institución mantenía con algunos diarios de circulación nacional, tales como: Diario Extra, La Nación, El Financiero y La República. Pues el monto para el pago de las suscripciones invocadas, se acreditaba desde la misma partida con la que se compraban suministros de papel y cartón y ello representaba casi el 50% del presupuesto para esos efectos. Y siendo que a raíz de la pandemia producida por el virus COVID 19, debemos tener disponibles toallas de papel para los lavatorios que tenemos instalados para el lavado de manos de personas funcionarias y usuarias de este Ministerio; fue que se prioriza la compra de suministros citados, con la consecuencia de eliminar las suscripciones mencionadas” (la negrita no es del original).
Así, el Tribunal verifica que, el 14 de julio de 2020, un funcionario del MTSS remitió el oficio DGAF-OF-383-2020 a la representante legal de la Sociedad Periodística Extra Limitada, en el que manifestó: “De la manera más atenta y en marco de la contratación 2019CD-000045-0007000001; bajo la modalidad según demanda para la adquisición ejemplares del periódico La Extra, se informa que en atención a instrucciones superiores y en cumplimiento de las nuevas directrices emitidas por el Gobierno de la República de Costa Rica, que insta hacer recortes presupuestarios mandatorios a efecto de orientarse a la atención de la pandemia COVID-19 nos vemos en la necesidad de solicitar formalmente, la cancelación indefinida de entrega de dicho periódico a partir del día 16 de julio de 2020”. En igual sentido, se observan los oficios DGAD-OF-376-2020 dirigido al representante legal de Properiodicos Limitada y DGAD-OF-382-2020 remitido al representante legal de Grupo Nación GN S.A., mediante los cuales se informó sobre la cancelación de la suscripción que mantenía el MTSS con los periódicos La República, así como La Nación y El Financiero, respectivamente.
De este modo, contrario a lo alegado por el tutelado, este Tribunal estima que la actuación del Ministerio de Trabajo y Seguridad Social no conculca los derechos fundamentales. Nótese que, en el sub iudice, el MTSS canceló la suscripción no solo del Diario Extra, sino de otros medios de comunicación como La República, La Nación y El Financiero. Además, no se verifica que tal decisión haya sido arbitraria, sino que la misma obedece a un recorte presupuestario derivado de la pandemia de la covid-19. Al respecto, cabe reiterar que en el informe rendido bajo juramento por la ministra de Trabajo y Seguridad Social se consignó que “(…) el monto para el pago de las suscripciones invocadas, se acreditaba desde la misma partida con la que se compraban suministros de papel y cartón y ello representaba casi el 50% del presupuesto para esos efectos. Y siendo que a raíz de la pandemia producida por el virus COVID 19, debemos tener disponibles toallas de papel para los lavatorios que tenemos instalados para el lavado de manos de personas funcionarias y usuarias de este Ministerio; fue que se prioriza la compra de suministros citados, con la consecuencia de eliminar las suscripciones mencionadas”. Ergo, dadas las condiciones provocadas por la referida pandemia, tal institución priorizó la compra de toallas de papel, lo que conllevó que se prescindiera de las suscripciones referidas. Por consiguiente, al no haberse verificado la vulneración a los derechos fundamentales, lo procedente es declarar sin lugar el recurso en cuanto a tal extremo.
V.- Por otra parte, en cuanto al reclamo formulado por el recurrente respecto al accionar del ICAA, el Tribunal observa que el 29 de junio de 2020 se emitió la “MINUTA GG-2020-02784”, relativa a una reunión efectuada entre funcionarios del ICAA y representantes del sindicato SITRAA, documento que carece de firmas y en el que se consigna: “Objetivo: Temas variaos SITRAA Lugar: Virtual Fecha:29-06-20 Hora de inicio: 11:00am Hora final: 12:40pm (…) 1. Campaña de refuerzo labor de AyA, acción, SITRAA- AyA. cuadrillas operativas, lema héroes de la higiene. Mario Rodríguez explica la propuesta, desde SITRAA se ha realizado una campaña de comunicación para levantar la imagen del AyA. No están de acuerdo con la campaña y gastos que tiene programado el AyA. Lema: “Héroes de la Higiene”, quieren iniciar con una campaña con este lema y realizarlo con apoyo de los trabajadores operativos en todo el país. Yamileth Astorga le consulta a Mario cuál es el objetivo de la Contratación de Publicidad del AyA, al parecer no lo tiene claro, por ende ella le realiza una explicación detallada, el objetivo es la conectividad de las viviendas a las redes de alcantarillado de AyA. Aclara que la campaña no es para levantar la imagen de AyA, sino para estimular a la población a que se conecte a las redes de alcantarillado. Hace un llamado a no alimentar a los Diarios Extra y CRHoy, ya que el objetivo de éstos es la privatización. Mario comenta que ellos no dan información a la prensa, más bien indica que la prensa les solicita a ellos aclaraciones de cosas que ellos no conocen. Aclara que SITRAA lleva a la prensa las cosas que no reciben respuesta por parte de la Administración. Maritza Alvarado realiza comentarios sobre la campaña, indica que la propuesta de SITRAA le parece bien se puede hacer con recursos propios, recomienda que exista unidad para levantar la imagen de AyA, señala algunas labores que se han desarrollado desde la Dirección de Comunicación Institucional. Se debe reforzar la base interna antes de proyectarnos a lo externo. Marianela de SITRAA comenta que sería bueno que doña Yamileth lea detenidamente los comunicados que salen en prensa, para que se de (sic) cuenta que el SITRAA no está perjudicando la imagen, sino mas (sic) bien defienden la institucionalidad del AyA, por su importancia en la gestión del recurso hídrico. Yamileth indica que los medios solo publican cosas que debilitan la imagen de AyA, solicita hacer una alianza con los sindicatos para levantar la imagen de la Institución (…)” (el énfasis fue suplido).
Al respecto, la Presidenta Ejecutiva del ICAA indica en el informe rendido bajo juramento ante este Tribunal Constitucional que: “En atención a la formalidad establecida a nivel institucional, se levantó un borrador de minuta de la reunión, con número GG-2020-02784, el cual está asociado al número de oficio, dicho borrador no lleva ninguna firma o rúbrica de los participantes y se aclara en este acto, que a pesar de que estaban convocados los funcionarios de la lista contenida en el borrador de la minuta, los señores Annette Henchoz Castro y Alejando Calderón Acuña, no se presentaron a la reunión que había sido convocada de manera virtual, sin embargo; se realizó de forma presencial. El borrador de minuta fue levantado por el funcionario Andrey Vila Abarca, quien consigna en el formato que se acostumbra a estas reuniones, la agenda y una sucinta referencia de los temas abordados. La minuta posteriormente fue comunicada y compartida vía correo electrónico por el SDI con el Memorando GG-2020-02784, suscrito por el funcionario Andrey Vila Abarca de la Gerencia General, quien tiene bajo su responsabilidad dar seguimiento a los temas y acuerdos de las reuniones con los diferentes sindicatos constituidos en el AYA. Del documento denominado “minuta” se desprende claramente que en ningún momento la suscrita manifestó el hecho que se recurre, por lo que es claro que el recurrente descontextualiza una frase de una minuta, de una reunión sostenida entre la Administración Superior y el Sindicato SITRAA, donde se analiza una campaña motivacional interna al personal del AyA, especialmente, dirigida a los trabajadores que están en primera línea de atención de la pandemia. En ese contexto y en el ánimo de unir esfuerzos hice un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso me referí puntualmente cuando indiqué “no alimentar los medios” como lo cita la minuta. Reitero, que ni de la minuta ni de ningún otro documento se desprende jamás que se haya “ordenado no hablar con Diario Extra”, ignoro en qué se basa el recurrente para realizar esa temeraria interpretación a la libertad de expresión. De hecho, todas las consultas de prensa realizadas por Diario Extra han sido atendidas en tiempo y forma; de mayo a la fecha, se han recibido y dado respuesta a 9 solicitudes de información planteadas por correo. Diario Extra y Extra TV 42, durante este año han publicado al menos 183 notas relacionadas a la institución” (la negrita fue suplida).
La Sala también observa que, el 21 de julio de 2020, la presidenta ejecutiva del ICAA dirigió el oficio PRE-2020-01101 a la gerente general de Diario Extra, en el que manifestó: “En ejercicio del derecho de respuesta consagrado en los artículos 29 de la Constitución Política y 14 de la Convención Americana de Derechos Humanos, así como el 66 en adelante de la Ley de Jurisdicción Constitucional, en mi calidad de Presidenta Ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados, solicito el debido espacio para rectificar la nota publicada por Diario Extra el día 21 de julio del 2020 titulada “Presidenta AyA ordena no hablar con DIARIO EXTRA”. Agradezco la publicación del siguiente texto: AyA jamás ha ordenado no hablar con Diario Extra Con respecto a la nota publicada en Diario Extra el 21 de julio del 2020, titulada “Presidenta AyA ordena no hablar con Diario Extra”, como Presidenta Ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados (AyA) califico de absolutamente falso que se haya “ordenado” a algún funcionario o funcionaria no hablar con el Diario Extra. El periodista descontextualiza una frase de una minuta, de una reunión sostenida entre la Administración Superior y el Sindicato SITRAA, donde se analiza una campaña motivacional interna al personal del AyA, especialmente, dirigida a los trabajadores que están en primera línea de atención de la pandemia. En ese contexto y en el ánimo de unir esfuerzos hago un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso se refiere puntualmente con “no alimentar los medios..” como lo cita la minuta. Ni de la minuta ni de ninguna parte se desprende jamás que se haya “ordenado no hablar con Diario Extra”, ignoro en qué se basa el periodista para realizar esa temeraria interpretación a la libertad de expresión. De hecho, todas las consultas de prensa realizadas por Diario Extra han sido atendidas en tiempo y forma; de mayo a la fecha, se han recibido y dado respuesta a 9 solicitudes de información planteadas por correo. Diario Extra y Extra TV 42, durante este año han publicado al menos 183 notas relacionadas a la institución. En el AyA somos respetuosos del derecho a la información y la libertad de expresión, nunca estaríamos de acuerdo en lesionar esos derechos. Durante este año a Diario Extra hemos enviado dos derechos de respuesta, uno con respecto a una publicación del día 15 de enero que jamás se publicó, y otro que si fue publicado en la edición del 27 de junio. Somos conscientes del papel vital que juega la prensa para nuestra democracia. Estamos claros de lo importante que es para el país el fortalecimiento de los medios de comunicación, ya que como nación no nos podemos permitir la interrupción de las operaciones de un medio de comunicación, eso sería contrario al interés público de estar informados, máxime en medio de una pandemia, que exige información veraz y oportuna a diario. Hemos confiado y confiamos en el Grupo Extra para realizar nuestras campañas informativas y de rendición de cuentas a la población y seguiremos en la medida de nuestras posibilidades haciéndolo. Jamás podríamos permitir que se nos acuse de asestarle golpe alguno a la libertad de expresión” (el resaltado fue suplido).
Así las cosas, se estima procedente traer a colación lo preceptuado en la sentencia n.° 2014-011694 de las 9:05 horas del 18 de julio de 2014 dictada por este Tribunal Constitucional, en la que se dispuso:
“III.- SOBRE LA LIBERTAD DE EXPRESIÓN Y RELACION ESTATUTARIA. Los funcionarios o servidores públicos, por la circunstancia de estar sometidos a una relación estatutaria, no pueden ver diezmada o limitada su libertad de expresión y opinión y, en general, ninguno de los derechos fundamentales de los que son titulares por intrínseca dignidad humana. Las organizaciones administrativas no son compartimentos estancos o separados del conglomerado social y la existencia de una carrera administrativa o de una relación estatutaria no justifican el despojo transitorio o las limitaciones de los derechos fundamentales de los funcionarios públicos de los cuales gozan en todas las facetas de su vida. Ciertamente, la libertad de expresión en el ámbito de una relación funcionarial o estatutaria puede sufrir leves modulaciones por razón de la relación de jerarquía inherente a la organización administrativa, la confianza que debe mediar entre el superior y el inferior, los deberes de lealtad de ambos con los fines institucionales y de reserva respecto de las materias que han sido declaradas secreto de Estado por una ley. Sobre el particular, conviene agregar que tal matización ha de ser proporcionada y razonable, y que ni siquiera un interés público podría limitar o restringir los derechos fundamentales de un funcionario público por la vinculación más fuerte, la eficacia directa e inmediata y la superioridad jerárquica de éstos. Los conceptos de buena fe y lealtad no pueden enervar la libertad de expresión de un funcionario público cuando a través de su ejercicio no se causa una lesión antijurídica al ente u órgano público al cual pertenece y representa o a terceros. Los jerarcas o superiores jerárquicos de un ente u órgano público, por sus especiales y acusadas responsabilidades y exposición al público, deben estar sujetos y tolerar la crítica no dañina o antijurídica tanto de los usuarios de los servicios públicos, administrados en general como de los propios funcionarios. Lo anterior es, también, predicable respecto de las formas e instrumentos de gestión o administración de un ente u órgano público. La crítica de los usuarios, administrados en general y de los funcionarios públicos sobre el desempeño individual de algún servidor e institucional del ente u órgano público constituye una poderosa herramienta para el control y fiscalización de la gestión pública y, desde luego, para obtener mayores niveles de rendimiento resultados-, rendición de cuentas y transparencia administrativa. Ningún funcionario público puede ser inquietado, perseguido, recriminado o sancionado por expresar sus opiniones, ideas, pensamientos o juicios de valor acerca de la gestión del ente público o las actuaciones de otro funcionario público.
IV.- SOBRE EL CONTENIDO DEL ARTÍCULO 13 DE LA CONVENCIÓN AMERICANA SOBRE DERECHOS HUMANOS El artículo 13 recoge lo siguiente:
Artículo 13. Libertad de Pensamiento y Expresión 1. Toda persona tiene derecho a la libertad de pensamiento y expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
En el citado numeral se pretende maximizar las posibilidades de participar en el debate público especialmente cuando además de proteger la expresión de ideas, reconoce el derecho colectivo a ser debidamente informado y el derecho a réplica. No obstante, como todo derecho, no es absoluto, sino que admite restricciones para armonizar su ejercicio con los derechos de los demás, la seguridad de todos y las exigencias del bien común en una sociedad democrática (art.32 de la Convención). Pero estas limitaciones no pueden ser más que lo establecido en el mismo numeral o bien las Constituciones Políticas (art.30 de la Convención). Este derecho no puede estar sujeto a previa censura sino a responsabilidades posteriores. La Constitución Política en su artículo 29 recoge ese postulado al establecer que: “Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejrcicio de este derecho, en los casos y del modo que la ley establezca”. La libertad de expresión en este sentido no puede ser sometido a un control a priori. El Estado a tráves (sic) de cualquiera de sus órganos está impedido constitucional y convencionalmente, con las excepciones de protección de otros derechos que dispone el mismo artículo 13 y 27. 1 de la Convención, a realizar censura previa. Ya la Comisión Interamericana Sobre Derechos Humanos ha señalado reiteradamente el doble aspecto de la libertad de expresión: el derecho de toda persona de difundir ideas e informaciones; y el aspecto colectivo, constituido por el derecho de toda la sociedad de recibir tales ideas e informaciones. Y al darse mediante la censura previa la violación del derecho de expresión, se lesiona una gama de derechos, como el que tiene toda la colectividad de recibir información veraz. Así la Corte Interamericana, Opinión Consultiva OC-5/85 ha dicho, que: "...cuando se restringe ilegalmente la libertad de expresión de un individuo, no sólo es el derecho de ese individuo el que está siendo violado, sino también el derecho de todos a "recibir" informaciones e ideas.
V.- SOBRE EL CASO CONCRETO. En el caso bajo estudio, la institución recurrida dispuso mediante la circular número 211-2014, fechada 10 de marzo de 2014, del Director de Relaciones Públicas del Ministerio de Obras Públicas y Transportes, dirigida a directores y jefes de Departamentos del Mopt, que se coordine con la Dirección de Relaciones Públicas cuando los medios de comunicación los contacten directamente, para una oportuna atención a los medios y se traduzca en oportunidades de divulgación institucional; asimismo, se defina conjuntamente el tema a consulta a tratar. El recurrente considera que dicha disposición es contraria al derecho de expresión de los trabajadores del Mopt, porque lo que pretende la Dirección de Relaciones Públicas es ejercer una censura previa sobre las manifestaciones o expresiones que hagan los funcionarios públicos. El Director recurrido dice que se trata de una puesta en conocimiento de los funcionarios cuando la prensa los enlaza sin haber coordinado con Relaciones Públicas; se trata de darles a los funcionarios un manejo idóneo del tema para responder a los medios de información y no ejercer una censura previa como dice el accionante. Pero lo cierto, es que el hecho de que los funcionarios del Ministerio de Obras Públicas y Transportes tengan que adecuar sus manifestaciones, según las reglas de la Dirección de Relaciones Públicas de este ministerio, cada vez que estén de frente a los medios de comunicación colectiva, es una injerencia, a manera de censura previa, que amenaza o no les permite expresar libremente su opinión en temas propios de su quehacer institucional, lo que afecta directamente a la colectividad que recibe una información filtrada o con alguna censura. No puede admitirse que la Circular 211-2014 de la Dirección de Relaciones Públicas – se ubique en uno de los presupuestos contemplados por nuestra Constitución o por los instrumentos internacionales que la complementan (gracias al efecto integrador del artículo 48 según la enmienda de 1989), para legitimar una restricción a la libertad de expresión. Por estas razones el recurso debe estimarse con las consecuencias de ley.” (el énfasis fue suplido).
Además, a los efectos de resolver este amparo resulta oportuno citar lo dispuesto en la sentencia n.° 2015-01782 de las 11:36 horas del 6 de febrero de 2015: (…)
Este Tribunal considera que los precedentes transcritos resultan aplicables al sub lite, toda vez que no encuentra motivos para variar los criterios vertidos ni razones para valorar de manera distinta la situación planteada.
De este modo, en el sub iudice, la Sala estima que se ha producido una lesión de relevancia constitucional. Nótese que si bien la minuta aludida carece de firmas, no menos cierto es que la presidenta ejecutiva del ICAA no desmintió su contenido, sino que se limitó a alegar que se descontextualizó la frase “Hace un llamado a no alimentar a los Diarios Extra y CRHoy, ya que el objetivo de éstos es la privatización”, toda vez que lo que pretendió externar fue “un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso se refiere puntualmente con “no alimentar los medios”. En cuanto al punto, el Tribunal estima que en el sub examine existen indicios suficientes de que la presidenta ejecutiva del ICAA dijo la frase antes transcrita, lo cual, a todas luces, constituye una afectación a los derechos constitucionales a la libertad de pensamiento y expresión, de prensa y a la igualdad, todo esto en relación con los principios constitucionales democrático, de rendición de cuentas y de transparencia en la gestión pública, en virtud de que se trata de una especie de censura velada, dado que el resultado práctico de tal llamado es evitar que los medios de comunicación perjudicados tuviesen acceso a información pública.
En efecto, contrario a lo sostenido por la autoridad recurrida, con la frase en cuestión se exhortó a funcionarios del Instituto Costarricense de Acueductos y Alcantarillados, a que se abstuvieren de remitir información de relevancia pública a ciertos medios de comunicación. En primer término, tal actuación implica una seria amenaza a la libertad de pensamiento y expresión de tales servidores, dado que la iniciativa proviene, ni más ni menos, de la propia presidenta ejecutiva de la institución en mención, a partir de lo cual el “llamado a no alimentar a medios” reviste una particular gravedad merced al rango jerárquico de quien lo externó. En segundo término, se vulnera la libertad de prensa y el derecho a la igualdad, toda vez que se incita a que dos medios de comunicación en particular, CR-Hoy y Diario Extra, no reciban información por parte de los funcionarios del ICAA, al tiempo que de manera absolutamente injustificada coloca a los afectados en una clara situación de desventaja frente al resto de medios. En adición, la situación expuesta lesiona a la población en general, dado que “el llamado a no alimentar a medios” le impide al público acceder a información concerniente a la prestación de servicios públicos esenciales, lo cual es inaceptable en una sociedad que se rige por los principios democrático, de rendición de cuentas, y de transparencia en la gestión pública.
En virtud de lo expuesto, lo procedente es declarar con lugar el recurso, en los términos consignados en la parte dispositiva de esta sentencia. (…)
Por tanto: Se declara parcialmente con lugar el recurso solo en cuanto al Instituto Costarricense de Acueductos y Alcantarillados por violación a los derechos constitucionales a la libertad de pensamiento y expresión, de prensa y a la igualdad, todo esto en relación con los principios constitucionales de rendición de cuentas, democrático y de transparencia en la gestión pública. Se ordena a Yamileth Astorga Espeleta, en su condición de presidenta ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados, o a quien en su lugar ocupa ese cargo, abstenerse de incurrir nuevamente en los hechos que dieron fundamento a la estimatoria de este recurso de amparo. Se advierte a la autoridad recurrida que de no acatar tal orden, incurrirá en el delito de desobediencia y, que de conformidad con el artículo 71 de la Ley de la Jurisdicción Constitucional, se le impondrá prisión de tres meses a dos años, o de veinte a sesenta días multa, a quienes recibieren una orden que deban cumplir o hacer cumplir, dictada en un recurso de amparo y no la cumplieren o no la hicieren cumplir, siempre que el delito no esté más gravemente penado. Se condena al Instituto Costarricense de Acueductos y Alcantarillados al pago de las costas, daños y perjuicios causados, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. En todo lo demás, se declara sin lugar el recurso. Notifíquese. (…)”.
De forma más reciente, este órgano constitucional, en la Sentencia No. 23107-2022 de las 09:30 hrs. de 4 de octubre de 2022, dispuso lo siguiente:
“(…) VI.- Caso concreto. En el sub lite, la recurrente alega como primer agravio, que en su condición de periodista, ejerce la dirección del programa de análisis, opinión y autocrítica llamado "Hablando Claro", que se transmite desde el 1° de febrero de 2007, por Radio Columbia y considera que en esa condición las autoridades recurridas lesionaron sus derechos fundamentales, específicamente, los derechos a la libre expresión y libertad de prensa, dado que entre el 8 y el 9 de julio pasado, recibió llamadas de cinco personas funcionarias públicas, que se desempeñan en puestos de jerarquía dentro del Gobierno de la República o en las oficinas de comunicación de ministerios e instituciones descentralizadas, quienes le manifestaron, en condición de fuentes periodísticas confidenciales, que se encontraban alarmadas por un comunicado que la entonces Ministra de Comunicación, Patricia Navarro Molina, les remitió por WhatsApp, a todos los Ministros y Presidentes Ejecutivos del Gobierno. Aduce que, según le relataron sus fuentes, en la referida comunicación, la Ministra instruía a todos los jerarcas a suspender, con carácter de urgencia, todo tipo de publicidad estatal a los medios "Amelia Rueda, La Nación, CRHoy y Canal 7". Asimismo, que en ese comunicado se les instaba "con carácter de urgencia a no participar en entrevistas en Hablando Claro y Amelia Rueda".
Al respecto, del informe rendido por las autoridades recurridas, -que se tiene por dado bajo fe de juramento con las consecuencias, incluso penales, previstas en el artículo 44 de la Ley que rige esta Jurisdicción- y la prueba aportada para la resolución del asunto, esta Sala no pudo tener por demostrado que se haya girado la orden o directriz que cuestiona la recurrente. Si bien, puede considerarse que, sobre este punto en particular, los informes recibidos resultan escuetos o lacónicos, lo cierto es que sí expresan claramente que no se giró una orden o indicación en ese sentido. La Sala aprecia que tales informes se enfocan en las competencias y potestades del Ministerio de Comunicación y en aspectos procesales de la presentación de este recurso, pero al negar la existencia de la orden, directriz o indicación referida por la amparada, en este caso en particular se carece de toda posibilidad de tener por demostrada su existencia, siendo así que lo procedente es declarar sin lugar el recurso en cuanto a este extremo.
VII.- Sin embargo, por la trascendencia del tema y la gravedad que podría implicar girar desde el poder público alguna orden en los términos reclamados en este proceso, resulta menester recordar a las autoridades del Ministerio de Comunicación y del Ministerio de la Presidencia, que tal y como se expresó en el quinto considerando de esta sentencia, la libertad de expresión e información conlleva una doble dimensión, que se refleja no sólo en la posibilidad de los periodistas de informar sobre los temas de relevancia para la opinión pública, sino también el derecho que tienen los habitantes del país de enterarse de dicha información, por lo que los órganos y entes públicos se encuentran en el deber de adoptar las medidas correspondientes para que pueda informarse a los y las habitantes de la República sobre las acciones y acontecimientos que se producen o desarrollan en el territorio nacional y que son de interés para la colectividad. Máxime que los temas y decisiones que se toman y tratan desde el gobierno central y toda institución, órgano y ente administrativo, tienen una trascendencia y relevancia para el buen funcionamiento del país y el ejercicio de los derechos reconocidos a la población en general y a sus integrantes dentro de sus propios ámbitos de actuación, por lo que, todos estos temas deben ser tratados con absoluta publicidad y transparencia, sin posibilidad alguna de impedirle a la ciudadanía, a la opinión pública y a cualesquier medio de comunicación colectiva, tener conocimiento de estos. Ergo, las prácticas que obstaculizan el acceso a la información, como lo es el impedir informar sobre determinados eventos o decisiones, rehusarse a brindar entrevistas a diversos medios de comunicación, no invitarlos a formar parte de conferencias o ruedas de prensa, limitarles la publicidad, impedir el acceso a insumos necesarios para la divulgación, entre otras variables relacionadas con la censura directa o indirecta, no pueden ni deben ser avaladas por un Tribunal Constitucional, por la elemental razón de que su acceso y entrega oportuna tiene que hacerse a través de un proceso fácil, expedito y sin complicaciones, que garantice a la población y, en general a la opinión pública, el derecho a la información y a la libertad de expresión.
Dicho lo anterior, se les reitera a las autoridades recurridas que “el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos” (Cfr. sentencia No. 2006-5977 de las 15:16 horas de 3 de mayo de 2006). En otras palabras, deben tener presente los recurridos que, en el ejercicio de cargos públicos como los que ostentan, y en la era actual, en donde por el avance tecnológico se tiene mayor facilidad de cobertura y acceso a hechos noticiosos, es normal que alguna de las discusiones que se generen al calor de la prensa, pueden resultarles infortunadas y desagradables; no obstante, en un país democrático como Costa Rica, ese ejercicio de la libertad de expresión y la libertad de prensa es lo que nos caracteriza como un Estado Social de Derecho y un pueblo libre. Por tales razones, en aras de garantizar la libertad de prensa y de libre expresión que tienen tanto los periodistas o medios de comunicación colectiva, como la población de manera general, es que las autoridades recurridas deben velar porque cualquier directriz, orden, acto o instrucción que se gire desde el gobierno central se apegue siempre a la protección de estas libertades y de cualquier derecho fundamental de los que se goza en un país democrático como el nuestro, en los términos que han sido expuestos en esta sentencia (…)”.
Como se ha podido observar, resulta claro que el uso o aplicación por parte de las autoridades estatales o de particulares de las restricciones indirectas aludidas en este considerando, atenta grave y flagrantemente contra la libertad de expresión y la libertad de prensa. De ahí, la importancia del resguardo y protección que les provee nuestra Constitución Política y la Convención Americana sobre Derechos Humanos, entre otros instrumentos; de ahí también la responsabilidad que recae en esta Sala Constitucional de velar porque esto así se cumpla.
VIII.- CONGLOMERADOS O ESTRUCTURAS FINANCIERAS CREADAS PARA FINANCIAR O DIVERSIFICAR LAS FUENTES DE INGRESOS DE LOS MEDIOS DE COMUNICACIÓN Y, CONSECUENTEMENTE, PERMITIR EL EJERCICIO DE LA LIBERTAD DE PRENSA. Los medios de comunicación tradicionales, principalmente los medios impresos, han sufrido en los últimos años un fuerte declive económico con la llegada del internet, la caída de la inversión publicitaria y su migración a las grandes plataformas digitales como lo son Google y Facebook y el consecuente cambio en los hábitos de consumo de la información. Todo esto, sumado, ha generado que el usuario prefiera mayormente acceder a la información vía digital (sea, a través del uso de los teléfonos inteligentes, tabletas electrónicas, computadoras, etc.) y no mediante la compra del periódico impreso o bien, accediendo a otras plataformas (radio o televisión), tal y como regular y tradicionalmente lo venía haciendo.
En virtud de lo anterior, los medios de comunicación se han visto en la necesidad de innovar y buscar nuevos formatos, propuestas o mecanismos para buscar nuevos ingresos (y audiencia) que permitan, a su vez, financiar el periodismo y al medio como tal, sobre todo al periodismo de investigación que resulta costoso. En otros términos, se han debido implementar nuevas estrategias comerciales o poner en funcionamiento modelos mixtos con el fin de “rentabilizar a los medios de comunicación”, tal y como así ha sido llamado por algunos. Tanto es así que muchos medios de comunicación, hoy en día, no generan el dinero con su actividad principal o tradicional, sino con otras que le permiten subsistir. A modo de ejemplo, los medios de comunicación modernamente han recurrido, entre otras, a las siguientes fórmulas o estrategias: a) algunos medios impresos han creado su propia plataforma digital y han instaurado los modelos por suscripción o lo que se ha llamado “pagar por ver”; fórmula a la que han recurrido con éxito grandes medios como The New York Times o The Guardian. b) Se ha recurrido a la creación de contenidos de mayor calidad y exclusividad (sobre temas específicos y de interés para ciertos sectores), que hacen atractiva la búsqueda y el acceso a estos. c) Se ha hecho uso de los podcast (serie de episodios sobre diversos temas grabados en audios y transmitidos online al que ha recurrido por ejemplo el medio The New York Times a través de su programa The Daily). d) Se ha promovido la organización de eventos, foros o congresos sobre determinados temas de la mano de expertos y personalidades, para lo cual, a su vez, se cobra por participar o por ingresar (los medios Texas Tribune o The Economist se han caracterizado por organizar eventos de este tipo). e) Se recurre también a la venta de piezas a terceros (los grandes medios, aprovechándose de la enorme experiencia y el soporte estructural con el que cuentan, cubren cierta información especializada, la procesan y la venden a otros, incluso a su propia competencia). f) Se ha hecho uso del llamado Brand licenser, que permite a los medios de comunicación licenciar su marca para que terceras empresas la utilicen en sus productos o servicios (v.gr. National Geographic vende productos relacionados con viajes y aventura, libros y hasta ha instalado tiendas relacionadas con su línea de cobertura).
Igualmente, cabe destacar que, como parte de esas fórmulas a las que han tenido que apelar los medios de comunicación para diversificar sus fuentes de ingreso y sostenerse financieramente, se ha recurrido también a la adquisición o a la adhesión con otras empresas cuyas actividades principales se encuentran relacionadas o no directamente con el periodismo (conformándose así lo que se ha denominado holdings o grupos de interés económicos). Este tipo de fenómeno en particular se ha manifestado en otras latitudes y también a nivel nacional.
Así, a modo de ejemplo, se tiene el caso del diario The Boston Globe y otros medios (propiedad, a su vez, del periódico estadounidense The New York Times), los cuales fueron adquiridos en el 2013 por John Henry, dueño del equipo de beisbol Red Sox y del equipo de futbol Liverpool FC, con el propósito de afrontar las cuantiosas pérdidas económicas sufridas por el primero, originadas por la migración de lectores y de la publicidad hacia el internet. Igualmente, se tiene que Warren Buffet, a través de su holding Berkshire Hathaway (sociedad dueña total o parcial de las acciones de varios grupos empresariales de textiles, seguros, automóviles, bebidas, etc.) en el año 2012, compró sesenta y tres periódicos del Grupo Media General del sureste de Estados Unidos, los cuales sufrían también una baja rentabilidad. Entre los diarios adquiridos por Buffett figuran el Richmond Times de Virginia, el Winston-Salem Journal de Carolina del Norte y el Morning News of Florence de Carolina del Sur.
Asimismo, se cuenta con el caso de Jeff Bezos (fundador y dueño de Amazon, gigante compañía de comercio electrónico), quien en el año 2013 compró The Washington Post, con el fin de lograr su supervivencia, luego que este medio de comunicación sufriera igualmente los embates de la irrupción de nuevas tecnologías, el descenso de las audiencias y de los ingresos por publicidad. Nótese que, en este caso en particular, pese a que el medio de comunicación –según lo ha anunciado, entre otros, el medio español El País–, no se integrará o adherirá propiamente a Amazon, su adquisición forma parte de esa misma estrategia comercial tendente a ayudar a que el mismo pueda mantenerse funcionando(https://elpais.com/sociedad/2013/08/05/actualidad/1375736883_735938.html).
En Costa Rica, el uso de este tipo de mecanismos o fórmulas se ejemplifican a través de Grupo Nación S.A. (corporación de la cual forma parte el Periódico La Nación), el que dispuso comprar las instalaciones de lo que solía ser el Autódromo La Guácima y las convirtió en el centro de eventos llamado Parque Viva, como medio para diversificar las fuentes de ingresos de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet.
Es entendible que dentro de la coyuntura actual donde los medios de comunicación escritos requieren apoyo financiero ante la pérdida de alguna de sus fuentes tradicionales de ingresos, se creen o establezcan –al amparo del ordenamiento jurídico–, otro tipo de empresas o sociedades que les brinden recursos y sostenibilidad económica o financiera para mantener a los primeros. El caso del Grupo Nación S.A., y la adquisición del hoy llamado Parque Viva arriba referido, representa un claro ejemplo de lo dicho.
Este tipo de estructuras financieras, al igual que el resto de ejemplos supra citados, se convierten en una fuente de ingresos o recursos que coadyuva o hacen posible que la labor periodística pueda ser ejercida, habida cuenta que los ingresos que las primeras generan permiten sufragar o sopesar muchos de los gastos que demanda un medio de comunicación. Por ende, es una realidad que, si este tipo de mecanismos o propuestas se ven afectadas de forma ilegítima o arbitraria, se perjudica, a su vez, el ejercicio del periodismo; en esencia, la libertad de prensa, como manifestación de la libertad de expresión.
Ahora bien, la afectación refleja (indirecta o velada) que pueda concretarse a la libertad de prensa, merced de las medidas adoptadas en contra de dichas estructuras de financiamiento, es un aspecto que ha de ser ponderado en cada caso concreto, siendo claro que no todo acto o conducta administrativa que imponga un gravamen o establezca un contenido de efecto negativo en torno a esas entidades, supone una lesión refleja como la que se ha indicado. En efecto, cabe advertir que como toda persona administrada, estas estructuras se encuentran afectas y sujetas a las normas jurídicas que regulan, precisan y delimitan el ejercicio de sus respectivas actividades económicas. En ese sentido, su funcionamiento debe satisfacer y cumplir con las regulaciones propias de su actividad, lo que incluye, contar con las respectivas habilitaciones administrativas para el despliegue de la materia comercial. De ahí que deben contar con los respectivos títulos que permitan comprobar el cumplimiento de las normas urbanísticas, edilicias (dentro de estas, las atinentes a la Ley No. 7600), sanitarias, seguridad, así como las licencias y patentes comerciales que son debidos en cada caso. Adicionalmente, cumplir con la normativa fiscal atinente. De igual manera, en el curso de su actividad, como toda persona, se encuentran sujetas a la fiscalización y control del ejercicio de la actividad, a fin de verificar que mantienen el nivel de cumplimiento en virtud del cual, les fue habilitada la actividad comercial. En esa dinámica, la desatención de las condiciones de ejercicio que imponen esas regulaciones sectoriales, bien podrían llevar a la imposición de medidas administrativas de restricción o de sanción. Lo anterior, siempre que el ejercicio concreto de esa manifestación del poder de policía administrativa, pueda estimarse legítimo, a partir de la acreditación debida y oportuna de los presupuestos de incumplimiento que darían cabida a cada consecuencia jurídica, y que esa decisión se encuentre acorde al mérito de los antecedentes del caso y al Ordenamiento Jurídico aplicable (relación entre los elementos materiales objetivos motivo-contenido) y que sea congruente con el interés público tutelado. En esos supuestos, en que la función administrativa se establece como el ejercicio legítimo de potestades administrativas que procuran el resguardo del interés público, no podría postularse una suerte de infracción refleja a la libertad de prensa, sino, en la consecuencia lícita y previsible de la desatención de normas de orden público a las que se encuentra expuesta toda persona administrada. Por contraste, cuando esas medidas no encuentren respaldo en los diversos presupuestos de hecho o de derecho que, en cada supuesto, el plexo normativo define como antecedente necesario (presupuesto condicionante) para adoptar determinada decisión sancionatoria o de contenido negativo, o bien, cuando el contenido del acto adoptado a partir de la verificación de aquellas condiciones, sea desbordado, desproporcional, irrazonable en relación con esos antecedentes, antagónico con el interés público o en general, contrario a legalidad (en sentido amplio), se estaría frente a un comportamiento administrativo que puede implicar una desviación de poder (art. 113 LGAP) y supone, como se ha indicado, una lesión indirecta o refleja a la libertad de prensa. Se trata de un cuidadoso análisis de las particularidades de cada caso, como parámetro de una valoración neutral, equitativa y objetiva entre libertades y derechos fundamentales en un esquema de un Estado de Derecho y el ejercicio de las potestades administrativas que tienen, por principio y finalidad, la tutela y satisfacción del interés público. Ergo, no todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen, como tampoco, puede entenderse como legítima, sin más, toda función administrativa de control respecto de aquellas. De esa manera, en casos como el presente, en que se aduce una violación indirecta a la libertad de expresión y de prensa, producto de actividades de control de la Administración Sanitaria, corresponde a esta instancia jurisdiccional, ponderar los matices particulares, para definir si se trata de un ejercicio debido o indebido, como condición sine qua non de un juicio de valor en torno a la existencia o no del deber de tolerar válidamente esas imposiciones administrativas. (…)” VCG02/2023 ... Ver más Contenido de Interés:
Tipo de contenido: Nota separada Rama del Derecho: 4. ASUNTOS DE GARANTÍA Tema: LIBERTAD DE EXPRESIÓN Y PRENSA Subtemas:
MEDIOS DE COMUNICACION. CENSURA.
XI.- NOTA DEL MAGISTRADO CRUZ CASTRO. LA TUTELA REFORZADA DE LA LIBERTAD DE EXPRESIÓN EN EL PACTO DE SAN JOSÉ.
Este caso posee gran riqueza en el análisis constitucional y define un escenario inusual en el control del poder político. El Poder Ejecutivo, dentro de un sistema de frenos y contrapesos, requiere la supervisión y revisión judicial. La descripción detallada que se hace en el voto de mayoría concluye que la orden sanitaria MSP-DRRSCN-DARSA2-OS-0368-20022 es un acto administrativo “….abiertamente arbitrario, carente de fundamento certero y absolutamente desproporcionado..”. La sentencia que suscribo, describe hechos e indicios que sustentan tal conclusión. No es un tema menor que la instancia constitucional determine, mediante amparo, que las autoridades del Poder Ejecutivo han incurrido en un acto arbitrario. Se trata de un acto abiertamente arbitrario, incompatible con las reglas que imperan en un Estado de Derecho. El error o el exceso es un riesgo que siempre asume quien adopta decisiones que inciden en los derechos de terceros. A pesar de la gran cantidad de casos que conoce esta Sala por la vía de amparo, merece especial atención el conocimiento de casos como estos en donde, se denota una grave arbitrariedad en un acto vinculado con un tema de salud, pero además, es una violación a la libertad expresión, la cual tiene también un reconocimiento en el derecho internacional de los derechos humanos.
En una democracia, la autoridad política está sometida a una constante revisión de sus decisiones, ese es el equilibrio saludable que asegura el ejercicio razonable del poder presidencial o del parlamentario. Estimo que en este caso la actuación del Poder Ejecutivo configura una desviación poder, al realizar acciones que aparentan legitimidad, pero que carecen de sustento técnico y que lucen desproporcionadas. Desde la doctrina y desde la Ley General de la Administración Pública, la desviación de poder puede definirse como el ejercicio de potestades administrativas para fines distintos de los fijados por el Ordenamiento jurídico. La desviación de poder es “La persecución de un fin distinto del principal, con detrimento de éste...” (art.131.3 LGAP). Es un vicio en el fin del acto administrativo, el uso del poder con fines y por motivos distintos de aquellos por los cuales le fue conferido tal poder. Ante la arbitrariedad, se pone a prueba la salud de la democracia, se ponen a prueba los controles institucionales y judiciales. En ese contradictorio se asegura que no se desborde el ejercicio del poder, así debemos vivir, entre controles y balances, es la dialéctica que evita el autoritarismo. Es la dialéctica de control a la que debe someterse el Poder Ejecutivo, especialmente el Presidente de la República. El ejercicio del poder requiere controles, objeciones y disidencias. No es fácil para quien tiene una delicada responsabilidad política, acertar siempre en las decisiones. En este caso, el camino emprendido resultó inadmisible en un Estado democrático de Derecho, pero subsiste, incólume, el poder que tiene la Administración para emprender otras acciones que permitan tutelar la salud y asegurar la interdicción de la arbitrariedad, protegiendo, además, la libertad de un medio de prensa. En esta materia, el Poder Ejecutivo tiene amplias facultades para abordar los graves problemas de circulación de vehículos en todas las carreteras del país.
En este caso, además de la grosera arbitrariedad del Poder Ejecutivo en el ejercicio de sus potestades, se configura una restricción indirecta de la libertad de expresión y de pensamiento. El derecho requiere sutileza, requiere matices, por eso exige un marco jurídico que capte la impredecible realidad y con mayor brillo, si se trata del control del poder. Por eso el artículo trece, inciso tercero, de la Convención Americana de Derechos Humanos se refiere a los medios o vías indirectas para restringir la libertad de expresión: la definición es amplia, es un abanico inagotable de posibilidades, como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, de enseres y aparatos usados en la difusión de la información “…o por cualquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones..”; es una definición abierta, flexible, que incluye una multiplicidad de acciones abusivas en que el poder formal restringe un derecho tan importante. El derecho y su aplicación, requiere sutilezas, exige una valoración circunstanciada, para captar la realidad, tan rica en giros y enmascaramientos. Si no fuera así, de poco sirve el control jurídico, especialmente si se trata de potenciar la vigencia efectiva de los derechos fundamentales. En este caso, no sólo hay una grosera violación de derechos fundamentales al debido proceso, sino que la acción gubernamental pretende utilizar la orden sanitaria para limitar un medio de prensa. Esto parecía impensable hace treinta años, pero los cambios sociales y económicos, han transformado las estructuras económicas de los medios de prensa privados. No es el mejor escenario para darle más independencia a la prensa, pero esa es la realidad. Muchos medios de comunicación son parte de un conglomerado económico complejo, así se asegura su supervivencia económica y mediática. Esa es la realidad económica de muchos medios de prensa; su vigencia como medio de comunicación se logra mediante estructuras complejas de personas jurídicas en las que impera el poder anónimo del dinero, sin que uno pueda identificar, claramente, a los propietarios de esos medios; son parte de un entramado complejo en que convergen grupos económicos, con sus vasos comunicantes. Mediante esta estructura diversa y compleja, el medio de comunicación se financia gracias a un variado ensamble de empresas que no se dedican, directamente, a la actividad periodística. Todo ha cambiado en los medios de comunicación, es una realidad que no puede ignorarse, asumiendo, con inadmisible simplismo, que el medio de comunicación es sólo su denominación y actividad periodística. Es una transformación similar a la que ha ocurrido en las redes sociales, en las que impera el anonimato y las raíces de su actividad no son visibles para el ciudadano común. Los medios de prensa actuales, son parte de una estructura jurídica compleja, con diversidad de actividades y con vasos comunicantes en relación a la estructura económica a la que pertenece el medio de prensa. Se ha agravado el anonimato, al igual que ha ocurrido con las redes sociales, en las que ni siquiera existe seguridad sobre la identidad de la persona que se presenta como partícipe de un debate público. Este contexto empresarial y económico, descrito en términos muy sencillos, es lo que impregna el caso del cierre del Parque Viva. Las acciones indirectas pueden manifestarse en actos muy concretos y contundentes, como el cierre de una actividad por razones de salud o bien, podría ser, por acciones de la administración tributaria. La norma de la Convención Americana de Derechos Humanos posee una flexibilidad inusual, sin que limite qué puede considerarse acción indirecta, sino que deja que la realidad, tan variada e impredecible, se incluya dentro de una previsión normativa amplia y flexible. Este concepto abierto permitió que se considerara como restricción indirecta a la libertad de expresión, la colegiación obligatoria de los periodistas, según lo determinó la Opinión Consultiva OC-5/85, del 13 de noviembre de 1985, de la Corte Interamericana; se catalogó como una restricción indirecta al ejercicio de la libre expresión el que se exija la colegiación obligatoria del periodismo, en razones de orden público. Esta restricción limita de modo permanente un derecho fundamental, en perjuicio de quienes no cuentan con dicha colegiación. (ver consulta de la CoIDH, 1985: párrafos 48 y 76). Destaco también el Caso Ivcher Bronstein vs. Perú, la CoIDH catalogó como restricción indirecta a la libertad de expresión el uso arbitrario de las facultades regulatorias del Estado cuando son ejercidas para intimidar a un medio de comunicación (ver de la CoIDH, 2001: párrafos 158-163). Los precedentes de la Corte han señalado que también existe una restricción indirecta cuando las declaraciones de funcionarios públicos, pueden calificarse como formas de injerencia directa o indirecta, o presión inadmisible en los derechos de quienes pretenden contribuir a la deliberación pública expresando y difundiendo su pensamiento (ver CoIDH; 2009: párrafo 151); igualmente, se ha considerado como restricción indirecta cuando se exigen acreditaciones de manera desproporcionada o discriminatoria a los medios de prensa para la participación en eventos oficiales (ver CoIDH, 2009: párrafo 375). Todos estos ejemplos demuestran la amplitud de la previsión que contiene el apartado tercero del artículo trece del Pacto de San José. La norma mencionada no impone ninguna restricción, sólo define un concepto abierto que incluye todas las posibles acciones gubernamentales que aplican un procedimiento indirecto, para restringir la libertad de expresión. No hay nada novedoso en lo que señaló esta Corte en la decisión que suscribo, sólo aplicó al caso concreto, una previsión normativa cuya amplitud y flexibilidad permite conocer variadas formas de intervención del poder público sobre la libertad de expresión. Este caso posee dos elementos claves: el acto manifiestamente arbitrario en el cierre del parque Viva y la restricción indirecta a un medio de prensa, según las previsiones de la Convención Americana de Derechos Humanos.
La discusión y valoración de este amparo, me hizo recordar el voto 2016-15220. En esa sentencia admitimos una limitación indirecta de la libertad de expresión, a raíz de la reprochable actuación de los funcionarios del Banco Nacional. En esta decisión consigné una nota, en la que expreso mi visión sobre una variedad de acciones de los poderes fácticos, en los que la competencia de la Sala y las previsiones del Pacto de San José, resultan insuficientes. Hay espacios en los que no impera el Derecho, es el reinado de los poderes salvajes, según la terminología de Ferrajoli. Qué maravilloso sería que el estado social, la independencia del poder judicial, los derechos sociales, tuvieran las garantías que contiene el Pacto de San José para la libertad de expresión. Sólo imagino cómo sería la Justicia social y la democracia, si eso fuera posible. Hay un sesgo de la Convención Americana hacia los derechos individuales, con previsiones demasiado abstractas respecto de los derechos sociales. Empero, las normas del Pacto de San José sobre la libertad de expresión, son sabias y se adaptan a las transformaciones sociológicas y políticas, pero en otras áreas tan sensibles para la democracia y el estado social, impera la anomia y la “conveniencia política”. Creo que la nota que consigné en aquél voto, sobre un tema similar, todavía mantiene vigencia, todavía son pertinentes mis reflexiones sobre las limitaciones y debilidades de la juridicidad en nuestra democracia. Mi condición de juez no me convierte en un testigo de piedra sobre lo que estimo son las injusticias que flotan, muy claramente, en los casos que resolvemos. No me gusta esa indiferencia, no me gusta ese silencio. Los excesos desde el poder formal, requieren control y contrapeso; no tengo duda que también se requiere que los poderes fácticos, puedan ser más visibles ante la ciudadanía, comprendiendo que también ejercen un influjo que escapa a los controles sanos de una democracia plena. Tanto que queda por hacer, en lo electoral, en la participación, en la vigencia del estado social, las garantías laborales, tan venidas a menos en los últimos quince años, tanto que una Convención Colectiva parece un lujo y privilegio de una minoría de trabajadores. Efectivamente, un caso como este, que apasiona y provoca controversia, resulta de menor rango al lado del deterioro de nuestro Estado del bienestar. La frustración de tantos ciudadanos no nos debe llevar a sobredimensionar este litigio, hay otros retos y temas, en que enfrentamos la parálisis, el deterioro y el silencio. El tema del tránsito de vehículos del parque Viva, tiene solución, pero no puedo decir lo mismo de los problemas que enfrenta la democracia y el Estado social en Costa Rica. Son asignaturas pendientes que tiene la sociedad costarricense y que trascienden lo que se discute en este amparo. Agrego, textualmente, la nota que consigné en el voto del Banco Nacional, cuya vigencia, como lo expresé, se mantiene:
“Nota del Magistrado Cruz Castro. La libertad de opinión y sus distorsiones.
El amparo planteado por el Diario La Nación denuncia una grave distorsión que sufrió la libertad de prensa y el acceso a la información. Sin embargo, el acontecimiento que sustenta el amparo suscita una serie de interrogantes sobre el papel de los medios, la amenaza que actúen como poderes fácticos y la grave distorsión para la libertad de información que significa, la concentración de los medios informativos. Muchas acciones que distorsionan el estado de la opinión pública y las reglas de la democracia, no son conocidas en la instancia constitucional. Es el mundo de los poderes salvajes y sus antivalores, que pervierten lo que debe ser una sociedad democrática. Es muy saludable para la democracia, que las actuaciones atribuidas a algunos de los jerarcas de un banco estatal, puedan ser evaluadas a la luz del poder constitucional y de los derechos fundamentales. Empero, existe una amenaza que no puedo desconocer, respecto de las acciones de los poderes fácticos y que distorsionan totalmente las libertades fundamentales que sustentan la democracia.
La tutela y control de la libertad de opinión se concentra en los poderes públicos, pero hay otros actores que están lejos de ser evaluados por las instancias de control constitucional. Escapan a estos controles los poderes fácticos, dentro de los que puede citarse, entre otros, la Iglesia, el Ejército, las instituciones financieras y los medios de comunicación. La influencia de estos poderes les permite alterar los acontecimientos sociales y políticos, influir sobre las decisiones del sistema institucional.
Hasta el momento, el concepto de poderes fácticos se ha utilizado para señalar a aquellos actores o grupos que bajo determinados mecanismos influyen en las decisiones públicas. Sin embargo, es un concepto polémico y no existe unidad sobre su contenido. Incluso hay una divergencia de posturas entre los académicos. Las diferencias no sólo oscilan entre la calidad de la democracia y el papel de estos poderes en ella, sino incluso en los propios grupos que ostentan este poder fáctico. De esta manera, se equiparan los medios de comunicación, los bancos y el crimen organizado, cuando hay una notable diferencia en sus acciones ante el Estado. Pero estas diferencias tan importantes, no impiden admitir que existen una serie de actores muy poderosos que no son visibles y que no se someten a ningún tipo de escrutinio.
La concentración de los medios agrava la distorsión que pueden tener los poderes fácticos sobre la calidad de la democracia y el régimen de opinión pública. En el caso denunciado por el diario la Nación, no hay duda que ha existido una grave distorsión y contaminación del régimen de opinión, pero subsisten otras acciones de diversos actores, especialmente los poderes fácticos, que sin ninguna supervisión o limitación, condicionan el proceso democrático y la determinación de lo que es importante para la democracia. Estos poderes pueden condicionar el ejercicio de la acción política, pueden neutralizarla o manipularla. Todas estas distorsiones que provocan los poderes fácticos, pervierten el régimen de opinión pública.
La instancia constitucional y la tutela de los derechos fundamentales, no alcanza a los poderes fácticos, son actuaciones que trascienden el marco de control y discusión que caracteriza el poder constitucional. Se trata de un poder con incidencia fuera del sistema formal. Tantas acciones en que se pueden realizar al margen de la transparencia, invisible para la vigencia de los derechos fundamentales. Factores reales de poder sin control y visibilidad que pueden colonizar e incidir en el funcionamiento de las instituciones o el estado de opinión en una consulta o en una elección.
El poder económico de los poderes fácticos supera el que tiene una institución pública en la distribución de los recursos públicos para publicidad. Un poder fáctico, si no se autocontiene, puede financiar determinados candidatos o agrupaciones, también puede condicionar la participación de empresas de publicidad o encuestadoras respecto a un candidato que estimen “inconveniente”, provocando que un aspirante a diputado o presidente, pierda durante la contienda electoral, a sus mejores cuadros en la orientación de su campaña de opinión o de imagen. Se trata de acciones que no quedan registradas, son los poderes salvajes actuando sin control, sin transparencia, condicionando el estado de la opinión pública respecto de una elección o una decisión de relevancia política. La mitad del escenario político está en la penumbra, sólo pueden ser sometidos a un saludable escrutinio los actos y decisiones de los órganos y poderes de derecho público.
En octubre de 2010 se presentó el Segundo informe sobre la democracia en América Latina, llevado a cabo por el Programa de las Naciones Unidas para el Desarrollo (PNUD) y en el que participó Dante Caputo. El informe menciona los poderes fácticos que pueden influir en buena lid o en la penumbra, a las instancias oficiales de poder.
En la encuesta incluida en el informe mencionado sobre quién ejerce el poder real en América Latina, los porcentajes de la respuestas fueron los siguientes: grupos económicos, empresarios y el sector financiero, 79.7%; medios de comunicación, 65.2%; iglesias, 43.8%, sindicatos, 31%, poderes ilegales: mafias, narcotráfico, guerrilla, paramilitares, 26%, organizaciones de la sociedad civil, 12.8%; y sector indígena, 3.2%. Sobre los poderes formales las respuestas fueron: Poder Ejecutivo, 36.4%; Poder Legislativo, 12.8%; y Poder Judicial, 8.5%. Esta muestra sobre los diversos poderes no formales, incluye, por supuesto, a los medios de comunicación. Presiones o represalias como las que hemos conocido en este asunto, pueden presentarse en el mundo de los poderes fácticos, incluidos los medios de prensa, sin que se visibilicen o se puedan denunciar. Es oportuno en materia tan delicada, abandonar las visiones ingenuas o reduccionistas.
Esta es una reflexión que planteo a propósito de un caso relevante en el que se realiza una presión impropia contra un medio de prensa, empero en el mundo de los poderes salvajes, como lo denomina Ferrajoli, estas acciones se ejecutan en la penumbra y sin control constitucional. Son acciones contra los principios y las reglas de juego en una democracia, tal como ocurrió en este caso. El corolario saludable de este caso es que respecto de la libertad de opinión y de pensamiento, no pueden existir presiones o manipulaciones impropias. En la historia costarricense, el proceder del Diario La Nación siempre ha sido intachable, realmente ha dado en nuestra historia, lecciones de ética periodística, empero no puedo desconocer que en la opacidad de diversos actores que ejercen el poder fáctico, se ejecutan acciones más graves y reprochables que las que se atribuye a los jerarcas del Banco Nacional. Se trata de una cultura de los poderes desnudos, sin ideario ético, pues sólo interesa lograr una influencia impropia sobre los intereses de la democracia y la voluntad ciudadana.
No hay duda que los actores que ostentan y ejercen, de hecho, un gran poder, que incurren en actividades de presión, distorsión o manipulación, no pueden someter y violentar las reglas de un Estado de derecho. En ese mundo de presiones, condicionamientos, en esa cultura de los poderes salvajes, la instancia constitucional no puede hacer nada, de esta forma las acciones más graves en contra del régimen de opinión y de la democracia, quedan ocultas; se trata de un poder ilegítimo que se mantiene sumergido.
En el tema de la libertad de información y el derecho a la información, surgen amenazas que pueden tener relación con la actuación e incidencia de los poderes fácticos, como es la concentración económica y el control político de los medios de comunicación. Es decir, la acción de los poderes económicos fácticos puede condicionar la actividad de los medios sociales de opinión, es otra perspectiva de este fenómeno de variadas aristas. La concentración de medios provoca otra gravísima distorsión de la libertad de pensamiento y de opinión, enajenando estos valores constitucionales tan relevantes; el acceso a información y la libertad de opinión puede tener en la concentración de medios, una distorsión estructural.
Hay que reconocer que la propiedad de los medios de información es un poder, es una fuente de poder que debe propiciar pluralismo y convivencia democrática, pero se deben someter a reglas que derivan de la esencia del Estado de Derecho, impidiendo que el poder mediático se convierta en un poder absolutista. Se requiere que se someta a la ley, definiendo límites y vínculos para asegurar que la libertad de información y el derecho a la información fluya sin distorsiones. La segunda regla es la separación de poderes, aplicando la vieja regla de Montesquieu, del que no puede exceptuarse el cuarto poder, pues para que lo sea en un régimen democrático, debe responder a garantías que lo independicen del poder político y económico. Esta valoración requiere una profunda y equilibrada reflexión, la independencia de los medios de comunicación exige: independencia de los centros de poder económico y de los partidos políticos. En caso que existieran vínculos, que tales nexos sean tan transparentes como la información pública. Estas reglas y otras que propone L. Ferrajoli fortalecería la función de los medios de comunicación, para que respondan a un estado de opinión que derive del pluralismo y la auténtica participación ciudadana. Ferrajoli, en un artículo publicado en el 2004, titulado: “Libertad de información y propiedad privada: una propuesta no utópica”, propone diversas medidas para que el poder de los medios no se ejerza en la penumbra de los poderes fácticos, sino que responda a estos lineamientos: “….Garantizar la separación entre la administración de la información y la propiedad; instituir autoridades de garantía orientadas a la tutela de la libertad de prensa y de información; impedir toda clase de concentración de la propiedad; excluir los controles patronales o políticos; lograr que todos puedan acceder a los medios; favorecer con financiamientos adecuados a las televisiones no comerciales creando, además, infraestructuras comunes; afirmar el carácter objetivamente “público” de la televisión y ampliar el espacio de la televisión pública son solamente algunas de las reformas posibles para enfrentar el peligro inminente del “gran hermano”…” ( consultar: http://www.nexos.com.mx/ p=11115 ) En la evaluación de la concentración de medios de comunicación, tiene especial relevancia una política que fortalezca la función de la televisión en una sociedad democrática. Tantos atentados contra la libertad de información y de opinión que son imperceptibles, no sólo por la invisibilización cultural, sino por la impunidad de un sistema en los que hay poderes que actúan sin controles y en la opacidad. Queda mucho por hacer en la construcción y fortalecimiento de la democracia y de la dignidad del ciudadano….” VCG02/2023 ... Ver más Contenido de Interés:
Tipo de contenido: Nota separada Rama del Derecho: 4. ASUNTOS DE GARANTÍA Tema: PODER EJECUTIVO Subtemas:
ORDEN SANITARIA..
Tema: LIBERTAD DE EXPRESIÓN Y PRENSA Subtemas:
CENSURA. MEDIOS DE COMUNICACION.
Razones adicionales del magistrado Salazar Alvarado.
Concurro con el voto de mayoría, que declara con lugar el recurso y anula la orden sanitaria que se cita, al haberse demostrado, con toda claridad, que el cierre de Parque Viva fue un acto arbitrario, como represalia por la línea editorial que ha sostenido el Diario La Nación, respecto al Presidente de la República, y con el objetivo de silenciar a dicho medio, en claro detrimento de la libertad de expresión y la libertad de prensa, protegidas constitucional y convencionalmente.
No obstante, en vista de la anulación de la orden sanitaria N° MS-DRRSCN-DARSA2-OS-0368-2022, emitida el 8 de julio de 2022, así como lo dispuesto en el oficio N° MS-DRRSCN-DARSA2-1724-2022 de 15 de julio de 2022, estimo necesario que las autoridades recurridas (en conjunto con la Municipalidad de Alajuela, y cualquier otra institución pública competente), brinden una tutela efectiva a los derechos fundamentales de los vecinos de La Guácima de Alajuela.
Para ello, considero pertinente y oportuno, que este Tribunal Constitucional ordene, dentro del plazo de dieciocho meses posteriores a la notificación de la presente resolución, que se lleven a cabo todas aquellas medidas de coordinación que estimen pertinentes y necesarias a efectos de ejecutar el plan remedial al que reiteradamente se ha hecho referencia en este asunto; o, cualquier otro que estimen a bien, con el propósito de brindar una solución integral a la problemática de congestionamiento vial que afecta a los vecinos de La Guácima de Alajuela, en relación con los eventos de concentración masiva de personas y vehículos en el Parque Viva; y que, ante una eventual emergencia, podrían verse comprometidas la salud o la integridad física de las personas.
En el caso que nos ocupa, debe tenerse presente que esta Sala ha tutelado el derecho de los administrados a disfrutar de un espacio público físico que reúna las condiciones necesarias de accesibilidad, que permitan una adecuada movilidad, y garanticen la integridad física, la salud y la vida de las personas.
En la Sentencia N° 2014-013854 las 9:05 horas del 22 de agosto de 2014, se desarrolló lo que en doctrina se conoce como el “Derecho a la Ciudad”, que comprende lo siguiente:
“(…) En la "Carta Mundial por el Derecho a la Ciudad”, se reconocieron -entre otros- el derecho a la accesibilidad a los servicios de transporte público y al espacio público físico -lo que involucran tanto la movilización de los usuarios de un lugar a otro de la ciudad, y la posibilidad de contar con buenas aceras, zonas peatonales, etc.- y a la inclusión, que como este Tribunal ha sostenido implica la remoción de todas las barreras arquitectónicas que impidan la movilidad por propios medios así como la instalación de las ayudas necesarias para garantizar la accesibilidad de personas con discapacidad, niños, adultos mayores, etc. Por su parte, la "Convención sobre los Derechos de las Personas con Discapacidad", consagra el derecho de todos a ingresar, transitar y permanecer en un lugar, de manera segura, confortable y autónoma (…)”. (Criterio reiterado en la Sentencia N° 2015-04827 de las 9:40 horas del 10 de abril de 2015, y la Sentencia Nº 2016-009051 de las 9:05 horas del 1 de julio de 2016, entre otras resoluciones del Tribunal Constitucional).
En consecuencia, si un grupo de ciudadanos, en su circunscripción territorial, sufren problemas por obstaculización de vías públicas, con afectación de su calidad de vida y bienestar general, esto se enmarca dentro del concepto de intereses y servicios locales del numeral 169, de la Constitución Política, problemas cuyas causas tienen que ser identificadas con precisión y, más aún, las soluciones, a fin de implementarlas a la brevedad posible; para lo cual corresponde a las autoridades recurridas coordinar con las instituciones de nivel nacional con competencia para actuar sobre el problema. En efecto, la Sala ha desarrollado la obligación municipal de coordinar con otras instituciones estatales en aras de atender los intereses y prestar cumplidamente los servicios locales. En la Sentencia N° 1999-5445 de las 14:30 horas del 14 de julio de 1999, se manifestó lo siguiente:
“(...) se refieren a la obligación de coordinación que debe existir entre los gobiernos locales, las instituciones descentralizadas y el Poder Ejecutivo, para llevar a cabo las funciones que le han sido encomendadas, lo que debe ser analizado a partir de la naturaleza misma de la autonomía municipal. Es en virtud de lo dispuesto en el artículo 170 constitucional, que las municipalidades (entes corporativos locales) gozan de autonomía funcional, administrativa y financiera en la administración de los intereses y servicios locales (artículo 169 de la Constitución Política) (...)”.
Por otra parte, en este asunto es de relevancia tener presente el contenido del informe técnico N° CRC-GG-OF-012-2022, del 12 de julio de 2022, suscrito por el Gerente General de la Asociación Cruz Roja Costarricense, mediante el cual se reconocen las dificultades que enfrentan los vehículos de emergencias en las vías públicas de la zona al atender incidentes, situación que se agrava cuando se realizan eventos masivos en el Parque Viva. En dicho documento se le informó a la Ministra de Salud lo siguiente:“(…) En el caso específico objeto de la presente consulta, se conoce que las vías públicas de la comunidad de La Guácima de Alajuela y zonas aledañas son insuficientes para el rápido acceso de nuestras unidades de emergencia en la atención ordinaria de incidentes, que se puede agravar cuando se realizan eventos masivos, puesto que hemos conocido de situaciones en las cuales el simple desperfecto mecánico de un vehículo particular atrasa sustancialmente el ingreso de nuestras ambulancias. Históricamente los tiempos de respuesta para atender emergencias por parte de las diferentes instituciones se han visto afectados por la congestión vial en diversos puntos del territorio nacional, situación que sucede también en La Guácima de Alajuela, experimentando un incremento en el tiempo de traslado de los vehículos de emergencia de forma variable, generándose atrasos que van desde 10 minutos hasta los 30 minutos. En algunos casos específicos, el tiempo de llegada o salida de nuestros vehículos se ha extendido hasta más tiempo, ocasionado por la cantidad de vehículos que se ubican en los costados de las vías públicas aledañas al sitio del evento, e incluso por personas que transitan en las vías públicas, lo cual hace que se tenga que circular con mayor cautela. Para el caso concreto la estructura operativa de la Benemérita Cruz Roja Costarricense ha trabajado en tres escenarios que se atienden para un análisis de la situación que le permite a las autoridades tomar las decisiones según sus competencias. 1. Accidentes de tránsito: en la atención de un accidente de tránsito dependiendo de la gravedad del mismo, se hace necesario la llegada de diferentes recursos, ambulancias, camiones de rescate, e incluso la presencia del Cuerpo de Bomberos de Costa Rica. Cabe destacar que se pueden presentar casos en lo que los pacientes se encuentran prensados consecuencia del incidente, requiriéndose que a la escena se sume el equipo de rescate especializado según las necesidades. En cualquiera de los casos los pacientes requieren ser atendidos de forma inmediata, ya que en algunos casos la vida puede estar en riesgo inminente. 2. Incendios estructurales: en la atención de incendios estructurales generalmente responde el Cuerpo de Bomberos para extinguir el fuego y la Cruz Roja Costarricense acude a la escena para la atención de pacientes, por lo que dependiendo del tamaño del incidente, la cantidad de recurso que se hace presente se podría ver afectado por la dificultad de acceso a las instalaciones en riesgo y la evacuación de pacientes. Casos médicos: Dependiendo de la gravedad del caso, se requiere que el paciente reciba atención de forma expedita dado que el retraso en los tiempos de respuesta genera un impacto negativo en el pronóstico de la persona, afectando potencialmente la vida. Por ejemplo, en el caso de un paro cardiorrespiratorio se requiere acceso al paciente idealmente en menos de 10 minutos. Por otro lado, dependiendo de las circunstancias, existe la posibilidad de que la Unidad de Soporte Avanzado de Vida (USAV), en sitio, requiera del apoyo de una Unidad de Soporte Avanzado de Vida (USAV), dado que esta segunda ambulancia cuenta con personal de mayor nivel de capacitación, más equipamiento y por ende, mayor nivel resolutivo, ofreciéndole así una mejor oportunidad a la salud del paciente. Cabe destacar que al haber dos unidades o más en el lugar del siniestro se requerirá un espacio amplio y seguro para que los socorristas puedan brindar su atención (…)”.
Ante el escenario descrito, y por las razones expuestas, reitero que, con el fin de evitar una omisión a la tutela efectiva de la integridad física, la salud y la vida de los vecinos de La Guácima, así como de cualquier otro ciudadano, estimo necesario implementar el plan remedial de reiterada cita en este asunto; o, cualquier otra medida que las autoridades estimen necesaria, para solventar la problemática de congestionamiento vial que afecta dicha zona, en relación con los eventos de concentración masiva de personas y vehículos en el Parque Viva.
Luis Fdo. Salazar Alvarado VCG02/2023 ... Ver más Contenido de Interés:
Tipo de contenido: Voto salvado Rama del Derecho: 4. ASUNTOS DE GARANTÍA Tema: LIBERTAD DE EXPRESIÓN Y PRENSA Subtemas:
CENSURA. MEDIOS DE COMUNICACION.
Tema: PODER EJECUTIVO Subtemas:
ORDEN SANITARIA..
RAZONES DIFERENTES Y VOTO SALVADO PARCIAL DE LA MAGISTRADA GARRO VARGAS respecto de la sentencia 2022-25167 (Parque Viva) ÍNDICE Contenido
A. Tipo de proceso 8 B. Partes 8 1. Recurrentes 8 2. Recurridos 8 C. Objeto impugnado 8 D. Objeto protegido 9 E. Admisibilidad y legitimación 9 F. Pretensiones 12 G. Marco fáctico 12
A. Fase de admisibilidad: los presupuestos procesales 15 1. Aspectos formales del escrito de interposición 15 2. La competencia del órgano 16 a) El objeto protegido: los derechos fundamentales 16 b) El objeto impugnado: la conducta presuntamente lesiva 17 c) El carácter de la lesión 18 d) La naturaleza del proceso 19 3. La capacidad y la legitimación de las partes 21 B. Fase de conocimiento: aspectos por considerar y reconsiderar 22 1. Generalidades 22 2. Verificación definitiva de algunos presupuestos procesales 23 a) El objeto impugnado: la orden sanitaria y el oficio conexo 23 (1) La orden y el oficio conexo 23 (2) La no idoneidad del amparo: jurisprudencia constitucional 26 (a) Jurisprudencia en tiempos normales 26 (b) Jurisprudencia durante la pandemia 31 (c) El caso de Rolando Araya Monge 37 (3) La idoneidad de la vía contencioso-administrativa 40 (a) Previsión constitucional de control de la Administración 40 (b) Alcance del análisis en la vía ordinaria 42 (c) Ventajas de la vía ordinaria 44 b) Legitimación 49 (1) Marco del problema 49 (2) Sobre el alegato que solo tendrían legitimación ante la Sala 50 (3) Alegatos de los recurrentes sobre la causa de la legitimación 52 (4) Consideraciones de la sentencia sobre la dependencia 56 (5) Los estados financieros y la dependencia aludida 63
A. Introducción 69 B. Posibilidad de conocer de la lesión invocada 70 C. Inexistencia de la violación del artículo 13.3 de la CADH 72 1. Brevísimo análisis exegético del artículo 13.3 de la CADH 72 2. Consecuencia sustantiva de la no acreditación de la dependencia 73 3. Inexistencia de la violación, aunque hubiese legitimación 73 a) Sobre la afectación a la libertad de expresión 74 b) Sobre la arbitrariedad de los actos 75 (1) Si los actos no son arbitrarios: consecuencias 75 (2) Si los actos son arbitrarios: consecuencias 76 D. Consideraciones sobre la jurisprudencia invocada en el expediente 77 1. La jurisprudencia de la Corte IDH 77 2. La jurisprudencia de la Sala Constitucional 87 E. Reflexiones adicionales sobre la inexistencia de la violación 94 F. Motivos para acoger el recurso respecto de la libertad de expresión 100 1. Marco normativo y jurisprudencial 100 2. Marco fáctico 102 3. Consideraciones sobre las manifestaciones 105 4. Conclusión 109
A. El dilema: “ordinariar” el amparo o respetar su carácter sumario 110 1. Sobre los aspectos probatorios 110 2. Sobre las partes allegadas al proceso 113 B. Las consecuencias de la anulación de los actos impugnados 116 C. Sobre el alcance de la condenatoria en daños y perjuicios 117
Con el respeto acostumbrado a los demás integrantes de la Sala Constitucional y a las partes de este proceso, me propongo poner de manifiesto mis razones diferentes para declararlo con lugar –respecto de la violación de la libertad de expresión– y los argumentos de mi voto salvado parcial por el que lo declaro sin lugar –respecto de la anulación de la orden sanitaria y el oficio conexo impugnados que dictó el Ministerio de Salud–.
De previo, haré una brevísima descripción de la litis. Luego explicaré mi posición. Sin embargo, para facilitar su comprensión, desarrollaré primero mi voto salvado parcial y luego mis razones diferentes. Por último, haré unas reflexiones sobre el expediente y la sentencia misma que confirman lo dicho en el voto salvado.
Muy a mi pesar este texto es extenso, pero está diseñado para que pueda ser leído, al menos, en tres niveles de profundidad. El primero, superficial: para eso bastará leer el índice, el resumen ejecutivo y algunos pasajes subrayados que aparecen en diversas páginas. El segundo, un poco más detenido, que supone leer todo el texto de corrido y seguramente saltando las abundantes transcripciones de la jurisprudencia. Finalmente, uno más exhaustivo, que exige leerlo todo, incluyendo las notas a pie de página.
He debido explayarme en algún tema por su importancia o por exigencias de la finalidad pretendida. Explico esto último: no es lo mismo contradecir lo que se afirma en la sentencia que argumentar que algo no se dijo en ella. Ese es el motivo por el cual, por ejemplo, lo relativo al examen de la legitimación en la fase de conocimiento del recurso es tan largo, pues era pertinente transcribir y glosar pasajes de los escritos de los recurrentes y de la sentencia.
Se pretende condensar aquí las ideas principales sobre lo siguiente: el voto salvado respecto la anulación de los actos impugnados, las razones diferentes por las que declaro con lugar el recurso en lo atinente a la lesión de la libertad de expresión y las reflexiones sobre la sentencia.
EL CASO Unos periodistas del periódico La Nación impugnan una orden sanitaria y un oficio conexo dictados sobre el Parque Viva, que pertenece al Grupo Nación S. A. (en adelante, Grupo Nación), que es propietaria del periódico. Aducen que su libertad de expresión ha sido lesionada en virtud de tales actos.
POSICIÓN DE LA MAYORÍA DE LA SALA Declara con lugar el recurso de amparo en todos sus extremos, anulando los actos administrativos impugnados, pues estima que son arbitrarios y manifestaciones de abuso de poder y, a tenor del artículo 13.3 de la Convención Americana sobre Derechos Humanos (CADH), fueron unos medios indirectos para lesionar la libertad de expresión de los recurrentes.
MI POSICIÓN Voto salvado parcial. Declaro sin lugar el recurso respecto de la anulación de los actos impugnados, pues estimo que corresponde que sean conocidos en la vía ordinaria de la legalidad y no en un recurso de amparo. Lo anterior con fundamento en los siguientes argumentos.
Todo recurso de amparo es analizado por la Sala Constitucional en dos fases:
Fase de admisibilidad. En esta se examina si prima facie el recurso cumple con los presupuestos procesales: 1) los aspectos formales; 2) la competencia del órgano, que está determinado por el objeto que se pretende proteger (los derechos y libertades fundamentales que se alegan violados), el objeto impugnado (las conductas que se acusan de arbitrarias), el carácter de la lesión (si es directa o indirecta), y el respeto por la naturaleza del proceso (que es sumario); 3) la capacidad y la legitimación de las partes.
En el presente caso, podría haber duda sobre un aspecto que determina la competencia del órgano, esto es, si el objeto impugnado es susceptible de ser conocido en un proceso sumario. La interrogante surge porque habitualmente la Sala –por diversos motivos debidamente justificados– no ha conocido de órdenes sanitarias y porque la que aquí se impugna versa sobre aspectos técnicos particularmente complejos. Esto hace pensar que el recurso de amparo no es la vía idónea para que la Sala se pronuncie sobre la alegada arbitrariedad de esos actos administrativos. También surge la duda sobre si los recurrentes tienen legitimación, pues aducen la lesión a la libertad de expresión de ellos, pero los actos administrativos impugnados recaen sobre un inmueble que es propiedad del grupo empresarial al que pertenece el periódico en el que laboran. Sin embargo, como se alega que tales actos son medios indirectos para lesionar la libertad de expresión, que el artículo 13.3 CADH proscribe, pese a las dudas, podría parecer razonable que la presidencia de la Sala haya admitido el recurso para que fuera conocido por el fondo.
Fase de conocimiento: En esta, una vez recabados todos los informes de la parte recurrida y cualquier otro material que se haya allegado al expediente, la Sala realiza un segundo análisis en dos direcciones: verifica de manera definitiva si en efecto se cumplen con los presupuestos procesales y, solo después de constatarlo, analiza por el fondo el asunto.
Respecto de lo primero, en el presente caso, a mi juicio, corresponde examinar los dos puntos sobre los que surgen dudas razonables: si el objeto impugnado puede conocerse en proceso sumario y si hay legitimación de los recurrentes.
Luego del estudio del marco fáctico, de la constatación del acervo probatorio (numeroso, voluminoso, proveniente de múltiples autoridades involucradas y que en su mayoría versa sobre aspectos técnicos y particularmente complejos), de las normas y de la jurisprudencia aplicable (dictada antes y durante la pandemia) concluyo que el objeto impugnado no correspondía ser examinado en un proceso sumario como es el recurso de amparo. En esa línea, explico los motivos por los que la vía contencioso-administrativa es la sede llamada a examinar el reproche de los recurrentes, no solo por expresa previsión constitucional, sino porque ofrece muchas más ventajas para el examen riguroso de la cuestión y la posibilidad de dictar medidas cautelares e, incluso, solicitar un trámite preferente. También, después de examinar el marco fáctico y constatar la ausencia de pruebas que sustenten una vinculación entre lo pretendido y lo impugnado, advierto que los recurrentes no tienen legitimación. Además, desvirtúo el alegato que ellos presentan, en el sentido de que no tenían legitimación para acudir a la vía contencioso-administrativa para impugnar los actos administrativos cuestionados y para aducir allí la lesión a la libertad de expresión.
En consecuencia, al no cumplirse con dos presupuestos procesales insoslayables (competencia y legitimación), estimo que corresponde declarar sin lugar el recurso respecto de la anulación de la orden sanitaria y el oficio conexo. Es decir, no me pronuncio sobre estos, sino que señalo que el examen sobre su presunta arbitrariedad corresponde ser realizada en la vía contencioso-administrativa.
Razones diferentes para declarar con lugar el recurso respecto de la lesión a la libertad de expresión.
De previo a justificar mi estimatoria parcial del recurso, explico que –pese a que los actos impugnados no puedan ser conocidos en este recurso–, en virtud del principio iura novit curia sí cabe hacerlo respecto de otros actos que se reflejan en el marco fáctico. Además, como lo que se advierte del análisis de esto son unas lesiones por vías directas a la libertad de expresión, los recurrentes sí tendrían legitimación para ser parte de este proceso.
En primer término, expongo los motivos por los cuales estimo que no se configuró una violación al artículo 13.3 CADH. Analizo la jurisprudencia referida en la sentencia, tanto de la Corte IDH como de la Sala Constitucional, y muestro que más bien confirma mi tesis. Después me refiero a unos escenarios que no se dieron en el presente caso, pero cuyo estudio permite hacer unas reflexiones sobre el tema en discusión. Ahí pongo de relieve que todo apunta a que no hubiese bastado con probar la dependencia económica del periódico La Nación respecto del Parque Viva para declarar la lesión de la libertad de expresión.
Finalmente, luego del examen de las pruebas allegadas y de los hechos públicos y notorios, y en virtud de las normas y jurisprudencia aplicables, constato y declaro la violación a la libertad de expresión, por parte del señor presidente de la República, debido a unas manifestaciones que constituyeron una censura directa, expresa, aunque relativa, sobre los sujetos (los recurrentes) y el contenido (lo comunicado).
Consideraciones finales sobre el expediente y la sentencia. Estas permiten confirmar lo dicho en el voto salvado, en el que sostengo que el recurso de amparo no era el proceso en el que se debió conocer sobre ese objeto impugnado. En concreto, me refiero al dilema que se presenta entre “ordinariar” un recurso de amparo o resolverlo sin tener todos los elementos suficientes (prueba y partes) y a las implicaciones de haberse decantado por la segunda opción. También aludo a las consecuencias de la anulación de los actos impugnados y su posible impacto en temas de salud y seguridad públicas. Finalmente, hago unos comentarios sobre el alcance de la condenatoria en daños y perjuicios ?cuya ejecución solo puede ser solicitada por los recurrentes y circunscrita a la lesión de la libertad de expresión declarada, no al grupo empresarial propietario del medio en el que laboran?. No obstante, esta sentencia da la posibilidad a este de interponer un proceso de conocimiento por responsabilidad del Estado, en el que, partiendo de la declaración de nulidad de esos actos realizada en un proceso sumario, solo tienen que mostrar el nexo causal entre tales actos y los daños y perjuicios que aleguen.
A. Tipo de proceso El presente es un recurso de amparo, que es uno de los procesos que la Sala Constitucional conoce, establecido en los artículos 48 de la Constitución Política y 29 de la Ley de la Jurisdicción Constitucional (LJC).
B. Partes 1. Recurrentes Los recurrentes son: Armando Manuel González Rodicio, Armando Mayorga Aurtenechea, Daniela Cerdas Espinoza, Diego De Jesús Bosque González, Esteban Enrique Oviedo Álvarez, Fabrice Le Luos, Guiselle Mora Morales, Harlen Natasha Cambronero Jiménez, Juan Fernando Lara Salas, Kimberly Herrera Salazar, Krisia Chacón Jiménez, Óscar Gerardo Rodríguez Arguedas, Ronald Arturo Matute Charpentier y Vanessa Auxiliadora Loaiza Naranjo. Todos, según se afirma, periodistas y miembros de la redacción del periódico La Nación.
2. Recurridos Los recurridos son: Rodrigo Chaves Robles, en su condición de presidente de la República y Joselyn María Chacón Madrigal, en su condición de ministra de Salud.
C. Objeto impugnado A tenor del escrito de interposición, el objeto impugnado es la orden sanitaria MS-DRRSCN-DARSA2-OS-0368-2022 y, por conexidad, el oficio MS-DRRSCN-DARSA2-1724-2022. Esto se deriva claramente de la petitoria en la que solicitan que “se declare con lugar el presente recurso de amparo, se anule la suspensión temporal del permiso sanitario de funcionamiento de Parque Viva y los actos administrativos que la ordenan”.
D. Objeto protegido Los recurrentes afirman lo siguiente:
“Las actuaciones arbitrarias (…) constituyen una grosera desviación de poder para vulnerar nuestro derecho a la libre expresión y el derecho de los costarricenses a recibir informaciones y opiniones sobre asuntos de interés público de conformidad con el artículo 29 de la Constitución Política y el artículo 13.3 de la Constitución Americana sobre Derechos Humanos ” (escrito de interposición, p. 1).
Es decir, estiman que las actuaciones de parte de los recurridos lesionan la libertad de expresión por vías indirectas.
También aducen que esas mismas actuaciones violan el principio de legalidad y el principio de igualdad, establecidos respectivamente en los artículos 11 y 33 de la Constitución Política .
E. Admisibilidad y legitimación Los recurrentes estiman que el recurso debe admitirse porque los actos administrativos lesionan los derechos y principios mencionados. Es decir, consideran que el acto es arbitrario, por infracción del principio de legalidad y del principio de igualdad, y constituye una violación a la libertad de expresión de los propios recurrentes y del derecho a la información de los costarricenses. Al respecto señalan:
“Los actos administrativos empleados para ejercer censura indirecta o velada mediante presiones económicas relacionadas con el medio en que laboramos carecen de todo sustento técnico y no persiguen ningún fin legítimo, sino una represalia por la línea crítica del periódico y un intento de silenciarlo” (ibid.) .
Después afirman:
“La ilicitud de las presiones indirectas sobre los periodistas ha sido objeto de la jurisprudencia de la Corte Interamericana de Derechos Humanos” (ibid.).
Y luego citan varios casos resueltos por la Corte Interamericana de Derechos Humanos (Corte IDH) e inmediatamente dicen:
“En este contexto, el recurso que presentamos es admisible y en consecuencia solicitamos que la Sala le dé el curso correspondiente. Efectivamente, lo actuado por los funcionarios recurridos (…) configura un supuesto evidente de desviación de poder (…). La particularidad y el carácter especial y extraordinario del caso es que no se trata de un asunto de mera legalidad o de legalidad ordinaria, es decir, de mera infracción legal, susceptible en consecuencia de ser conocido en la jurisdicción ordinaria correspondiente, sino que la desviación de poder en este caso concreto es el instrumento ideado para vulnerar nuestros derechos y libertades fundamentales de modo directo e inmediato, y capaz de producir este resultado. La violación directa o inmediata de derechos y libertades, como consecuencia inevitable de los fines espurios perseguidos de consuno por los recurridos y de los actos que los manifiestan, encaja como motivo en el ámbito ambiente de protección propio del recurso de amparo, a tenor de lo dispuesto en el artículo 29 de la Ley de la Jurisdicción Constitucional” (ibid., p. 2).
Es decir, entienden que la conducta administrativa es un supuesto de evidente desviación de poder, que tiene como fin lesionar la libertad de expresión y de información (en adelante, se hablará de la libertad de expresión para referirse a ambas, tal como lo hace el título del artículo 13.1 de la CADH ). Consideran que ahí radica lo que hace procedente que la Sala admita este recurso. Entonces, por estimar que esos actos administrativos han lesionado sus derechos y libertades fundamentales, afirman que el asunto no es de legalidad, sino que es propio de un recurso de amparo y, por eso, debe ser conocido y resuelto en esta jurisdicción y no en la jurisdicción ordinaria.
En ese sentido, indican lo siguiente:
“Si se considera erróneamente ese caso como un tema que debe ser conocido en las sede ordinaria por tratarse de un asunto de legalidad, se condenaría a los periodistas a no acceder a la tutela judicial, pues careceríamos de legitimidad para cuestionar los hechos aquí descritos en sede contencioso administrativa porque, tratándose de ataques indirectos a la libertad de expresión y prensa, los actos administrativos cuestionados no se dirigen en nuestra contra, sino que lesionan nuestros derechos de forma indirecta. Así, como máximo, podríamos actuar como coadyuvantes en una acción ordinaria, siempre sujetos a la suerte del principal y con limitados alcances, sobre todo en cuanto a la libertad de expresión, que es nuestra preocupación fundamental. La sede constitucional que tutela nuestro derecho a ejercer libremente el periodismo es el único medio apto para defendernos de los abusos que, de forma indirecta, esgrimen en nuestra contra los recurridos” (ibid.).
Esto es, reiteran que no se trata de un asunto de legalidad, y aducen otro argumento: si se les rechazara este recurso de amparo, se les lesionaría el derecho a la tutela judicial.
Además, para mostrar la vinculación entre los actos impugnados y las presuntas lesiones a la libertad de expresión, en primer término, aducen lo siguiente:
“No puede ser más evidente la amenaza de destruir a las empresas como represalia por las líneas editoriales de los medios de su propiedad y las actuaciones de sus directores periodísticos, mencionados en el discurso pronunciado por el ahora presidente el 29 de enero” (ibid., p. 4).
Luego explican los temas que, a juicio de los recurrentes, disgustaron al aquí recurrido y afirman lo que es medular para este asunto:
“En todos los casos, se trataba de publicaciones periodísticas serias, bien documentadas y totalmente pertinentes. No publicarlas habría afectado directamente el derecho de los ciudadanos a informarse sobre temas de interés público y, en el momento específico, el principio del votante informado. Como consecuencia del cumplimiento de ese deber y el ejercicio de ese derecho, a los directores y a nuestros colaboradores periodísticos se nos advirtió de la destrucción de las estructuras que nos permiten ejercer el periodismo independiente.
Parque Viva es una de esas estructuras, en el caso de Grupo Nación. Fue creado, precisamente, para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de ingresos experimentada por los medios de comunicación en todo el mundo debido a la migración de la publicidad hacia los gigantes de la Internet, como Google y Facebook. Ese hecho es público y consta en diversas manifestaciones de la empresa y sus personeros desde al menores el 2013. En el informe a los accionistas del período 2013-2014, visible en la página de nación.com https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html la presidencia ejecutiva afirmó: ?…los cambios en la industria, en el consumo de medios y en el ambiente competitivo nacional, seguirán retando al negocio de medios impresos. Conscientes de ese panorama, diseñamos, hace dos años, una estrategia para enfrentarlo. Mientras maduran las nuevas iniciativas, especialmente en el ámbito digital, todo medio periodístico requerirá de una fuente complementaria de ingresos, menos dependiente de la vena de publicidad. En consecuencia, como lo anunciamos el año pasado, invertimos importantes recursos y esfuerzos en la creación del Parque Viva, en la Guácima de Alajuela'” (ibid., p. 4; el destacado no es del original).
De ese modo, explican el ligamen entre el Parque Viva y el periódico La Nación, señalando que aquel es fuente de ingresos para este. A partir de esto alegan que la orden sanitaria , al impedir el funcionamiento del Parque Viva, deja sin soporte financiero al periódico, por lo que estiman que ese acto causa una lesión a la libertad de expresión.
Es decir, entienden que la orden sanitaria debe clasificarse dentro de “cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones” (artículo 13.3 CADH), pues tuvo como finalidad última lesionar la libertad de expresión, en el contexto de amenazas propinadas por el señor Rodrigo Chaves, primero durante la campaña electoral, luego como presidente electo, y también en el ejercicio del cargo.
F. Pretensiones Los recurrentes en su petitoria se refieren a tres aspectos: Por un lado, como se ha dicho, solicitan la anulación de la orden sanitaria. Por otro, piden que la Sala “le ordene al Presidente de la República y la Ministra de Salud abstenerse de ejecutar actos tendientes a lesionar directa o indirectamente la libertad de expresión de que gozamos los recurrentes, como todo ciudadano costarricense”. Y, finalmente, indicaron: “Renunciamos expresamente a pedir condenatoria en daños, perjuicios y costas”.
G. Marco fáctico Sin pretender sustituir el elenco de los hechos que están en consignados en la sentencia, es oportuno hacer sucintamente una relación del marco fáctico de la litis, con el fin de ofrecer el contexto que facilite la debida comprensión del voto salvado parcial y de las razones diferentes.
Muchos son hechos públicos y notorios y todos tienen respaldo documental en el expediente.
1-. El Grupo Nación tiene dos unidades de negocio de relevancia para el análisis del caso concreto. El periódico La Nación, obviamente relacionada con el ejercicio periodístico, y el Parque Viva, dedicada a la realización de actividades de entretenimiento. Este recinto, ubicado en La Guácima de Alajuela, contaba con permisos sanitarios para la realización de eventos.
2.- El 29 de enero de 2022, durante la campaña electoral presidencial, el actual presidente de la República hizo manifestaciones en los siguientes términos:
“Vamos a causar la destrucción de las estructuras corruptas de La Nación y de Canal 7. Óigame Ignacio Santos, óigame el otro (...) René Picado, óigame Armando González. Aquí estamos. Sígannos invisibilizando en lo nuevo, en lo bueno y acusando injuriosamente en lo malo, porque ustedes ya no ponen presidentes en Costa Rica”.
3.- Los recurrentes de este proceso son periodistas de La Nación.
4.- Denuncia: En el contexto de la realización de los eventos masivos organizados en el Parque Viva se habían generado noticias sobre el colapso vial en la zona. Además, el día 5 de julio de 2022 se presentó una denuncia anónima ante las autoridades del Ministerio de Salud, en la que se alegaba la existencia de peligros derivados de ese colapso, particularmente, las dificultades de los cuerpos de socorro para atender toda clase de emergencias, y se solicitaba la clausura del Parque Viva. Informes preliminares: Se requirió un criterio técnico a los jerarcas del MOPT sobre el particular, se hizo una inspección físico sanitaria en el Parque Viva, elaboración de informes técnicos, y una reunión del Comité Asesor Técnico de Concentraciones Masivas ?integrado por la ministra de Salud en calidad de coordinadora, el ministro de Obras Públicas y Transportes, y por funcionarios de la Cruz Roja Costarricense, de la Dirección de la Policía de Tránsito, de la Comisión Nacional de Emergencias, del Cuerpo de Bomberos, del Sistema de Emergencias 9-1-1 y de Gestión de Riesgo del Ministerio de Salud?.
5.- El 6 de julio de 2022, en conferencia de prensa, se le consultó al presidente de la República su criterio sobre el tema de la CCSS y la solicitud que se hizo a la Superintendencia General de Valores (Sugeval) respecto a los bonos emitidos por Grupo Nación. Al contestar, dijo que existía un tema muy serio con esos bonos que gobiernos anteriores habían comprado. Indicó que estaba preocupado por la capacidad de pago que tendría ese grupo, debido a los resultados contables y a la desviación de activos que, a su juicio, debilitan la probabilidad que el pueblo de Costa Rica pueda recuperar esos recursos que son sustanciosos.
6.- El 7 de julio de 2022, el director ejecutivo de Grupo Nación dio amplias explicaciones públicas y mencionó el papel de Parque Viva en el flujo de la caja del Grupo Nación.
7.- Orden sanitaria. Las autoridades del Área Rectora de Salud Alajuela 2 del Ministerio de Salud emitieron la orden sanitaria MS-DRRSCN-DARSA2-OS-0368-2022 del 8 de julio de 2022 ?notificada ese mismo día? en la cual se dispuso lo siguiente:
“En atención a denuncia anónima N° 243-2022, traslada (sic) mediante oficio MS-DM-5756-2022 desde el Despacho de la Ministra de Salud, por aparentes problemas estructurales, incumplimientos del plan de emergencia y condiciones de seguridad e higiene en el Parque Viva, y según consta en el acta de inspección ocular MS-DRRSCN-DARSA2-1639-2022 del día 05 de julio del 2022 al ser las 13:50 horas se realizó la respectiva visita en el sitio para valorar lo señalado en la denuncia. Así mismo, en concordancia con el principio precautorio y en atención a los oficios: MS-DM5814-2022, mediante el que se remite el Informe Técnico DVT-DGIT-2022-339 emitido por la Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes, el oficio MS-DM-5838-2022 mediante el que se remite el Acta N°28643-SMOPT-SP del Comité Asesor Técnico en Concentraciones Masivas, se ordena mediante el siguiente acto administrativo la suspensión temporal del Permiso Sanitario de Funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 (parque temático, autódromo, anfiteatro, eventos deportivos, culturales, ferias y exposiciones varias) hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los Criterios técnicos emitidos por el Benemérito Cuerpo de Bomberos de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud. Así mismo, su representada deberá presentar un plan remedial que abarque la solución a la problemática de los accesos y el consecuente riesgo a la Seguridad y Salud Publica ante la realización de Actividades de Concentración Masiva, y la generación de una eventual emergencia en dichas actividades”.
8.- Oficio conexo. Después de recabar los criterios técnicos del director del Cuerpo de Bomberos y de la presidenta de la Cruz Roja Costarricense, se dictó el oficio MS-DRRSCN-DARSA2-1724-2022 del 15 de julio de 2022, mediante el cual el director del Área Rectora de Salud Alajuela 2 le indicó al representante legal del Parque Viva que, como seguimiento a lo dispuesto en la orden sanitaria, se remitían los informes técnicos CBCR-027150-2022-OPB-00741 del Cuerpo de Bomberos, CRC-GG-SO-OF-074-2022 y CRC-GG-OF-012-2022 de la Cruz Roja Costarricense, 911-DI-2022-2202 del Sistema de Emergencias 9-1-1 y el DM-2022-3121 del Ministerio de Obras Públicas y Transportes (MOPT). Adicionalmente, se resolvió lo siguiente:
“Una vez conocidos y analizados dichos documentos de acuerdo con lo indicado en la orden de cita, queda demostrado que los mismos señalan que existe un evidente problema para la atención de emergencias (accidentes de tránsito, incendios estructurales, casos médicos, entre otros), por parte de las Instancias de Primera Respuesta tanto en las comunidades aledañas, como para los mismos asistentes a los eventos de concentración masiva que se realizan en el Parque Viva, debido a problemas de tránsito y acceso al lugar, por lo tanto, en concordancia con el principio precautorio y en aras de garantizar el cumplimiento de los artículos 21 y 50 de la Constitución Política, el artículo 11, 152, 153 y 154 de la Ley General de la Administración Pública y los artículos 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357 y 364 de la Ley General de Salud, se confirma en todos sus extremos y alcances la Orden Sanitaria MS-DRRSCN-DARSA2-OS-0386-2022”.
9.- El 13 de julio de 2022, en conferencia de prensa, el mandatario se refirió a la reacción del Grupo Nación y el periódico La Nación sobre el cierre del Parque Viva.
10. El 20 de julio de 2022, en conferencia de prensa, el señor presidente señaló, entre los motivos para cancelar el plan del tren eléctrico, la existencia de un ramal que pasa por Parque Viva.
Salvé el voto parcialmente porque estimo que la Sala Constitucional no debió pronunciarse sobre los actos administrativos impugnados (la orden sanitaria y el oficio conexo), debido a que el caso bajo estudio no cumple con los presupuestos procesales que en todo recurso de amparo deben acreditarse ante este órgano jurisdiccional.
Para desarrollar mis argumentos haré una referencia a las fases procesales de todo recurso de amparo que es resuelto por el fondo.
A. Fase de admisibilidad: los presupuestos procesales Para que un recurso de amparo supere la fase de admisibilidad, la Sala Constitucional debe verificar tres elementos: los requisitos formales de la demanda, su competencia para conocer del asunto y la legitimación de las partes.
1. Aspectos formales del escrito de interposición Corresponde, en primer término, constatar si el escrito reúne unas mínimas condiciones . Como el recurso de amparo es un proceso informal, estas son muy pocas: nombres de los recurrentes y recurridos, los hechos, el objeto impugnado (qué acto, omisión o vía de hecho se ataca), el objeto protegido (los derechos fundamentales o libertades públicas presuntamente conculcados, que sería aquello que la Sala protegería), las pruebas y la pretensión. En realidad, lo indispensable es la determinación de quién es la parte recurrente, relatar los hechos y aportar un mínimo de sustento probatorio. Lo demás, el tribunal lo puede deducir o, si tiene dudas, puede dictar una prevención (un acto en el que ordena que le aclare lo que estime necesario) de conformidad con el artículo 42 de la LJC .
2. La competencia del órgano Luego la Sala debe verificar si es competente para conocer del asunto. La competencia está condicionada por varios elementos: el objeto impugnado, el objeto protegido, el carácter de la lesión y la naturaleza del proceso.
Artículo 29. El recurso de amparo garantiza los derechos y libertades fundamentales a que se refiere esta ley, salvo los protegidos por el de hábeas corpus.
Procede el recurso contra toda disposición, acuerdo o resolución y, en general, contra toda acción, omisión o simple actuación material no fundada en un acto administrativo eficaz, de los servidores y órganos públicos, que haya violado, viole o amenace violar cualquiera de aquellos derechos.
El amparo procederá no sólo contra los actos arbitrarios, sino también contra las actuaciones u omisiones fundadas en normas erróneamente interpretadas o indebidamente aplicadas. (El destacado no es del original).
En el presente caso, prima facie, la Sala es competente para conocer de la orden sanitaria y el oficio conexo que los recurrentes piden anular, pues son unas disposiciones de servidores públicos y se aduce que ha violado derechos y libertades fundamentales que se garantizan mediante el recurso de amparo. No obstante, como luego se verá con detalle, la Sala en la gran mayoría de los casos suele rechazar ad portas recursos de amparo contra órdenes sanitarias, alegando que su conocimiento no se aviene con las características propias de un proceso sumario y porque siempre se ha considerado que es el acto inicial del procedimiento, por lo que es a partir de ese momento en el que las partes pueden ejercer su derecho de defensa. De manera que para admitirlo debía tener fundadas razones que le apartaran de esa línea jurisprudencial. A esto me referiré casi de inmediato al señalar la necesidad de respetar la naturaleza del recurso de amparo. Basta ahora decir que, sobre la admisibilidad del presente recurso, cabe una duda en lo que respecta al objeto impugnado, y no solo por lo que se ha apuntado, sino porque esos actos no recaen directamente sobre los recurrentes sino sobre un inmueble propiedad del mismo grupo empresarial que es dueño de la empresa para la que laboran los recurrentes, que no es la sede donde realizan sus labores. Aunque este es un aspecto que hace relación más bien a la legitimación, como luego se examinará. En todo caso, seguramente ante la duda, se vio prudente cursarlo.
Desde el primer momento de su historia, esa Sala señaló:
“En buena doctrina constitucional el criterio se basa en que cualquier infracción de legalidad, en cuestiones relacionadas con esos derechos, puede causar eventualmente lesión de aquellos derechos fundamentales, pero cuando se trate de una lesión simplemente indirecta, por existir dentro del aparato estatal, órganos que pueden y deben resguardar esos derechos y reparar su violación, les corresponde a ellos conocer y no a esta Sala” (sentencia 1610-90) .
Merece ser citada otra sentencia que, además de recoger ese precedente de 1990, señala:
“Se impone advertirle que la procedencia del recurso de amparo, en general, está condicionada, no sólo a que se acredite la existencia de una turbación —o amenaza de ésta— a uno o más de los derechos o garantías contemplados en la Carta Política o los de carácter fundamental establecidos en los instrumentos internacionales de derechos humanos suscritos y debidamente incorporados al ordenamiento jurídico, sino también a que el agravio alegado comporte una amenaza o quebranto directo y grosero de aquellos derechos, que ponga en peligro aquella parte de su contenido que les es esencial y connatural, es decir, el núcleo que les presta su peculiaridad y los hace reconocibles como derechos de una naturaleza determinada. En este sentido, la jurisprudencia constitucional ha precisado que el problema de las violaciones directas e indirectas a la Constitución involucra, también, una necesaria apreciación de la idoneidad y naturaleza expedita que debe caracterizar a la vía del amparo (…). Por esas razones, el recurso de amparo no puede ser empleado para controlar la legalidad de los actos de las distintas Administraciones Públicas, siendo que el amparo es un proceso sumario de tramitación sencilla y rápida, incompatible con la realización de debates extensos y técnicamente complejos” (sentencia 2020-12053; el destacado no es del original) .
Nótese que la Sala señala que el recurso de amparo es idóneo solo para conocer lesiones directas, no las indirectas, debido al carácter sumario de ese proceso. Justamente por eso interesa detenerse a analizar la naturaleza de este recurso.
No todo acto u omisión o vía de hecho, que provengan de una autoridad, aunque sean de suyo impugnable, es susceptible de ser conocido en un proceso sumario e informal. Las razones pueden ser diversas: la complejidad jurídica o técnica del acto, la necesidad de contar con un amplio acervo probatorio para determinar su validez y eficacia, etc. Sobre esto hay jurisprudencia consolidada que la Sala reitera todas las semanas al rechazar buena parte de los recursos de amparo que le son presentados.
Igualmente, el tribunal debe constatar si el objeto protegido (los derechos fundamentales presuntamente conculcados) puede ser efectivamente garantizado mediante un recurso de amparo, que es un proceso sumario e informal. Al respecto hay una reiteradísima jurisprudencia sobre el particular, que la Sala también recoge de modo habitual.
Justamente en este sentido, suscribí con la magistrada Hernández López una nota que reiteramos en muchas ocasiones:
“IV.- NOTA DE LAS MAGISTRADAS HERNÁNDEZ LÓPEZ Y GARRO VARGAS CON REDACCIÓN DE LA SEGUNDA. El recurso de amparo es un proceso sumario por naturaleza y, a tenor del artículo 48 de la Constitución Política, está diseñado para proteger los derechos constitucionales (con excepción de la libertad e integridad personal) y los de carácter fundamental establecidos en instrumentos internacionales de derechos humanos aplicables a la República. Por ende, un asunto es susceptible de ser conocido mediante un recurso de amparo cuando se invoca la presunta de lesión de alguno de esos derechos. Pero eso no es suficiente. Es preciso que el objeto en discusión pueda ser conocido adecuadamente en un proceso sumario: es decir, en un trámite sencillo sin necesidad de una fase probatoria compleja. Además, el carácter sumario debe manifestarse no sólo en la fase de conocimiento sino también en su fase de ejecución. Sobre la base de lo anterior, las suscritas magistradas estimamos que el presente asunto no corresponde ser conocido en la Sala Constitucional mediante el recurso de amparo, pues, aunque podrían estar involucrados derechos fundamentales, para analizarlo debidamente se requiere producir prueba técnica proveniente de diversas disciplinas, con el fin de examinar los diversos elementos que entran en juego en su resolución” (nota a la sentencia 2020-23153).
Esto es así porque ciertamente muchos asuntos involucran derechos fundamentales, pero deben ser conocidos en su sede correspondiente. Por ejemplo, si una persona aduce que la defraudaron en una compraventa de un lote, qué duda cabe ?si en efecto fue así? que le han violado su derecho y que este es un derecho fundamental. Se trata del derecho reconocido en el artículo 45 de la Constitución Política; pero es claro que el litigio sobre el particular no corresponde ser conocido en la Sala Constitucional, ni siquiera si el vendedor fue un sujeto de derecho público, porque para resolver este tipo de conflictos está la jurisdicción correspondiente. Sin ir más lejos, pues los ejemplos podrían ser abundantísimos, si un transeúnte dispara a otro, el victimario está violando el derecho fundamental a la vida o, al menos, a la integridad de la víctima, pero evidentemente el asunto tampoco puede ser conocido mediante un recurso de amparo, porque esa conducta está tipificada y, por tanto, será el juez penal quien determine la responsabilidad y el alcance y las consecuencias de esta. Pues bien, esto la Sala habitualmente lo ha tenido muy claro en su jurisprudencia, por eso, cada semana, rechaza muchos recursos de amparo señalando que se trata de asuntos propios de la legalidad ordinaria.
Lo anterior significa que, para que un caso sea examinado y resuelto en un recurso de amparo, no basta aducir que la lesión del derecho fundamental alegada tiene su causa en una conducta de la parte recurrida. Y la Sala procura respetar esos criterios justamente para no invadir las competencias de la jurisdicción ordinaria (establecidas en los artículos 49 y 153 de la Constitución Política) o las de las autoridades administrativas, según corresponda. Pero no solo por ese motivo, sino porque de esa manera, residenciándose el asunto donde corresponde, las partes tendrán todas las garantías procesales propias del debido proceso, que en un recurso sumario e informal como el amparo se reducen. Así, por ejemplo, los informes de las autoridades, al ser dados bajo fe de juramento , se tienen por ciertos, por lo que las posibilidades de desvirtuarlos son mucho menores que en procesos plenarios .
Por eso la Sala debe constatar si en atención al objeto impugnado (los actos presuntamente lesivos), al objeto protegido (los derechos fundamentales presuntamente conculcados) y al tipo de lesión (si la afectación es directa o no) el asunto es susceptible de ser conocido en un proceso sumario como es el amparo.
Dicho lo anterior, surge la duda sobre si el presente recurso debió ser admitido. Todo parece indicar que no se trataba de una orden sanitaria relativa a un tema sencillo, sino, por el contrario, a uno de gran complejidad, que difícilmente podía ser analizada en un proceso sumario. Sin embargo, como bien dice la sentencia , la Sala Constitucional ha dejado un reducto de posibilidad de admitir recursos de amparo contra una orden sanitaria y, de hecho, excepcionalmente les ha dado curso. De manera que se podría pensar que en vista de la magnitud del agravio aducido y de la calidad del presunto agraviante y, ¿por qué no? , de la calidad de los presuntos agraviados, el caso revestía una relevancia particular. Por eso bien se podía entender que tenía las condiciones para ser tenida como una excepción a la línea jurisprudencial. Así, la duda sobre si el objeto impugnado podía ser conocido en esta sede mediante un proceso sumario, se resolvió a favor de los recurrentes, en la fase preliminar y no solo en esta .
3. La capacidad y la legitimación de las partes En tercer lugar, la Sala debe verificar si la parte recurrente tiene la capacidad y la legitimación procesales. Respecto de la capacidad, al ser un proceso informal, toda persona física en uso de razón y toda persona jurídica debidamente representada la tiene. En el presente caso, se trata de personas físicas que evidentemente tienen capacidad de actuar. Respecto de la legitimación activa se puede afirmar que en el ordenamiento costarricense esta es universal: toda persona la tiene siempre que alegue violado algún derecho fundamental propio o ajeno. Esto es así porque el artículo 48 de la Constitución Política dice “toda persona”, y como toda persona (física) por el hecho de serlo tiene derechos fundamentales, entonces toda persona física puede válidamente interponer un recurso de amparo, es decir, estará legitimada siempre que alegue alguna lesión o amenaza a un derecho fundamental. Además, el artículo 3 de la LJC dice lacónicamente: “Cualquier persona podrá interponer el recurso de amparo”. En el presente caso, prima facie, los recurrentes tienen legitimación para acudir en amparo, porque alegan la lesión a la libertad de expresión, que está reconocida “por la Constitución Política y (…) el Derecho Internacional vigente en Costa Rica” (artículo 2 de la LJC). No obstante, de nuevo, cabe preguntarse si en efecto la tienen, porque ha de recordarse que piden la anulación de la orden sanitaria y el oficio conexo para que se les restituya en el goce de la libertad de expresión, pues estiman que esta les ha sido lesionada por dichos actos administrativos que consideran arbitrarios. Es decir, la petitoria recae sobre unos actos que no pesan sobre ellos sino sobre una propiedad de una empresa que también pertenece a su patrono. Sin embargo, son enfáticos en señalar que sí tienen legitimación para interponer el recurso, porque entienden que hay una vinculación entre el objeto impugnado –la orden sanitaria y el oficio conexo– y el objeto que buscan proteger –su libertad de expresión –.
Ahora bien, se podría sostener que ese margen de duda, de nuevo, debía ir en favor de los recurrentes, por lo que este aspecto de la legitimación activa no debía por sí mismo ser un obstáculo para darle curso al amparo.
*** Superada esa fase de admisibilidad, como se sabe, la presidencia dicta un auto de curso, y se inicia la instrucción del proceso con el fin de conocer el asunto por el fondo.
B. Fase de conocimiento: aspectos por considerar y reconsiderar 1. Generalidades Para conocer el asunto por el fondo, al dictar el auto de curso se solicitan informes a la parte recurrida. También se pueden pedir aclaraciones y pruebas a las partes o a otras instancias. Incluso se puede ampliar el recurso a otros sujetos que se tendrían como recurridos. En efecto, en la fase de conocimiento, corresponde allegar todos los elementos necesarios para determinar si lo aducido tiene un adecuado sustento probatorio, esto es: si el objeto impugnado es lesivo y si lo es de manera directa, si la lesión alegada y debidamente comprobada recae sobre los recurrentes, y si la responsabilidad debe atribuirse a los recurridos.
No obstante, no es eso lo único ni siquiera lo primero que la Sala debe hacer, sino que ha ocuparse de despejar toda clase de cuestionamientos sobre el cabal cumplimiento de los presupuestos procesales, porque una falencia en alguno de estos supone una lesión al debido proceso, que, por cierto, debe respetarse en un amparo, por más informal y sumario que sea.
En primer término, debe cerciorarse de que es competente y por eso debe calibrar –ahora con más rigor aún y con todos los elementos que ya en esta fase constan en el expediente– si se dan las condiciones antes aludidas.
2. Verificación definitiva de algunos presupuestos procesales En el presente caso, como he dicho, se entendió que prima facie dichos presupuestos se cumplían; pero, como he señalado, surgen dudas razonables sobre si realmente su cumplimiento se puede tener por acreditado. Por eso de inmediato analizaré dos aspectos que, a mi juicio, corresponde ser examinados otra vez: el objeto impugnado y la legitimación activa.
La orden sanitaria y el oficio conexo Además de los videos que aportaron, los recurrentes adjuntaron al escrito de interposición una serie de oficios y publicaciones como prueba documental:
“Notificación de la suspensión temporal del permiso sanitario de funcionamiento de Parque Viva del 8 de julio de 2022; informe de los inspectores del Ministerio de Salud, fechado el 5 de julio; visto bueno de los aforos emitidos por el Ministerio de Salud el 16 de diciembre del 2021 y ampliación del 20 de enero siguiente; nota periodística de entrevista al alcalde de Alajuela Humberto Soto publicada el 13 de julio; nota periodística de entrevista a Hellen Espinoza, dirigente comunal de La Guácima; nota periodística del 13 de julio sobre informe del FMI relacionado con la lentitud del tránsito en Costa Rica; portada del Diario Extra del 14 de julio; página informe a los accionistas del presidente de Grupo Nación para el período 2013-2014 de donde se extrae la cita incorporada al recurso; ratificación de suspensión temporal del permiso sanitario de funcionamiento de Parque Viva fechada 15 de julio; crónicas de conciertos en La Guácima; informe n.°DFOE-LOC-IF-00014- 2020 de 14 de julio del 2022; informe de auditoría operativa sobre la eficacia y la eficiencia en uso de los recursos de la red vial cantonal en la Municipalidad de Alajuela; informe de bomberos de Belén del incendio del 4 de marzo atendido por cuatro unidades; informe de la Cruz Roja fechado 12 de julio; informe del 911 del 11 de julio; informe del MOPT del 11 de julio; informe de Bomberos del 10 de julio; cartas de no objeción al acceso propuesto desde la Ruta 27 de la Dirección General de Ingeniería de Tránsito, el Consejo Nacional de Vialidad, el Consejo Nacional de Concesiones y la Comisión de Carreteras de Acceso Restringido; intercambio de correos electrónicos entre periodistas de “interferencia”, de Radio Universidad y la oficina de prensa del Ministerio de Salud; mensaje en redes sociales de Hulda Miranda, editora del programa “Interferencia” de Radio Universidad; respuesta de SUGEVAL a la Caja Costarricense de Seguro Social; nota periodística sobre estudio del FMI de la velocidad del tránsito vehicular en el mundo” (escrito de interposición, p. 16; se han suprimido los puntos y aparte).
Los recurridos, además de los actos impugnados, aportaron también otros documentos:
La denuncia; el oficio mediante el cual se remite la denuncia ante el Área Rectora de Salud Central Norte, varias notas periodísticas que dan cuenta de la problemática vial cuando se realizan eventos en Parque Viva; el acta de inspección n.°MS-DRRSCN-DARSA2-1639-2022; el oficio n.°MS-DRRSCN-DARSA”-1641-2022 de 5 de julio que es informe de seguimiento a la denuncia ambiental; oficio n.°DVT-DGIT-2022-339, suscrito por el Ing. Junior Araya Villalobos, funcionario de la Dirección General de Ingeniería de Tránsito; acta de la sesión del Comité Asesor Técnico de Concentraciones Masivas del 7 de julio de 2022; orden sanitaria n.°MS-DRRSCN-DARSA2-OS-0368-2022; informe técnico n.°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Jim Batres Rodríguez, Sub-Gerente operativo de la Cruz Roja Costarricense; informe técnico n.°CBCR-027150-2022-OPOB-00741 del 10 de julio de 2022, suscrito por el señor Alexander Araya Mico, de Operaciones de Bomberos del Benemérito Cuerpo de Bomberos; informe n.°CRC-GG-OF-012-2022 del 12 de julio de 2022, suscrito por el señor José David Ruiz Piedra, Gerente General de la Asociación Cruz Roja Costarricense; informe n.°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Jim Batres Rodríguez, Sub-Gerente operativo de la Cruz Roja Costarricense y el informe n.°911-DI-2022-2202 del 11 de julio 2022, suscrito por María Elena Amuy Jiménez del Sistema de Emergencias 911.
A eso se sumaron los que después aportaron los recurrentes:
“Comunicado oficial, Municipalidad de Alajuela, desmintiendo al INVU (Prueba #1). Certificación notarial de usos de suelo # MA-ACC-U-01335-2013, de fecha 18 de junio de 2013, para construcción de Hotel y Servicio de Comidas, # MA-ACC-U-01334-2013, de fecha 18 de junio de 2013, para construcción de Anfiteatro y Centro de exhibiciones, # MA-ACC-U-01336-2013, de fecha 18 de junio de 2013, para construcción de campo ferial, # MA-ACC-U-00817-2013. de fecha 16 de abril de 2013, para construcción de parqueo, campo ferial y centre de convenciones. (ver prueba #2, primer punto). Resolución numero 3088-2013 de Selena. Proyecto Mejoras al Autódromo La Guácima. (ver prueba #4). Oficio DGIT-ED-5935-2014 del 01 de diciembre del 2014 donde la Dirección General de ingeniería de Tránsito emite formal aprobación del estudio de impacto vial (ver prueba #5). Certificación notarial del informe de la consulta de autenticidad de sellos, por medio de código OR del proyecto Obras de Infraestructura La Guácima, emitido por el Colegio Federado de Ingenieros y Arquitectos (ver prueba #2, segundo punto). Copia del índice de láminas de pianos constructivos del proyecto "Obras de Infraestructura la Guácima (ver Prueba # 3). Oficio CBCR-0018379-2014-INB-00736, fechado 16 de junio del 2014 donde el Benemérito Cuerpo de Bomberos acepta la eliminación de hidrantes y se pide subsanar defectos menores. (Ver Prueba # 6). Oficio DVT-DGIT-ED-2015-4056 donde el MOPT acepta la finalización del proyecto de construcción de mejoras viales y deja constancia de la recepción de las obras. (ver prueba # 7). Certificación notarial de Carta de Intenciones para reactivar servicios férreos entre Parque Viva (Guácima) e Incofer (ver prueba #8). Certificación notarial de las páginas 9 y 83 del documento ’APROBACION DEL CONTRATO DE PRESTAMO N° 2241 ENTRE EL GOBIERNO DE LA REPUBLICA DE COSTA RICA Y EL BANCO CENTROAMERICANO DE INTEGRACION ECONOMICA (BCIE) PARA APOYAR EL FINANCIAMIENTO DEL PROYECTO; CONSTRUCCl0N (EOUIPAMIENTO Y PUESTA EN OPERACIÓN DE UN SISTEMA DE TREN RAPIDO DE PASAJEROS (TRP) EN LA GRAN AREA METROPOLITANA, publicado en el Alcance No. 112 a La Gaceta No. 110, 14 de mayo del 2020 (ver prueba # 2. tercer punto). Certificación notarial de los Editoriales de La Nación de 25 y 26 de agosto de 2020 que explican la infamia sobre el supuesto ramal del tren eléctrico. (Ver prueba # 9). Certificación de las siguientes notas periodísticas: Noticia titulada “Los mandos medios a cada rato se atraviesan", Noticia titulada "Zona franca en Grecia iniciara obras después de 24 meses varada por rechazo de acceso a ruta 1", Nota titulada Chaves ataca a La Nación con dates distorsionados, Manifiesto “Defendemos la libertad de prensa", Articulo de Jimen Chan ¿En qué se parece Rodrigo Chaves y sus actuaciones a Donald Trump y las suyas? (Ver prueba #9). Certificación notarial del envío de respuesta a la CCSS en fecha lunes 8 de agosto del 2022, y sus documentos adjuntos; escrito de respuesta y hecho relevante pertinente fechado 26 de junio. (ver prueba # 10” (escrito de los recurrentes de 17 de agosto de 2022, p. 13; se han suprimido los puntos y aparte).
Eso significa que al momento de conocer por el fondo este asunto constaban en el expediente numerosos oficios de muy distintas autoridades sobre un tema particularmente complejo.
Es decir, no se trataba de una orden sanitaria como la que fue extendida a miles de habitantes durante la pandemia, muchas de las cuales fueron impugnadas mediante la interposición de recursos de amparo y que, por cierto, la Sala en su gran mayoría sistemáticamente rechazó. En dichos recursos, se alegaba que la orden sanitaria había comportado la lesión a otros derechos: libertad de tránsito, libertad de comercio, derecho al trabajo, etc. Sin embargo, la Sala entendió que debían inadmitirse, de conformidad con una reiterada jurisprudencia sobre órdenes sanitarias, a la que de inmediato aludiré.
Lo que ahora interesa destacar es que el objeto impugnado (la orden y el oficio conexo) no solo en sí mismo tiene amplios y complejos alcances, sino que para determinar si esos actos fueron arbitrarios era del todo necesario, al menos, analizar los documentos aportados por las partes, y estos ni eran pocos ni eran simples, ni congruentes entre sí.
(2) La no idoneidad del amparo: jurisprudencia constitucional Corresponde ahora examinar qué ha dicho la jurisprudencia de esta Sala sobre la idoneidad del recurso de amparo para conocer órdenes sanitarias. Entresacaré algunas de sus numerosísimas resoluciones sobre este tema. Comentaré primero la robusta jurisprudencia dictada desde los primeros años de este Tribunal y que atraviesa toda su historia hasta el año 2019, y después la que fue dictada durante la pandemia provocada por el COVID-19. Al referirme a ambas etapas dividiré las sentencias en aquellas mediante las que se dictan rechazos y las sentencias en las que se resuelve por el fondo. Dentro de estas últimas, haré algunas observaciones a un caso que es citado por la mayoría en la sentencia, en el que se adujo que la orden sanitaria impugnada lesionaba la libertad de expresión.
(a) Jurisprudencia en tiempos normales Como se verá, en tiempos normales, lo habitual ha sido que la Sala rechace de plano los recursos de amparo en los que se impugnan órdenes sanitarias. Desde sus orígenes la Sala Constitucional ha mantenido una casi ininterrumpida línea jurisprudencial en la que afirma de que no le corresponde revisar la legalidad de las órdenes sanitarias.
“UNICO: (…) Estando fundado el acto que se recurre en los artículos 356 y 363 de la Ley General de Salud, y en lo dispuesto en el Reglamento de Seguridad e Higiene Industrial, y habiendo tenido y ejercido el accionante su derecho de defensa através (sic) del procedimiento administrativo seguido al efecto, el acto se convierte en legítimo, desde el punto de vista constitucional, es decir, no produce quebranto constitucional alguno, quedando esta Sala en imposibilidad de revisar los alcances de mera legalidad que pudieran derivarse de él, aspecto que, en todo caso, sí puede ser discutido en la vía ordinaria correspondiente. No obstante se aclara que, no pueden las autoridades de Salud ordenar al accionante a demoler la estructura, si no demuestran que él es el propietario, ni pueden hacerlo por su cuenta, si no han oído previamente al propietario de ese inmueble” (sentencia 1991-1948; el destacado no es del original).
También ha señado que el recurso de amparo no es la vía para valorar la oportunidad y legalidad de la orden:
“[E]l recurso pretende que la Sala examine las razones técnicas en que ha fundamentado el Ministerio la orden sanitaria, a la que califican de ilegal e injusta y evidenciándose que no se ha dado ninguna violación a un derecho fundamental y no siendo esta la vía para revisar la oportunidad y la legalidad de lo actuado, el recurso resulta improcedente y debe rechazarse de plano” (sentencia 1992-856).
En idéntico sentido, y siempre para rechazar de plano, ha dicho que ya hay otros mecanismos para impugnarlas, esto es, los recursos administrativos ordinarios:
“El amparo, como se infiere de lo que afirma el recurrente, no tiene otro fundamento más que evitar que se declare el cierre de la actividad comercial aludida. La Sala ha sostenido reiteradamente, que las órdenes sanitarias son susceptibles de ser combatidas por medio de los recursos ordinarios del procedimiento administrativo, de manera que los interesados pueden, en esa vía, demostrar técnica y pericialmente, que su actividad no está en los supuestos a que alude la orden dicha. Así las cosas, el recurso resulta improcedente en la vía constitucional y siendo un asunto de legalidad, debe ser debatido en la sede correspondiente” (sentencia 1992-3056; el destacado no es del original).
Además, ha indicado que la orden sanitaria no constituye el acto final del procedimiento, por lo que su imposición de suyo no comporta una lesión al debido proceso:
“Sobre la procedencia o no de la orden sanitaria emanada por las autoridades competentes del Ministerio de Salud, los requerimientos técnicos que en ella se hacen respecto del incumplimiento en las condiciones físico- sanitarias y la falta de permisos aludida, tampoco pueden discutirse en esta sede, dado que son las autoridades del Ministerio de Salud, de conformidad con la legislación vigente y aplicable, las que deben velar por el cumplimiento de los requisitos mínimos en los negocios comerciales, entre otros, mediante criterios técnicos debidamente respaldados. Reiteradamente esta Sala ha señalado que las órdenes sanitarias que, en ejercicio de sus competencias, dictan las autoridades de salud, no constituyen el acto final de un procedimiento administrativo en el que no se le ha dado participación alguna a los afectados, sino que por el contrario, debe considerarse el acto inicial, el traslado que se hace a los afectados, para iniciar el procedimiento administrativo, dándoles oportunidad para que conozcan los estudios técnicos que respaldan la orden, los estudien, cuestionen, ofrezcan pruebas de descargo y hagan propuestas alternativas para solucionar los problemas que las autoridades han detectado. Igualmente, pueden cuestionar la orden mediante el recurso de revocatoria y apelación, si a bien lo estiman conveniente –tal y como lo ha hecho el recurrente-. Si no se le pusiera en conocimiento de los estudios y pruebas que sustentan la orden, o no se le diere oportunidad de cuestionarla, eventualmente podría estarse frente a una violación al debido proceso revisable en esta sede, pero ello no ha ocurrido en el caso que nos ocupa” (sentencia 2000-11215).
Y ha agregado que la Sala no es una instancia más en el procedimiento administrativo ni un contralor de legalidad.
“Lo planteado por la recurrente no es más que un conflicto de legalidad ordinaria ajeno al ámbito de competencia de esta Sala. En primer lugar, conforme lo ha sostenido reiteradamente este Tribunal, la orden sanitaria es el acto inicial del procedimiento administrativo, a partir del cual debe cumplirse el debido proceso a través del ejercicio de los recursos que procedan, como efectivamente los ejerció la amparada (folios 7 a 10). Ahora bien, lo resuelto en torno a dicho recurso por el Ministerio de Salud, según resolución DM-RC-9030-05 de las catorce horas treinta y un minutos del treinta y uno de octubre del dos mil cinco no puede se objeto de impugnación en esta vía, ya que la Sala no es una instancia más dentro del procedimiento administrativo ni un contralor de legalidad. De modo que si la recurrente estima que su casa no es inhabitable y, por ende, no procede ordenar su desalojo, y que los informes rendidos tanto por la Comisión Nacional de Emergencias como por el propio Ministerio de Salud -este último en relación con la inspección de campo realizada- son generales y no individualizan la situación concreta de su caso, no es en esta vía que debe presentar sus alegatos, sino ante la propia administración recurrida o, en su caso, en la jurisdicción ordinaria, pues son éstas -y no la Sala- las competentes para conocer y pronunciarse al respecto” (sentencia 2006-00773; el destacado no es del original).
Es decir, ha entendido que la jurisdicción constitucional no es la sede apropiada para conocerlas. Así, ha explicado que el examen sobre las órdenes sanitarias no se aviene con el carácter sumario del amparo:
“Por otra parte, como lo que se pretende con el amparo, según se desprende del libelo de interposición del recurso, es discutir en esta sede soporte técnico de los actos administrativos impugnados, el recurso es inadmisible, pues el diferendo que existiera sobre el particular constituye un conflicto de mera legalidad que por su naturaleza debe ser planteado, discutido y resuelto en la vía administrativa -como ha ocurrido-, o en la vía contencioso administrativa por agotamiento de la fase anterior. Más aún, discutir en esta sede sobre el contenido o sustento de las órdenes cuestionadas implica revisar en esta jurisdicción los criterios técnico empleados para llegar a la determinación impugnada, lo que no sólo resulta ajeno a la vía del amparo, sino que además excede su carácter sumario” (sentencia 1997-2548, el destacado no es del original).
Siguiendo esa lógica, y recogiendo muchos de los criterios antes mencionados , también ha sostenido que, si se está disconforme con una orden sanitaria, además de los recursos administrativos, se puede acudir a la vía ordinaria, para que ahí se valore el sustento técnico de esta, pues esto exige una fase probatoria importante:
“II.- CASO CONCRETO. Esta Sala ha establecido en forma reiterada que las ordenes sanitarias que emite el Ministerio de Salud -como ocurre en este caso-, constituyen justamente el acto inicial del procedimiento correspondiente en la cual se comunica las razones de hecho y de derecho que motivan tales órdenes, momento a partir del cual el administrado puede ejercer plenamente su derecho de defensa, y recurrir los actos administrativos por medio de los recursos y ante las instancias previstas al efecto. De esta forma, para el dictado de los actos en cuestión, la Administración no tenía que observar el debido proceso, dar audiencia previa o hacerle prevención alguna al amparado, pues con el ejercicio de los recursos que se le indican en las propia resoluciones citadas supra, se ejerce el derecho de defensa y se cumple el debido proceso. Ahora bien, si el amparado está disconforme con la procedencia de dichas órdenes sanitarias, ya que cuestiona su sustento técnico o la valoración probatoria que la fundamenta, ello hace referencia a un conflicto de legalidad ordinaria cuyo conocimiento y resolución escapa del ámbito de competencia de esta Sala. Máxime que esto entraña una discusión probatoria y técnica cuya resolución no es propio del carácter eminentemente sumario del recurso de amparo, proceso en el cual no es material ni razonablemente posible entrar en un complicado sistema probatorio o en la práctica de diligencias probatorias lentas y complejas. En mérito de lo expuesto, el recurso es inadmisible y así debe declararse” (sentencia 2015-001416; el destacado no es del original; idénticas consideraciones fueron reiteradas en las sentencias 2016-9673, 2016-15956 y 2016-17176).
Todas estas sentencias hasta aquí citadas –que son simples ejemplos, porque se trata de líneas reiteradísimas– han sido dictadas para rechazar de plano. Es decir, son argumentos con los que la Sala justifica por qué no entra a conocer por el fondo el asunto.
Sin embargo, ciertamente de manera excepcional, este tribunal ha admitido a trámite recursos de amparo contra órdenes sanitarias, cuando se han alegado lesiones groseras al debido proceso o se ha aducido que es necesario conocerlas para amparar otros derechos fundamentales invocados, como la libertad religiosa. No obstante, incluso en tales casos, igualmente la línea jurisprudencial es sólida en el sentido de que el fundamento técnico de la orden sanitaria correspondería ser discutido en las vías ordinarias de legalidad. En la inmensa mayoría de las veces, en esa fase declara sin lugar el recurso, y habitualmente en esos casos reitera muchos de los argumentos recogidos en los rechazos de plano. De inmediato haré referencia a algunos ejemplos .
Así, en un caso concluyó que no se había vulnerado el derecho de defensa:
“II.- Sobre el fondo. El amparo pretende tutelar el principio de legalidad y de igualdad, el debido proceso, el derecho a obtener una justicia pronta y cumplida y la libertad religiosa. En ese sentido, el reclamo particular del accionante es que las autoridades recurridas ordenaron el cierre de su Iglesia, motivados en una serie de mediciones sónicas, en las que no se le diera participación a su representada, y sin pronunciase de manera motivada la gestión que presentó. (…). De autos se desprende que las autoridades sanitarias recurridas intervinieron en el caso en estudio de la Iglesia Evangélica de Curubandé de Liberia, por las denuncias que por exceso de ruido habían presentado los vecinos del lugar, y que en el caso en cuestión se ha seguido un procedimiento administrativo, del cual el recurrente ha tenido conocimiento y oportunidad de defensa, incluso mediante nota de veinte de junio y dieciséis de julio, ambos de dos mil dos. Es justamente al tenor de esas reflexiones que no encuentra esta Sala que al recurrente se le haya vulnerado su derecho de defensa” (sentencia 2002-10129; el destacado no es del original).
También ha explicado que la orden sanitaria no se suspende con la interposición de los recursos ordinarios y que eso no lesiona el debido proceso. En lo conducente, advirtió lo siguiente:
“Además, en cuanto a la ejecución de la clausura del local comercial de la amparada, la Administración tiene la potestad de ejecutar por sí, sin recurrir a los Tribunales, los actos administrativos eficaces, válidos o anulables, aun contra la voluntad del administrado. Por esto, la interposición de recursos no tiene efecto suspensivo, a menos que el servidor que lo haya dictado, su superior jerárquico, la autoridad que decide el recurso o el órgano jurisdiccional que conoce del conflicto, ordenen suspender la ejecución cuando la misma pueda causar perjuicios graves o de difícil reparación, o cuando se trate de actos ineficaces o absolutamente nulos (ver artículos 146 y siguientes de la Ley General de la Administración Pública). Por otra parte, el artículo 53 de la Ley Orgánica del Ministerio de Salud, indica que el establecimiento de los recursos no suspende la ejecución del acto recurrido, a menos que, en casos muy calificados, en forma razonada, el Titular de la Cartera, interlocutoriamente y para evitar un resultado irreparable, ordene la suspensión provisional del acto, lo cual hará, en todo caso, bajo su responsabilidad. Por lo que si la recurrente considera que está en dicha hipótesis, deberá presentar la gestión correspondiente al Ministro de Salud. Por los motivos expuestos, el recurso debe ser desestimado como en efecto se dispone” (sentencia 2006-14378; el destacado no es del original).
Ha afirmado que no le corresponde cuestionar la legitimidad o contenido de las disposiciones del Ministerio de Salud, en lo atinente a la ejecución de las órdenes sanitarias:
“Es necesario aclarar que no corresponde a este Tribunal cuestionar la legitimidad o el contenido de las disposiciones tomadas por el Ministerio de Salud en cuanto a los plazos, prórrogas y resolución de recursos, relacionados con el dictado de las órdenes sanitarias, toda vez que ello es parte de su propia competencia” (sentencia 2010-004938).
Además, ha indicado que este Tribunal no es competente para conocer de las razones por las cuales se dispuso el cierre de un centro infantil, reiterando que no le corresponde valorar en un recurso de amparo el fundamento técnico de dicha decisión:
“IV.- Ahora bien, si la recurrente está inconforme con la actuación de la administración por haber revocado el acuerdo 31-17-2012, en el que se otorgó la habilitación al centro infantil "El Naranjito", dado que no cuenta con las condiciones mínimas requeridas y se instruyó al Área Rectora para realizar la clausura, ello escapa del ámbito de competencia de esta Sala, ya que el recurso de amparo ha sido instituido para tutelar infracciones o amenazas inminentes a los derechos y libertades fundamentales de las personas, y no para controlar en abstracto la correcta aplicación del derecho. En consecuencia, no corresponde en esta sede analizar las razones del Consejo accionado para disponer el cierre objetado, que como se indicó es parte de sus competencias, ya que el dominio de esta Sala está reservado al análisis de los acciones u omisiones impugnadas, y a su comparación con el ordenamiento jurídico, para determinar la legitimidad o ilegitimidad de lo impugnado, sin que sea posible incursionar en campos de la ciencia o de la técnica para ello, en atención a la naturaleza sumaria del amparo, proceso en el cual no es material ni razonablemente posible entrar a un complicado sistema probatorio o a un análisis de hechos que vaya más allá de los actos impugnados en si, circunscribiéndose más bien a las hipótesis fácticas en que esos actos se fundan. Por lo tanto, dichos extremos corresponden conocerse, discutirse y resolverse en el propio procedimiento administrativo, y una vez concluido el mismo, si la amparada estima que la resolución que dio por concluido el proceso administrativo, es contraria a derecho, tiene la facultad de impugnarla ante la vía contencioso administrativa, a fin de que en esa sede se determine sobre la procedencia o no de lo dispuesto por los órganos recurridos” (sentencia 2014-2423, el destacado no es del original).
Como puede observarse, se trata de ejemplos de sentencias que resuelven por el fondo y desestiman el recurso, aduciendo casi siempre lo mismo que se suele decir en los rechazos de plano.
(b) Jurisprudencia durante la pandemia Particular atención requiere la jurisprudencia de esta Sala dictada durante la pandemia provocada por el COVID-19. Especialmente en los momentos de mayores restricciones se interpusieron numerosos recursos de amparo en los que se impugnaban órdenes sanitarias, aduciendo que lesionaban el derecho al trabajo y la libertad de comercio (al obligar, por ejemplo, al cierre de locales comerciales). Eran casos de gran importancia, pues la limitación en el ejercicio de tales derechos supuso serios impactos en tantas familias costarricenses que, de la noche a la mañana, vieron mermada significativamente –cuando no cerrada– la fuente de ingresos para su subsistencia. En otros recursos se impugnaron las restricciones sanitarias vehiculares y las disposiciones sobre el uso de mascarillas. También se impugnaron órdenes sanitarias alegando que lesionaban derechos, ya no en la esfera patrimonial, sino en una más íntima y no menos importante: por ejemplo, se adujo la lesión a la libertad de culto y la violación a los derechos de las personas privadas de libertad para recibir visitas conyugales y de sus demás familiares. En todos esos casos, se podría decir, la Sala fue implacable y consistente, como de seguido se pasa a demostrar con algunas pocas sentencias, que son solo una muestra muy ilustrativa de lo que se acaba de afirmar.
Así, respecto de un amparo en el que se impugnaba una orden sanitaria que disponía el cierre de un negocio comercial ?eventual sustento laboral y económico de la familia de sus dueños y de sus colaboradores que dependen de la operación de dicho local?, la Sala dijo que el conocimiento de ese asunto excedía el carácter sumario del amparo y rechazó de plano el recurso:
“II.- SOBRE EL CASO CONCRETO. En el sub iudice, advierta el recurrente que no corresponde dilucidar en la vía sumaria del amparo si los hechos acaecidos son ciertos o no, si a su establecimiento comercial le resulta aplicable una u otra normativa sanitaria, o si la clausura era procedente; de igual forma, no compete a la Sala determinar la procedencia de la multa. Dicho de otro modo, no le corresponde a este Tribunal hacer las veces de jurisdicción de alzada en la materia y revisar si la decisión de decretar y ejecutar tal cierre, se ajusta o no a los hechos y a la normativa infra constitucional vigente, ni mucho menos usurpar las atribuciones de la autoridad sanitaria recurrida y, previa comprobación de los requisitos legales y reglamentarios del caso, ordenar que se anulen los actos cuestionados, tal y como pretende el recurrente, pues se trata de extremos de legalidad ordinaria que deben ser dirimidos en la vía común, administrativa o jurisdiccional. De este modo, lo expuesto constituye un extremo de legalidad ordinaria que excede la naturaleza eminentemente sumaria del recurso de amparo. Por lo tanto, deberá la parte recurrente, si a bien lo tiene, plantear sus inconformidades o reclamos ante la autoridad recurrida, o bien, en la vía jurisdiccional competente, sedes en las cuales podrá, en forma amplia, discutir el fondo del asunto y hacer valer sus pretensiones. En consecuencia, el recurso es improcedente y así debe declararse” (sentencia 2021-3603; consideraciones muy similares fueron reiteradas en la sentencia 2022-3545).
En igual sentido se pronunció en otra de tantas ocasiones, cuando al rechazar de plano los amparos, señaló que este tipo de actos deben ser conocidos en las vías ordinarias:
“Sostiene que, mediante la orden sanitaria R1-b11-001-2020 se dispuso el cierre de su negocio. Agrega que autoridades de policía se apersonaron al local comercial y lo clausuraron, debido a que supuestamente se permite el consumo de licor dentro del establecimiento, lo cual refuta. Considera irrazonable que autoridades policiales que no son funcionarios del Ministerio de Salud hayan clausurado el negocio por medio de una orden sanitaria, debido a la supuesta infracción del Decreto Ejecutivo 42227-MP-S dictado con ocasión de la pandemia del coronavirus COVID-19. (…)
En el sub lite, la Sala observa que lo planteado por la parte recurrente no es más que un conflicto de legalidad ordinaria, que no configura una violación a los derechos fundamentales de tal magnitud como para justificar la intervención de esta jurisdicción. En efecto, a este Tribunal no le corresponde valorar, de acuerdo con la normativa infraconstitucional que rige la materia, la procedencia o no de la orden sanitaria aludida, ni tampoco determinar si se incurrió o no en la falta acusada. Además, la Sala no omite manifestar que es a partir de la emisión de una orden sanitaria cuando se produce el acto inicial del procedimiento correspondiente. De modo que, a partir de la notificación de tal orden, el administrado puede ejercer plenamente su derecho de defensa, sea recurriendo el acto administrativo ante las instancias previstas al efecto, ocasión en que puede aportar la prueba que considere relevante y plantear los alegatos que estime oportunos- o realizando todos los actos que considere pertinentes en el ejercicio de su defensa. (…) En mérito de lo expuesto, se rechaza el recurso” (sentencia 2020-7165; el destacado no es del original; en igual sentido vid. sentencia 2020-7626 y 2020-7934).
En el contexto de la pandemia también se cuestionaron las medidas de apertura gradual que dispuso el Ministerio de Salud. Por ejemplo, los dueños de unos gimnasios adujeron que se les había infringido el derecho a la igualdad, el derecho al trabajo y a la libertad de comercio, y la Sala resolvió lo siguiente:
“I.- Objeto del recurso. Los recurrentes, quienes son dueños de gimnasios ubicados en la GAM, aducen incongruencia en la selección de los establecimientos comerciales que el gobierno, en el contexto de la pandemia por la covid 19, ha permitido abrir a partir del 10 de agosto de 2020. Refieren que el recurrido ha autorizado la apertura de salones de belleza, centros de estética y clubes de natación, pero no la de los gimnasios, pese a que en ellos se desarrollan actividades similares “e incluso más seguras que las que fueron permitidas”. (…) Arguyen que la restricción propicia la competencia desleal, pues los usuarios están trasladándose a los gimnasios ubicados en las zonas amarillas por encontrarse cerrados los que están localizados en zona naranja, lo cual, además, perjudica la contención del virus, ya que se entremezclen las personas de diferentes sectores. Estiman que la fase de apertura recién iniciada genera un trato discriminatorio y violenta su derecho al trabajo y la libertad comercial. Piden que se autorice la reanudación de las actividades enfocadas en el mantenimiento y acondicionamiento físico.
II.-Sobre el caso concreto. Como se colige, los reclamos de la parte tutelada versan sobre aspectos que exceden las competencias de este Tribunal Constitucional, el cual está llamado a enmendar groseras violaciones a derechos fundamentales, mas no a servir como un instrumento genérico para canalizar peticiones y disconformidades de otros tipos. En este sentido, este Tribunal Constitucional no es un contralor de la legalidad de las actuaciones o resoluciones de las autoridades recurridas y tampoco puede reemplazar a la Administración activa en la gestión de sus competencias, de modo que no le corresponde usurpar las atribuciones legalmente conferidas a otras dependencias u órganos como lo es el Ministerio de Salud, quien ejerce la rectoría en cuestiones atinentes al resguardo de la salud pública, en virtud de lo cual tiene la facultad y el deber de decretar las medidas técnicas que estime útiles y necesarias en el contexto de la actual pandemia, cuya pertinencia técnica no corresponde ser analizada en la vía sumaria del amparo sino que, si a bien lo tiene la parte recurrente, deberán ser planteados los agravios atinentes en la vía ordinaria de legalidad competente” (sentencia 2020-15420; el destacado no es del original).
De forma similar, la Sala se abstuvo de conocer sobre supuestas restricciones a la libertad de culto. Por ejemplo, se consideró lo siguiente:
“La parte recurrente manifiesta su disconformidad con las medidas tomadas por la Presidencia de la República y el Ministerio de Salud, en la atención de la pandemia ocasionada por el COVID-19 pues, según estiman, resultan discriminatorias. Consideran que se deben tomar los protocolos y medidas de protección propuestos por la Conferencia Episcopal, y proceder a la apertura inmediata de los lugares de libre culto (…). [P]or la vía del amparo, esta Sala no puede usurpar las atribuciones de las autoridades del Ministerio de Salud, a efecto de definir la procedencia de las pretensiones expuestas por la parte recurrente, de conformidad con las políticas de salubridad pública, pues se trata de materias que requieren ponderar criterios técnicos, médico-científicos y de oportunidad y conveniencia. Semejantes cuestiones, por su naturaleza y complejidad, deben dirimirse en la vía común, administrativa o jurisdiccional, y no en esta sede. En consecuencia, el recurso es inadmisible y así se declara” (sentencia 2020-9093; el destacado no es del original).
Adicionalmente este Tribunal advirtió que la aducida infracción a la libertad de culto correspondería ser planteada y resuelta en las sedes ordinarias:
“En este sentido, las restricciones sanitarias cuestionadas, prima facie, le son aplicadas a todos los templos e iglesias —independientemente de la religión o culto a la que pertenezcan— en atención a la naturaleza de la actividad y la congregación o afluencia de personas que asisten a ella, pues de lo que aquí se trata, es de tutelar el derecho a la salud y a la vida en una situación de emergencia sanitaria, todo lo cual toma primacía sobre otras consideraciones, sin que ello deje entrever, al menos preliminarmente y sin perjuicio de prueba en contrario, un deseo de perjudicar las actividades religiosas para dañar deliberadamente la libertad de culto. Por lo tanto, lo propio es que este asunto sea dirimido en la vía común, administrativa o jurisdiccional, por lo que deberá la parte tutelada, si a bien lo tiene, plantear sus inconformidades o reclamos ante la vía de legalidad competente, ya que es en tal sede en la cual podrá, en forma amplia, discutir el fondo del asunto y hacer valer sus pretensiones. En consecuencia, el recurso es inadmisible y así se declara” (sentencia 2020-9570; el destacado no es del original).
Nótese que eso significaba –tanto como en los demás casos que aquí se están refiriendo– que, pese a que entendía que podría estar involucrada una libertad o derecho fundamental, estimaba que la vía de la legalidad era la competente para conocer del asunto.
En otras ocasiones, rechazó el recurso por el fondo, por ejemplo, cuando se trataba de las restricciones sanitarias vehiculares. Sobre el particular, resulta ilustrativa la siguiente sentencia en la que, haciendo eco de varios precedentes, descartó la supuesta ilegitimidad de la restricción a la libertad de tránsito, y concluyó:
“Bajo ese orden de ideas, estima la Sala que para el caso bajo estudio resulta perfectamente aplicable lo establecido en las sentencias citadas en los párrafos anteriores, en los cuales se descarta que exista lesión a los derechos constitucionales, ya que el Estado ostenta la capacidad de regular de manera especial la circulación de vehículos sobre un sector o zona determinada, en aras de hacer prevalecer un interés público. Debe hacerse notar que en virtud de este interés público, el Estado se encuentra legitimado para establecer ciertas reglas especiales en cuanto a la circulación de automóviles, en procura del bienestar y bien común de las personas.(…).
En síntesis, en el caso bajo examen, el reclamo de la amparada gira en torno al mismo hecho discutido en los precedentes aludidos, es decir, a la restricción vehicular aplicada por el gobierno central. Bajo esa perspectiva, siendo que ese reclamo guarda una estrecha similitud con lo ya conocido y resuelto en esta sede, y considerando que no existe motivo alguno para cambiar el criterio vertido previamente por la Sala, el recurso debe ser rechazado por el fondo, como en efecto se declara (sentencia 2020-6917; el destacado no es del original; en similar sentido vid. las sentencias 2020-7538 y 2020-9509).
En relación con la disposición sanitaria sobre la obligación de utilizar mascarillas, la Sala declaró que no estaba en capacidad de valorar los criterios técnico-sanitarios que la respaldaban:
“SOBRE LA ADMISIBILIDAD DE ESTE RECURSO. En el sub lite, el recurrente alega que la medida de obligar a todas las personas a emplear una mascarilla para controlar en Costa Rica la epidemia de coronavirus es discriminatoria y violatoria del derecho a la igualdad por irrazonable y desproporcionada. (…) Dado lo anterior, se le aclara que las determinaciones impugnadas obedecen a criterios técnico-sanitarios y de oportunidad y conveniencia que la Sala no está en capacidad de valorar” (sentencia 2020-12551; el destacado no es del original).
Sin embargo, ciertamente, durante la pandemia admitió a trámite otros amparos en los que se impugnaban órdenes sanitarias.
En uno de ellos, tenía la particularidad de que no solo estaba de por medio la clausura de un local comercial, sino de la detención de una persona por el incumplimiento de las restricciones sanitarias y, al resolverlo por el fondo, señaló que no le correspondía pronunciarse sobre la procedencia de la orden sanitaria:
“La recurrente estima lesionados sus derechos fundamentales, toda vez que es propietaria del Restaurante Malibu No. 2, el cual cuenta con patente de restaurante, y oficiales de la Fuerza Pública y de la Policía Municipal, quienes se apersonaron el 1° de abril de 2020 a tal establecimiento, clausuraron el local comercial y la privaron de libertad de manera ilegal por supuestamente haber incumplido una orden sanitaria (…). En la especie, el Tribunal observa que la privación de libertad de la tutelada, efectuada a las 20:08 horas del 1° de abril de 2020, se ejecutó conforme al numeral 235 inciso a) del Código Procesal Penal, pues los oficiales de la Fuerza Pública consideraron que la amparada había sido sorprendida en flagrante delito al permitir el consumo de licor en la barra del local comercial aludido, lo que contraviene las medidas de salud adoptadas ante la pandemia del coronavirus COVID-19. (…) De esta forma, en el sub lite, no se evidencia que la tutelada haya sido aprehendida ilegítimamente durante la tramitación inicial del proceso, por cuanto el ordenamiento jurídico prevé la posibilidad de que se efectúe la aprehensión de una persona cuando es sorprendida en flagrante delito o contravención. Ergo, lo procedente es declarar sin lugar el recurso.
Por otra parte, la tutelada solicita que se levanten los sellos de cierre impuestos al local comercial de su propiedad. Sin embargo, a este Tribunal no le corresponde valorar, de acuerdo con la normativa infraconstitucional que rige la materia, la procedencia o no de la orden sanitaria aludida, ni determinar si se incurrió o no en la falta acusada. Además, nótese que es a partir de la emisión de una orden sanitaria cuando se produce el acto inicial del procedimiento correspondiente” (sentencia 2020-8302; el destacado no es del original).
También admitió a conocimiento unos alegatos de personas privadas de libertad. Sin embargo, al resolver por el fondo, igualmente se abstuvo de conocer los agravios relacionados con la suspensión de las visitas carcelarias y consideró que la discusión sobre esas disposiciones sanitarias no debía ser ventilada en esta sede:
“[L]a autoridad recurrida informa bajo fe de juramento -advertida de las consecuencias, incluso penales, previstas en el artículo 44 de la Ley que rige esta Jurisdicción- que actualmente, todo tipo de visitas a centros penitenciarios se encuentran suspendidas como medida preventiva en relación a la pandemia producto del COVID-19, y que dicha disposición fue comunicada a toda la población privada de libertad, indicándoles que los trámites se mantendrían suspendidos hasta que se puedan hacer efectivos. En lo atinente a la suspensión del beneficio, este Tribunal ha dispuesto que la suspensión referida se trata de una medida provisional, ejecutada en cumplimiento de órdenes emitidas de forma coordinada por las autoridades sanitarias y penitenciarias, respecto de la cual no le corresponde a esta Sala fungir como una instancia de legalidad y, con base en ello, valorar los criterios técnicos utilizados para determinar la procedencia de dicha medida” (sentencia 2021-14529; el destacado no es del original; en idéntico sentido vid. la sentencia 2020-10317).
En similar sentido, respecto de una orden sanitaria que ordenaba el cierre del Depósito Libre de Golfito, la Sala reiteró que no es una instancia más dentro de los diferentes procesos administrativos y judiciales, por lo que no le compete conocer por el fondo este tipo de asuntos:
“Ante el escenario descrito, en primer lugar, es necesario indicarle al recurrente que la Sala Constitucional no es competente para fungir como una instancia más dentro de los diferentes procesos administrativos o judiciales que tramiten los administrados. En el caso concreto, el recurrente pretende que este Tribunal entre a revisar el desalojo decretado pues, en su criterio, el mismo es improcedente en vista de que considera que tiene más de veinte años de laborar en la Plazoleta del Depósito Libre de Golfito. Sin embargo, ese reclamo se dirige expresamente a cuestionar en esta sede, aspectos que compete dilucidar a la jurisdicción ordinaria, ya sea a nivel administrativo o judicial, pues será ahí en donde, previa valoración probatoria, se podrá determinar quién tiene mejor derecho sobre el inmueble. En este caso, se acreditó que el recurrente no cuenta con patente municipal para ejercer la actividad de venta estacionaria extendido por la Municipalidad de Golfito, ni tampoco permiso del Ministerio de Salud. Incluso, no se pudo ni siquiera tener por probado que sea una de las personas desalojadas, según se extrae de los informes rendidos bajo juramento. En todo caso, según se aseguró bajo juramento, quienes se vieron afectados por el desalojo, acogieron la orden sanitaria sin problema. Así las cosas, al no tener esta jurisdicción competencia para analizar el fondo del asunto planteado, deberá el recurrente plantear su diferendo en la vía judicial ordinaria, previo agotamiento de la fase administrativa y por ende, no procede más que la desestimación del recurso como en efecto se ordena” (sentencia 2020-12161; el destacado no es del original).
Nótese de paso, que en esta y en las demás sentencias recién citadas, luego de haberle dado trámite, la Sala advierte en esta fase que no le corresponde resolver por el fondo y desestima el recurso; pero no es una desestimatoria del recurso porque entienda que la parte recurrente no tenga razón, sino porque constata que no cabe que en un recurso de amparo este tribunal se pronuncie por el fondo. Es decir, con más elementos, dice lo que habitualmente señala en los rechazos.
Asimismo, en otra ocasión la Sala reiteró que este tipo de medidas sanitarias ?al dictarse en el ejercicio de las propias competencias del Ministerio de Salud? no corresponde que, para determinar las razones que motivaron el acto, sean analizadas por la jurisdicción constitucional. También porque la orden sanitaria es el inicio del procedimiento administrativo, de manera que es a partir de su notificación que las partes pueden cuestionar su fundamento y ejercer su derecho de defensa:
“Tal y como se desprende de la sentencia supra citada, la orden de clausura que emite la administración es precisamente el acto que preside el inicio del proceso, por lo que es a partir de ese momento en que se expide la orden de clausura que debe respetarse de manera irrestricta el debido proceso en las actuaciones subsiguientes, lo cual según se describió anteriormente, fue debidamente respetado en el sub lite, al notificársele al recurrente la orden sanitaria e indicársele en esta los recursos que proceden y ante cuál autoridad, para que proceda de conformidad.
De igual forma, siendo medidas establecidas por los órganos administrativos al amparo de competencias que le son propias, resulta ajeno a la jurisdicción constitucional analizar o determinar si hay razones que hayan motivado su dictado, por lo que la discusión de su procedencia, viabilidad y duración escapa al conocimiento de esta jurisdicción (ver, en este sentido, sentencia No. 2006-9685, de las 13:17 horas del 7 de julio de 2006).
Así las cosas, lo procedente es declarar sin lugar el recurso en cuanto a este extremo, como en efecto se dispone, al comprobarse que al amparado se le brindó el debido proceso que corresponde en estos casos y se le informó cómo puede proceder, si a bien lo tiene, a efectos de impugnar las actuaciones que reclama” (sentencia 2021-7471; el destacado no es del original).
Es decir, aunque durante la pandemia la Sala dio curso a varios amparos en los que se impugnaban órdenes sanitarias, al resolverlos reiteró su jurisprudencia de siempre.
(c) El caso de Rolando Araya Monge Particular atención merece el precedente que resuelve un recurso de amparo presentado a favor del precandidato presidencial Rolando Araya Monge. Fue interpuesto en el contexto de la pandemia y fue admitido a trámite, pero se trae a colación especialmente porque en él se adujo la infracción a su libertad de expresión y también porque en la sentencia que resuelve el presente caso, la mayoría invoca este precedente para ilustrar un supuesto en que esta Sala sí entró a conocer la legitimidad de una orden sanitaria. Sin embargo, se hace necesario aclarar que en aquel asunto la mayoría de la Sala no examinó propiamente la legitimidad de la orden sanitaria y la supuesta restricción ilegítima a la libertad de expresión del señor Araya Monge. Dicho caso fue declarado con lugar por la mayoría al considerarse que hubo un problema probatorio de parte de los recurridos, quienes no resguardaron ni aportaron ante la Sala los videos de las manifestaciones del amparado que motivaron la emisión de la orden sanitaria. La Sala no valoró la legitimidad de la restricción a la luz de las declaraciones efectuadas por el señor Araya Monge. Incluso la mayoría puso de manifiesto que bien podría el Ministerio de Salud dictar restricciones de este tipo si se hubiera comprobado una amenaza a la salud pública. Al respecto, se resolvió lo siguiente:
“[L]os videos que sirvieron de base a la orden sanitaria dictada, objeto de este asunto, no se encuentran en el expediente administrativo, lo que solo le resulta imputable a la Administración. Tal situación impide que el amparado pueda cuestionar cuáles expresiones pudieron generar la reacción estatal y así defenderse. Ahora bien, como cualquier carga procesal, la parte que incumpla con ella en el sub examine, el Estado debe afrontar las consecuencias procesales de su omisión.
La Sala explica a la autoridad recurrida que, cuando se le reprocha a una persona el uso inadecuado de la libertad de expresión y se le imponen limitaciones a tal derecho, de modo inexorable debe existir certeza en cuanto a las razones de tales medidas excepcionales, que solo se pueden imponer en el marco de los casos permitidos por el orden constitucional y el convencional. Se reitera que la libertad de expresión resulta esencial para el sostenimiento de la democracia y, por ende, configura un aspecto cardinal de nuestro sistema político, por lo que toda restricción a ella no solo debe tener un adecuado fundamento jurídico-positivo, sea en la normativa interna o en el marco del derecho internacional de los derechos humanos, sino que, además, la autoridad competente se encuentra obligada a acreditar plenamente el sustento fáctico sobre el cual se basa.
Por el carácter sumario del proceso de amparo, tampoco podría la Sala asumir una posición inquisitoria e investigar cuáles videos pudieron eventualmente servir de fundamento al accionar estatal, en especial porque tal actividad tendría la finalidad de suplir las omisiones de las autoridades estatales, lo que roza con la naturaleza de Tribunal que defiende al individuo frente al Estado.
Finalmente, la Sala advierte que lo anterior no habría obstado para una valoración distinta, si se hubiese comprobado que las manifestaciones del amparado ponían en riesgo la salud de las personas y la actuación de la Administración se hubiese basado en un razonamiento jurídico positivo preciso y bien fundado. La Sala reafirma que el Ministerio accionado puede y debe salvaguardar la salud pública” (sentencia 2021-1515; el destacado no es del original).
Entonces, por las particularidades probatorias de ese caso –más bien por la ausencia de prueba– se dispuso la estimatoria del recurso. Pero, cabe reiterar que esa sentencia no se refirió al contenido de la orden sanitaria. De manera que, contrariamente a lo que se dice en la sentencia, muy respetuosamente considero que no es un buen ejemplo para ilustrar la tesis de la mayoría. En aquella ocasión, por cierto, el magistrado Castillo Víquez y yo salvamos el voto, sobre la base de la jurisprudencia que habitualmente ha afirmado que las órdenes sanitarias no son objeto de un recurso de amparo (vid. el voto salvado a la sentencia 2021-1515).
*** A partir de la revisión de la jurisprudencia es posible concluir que históricamente la Sala Constitucional ha sido muy rigurosa y restrictiva en conocer de recursos de amparo en los que se han impugnado órdenes sanitarias, incluso cuando se ha aducido que conllevan lesiones a derechos y libertades fundamentales de gran relevancia. Para ello, se ha apoyado en la normativa de protección a la salud pública que, en tesis de principio, legitima la conducta de las autoridades del Ministerio de Salud; ha estimado que no le corresponde revisar el fundamento técnico de la decisión por tratarse de aspectos probatorios altamente complejos, que no son propios de ser dilucidados en un proceso sumario como es el amparo; y ha señalado que la orden sanitaria es el acto inicial del procedimiento administrativo, de manera que a partir de su notificación formal se activan los mecanismos recursivos, tanto en la propia sede administrativa, como en la sede contencioso-administrativa, que es la vía idónea para controlar la legalidad de la función administrativa.
Entonces, para ser consistente con esas sólidas líneas jurisprudenciales, lo procedente habría sido que la Sala también desestimara este recurso de amparo. Además, como se ha dicho, si este Tribunal no ha atendido otros recursos de amparo en los que se aducía que las órdenes sanitarias impugnadas violaban otros derechos y libertades fundamentales de altísima importancia en la vida de las personas y las comunidades (derecho al trabajo, la libertad de comercio, la libertad de culto y la libertad de tránsito) no es fácil encontrar una justificación suficiente para que en el caso concreto se haya realizado un quiebre a esas líneas.
Cabe hacer una última consideración sobre un tema que se ha dado por supuesto: ¿Y con base en qué la Sala ha dictado esa jurisprudencia, si, como también se ha indicado, el artículo 29 de la LJC no excluye expresamente a las órdenes sanitarias dentro de los actos administrativos que podrían ser impugnados en un amparo?
La respuesta es la siguiente: Primero, con fundamento en el artículo 7 de la LJC, que le da a la Sala, por su carácter de tribunal constitucional, la competencia de definir (precisar, demarcar) su propia competencia . Segundo, en virtud del artículo 9 de la LJC, que le permite rechazar un recurso de plano, cuando sea manifiestamente improcedente, o por el fondo, cuando haya precedentes . Nótese que, si como dice la norma, puede rechazar por el fondo en cualquier momento, a fortiori –y de hecho así lo hace, como se ha visto– puede rechazar por improcedente un recurso también en cualquier momento. Tercero, sobre la base del respeto a la naturaleza del proceso y a lo dispuesto en los artículos 48 y 153 de la Constitución Política . Y no solo por eso, sino también en atención a que ese artículo 48 no vino a anular el artículo 49 de la misma Constitución. Esto es, precisamente, lo que corresponde analizar ahora.
(3) La idoneidad de la vía contencioso-administrativa Es oportuno mostrar por qué la jurisdicción contencioso-administrativa es el marco previsto y propicio para el adecuado conocimiento del presente asunto.
(a) Previsión constitucional de control de la Administración Nótese que esa jurisprudencia constitucional sobre órdenes sanitarias, que tiene su origen en los primeros años de la historia de la Sala y se había venido fortaleciendo a lo largo de más de tres décadas, no afirma que estos actos administrativos de suyo son legítimos y que deben quedar exentos de control. En ese sentido, la Sala ha sido consistente en que le corresponde a la jurisdicción ordinaria hacer un análisis de legalidad para determinar que la orden sanitaria fue dictada conforme a Derecho. En efecto, justamente para ello el Constituyente estableció la jurisdicción contencioso-administrativa como atribución del Poder Judicial, con el objeto de garantizar la legalidad de la función administrativa del Estado. Por lo demás, es claro que el respeto a esa legalidad puede y suele tener impacto en la esfera de los derechos fundamentales, no solo patrimoniales. Pues bien, dice la Constitución:
Artículo 49.-Establécese la jurisdicción contencioso-administrativa como atribución del Poder Judicial, con el objeto de garantizar la legalidad de la función administrativa del Estado, de sus instituciones y de toda otra entidad de derecho público.
La desviación de poder será motivo de impugnación de los actos administrativos.
La ley protegerá, al menos, los derechos subjetivos y los intereses legítimos de los administrados.
A partir del contenido de ese artículo, la Sala ha derivado el principio constitucional de la revisión jurisdiccional de la función administrativa y el derecho fundamental a la impugnación de las conductas administrativas. Sobre el particular, es pertinente consignar una cita un tanto extensa, pero su densidad conceptual lo amerita:
“Actualmente, se admite por toda la doctrina del Derecho Público, el principio de la revisión jurisdiccional de la función administrativa, esto es, que cualquier manifestación específica de la función administrativa puede y debe ser revisada ante una instancia jurisdiccional para verificar su conformidad con el parámetro de legalidad (…). Este principio, en algunas constituciones, como la de Costa Rica, se traduce, al propio tiempo, en una garantía individual o derecho fundamental, así el artículo 49 de la Constitución establece la jurisdicción contencioso-administrativa para garantizar la legalidad de la función administrativa. En otras palabras, en la mayoría de los sistemas jurídicos, incluido el costarricense, el ciudadano o el administrado cuenta con la garantía de que cualquier acto administrativo de los poderes públicos sea revisado por la jurisdicción contencioso-administrativa, pudiendo, incluso, anular (por nulidad absoluta o relativa) ese acto cuando transgrede el ordenamiento jurídico (…). Este Tribunal Constitucional ha enfatizado el rango constitucional que tiene el principio de la revisión jurisdiccional de la función administrativa y el derecho fundamental a obtener tutela judicial efectiva contra las conductas administrativas que infringen el bloque de legalidad, así en el Voto No. 9928-2010 (…) consideró lo siguiente:
?IV.- REGULACIÓN CONSTITUCIONAL DE LA JURISDICCIÓN CONTENCIOSO-ADMINISTRATIVA Y LA ATRIBUCIÓN CONSTITUCIONAL DE UNA COMPETENCIA. El constituyente originario y el poder reformador se ocuparon de definir la competencia material y, por consiguiente, la extensión y alcances de dos jurisdicciones esenciales para el Estado Social y Democrático de Derecho. En efecto, en los ordinales 10 y 48 se establece la competencia material de la jurisdicción constitucional y, en el numeral 49, la de la jurisdicción contencioso-administrativa. Lo anterior deja patente, en la voluntad del constituyente originario y del poder reformador, la trascendencia tanto del control de constitucionalidad como de legalidad de los poderes públicos en aras de garantizar el goce y ejercicio efectivos de los derechos fundamentales y humanos consagrados, respectivamente, en el texto constitucional y los instrumentos del Derecho Internacional Público. Sin duda alguna, tales preceptos constitucionales encarnan lo que la doctrina ha denominado la cláusula regia del Estado Constitucional de Derecho. En lo que se refiere, particularmente, a la jurisdicción contencioso-administrativa, el artículo 49 constitucional, después de la reforma parcial (…) de 1963, dispone lo siguiente: (…) A partir de la transcripción literal del precepto constitucional, cabe resaltar lo siguiente:
1°) El constituyente derivado o poder reformador optó por un modelo de justicia administrativa “judicialista”, esto es, encomendándole a un orden jurisdiccional especializado del Poder Judicial la competencia y atribución de ejercer la fiscalización de la legalidad de la función administrativa, esto es, su conformidad sustancial o adecuación con el bloque de legalidad. Este sistema ofrece garantías y ventajas comparativas considerables para el justiciable, tales como la especialización, lo que acompañado de la carrera judicial dispuesta de manera infra-constitucional, representa una verdadera garantía de acierto y de cumplimiento del imperativo constitucional contenido en el ordinal 41 de la Constitución de una “justicia cumplida (…).
5°) El constituyente derivado optó por una justicia administrativa mixta, por cuanto, el párrafo primero, al definir el objeto del orden jurisdiccional contencioso-administrativo -“garantizar la legalidad de la función administrativa”-, debe complementarse, ineluctablemente, con el párrafo in fine, al preceptuar que ley brindará protección, como mínimo, a los derechos subjetivos y los intereses legítimos –sin distinguir, en cuanto a estos últimos, por lo que resulta admisible la tutela tanto de los personales como de los colectivos, sea corporativos o difusos-. Consecuentemente, la jurisdicción contencioso-administrativa, según el Derecho de la Constitución, fue instituida tanto para velar por la legalidad de la función administrativa como para la tutela efectiva de las situaciones jurídicas sustanciales de los administrados frente a los poderes públicos. Se conjuga, así, constitucionalmente, un rol objetivo y subjetivo de la jurisdicción contencioso-administrativa'” (sentencia 2013-04491; el destacado no es del original) .
Entonces la vía prevista para ejercer el control sobre actos administrativos como los impugnados es la contencioso-administrativa. Conviene ahora detenerse a considerar qué es lo que se examina en esa sede.
(b) Alcance del análisis en la vía ordinaria Si el objeto aquí impugnado (la orden sanitaria y el oficio conexo) se hubiese sometido al control en la vía contencioso-administrativa, se habrían valorado los requisitos de validez , es decir, los elementos sustanciales: tanto los subjetivos ?competencia, legitimación e investidura? como los objetivos ?motivo, contenido y el fin?; y los elementos formales ?motivación, procedimiento empleado y las formas de manifestación del acto?. También se habrían analizado los requisitos de eficacia ?apropiada notificación?. Además, téngase presente que en el caso concreto se aduce que se trata de una desviación de poder por lo que justamente correspondía examinar el motivo, contenido y fundamento de los actos administrativos a la luz de la Ley General de la Administración Pública (LGAP), que en lo conducente dispone lo siguiente:
Artículo 132.
1. El contenido deberá de ser lícito, posible, claro y preciso y abarca todas las cuestiones de hecho y derecho surgidas del motivo, aunque no hayan sido debatidas por las partes interesadas.
2. Deberá ser, además, proporcionado al fin legal y correspondiente al motivo, cuando ambos se hallen regulados.
3. Cuando el motivo no esté regulado el contenido deberá estarlo, aunque sea en forma imprecisa.
4. Su adaptación al fin se podrá lograr mediante la inserción discrecional de condiciones, términos y modos, siempre que, además de reunir las notas del contenido arriba indicadas, éstos últimos sean legalmente compatibles con la parte reglada del mismo.
Artículo 133.
1. El motivo deberá ser legítimo y existir tal y como ha sido tomado en cuenta para dictar el acto.
2. Cuando no esté regulado deberá ser proporcionado al contenido y cuando esté regulado en forma imprecisa deberá ser razonablemente conforme con los conceptos indeterminados empleados por el ordenamiento” (El destacado no es del original).
Para valorar dichos elementos y poder concluir, con el debido sustento, que se trata de unos actos administrativos arbitrarios, se hacía indispensable examinar el fundamento de la orden sanitaria y, por lo tanto, la abundante prueba técnica aportada, proveniente de variados criterios de especialistas, que era procedente contrastar. Solo así habría sido posible determinar si, en efecto, se está frente a la ausencia de alguno o varios de los elementos esenciales del acto administrativo y de las acusadas lesiones de derechos y libertades fundamentales de los recurrentes.
Ese análisis, necesario para arribar a la conclusión de la supuesta nulidad del acto administrativo, excede sin duda alguna la naturaleza sumaria del recurso de amparo. Cabe reiterar que en centenares de ocasiones esta Sala ha advertido que “el recurso de amparo es un proceso sumario en el cual no es material ni razonablemente posible entrar a un complicado sistema probatorio o a un análisis de hechos que vaya más allá de los actos impugnados en sí” y se ha insistido sobre “la imposibilidad de analizar en esta sede la discrepancia en cuanto a criterios o parámetros técnicos” (vid. la línea ininterrumpida de la Sala, al menos, desde la sentencia 1997-2943, hasta la fecha en las recientes sentencias 2018-0787, 2019-16757, 2022-7145 y 2022-10379, entre otras).
En el caso concreto, como se ha dicho, era indispensable un análisis de plena prueba técnica para valorar la conducta administrativa de las distintas partes involucradas ?que no son exclusivamente las autoridades del Ministerio de Salud?. Todo lo anterior con el propósito de constatar que, tal como se acusa, el objeto impugnado (la orden sanitaria y el oficio conexo) está viciado de nulidad y es manifestación de una desviación de poder. Pero, además, en atención al objeto que se pretende proteger (la libertad de expresión y otros derechos fundamentales), era preciso examinar elementos probatorios adicionales para constatar una afectación cierta, real, efectiva a los intereses legítimos o los derechos subjetivos (sea cual fuere) presuntamente lesionados, pues de lo que se trata es de determinar el nexo causal entre el acto impugnado (la orden y el oficio conexo) y el daño infligido (la presunta lesión a la libertad de expresión y a otros derechos que se alegan violados).
En definitiva, como los recurrentes cuestionaron el fundamento de los actos administrativos impugnados, y los recurridos adujeron que se basaban en criterios técnicos, y la Sala pudo constatar que de suyo se estaba en presencia de materia altamente técnica y compleja, lo que correspondía en esta fase de conocimiento (en la que se suponía que procedía referirse al fondo del asunto) era reiterar la robusta jurisprudencia constitucional y, en atención a la naturaleza del recurso de amparo, declarar sin lugar el recurso en cuanto a la pretensión de anular los actos impugnados.
Se llega aquí a uno de los puntos clave del presente voto. Ya se ha dicho que prima facie el recurso cumple con los presupuestos procesales básicos para ser admitido, sin embargo, no cumple con esto último que se ha explicado: el análisis del objeto impugnado no es conforme con la naturaleza del proceso. En otros términos, lo que se impugna (la orden sanitaria y el oficio conexo), aunque se aduzca que es arbitrario y lesivo de derechos y libertades fundamentales, no corresponde ser conocido por la Sala Constitucional en un recurso de amparo, porque su plena y justa valoración excede la naturaleza sumaria de este proceso.
Pero la vía contencioso-administrativa no solo es la prevista para conocer este tipo de asuntos, especialmente si se considera la complejidad y los alcances de los actos impugnados en el presente caso, sino que se trata de una vía que tiene múltiples ventajas, como se explicará de inmediato.
(c) Ventajas de la vía ordinaria En primer lugar, la legitimación es más amplia todavía, según lo establece el artículo 10 del Código Procesal Contencioso-Administrativo (CPCA), pues pueden demandar quienes invoquen la afectación de intereses legítimos o derechos subjetivos y podrán pedir la declaratoria, el reconocimiento o el restablecimiento de una situación jurídica, con reparación patrimonial o sin ella .
Sin embargo, los recurrentes alegan que, si la Sala Constitucional no hubiese admitido este amparo, su derecho a la tutela judicial habría sido lesionado.
Aunque en un epígrafe posterior se hará referencia más detenida al tema de la legitimación, vale la pena citar de nuevo sus palabras y analizarlas a la luz de lo que ahora interesa:
“Si se considera erróneamente ese caso como un tema que debe ser conocido en las sede ordinaria por tratarse de un asunto de legalidad, se condenaría a los periodistas a no acceder a la tutela judicial, pues careceríamos de legitimidad para cuestionar los hechos aquí descritos en sede contencioso administrativa porque, tratándose de ataques indirectos a la libertad de expresión y prensa, los actos administrativos cuestionados no se dirigen en nuestra contra, sino que lesionan nuestros derechos de forma indirecta. Así, como máximo, podríamos actuar como coadyuvantes en una acción ordinaria, siempre sujetos a la suerte del principal y con limitados alcances, sobre todo en cuanto a la libertad de expresión, que es nuestra preocupación fundamental. La sede constitucional que tutela nuestro derecho a ejercer libremente el periodismo es el único medio apto para defendernos de los abusos que, de forma indirecta, esgrimen en nuestra contra los recurridos” (escrito de interposición, p. 2; el destacado no es del original).
Tales afirmaciones se apartan de lo dispuesto por el CPCA, pues, como se ha visto, los aquí recurrentes podían interponer una demanda para objetar la orden sanitaria y el oficio conexo, aduciendo que estos actos administrativos lesionaban su libertad de expresión y de prensa. No había ni hay obstáculo alguno para hacerlo: ni por el objeto impugnado (la orden sanitaria y el oficio conexo), ni por el objeto protegido (los derechos y libertades presuntamente violados), ni por la legitimación (que incluso podía tener como base intereses legítimos).
Entonces sí habrían estado legitimados no solo para acudir en defensa de los derechos constitucionales, sino de los legales; no solo de los derechos personales, sino de los patrimoniales; no solo de derechos subjetivos sino de intereses legítimos. Además, y esto es especialmente relevante para el caso que nos ocupa, podrían alegar no solo lesiones directas sino las indirectas y reflejas de cualquier derecho subjetivo o interés legítimo.
En segundo lugar, de conformidad con el artículo 31 del CPCA , para acudir a la vía contencioso-administrativa no es necesario agotar vía administrativa, al igual que no se exige para interponer un recurso de amparo, a tenor del artículo 31 de la LJC . De manera que los recurrentes bien pudieron ir a esa vía, tanto como lo hicieron al acudir a la Sala, sin esperar conocer de lo resuelto en el recurso de apelación interpuesto por la sociedad propietaria del inmueble.
En tercer lugar, la jurisdicción contencioso-administrativa tiene amplias facultades para ejercer una robusta y eficaz justicia cautelar. Así en esa vía habrían podido pedir la suspensión inmediata del acto, cosa –por cierto– que no solicitaron ante la Sala Constitucional. Dicha suspensión podría haber sido concedida con o sin audiencia previa. Así lo establece el artículo 19 del CPCA que, en lo que interesa, señala:
Artículo 19. 1) Durante el transcurso del proceso o en la fase de ejecución, el tribunal o el juez respectivo podrá ordenar, a instancia de parte, las medidas cautelares adecuadas y necesarias para proteger y garantizar, provisionalmente, el objeto del proceso y la efectividad de la sentencia. 2) Tales medidas también podrán ser adoptadas por el tribunal o el juez respectivo, a instancia de parte, antes de iniciado el proceso.
Además, el órgano jurisdiccional que ejerce esa justicia cautelar tiene amplia discrecionalidad para imponer a las partes diversos tipos de obligaciones, cuyo cumplimiento supervisará:
“Artículo 20.- Las medidas cautelares podrán contener la conservación del estado de cosas, o bien, efectos anticipativos o innovativos, mediante la regulación o satisfacción provisional de una situación fáctica o jurídica sustancial. Por su medio, el tribunal o el juez respectivo podrá imponerle, provisionalmente, a cualquiera de las partes del proceso, obligaciones de hacer, de no hacer o de dar. // Si la medida involucra conductas administrativas activas u omisiones con elementos discrecionales, o vicios en el ejercicio de su discrecionalidad, estará sujeta a lo dispuesto en el numeral 128 de este Código”.
De manera que el juez de lo contencioso-administrativo está facultado incluso para modular la suspensión del acto impugnado, determinando si se da de manera total o parcial y, en este último caso, si se imponen condiciones. Por ejemplo, podría haber señalado que la suspensión no regía para la realización de eventos deportivos, que suelen tener una asistencia menos masiva que la de los conciertos.
Los recurrentes podían alegar los graves daños o perjuicios, actuales o potenciales derivados de los actos que se acusan como arbitrarios , y el órgano jurisdiccional debía hacer una ponderación considerando el interés público y el de terceros, y los derechos que los recurridos dicen proteger (la vida, la salud e integridad de los usuarios del inmueble y de los vecinos) .
Sobre el proceso cautelar, las normas disponen unos plazos cortos y a la vez unas condiciones adecuadas para que el órgano tenga todos los elementos de juicio necesarios .
Esta justicia cautelar no solo cuenta con previsiones normativas de gran calidad, sino que es de probada prontitud y eficacia. Para mostrar esto, se podrían consignar muchas resoluciones . Basta señalar que solo en las últimas semanas se han acogido dos medidas cautelares contra actos gubernamentales .
Hay otra ventaja de la vía contencioso-administrativa que salta a la vista, especialmente cuando conoce de un proceso no sumario: la de ofrecer la posibilidad de contar con un examen exhaustivo de toda clase de prueba, a tenor del artículo 82 de CPCA .
Las ventajas y garantías procesales que ofrece la vía de lo contencioso-administrativa para conocer un asunto como el presente no acaban ahí. Si lo que se objeta es que la desventaja mayor es su lentitud, el artículo 69 del CPCA prevé una solución que contribuye a evitarla: la declaratoria de trámite preferente, que establece plazos mucho más cortos y prerrogativas para acelerar el proceso.
Nótese que no se trata de una solución para suspender los efectos del acto, pues para eso estaría la justicia cautelar, sino para resolver la controversia con más celeridad. De manera que el asunto bien pudo llegar a sentencia, en un plazo razonable, pese a su complejidad, justamente porque –en atención al objeto impugnado, a la repercusión misma de esta, y a los derechos que se buscaban garantizar– existían claras posibilidades de que siguiera ese trámite preferente.
(1) Marco del problema Como he dicho, el artículo 48 de la Constitución Política establece una legitimación universal, y esto queda reflejado en el artículo 33 de la LJC que señala que “cualquier persona podrá interponer el recurso de amparo”. Esto ha sido entendido por la Sala como la previsión normativa de la legitimación activa universal, que incluye la legitimación activa vicaria. En otros términos, esas normas establecen que toda persona puede interponer un recurso de amparo y que esto incluye la posibilidad de interponerlo a favor de otra persona.
Pero, claro, esto es desde la lógica de que, si se interpone a favor de sí mismo, es porque el acto impugnado es lesivo para sí mismo. A la vez, si se interpone a favor de otra persona, es porque el acto impugnado es lesivo para esa otra persona.
Sin embargo, en el presente amparo estamos ante un caso atípico, porque los recurrentes alegan tener legitimación para interponer el recurso de amparo en el que impugnan unos actos administrativos que no recaen sobre ellos, sino sobre un inmueble que es propiedad de una empresa que pertenece al mismo grupo empresarial dueño del periódico para el que trabajan.
Dicen tener el derecho a que se les conceda anular la orden sanitaria y el oficio conexo –que estiman arbitrarios– como medio para el goce de su libertad de expresión, que consideran lesionada.
Entonces, aunque, debido a esas previsiones normativas, en los recursos de amparo casi nunca se presentan problemas de legitimación, en este sí. Y, parece que son conscientes de ello, pues en el escrito de interposición señalan:
“…tratándose de ataques indirectos a la libertad de expresión y prensa, los actos administrativos cuestionados no se dirigen en nuestra contra, sino que lesionan nuestros derechos de forma indirecta” (escrito de interposición, p. 2).
Entonces, la clave de la argumentación de los recurrentes para solicitar a la Sala que admita el presente recurso y se pronuncie sobre este es la vinculación que afirman que existe entre la orden sanitaria y la presunta lesión a la libertad de expresión. Es evidente que para tener por acreditada esa vinculación no basta probar el simple ligamen empresarial de las dos unidades de negocio, sino la dependencia del periódico (donde ellos ejercen su libertad de expresión) respecto del Parque Viva (sobre el que recae el objeto impugnado).
(2) Sobre el alegato que solo tendrían legitimación ante la Sala Los recurrentes no solo sostienen que tienen legitimación para venir en amparo, sino que incluso llegan a afirmar que únicamente aquí, ante la Sala, tienen legitimación, porque en la jurisdicción ordinaria solo podrían ser coadyuvantes y la libertad de expresión, que es la que les interesa que se les proteja, no podría ser garantizada:
“Si se considera erróneamente ese caso como un tema que debe ser conocido en las sede ordinaria por tratarse de un asunto de legalidad, se condenaría a los periodistas a no acceder a la tutela judicial, pues careceríamos de legitimidad para cuestionar los hechos aquí descritos en sede contencioso administrativa porque, tratándose de ataques indirectos a la libertad de expresión y prensa, los actos administrativos cuestionados no se dirigen en nuestra contra, sino que lesionan nuestros derechos de forma indirecta. Así, como máximo, podríamos actuar como coadyuvantes en una acción ordinaria, siempre sujetos a la suerte del principal y con limitados alcances, sobre todo en cuanto a la libertad de expresión, que es nuestra preocupación fundamental. La sede constitucional que tutela nuestro derecho a ejercer libremente el periodismo es el único medio apto para defendernos de los abusos que, de forma indirecta, esgrimen en nuestra contra los recurridos” (ibid., p. 2; el destacado no es del original).
Sobre estas aseveraciones, a mi juicio, pueden surgir dos reparos. El primero, como ya se ha visto, que parecen desconocer que en la jurisdicción contencioso-administrativa los recurrentes sí tendrían una legitimación aún más amplia, porque a tenor del artículo 10.1 del CPCA no solo podrían alegar un derecho subjetivo sino un interés legítimo. El segundo, que dejan de lado que la Sala no es la única que puede proteger los derechos fundamentales. Decir lo contrario, entender que la Sala es la única instancia para garantizar esos derechos, sería tanto como sostener que la jurisdicción ordinaria solo protege derechos patrimoniales y legales. En el fondo sería afirmar que la Sala Constitucional tiene el monopolio de la protección de los derechos fundamentales, cuando lo cierto es que tiene solo el monopolio de la protección de los derechos fundamentales mediante el recurso de amparo. Paso ahora a explicar esto que he dicho en apretada síntesis.
Los derechos fundamentales no fueron reconocidos al crearse la Sala Constitucional, sino que esta, al conocer del recurso de amparo, ha hecho que su garantía se pueda dar con gran eficacia y prontitud. ¿Qué otras vías jurisdiccionales hay para proteger derechos fundamentales? Las vías ordinarias, previstas en los artículos 153 y 49 de la Constitución Política, ya citados . Por cierto, estimo que no sin motivo el Constituyente quiso que esa norma, junto con el artículo 48 –dedicado al recurso de amparo y al hábeas corpus– culminara el título IV, denominado “Garantías Individuales”, como para subrayar que ese título no solo establece los derechos fundamentales sustantivos sino los mecanismos para protegerlos jurisdiccionalmente.
La Sala protege los derechos fundamentales (con excepción de la libertad e integridad personales, que conoce en el hábeas corpus) mediante el recurso de amparo, que es una vía expedita y eficaz; y solo la Sala tiene competencia para conocer de ese recurso previsto en el artículo 48 de la Constitución Política. Pero, desde luego no es la única sede donde se protegen los derechos fundamentales. Si se dijera que el juez ordinario no protege los derechos fundamentales, estaríamos afirmando que este únicamente aplica la ley y los reglamentos. Por el contrario, el juez ordinario es de los primeros llamados a tutelar y hacer valer los derechos fundamentales de las personas. Por lo demás, la Sala misma a través de su jurisprudencia y, muchas veces a la vista de reformas legales que prevén otros cauces, ha ido delegando en otros órganos el conocimiento de asuntos que antes solo se conocían mediante el recurso de amparo . Por eso he dicho que la Sala no tiene el “monopolio” en la protección de derechos fundamentales.
Además de que tenían legitimación para ser demandantes, alegando la violación de derechos subjetivos e intereses legítimos, también podrían haber pedido la correspondiente restitución e indemnización. Todo a tenor del artículo 10 del CPCA ya citado.
No era necesario que la empresa como tal interpusiera una demanda en la vía contencioso-administrativa. Ellos mismos pudieron haber acudido a esa vía para proteger la libertad de expresión aduciendo, como lo hacen acá, que los actos administrativos son arbitrarios, que son la materialización de una desviación de poder, y suponen una lesión a esa libertad. Según me parece, eso justamente es lo que hace que en el supuesto de que la Sala hubiese declarado sin lugar el presente recurso de amparo, la admisibilidad de una petición interpuesta por los recurrentes ante la Comisión Interamericana de Derechos Humanos, con miras a que el asunto fuese llevado luego a la Corte IDH, habría topado con un serio obstáculo, pues no se habían agotado los recursos internos de los que habla el artículo 46.1 de la CADH y tampoco se habría podido invocar el artículo 46.2 de esa Convención . Lamentablemente, el análisis sobre este interesante tema excede el objeto del presente voto salvado.
Ahora bien, dicho esto: que los recurrentes tendrían legitimación para acudir a la vía contencioso-administrativa, sin que la sociedad para la que trabajan lo hubiese hecho; y que podrían ser demandantes, no simples coadyuvantes; y que en esa vía se les protegería no solo derechos subjetivos (en este caso, la libertad de expresión), sino intereses legítimos; y que podrían obtener por ellos mismos la restitución que solicitan (e incluso la indemnización si la hubieran pedido), corresponde analizar si en efecto tienen legitimación para acudir en amparo ante la Sala Constitucional.
(3) Alegatos de los recurrentes sobre la causa de la legitimación Los recurrentes defienden que hay una vinculación entre el objeto impugnado (la orden sanitaria y el oficio conexo) y el objeto que buscan proteger (su libertad de expresión). Esto, pese a que esos actos recaen sobre un inmueble que no es del periódico ni se dedica a nada que haga relación al giro periodístico.
¿Pero en qué fundamentan ellos esa vinculación? En que los actos están motivados, no formalmente, sino en su intención última, por el afán de desestabilizar al Grupo Nación que es dueño de las dos empresas: el Parque Viva y el periódico La Nación .
“Los actos administrativos empleados para ejercer censura indirecta o velada mediante presiones económicas relacionadas con el medio en que laboramos carecen de todo sustento técnico y no persiguen ningún fin legítimo, sino una represalia por la línea crítica del periódico y un intento de silenciarlo” (ibid., p. 1) .
Los recurrentes aducen que las actuaciones lesivas por parte del presidente de la República se dan en dos direcciones: poner en duda la solidez financiera del Grupo Nación y el cierre del Parque Viva. Respecto de la primera afirman:
“Vale la pena señalar que ninguna autoridad financiera ha expresado las mismas dudas, Grupo Nación mantiene la clasificación “A” y los activos de la empresa duplican sus pasivos. Los estados financieros son públicos, porque Grupo Nación está inscrito en bolsa, y en ellos consta la reserva de los recursos necesarios para cancelar el próximo vencimiento” (ibid., p. 5).
Recogen unas manifestaciones del señor presidente en una rueda de prensa:
“?La rentabilidad de La Nación va en caída libre y eso significa que está incurriendo en pérdidas constantes, constantes, constantes. Y entonces uno se pregunta, si esa tendencia de pérdidas continúa, no sé, tal vez tengan una varita mágica y logren levantar el flujo de caja. ¿Qué pasa? Es el deber de cuidar la pensión de su abuelita. ¿Qué pasa si a la Nación se le ahora el flujo de caja y no está la propiedad porque está en otra parte? (…) ' afirmó el mandatario” (ibid., p. 5).
Se refieren al hecho de que el señor presidente instara a la Caja Costarricense de Seguro Social a solicitar información a la Sugeval sobre la capacidad de pago del Grupo Nación:
“Como queda claro, el espectáculo no tuvo otro fin que perjudicar al Grupo Nación, poniendo en duda sus finanzas, para coartar nuestra libertad de expresión porque ?la práctica habitual de inversionistas institucionales' es consultar directamente al emisor y valerse de la información publicada por mandato de ley.
Nunca antes un presidente se había ocupado personalmente de la suerte corrida por inversiones de una institución pública que ninguna autoridad financiera ha cuestionado. Nunca antes se dedicó buena parte de una conferencia de prensa presidencial a informar que se le formularon preguntas al emisor mediante Sugeval, en lugar de hacerlo directamente. Y dos días más tarde vendría el cierre del Parque Viva, sin duda para ver ?si a La Nación se le ahorca el flujo de caja'” (ibid., p. 6).
Acusan la ilegitimidad de dichas manifestaciones a la luz de sentencias de la Corte IDH y, en concreto, aducen:
“En nuestro caso, como es público y notorio, además del constante uso de la palabra ?canalla', una injuria para deslegitimar, amedrentar, y estimular el repudio a la prensa entre los seguidores del gobierno, lo cual es por sí mismo peligroso, las referencias a la salud financiera de Grupo Nación distan de la constatación ?razonable, aunque no necesariamente exhaustiva', de ?los hechos en los que fundamental sus opiniones', y el deber de ?hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos' ” (ibid., p. 6).
En la argumentación, todo lo anterior parece tener una finalidad de ofrecer el contexto para mostrar la segunda vertiente de actuaciones que estiman lesiva: el cierre del Parque Viva, realizado mediante los actos impugnados.
“En las actuaciones de la Administración Pública dirigidas al cierre del Parque Viva hay una clara desviación de poder para violentar derechos humanos. Con las medidas adoptadas no se persigue la satisfacción de intereses públicos, sino la de intereses espurios consistentes en represaliar su derecho a informar. Este [es] el verdadero fin que tienen los actos administrativos adoptados. Estos actos no solo afectan económicamente a la empresa dueña de Parque Viva, sino que, además, al medio de información en que laboramos y, con ello, lesionan nuestro derecho a informar. Este es el verdadero fin que persiguen los actos administrativos frente a los cuales pido amparo” (ibid., p. 7; el destacado no es del original).
En el mismo sentido, agregan:
Si algo celebra la comunidad es que la desviación de poder del gobierno vertió luz sobre un problema de larga data que no se resuelve con los actos administrativos arbitrarios señalados en este recurso. La ineficacia de esos actos desvirtúa su pretendido fin público y evidencia que el único fin es afectar las finanzas del Grupo Nación en represalia por el libre ejercicio del periodismo de nosotros los recurrentes en intentarnos silenciarnos a futuro, como prometió el Presidente” (ibid., p. 13; el destacado no es del original).
Luego añaden un pasaje que va en la misma línea que los recién citados:
“La legalidad de las actuaciones descrita debe ser discutida, por quien tenga legitimación para hacerlo, en la jurisdicción apropiada, pero junto a la promesa de campaña del Presidente, las arbitrariedades apuntadas no dejan duda sobre el propósito persecutorio contra el periódico en que laboramos y su carácter de represalia, con desviación de poder, contra la línea informativa y editorial con grave lesión del derecho a la libertad de expresión. Por supuesto, la presión ejercida sobre las finanzas de la empresa pone en riesgo el ejercicio periodístico futuro e invita a entendimientos que lo comprometan” (ibid., p. 14; el destacado no es del original).
En un escrito posterior al informe dado por el presidente de la República, en el mismo sentido, los recurrentes afirman:
“?A Grupo Nación no se le puede exigir, como a cualquier otro comercio costarricense, ajustarse a los parámetros de la ley porque inmediatamente, a su parecer, se convierte en un ataque a la libertad de prensa', dice el informe del Presidente. Nunca alegamos los recurrentes semejante absurdo. Grupo Nación, y nosotros como individuos, estamos sometidos a las leyes. No pretendemos una excepcionalidad odiosa y antidemocrática. Los recurrentes sostenemos que en el caso concrete existe una desviación de poder para limitar indirectamente nuestra libertad de expresión en cumplimiento de la amenaza formulada durante la campaña política, a la cual el informe presidencial no se refiere una sola vez. Y en este punto vale señalar la falacia de los alegatos sobre el cumplimiento del deber de proteger intereses sociales con el cierre de Parque Viva. No es que los recurrentes pretextamos la libertad de expresión para eximir a Grupo Nación de cumplir la ley, es que el señor Presidente y la señora Ministra de Salud pretextan el cumplimiento del deber para materializar el propósito de silenciarnos expresado en la campana electoral y debidamente documentado” (escrito de los recurrentes del 17 de agosto, p. 9; el destacado no es del original).
De previo, se habían referido al origen de esa relación entre periódico La Nación y Parque Viva, que merece ser citado de nuevo:
“Parque Viva es una de esas estructuras [que nos permiten ejercer el periodismo independiente], en el caso de Grupo Nación. Fue creado, precisamente, para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de ingresos experimentada por los medios de comunicación en todo el mundo debido a la migración de la publicidad hacia los gigantes de la Internet, como Google y Facebook. Ese hecho es público y consta en diversas manifestaciones de la empresa y sus personeros desde al menores el 2013. En el informe a los accionistas del período 2013-2014, visible en la página de nación.com https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html la presidencia ejecutiva afirmó: “…los cambios en la industria, en el consumo de medios y en el ambiente competitivo nacional, seguirán retando al negocio de medios impresos. Conscientes de ese panorama, diseñamos, hace dos años, una estrategia para enfrentarlo. Mientras maduran las nuevas iniciativas, especialmente en el ámbito digital, todo medio periodístico requerirá de una fuente complementaria de ingresos, menos dependiente de la vena de publicidad. En consecuencia, como lo anunciamos el año pasado, invertimos importantes recursos y esfuerzos en la creación del Parque Viva, en la Guácima de Alajuela” (escrito de interposición, p. 4; el destacado no es del original).
Como se puede observar, en este párrafo se habla de la vinculación, pero no se acredita la dependencia: solo se refiere a la justificación de la decisión de incursionar en otro giro comercial.
Los recurrentes no muestran datos que permitan observar desde cuándo y en qué porcentaje se da la aducida dependencia. Es decir, no aportan pruebas que hagan establecer una relación directa e inequívoca que permita afirmar, sin margen de duda, que la sostenibilidad del periódico La Nación depende del Parque Viva.
Por cierto, solo hacen una referencia analítica a los estados financieros del Grupo Nación, al afirmar la capacidad de pago, y explican que los activos son muy superiores a los pasivos, cosa que en efecto se refleja así en el informe de estados financieros consolidados auditados del 2020-2021. En el 2020: Los activos 68.883.898, los pasivos 27.661.566. En el 2021: los activos 68.555.759 y los pasivos 28.288.573 .
En un escrito posterior, sí recogen las palabras del director ejecutivo del Grupo Nación en las que explica cuáles son las expectativas sobre el Parque Viva:
“Vale señalar que al día siguiente de la conferencia sobre los bonos, el director ejecutivo de Grupo Nación, Pedro Abreu, dio amplias explicaciones públicas y menciono el papel de Parque Viva en el flujo de la empresa. Un día después, el gobierno cerró precipitadamente Parque Viva.
Abreu declaro, entre otras cosas: ?Se habla de que La Nación solo arrastra pérdidas. Es muy importante hacer la distinción entre perdida contable y generación de flujo de caja. Nosotros estamos arrastrando perdidas contables, es cierto, pero estamos generando flujo de caja. Esto quiere decir que, entre la operación y las inversiones financieras, estamos generando flujo de caja suficiente para pagar la deuda, para pagar todos los intereses, para pagar todas las inversiones y, además, estamos ahorrando para hacerle frente a los vencimientos del futuro. Eso se puede ver en nuestros estados financieros, que son públicos' afirmó Abreu para añadir: ?Parque Viva ha estado parado por dos años (por la pandemia). Entonces, los números que hemos estado mostrando, donde el flujo de caja ha sido positivo, son con Parque Viva cerrado. Desde marzo de 2022, Parque Viva está funcionando, va a empezar a generar flujo de caja y va a empezar a aportar a ese flujo que ya estábamos generando. Entonces, los números de este año se van a ver mucho mejor que los del año pasado. Creemos que esa va a ser la tendencia de aquí al 2025'. (Ver prueba adjunta). Al día siguiente, Parque Viva quedo cerrado. (Ver publicación ?Chaves ataca a La Nación con datos distorsionados')” (Escrito de los recurrentes del 17 de agosto, p. 9).
Interesa entonces ahora observar si la sentencia fundamenta adecuadamente esa dependencia, que sería la raíz de la legitimación que les permite a los recurrentes interponer válidamente un amparo para que se anulen unos actos que no recaen sobre ellos.
(4) Consideraciones de la sentencia sobre la dependencia En realidad, la sentencia no se ocupa propiamente del problema de la legitimación. Da por sentada tal dependencia con argumentos que solo apuntan a explicar varios fenómenos que no cuestiono y que de suyo son hechos públicos y notorios, sin real incidencia en la comprobación de esa dependencia en el caso concreto.
En primer lugar, el fenómeno de la migración de lectores de prensa al formato digital:
“Los medios de comunicación tradicionales, principalmente los medios impresos, han sufrido en los últimos años un fuerte declive económico con la llegada del internet, la caída de la inversión publicitaria y su migración a las grandes plataformas digitales” (sentencia, considerando VIII).
Eso es algo inobjetable, pero es útil únicamente para mostrar el contexto en el que se desenvuelve el periódico La Nación y todos los medios de prensa.
De seguido explican que ese fenómeno ha llevado a otro: la reacción de los dueños de esas empresas ante ese cambio de circunstancias:
“En virtud de lo anterior, los medios de comunicación se han visto en la necesidad de innovar y buscar nuevos formatos, propuestas o mecanismos para buscar nuevos ingresos (y audiencia) que permitan, a su vez, financiar el periodismo y al medio como tal, sobre todo al periodismo de investigación que resulta costoso. En otros términos, se han debido implementar nuevas estrategias comerciales o poner en funcionamiento modelos mixtos con el fin de “rentabilizar a los medios de comunicación”, tal y como así ha sido llamado por algunos. Tanto es así que muchos medios de comunicación, hoy en día, no generan el dinero con su actividad principal o tradicional, sino con otras que le permiten subsistir” (ibid.).
Se reconoce que las acciones han ido encaminadas en varias direcciones: innovar y buscar nuevos formatos, utilizar otros mecanismos de ingresos que permitan financiar al periodismo. Es dentro de este último tipo de acción que estaría la inversión hecha por el Grupo Nación al adquirir y poner en marcha el Parque Viva, pues entienden que “muchos medios de comunicación, hoy en día, no generan el dinero con su actividad principal o tradicional, sino con otras que le permiten subsistir”.
Hasta aquí lo único que se puede tener claro es que la unidad de negocio original del Grupo Nación (el periódico) necesita de la nueva unidad de negocio (Parque Viva). Pero, tanto como los recurrentes, la sentencia no se ocupa de mostrar en qué medida y cómo se da esa dependencia.
Después la sentencia señala:
“A modo de ejemplo, los medios de comunicación modernamente han recurrido, entre otras, a las siguientes fórmulas o estrategias: a) algunos medios impresos han creado su propia plataforma digital y han instaurado los modelos por suscripción o lo que se ha llamado “pagar por ver”; fórmula a la que han recurrido con éxito grandes medios como The New York Times o The Guardian. b) Se ha recurrido a la creación de contenidos de mayor calidad y exclusividad (sobre temas específicos y de interés para ciertos sectores), que hacen atractiva la búsqueda y el acceso a estos. c) Se ha hecho uso de los podcast (serie de episodios sobre diversos temas grabados en audios y transmitidos online al que ha recurrido por ejemplo el medio The New York Times a través de su programa The Daily). d) Se ha promovido la organización de eventos, foros o congresos sobre determinados temas de la mano de expertos y personalidades, para lo cual, a su vez, se cobra por participar o por ingresar (los medios Texas Tribune o The Economist se han caracterizado por organizar eventos de este tipo). e) Se recurre también a la venta de piezas a terceros (los grandes medios, aprovechándose de la enorme experiencia y el soporte estructural con el que cuentan, cubren cierta información especializada, la procesan y la venden a otros, incluso a su propia competencia). f) Se ha hecho uso del llamado Brand licenser, que permite a los medios de comunicación licenciar su marca para que terceras empresas la utilicen en sus productos o servicios (v. gr. National Geographic vende productos relacionados con viajes y aventura, libros y hasta ha instalado tiendas relacionadas con su línea de cobertura)” (ibid.).
Como se puede observar, eso solo es un elenco de actividades que han llevado a cabo distintos medios de prensa o revistas impresas para innovar la forma de difundir ideas o noticias, en este nuevo y desafiante contexto. Pero ninguna de esas actividades hace relación a la diversificación de inversiones del grupo dueño de la empresa de comunicación con el fin de obtener recursos financieros para sostener el medio de prensa. En el presente caso, en cambio, los recurrentes están señalando que la unidad de negocio original del Grupo Nación (el periódico) depende para su subsistencia de otra unidad de negocio que nada tiene que ver con el ejercicio del periodismo o la comunicación (el Parque Viva).
De inmediato, la sentencia incursiona en el fenómeno de los holdings o conglomerados de empresas en los siguientes términos:
“Igualmente, cabe destacar que, como parte de esas fórmulas a las que han tenido que apelar los medios de comunicación para diversificar sus fuentes de ingreso y sostenerse financieramente, se ha recurrido también a la adquisición o a la adhesión con otras empresas cuyas actividades principales se encuentran relacionadas o no directamente con el periodismo (conformándose así lo que se ha denominado holdings o grupos de interés económicos). Este tipo de fenómeno en particular se ha manifestado en otras latitudes y también a nivel nacional” (ibid.).
Se entra entonces en un ámbito más cercano al del caso que nos ocupa, pues se trata de grupos empresariales cuya unidad de negocio original es el medio de comunicación, y que diversifican la inversión adquiriendo “empresas cuyas actividades principales se encuentran relacionadas o no directamente con el periodismo”. El Grupo Nación se enmarca en ese fenómeno. Pues bien, eso no está en tela de juicio. Es un hecho público y notorio, pero no refleja la real dependencia. Una cosa es que ese o cualquier grupo desee diversificar su inversión y otra distinta que al hacerlo quiera mantener una unidad de negocio deficitaria de suyo. En otros términos, los holdings no tienen como finalidad propia mantener en su seno una unidad de negocio financieramente inviable, sino aumentar los ingresos en diversas actividades y minimizar los riesgos que supone invertir todo el capital en una sola unidad de negocio.
Luego, la sentencia recoge ejemplos de holdings que tienen inversiones en el campo de los medios de comunicación. Inicia con el siguiente:
“Así, a modo de ejemplo, se tiene el caso del diario The Boston Globe y otros medios (propiedad, a su vez, del periódico estadounidense The New York Times), los cuales fueron adquiridos en el 2013 por John Henry, dueño del equipo de beisbol Red Sox y del equipo de futbol Liverpool FC, con el propósito de afrontar las cuantiosas pérdidas económicas sufridas por el primero, originadas por la migración de lectores y de la publicidad hacia el internet” (ibid.).
Es un buen ejemplo, aunque en dirección inversa: es el dueño de una empresa no periodística que adquiere dos empresas periodísticas. Pero no parece que el señor Henry pueda invocar la lesión a la libertad de expresión en caso de que sus respectivos equipos deportivos sean sancionados con cuantiosas multas. De todas maneras, recordemos que aquí estamos en primer término analizando el tema de la dependencia financiera, que sería condición para determinar la vinculación alegada entre actos administrativos y lesión a la libertad de expresión. Entonces, vale solo decir que ese ejemplo únicamente sirve para señalar que, en efecto, hoy como nunca la actividad periodística en formato escrito es menos rentable que la de otras unidades de negocio, no importa el giro, y que estas otras pueden servir de apoyo financiero, pues el dueño de ambas es el mismo y puede querer subvencionar la que no es rentable.
La sentencia continúa:
“Igualmente, se tiene que Warren Buffet, a través de su holding Berkshire Hathaway (sociedad dueña total o parcial de las acciones de varios grupos empresariales de textiles, seguros, automóviles, bebidas, etc.) en el año 2012, compró sesenta y tres periódicos del Grupo Media General del sureste de Estados Unidos, los cuales sufrían también una baja rentabilidad. Entre los diarios adquiridos por Buffett figuran el Richmond Times de Virginia, el Winston-Salem Journal de Carolina del Norte y el Morning News of Florence de Carolina del Sur” (ibid.).
De nuevo, el ejemplo es más cercano, pero, también de nuevo es inverso al caso que nos ocupa: el grupo empresarial que de por sí tenía diversificada su inversión en distintas actividades, aunque ninguna en el campo de la comunicación, según se refiere en este pasaje, adquiere “periódicos (…) los cuales sufrían también una baja rentabilidad”. Como el ejemplo es similar, los comentarios también lo serían. Corresponde entonces transcribir lo que la sentencia recoge de seguido:
“Asimismo, se cuenta con el caso de Jeff Bezos (fundador y dueño de Amazon, gigante compañía de comercio electrónico), quien en el año 2013 compró The Washington Post, con el fin de lograr su supervivencia, luego que este medio de comunicación sufriera igualmente los embates de la irrupción de nuevas tecnologías, el descenso de las audiencias y de los ingresos por publicidad. Nótese que, en este caso en particular, pese a que el medio de comunicación –según lo ha anunciado, entre otros, el medio español El País–, no se integrará o adherirá propiamente a Amazon, su adquisición forma parte de esa misma estrategia comercial tendente a ayudar a que el mismo pueda mantenerse funcionando” (ibid.).
Efectivamente, esto significa que el dueño de una unidad de negocio ajena a giro de los medios de comunicación invierte en uno de estos, pero no lo incorpora a su original esquema financiero. La verdad es que esa integración no se sabe si también se dio con el señor Henry o con el señor Buffet, y de suyo no tiene relevancia. Lo importante es que se trata de ejemplos en los que la viabilidad financiera de medios de comunicación se da gracias a la adquisición de estos por parte de dueños de empresas con otros giros comerciales más rentables.
En el presente caso es un grupo cuya unidad de negocio original es un periódico, del que se afirma que no es de suyo rentable, y que incursiona en otro giro comercial: adquiere otra unidad de negocio cuya actividad no se desarrolla en el campo de la comunicación. Así lo señala la sentencia:
“En Costa Rica, el uso de este tipo de mecanismos o fórmulas se ejemplifican a través de Grupo Nación S.A. (corporación de la cual forma parte el Periódico La Nación), el que dispuso comprar las instalaciones de lo que solía ser el Autódromo La Guácima y las convirtió en el centro de eventos llamado Parque Viva, como medio para diversificar las fuentes de ingresos de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet” (ibid.).
Eso, como he dicho, es un hecho público y notorio, y por lo demás se trata de una decisión financiera absolutamente legítima.
La sentencia agrega:
“Es entendible que dentro de la coyuntura actual donde los medios de comunicación escritos requieren apoyo financiero ante la pérdida de alguna de sus fuentes tradicionales de ingresos, se creen o establezcan –al amparo del ordenamiento jurídico–, otro tipo de empresas o sociedades que les brinden recursos y sostenibilidad económica o financiera para mantener a los primeros. El caso del Grupo Nación S.A., y la adquisición del hoy llamado Parque Viva arriba referido, representa un claro ejemplo de lo dicho” (ibid.).
Coincido en que es entendible, y se tiene por cierto que esto buscaba el Grupo Nación al incursionar en este nuevo giro comercial. Es decir, la adquisición del Parque Viva va en esa dirección: diversificar la inversión para que el grupo como tal tuviera réditos suficientes. Incluso concedo que tal diversificación pretendía hacer viable financieramente la existencia del periódico mismo. Pero la sentencia no se ocupa de mostrar la dependencia financiera en términos reales, que permitan constatar lo que dicen los recurrentes, quienes –como se ha visto– tampoco lo acreditan.
De inmediato la sentencia retoma lo que venía diciendo y añade:
“Este tipo de estructuras financieras, al igual que el resto de ejemplos supra citados, se convierten en una fuente de ingresos o recursos que coadyuva o hacen posible que la labor periodística pueda ser ejercida, habida cuenta que los ingresos que las primeras generan permiten sufragar o sopesar muchos de los gastos que demanda un medio de comunicación. Por ende, es una realidad que, si este tipo de mecanismos o propuestas se ven afectadas de forma ilegítima o arbitraria, se perjudica, a su vez, el ejercicio del periodismo; en esencia, la libertad de prensa, como manifestación de la libertad de expresión” (ibid.).
De nuevo, no cabe sin mayor dificultad admitir que la diversificación de inversiones permite compensar con las ganancias de una unidad de negocio las pérdidas de otro; pero aquí, en el presente caso, antes de entrar a argumentar sobre la arbitrariedad de los actos impugnados, es preciso probar, demostrar, aclarar que en efecto el periódico La Nación depende financieramente del Parque Viva. Y, luego de ese análisis exhaustivo, tengo para mí, que la sentencia omite la referencia a este punto tan importante, que es la clave de todo el arco argumentativo de los recurrentes, sin la cual no tienen legitimación.
Este considerando de la sentencia termina con un párrafo un tanto largo, pero que por su importancia y consistencia merece ser transcrito también:
“Ahora bien, la afectación refleja (indirecta o velada) que pueda concretarse a la libertad de prensa, merced de las medidas adoptadas en contra de dichas estructuras de financiamiento, es un aspecto que ha de ser ponderado en cada caso concreto, siendo claro que no todo acto o conducta administrativa que imponga un gravamen o establezca un contenido de efecto negativo en torno a esas entidades, supone una lesión refleja como la que se ha indicado. En efecto, cabe advertir que como toda persona administrada, estas estructuras se encuentran afectas y sujetas a las normas jurídicas que regulan, precisan y delimitan el ejercicio de sus respectivas actividades económicas. En ese sentido, su funcionamiento debe satisfacer y cumplir con las regulaciones propias de su actividad, lo que incluye, contar con las respectivas habilitaciones administrativas para el despliegue de la materia comercial. De ahí que deben contar con los respectivos títulos que permitan comprobar el cumplimiento de las normas urbanísticas, edilicias (dentro de estas, las atinentes a la Ley No. 7600), sanitarias, seguridad, así como las licencias y patentes comerciales que son debidos en cada caso. Adicionalmente, cumplir con la normativa fiscal atinente. De igual manera, en el curso de su actividad, como toda persona, se encuentran sujetas a la fiscalización y control del ejercicio de la actividad, a fin de verificar que mantienen el nivel de cumplimiento en virtud del cual, les fue habilitada la actividad comercial. En esa dinámica, la desatención de las condiciones de ejercicio que imponen esas regulaciones sectoriales, bien podrían (sic) llevar a la imposición de medidas administrativas de restricción o de sanción. Lo anterior, siempre que el ejercicio concreto de esa manifestación del poder de policía administrativa, pueda estimarse legítimo, a partir de la acreditación debida y oportuna de los presupuestos de incumplimiento que darían cabida a cada consecuencia jurídica, y que esa decisión se encuentre acorde al mérito de los antecedentes del caso y al Ordenamiento Jurídico aplicable (relación entre los elementos materiales objetivos motivo-contenido) y que sea congruente con el interés público tutelado. En esos supuestos, en que la función administrativa se establece como el ejercicio legítimo de potestades administrativas que procuran el resguardo del interés público, no podría postularse una suerte de infracción refleja a la libertad de prensa, sino, en la consecuencia lícita y previsible de la desatención de normas de orden público a las que se encuentra expuesta toda persona administrada. Por contraste, cuando esas medidas no encuentren respaldo en los diversos presupuestos de hecho o de derecho que, en cada supuesto, el plexo normativo define como antecedente necesario (presupuesto condicionante) para adoptar determinada decisión sancionatoria o de contenido negativo, o bien, cuando el contenido del acto adoptado a partir de la verificación de aquellas condiciones, sea desbordado, desproporcional, irrazonable en relación con esos antecedentes, antagónico con el interés público o en general, contrario a legalidad (en sentido amplio), se estaría frente a un comportamiento administrativo que puede implicar una desviación de poder (art. 113 LGAP) y supone, como se ha indicado, una lesión indirecta o refleja a la libertad de prensa. Se trata de un cuidadoso análisis de las particularidades de cada caso, como parámetro de una valoración neutral, equitativa y objetiva entre libertades y derechos fundamentales en un esquema de un Estado de Derecho y el ejercicio de las potestades administrativas que tienen, por principio y finalidad, la tutela y satisfacción del interés público. Ergo, no todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen, como tampoco, puede entenderse como legítima, sin más, toda función administrativa de control respecto de aquellas. De esa manera, en casos como el presente, en que se aduce una violación indirecta a la libertad de expresión y de prensa, producto de actividades de control de la Administración Sanitaria, corresponde a esta instancia jurisdiccional, ponderar los matices particulares, para definir si se trata de un ejercicio debido o indebido, como condición sine qua non de un juicio de valor en torno a la existencia o no del deber de tolerar válidamente esas imposiciones administrativas” (ibid.; el destacado no es del original).
Dicho en otros términos: cada unidad de negocio debe cumplir con el ordenamiento jurídico y la Administración puede imponer sanciones cuando estima que no es así; pero estas deben estar debidamente fundamentadas. Para determinar si lo están, es preciso examinar la relación entre los elementos materiales objetivos (motivo-contenido) y su congruencia con el interés público tutelado.
Justamente ese examen es lo que se espera que la Sala realice en los considerandos posteriores, pues como bien se dice en ese pasaje: “No todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen, como tampoco, puede entenderse como legítima, sin más, toda función administrativa de control respecto de aquellas”.
Aquí en este epígrafe del voto salvado se está haciendo un análisis para confirmar si se da el presupuesto procesal denominado legitimación, bajo el entendido de que la dependencia del periódico, no el simple ligamen financiero, es condición sin la cual no puede afirmarse que hay una vinculación jurídica entre los actos impugnados y la lesión acusada. Esto es, que tal vinculación es el requisito para ostentar dicha legitimación. Pero ya en el análisis por el fondo, como bien lo apunta ese pasaje de la sentencia, debe concurrir otra condición para que se declare la lesión: que el acto sea arbitrario. Sin embargo, como he mostrado en el anterior epígrafe, la complejidad que esos actos encierran hace concluir que su conocimiento no es propio de un recurso de amparo, que por naturaleza es sumario.
Así termina ese considerando en el que se echa en falta precisamente el análisis y la constatación de la dependencia aludida. Solo se puede concluir que el Grupo Nación amplió su gama de negocios, pero no se demuestra que el funcionamiento del periódico donde laboran los recurrentes dependa financieramente del Parque Viva y que, por lo tanto, haya mérito para entrar a examinar si la libertad de expresión de ellos se ha visto de algún modo afectada por actos que recaen en esa otra unidad de negocio.
(5) Los estados financieros y la dependencia aludida Ahora bien, en el escrito de interposición aparece un enlace a los estados financieros del Grupo Nación . Me propongo hacer un breve análisis de estos de cara a la determinación de la dependencia alegada.
El mencionado enlace lleva al sitio Web donde aparecen los estados financieros consolidados auditados, los informes de la Presidencia , y los informes a los accionistas. Este último recoge también los dos anteriores. También constan los estados financieros trimestrales .
Respecto del último periodo que cierra en diciembre de 2021, interesa especialmente el cuadro titulado “La Nación, S. A. y subsidiarias. Activos, pasivos y resultados por segmentos al 31 de diciembre de 2020 y por el período terminado en esa fecha (expresados en miles de colones costarricenses)”, y el cuadro similar, pero al 31 de diciembre de 2021 , porque reflejan en diversas columnas esos rubros por unidad de negocio. De previo a esos cuadros aparece la siguiente información:
“Al 31 de diciembre de 2021 y 2020 se presenta la información de los activos y pasivos, así como el desempeño financiero de los principales segmentos de operación con que cuenta el Grupo, que comprenden las actividades desarrolladas por: a) Medios - Incluye los ingresos provenientes de los diarios La Nación, La Teja y el semanario El Financiero, así como ingresos de impresión a terceros, producción y distribución de papeles y cartulinas, b) Digital - Comprende los resultados provenientes de los productos El empleo y Yuplón, c) Parque Viva - Negocio que gira en torno a la administración de recintos y creación de plataformas de entretenimiento, d) Portafolio, considera las inversiones a valor razonable con cambios en otro resultado integral que se mantienen en el exterior a través de su subsidiaria Desarrollo Los Olivos, S.A. e inversiones en instrumentos financieros locales e inversiones en asociadas y otras participaciones” .
En esos cuadros se indica lo siguiente. En el 2020, las pérdidas consolidadas de Medios, al que –según el texto citado– pertenecen los diarios La Nación y La Teja y el semanario El Financiero, fueron ¢ (1.772.204); y las pérdidas consolidadas de Parque Viva fueron ¢ (2.365.096) . En el 2021 las pérdidas consolidadas de Medios fueron ¢ (1.969.114) y las de Parque Viva ¢ (51.802) .
De esa información solo es posible concluir:
1.- El periódico La Nación y el Parque Viva, pertenecen a Grupo Nación (hecho que, por lo demás, es público y notorio).
2.- La información que aparece en el sitio Web refleja los estados financieros consolidados del Grupo Nación, no los estados financieros de cada subsidiaria.
3.- Los cuadros que aparecen en el Informe a Accionistas sobre los activos, pasivos y resultados por segmentos al 31 de diciembre de 2020 y al 31 de diciembre del 2021, reflejan que ambas unidades de negocio –Medios (al que pertenece el periódico La Nación) y Parque Viva – tuvieron pérdidas. Y en términos globales (ambos años), Medios ¢ (3.844.599) tuvo pérdidas mayores que las de Parque Viva ¢ (2.416.898).
Pero de eso no se puede inferir, sin más información aportada por la parte recurrente, que el periódico dependa financieramente del Parque Viva; sobre todo porque este último es una unidad de negocio con pérdidas. Esa situación financiera se refleja para ambas unidades también en los años anteriores. Entonces, entre 2018 y 2021 los resultados financieros fueron poco favorables tanto para el segmento de Medios (en el que se ubica el periódico La Nación) como para el Parque Viva.
Quizá, los resultados observados en los últimos años podrían originarse en las inversiones y el endeudamiento que ha tenido que asumir el Grupo Nación en ese proceso de transformación de su negocio informativo y de búsqueda de nuevas fuentes de ingreso. Eventualmente, la expectativa es que en algún momento en el futuro la principal fuente de ingresos del Grupo Nación sea el Parque Viva. Pero lo cierto es que no es claro que el periódico La Nación, como medio de prensa, dependa de Parque Viva, al menos no en este momento.
Ahora bien, aunque no se podría decir que el desarrollo del Parque Viva se oriente a financiar a la unidad de negocio Medios, quizá sí podría entenderse que busca garantizar a los accionistas del grupo un adecuado retorno de su inversión.
Por otro lado, si lo que justifica esas pérdidas consolidadas son unas inversiones cuyo rédito se prevé en un plazo determinado, eso no fue debidamente acreditado. Fue únicamente mencionado en un escrito posterior, que aquí ya fue citado, en el que se recogen unas palabras del director ejecutivo del Grupo Nación, que tenían el propósito de defender la salud de las finanzas del grupo como tal. Sin embargo, a la vez, sirven para constatar que a la fecha el Parque Viva no ha tenido el flujo de caja que permita acreditar que el periódico La Nación dependa financieramente de él o, dicho de otro modo, que sin el Parque Viva no es posible llevar a cabo el periodismo que los recurrentes dicen ejercer.
En realidad, lo único que los recurrentes aportaron fue el enlace donde aparece la información, sin presentar la menor explicación contable que sustentara la afirmación de la dependencia.
En síntesis, la información que consta en el sitio Web ni alude ni es suficiente para tener por cierta la dependencia financiera de la unidad de negocio Medios respecto de la unidad de negocio Parque Viva. Incluso si la dependencia no fuera absoluta, podría valorarse la posibilidad de entender que hay vinculación jurídica entre los actos impugnados y la lesión alegada; pero el problema es que lo único que se acredita es que la diversificación de inversiones del Grupo Nación (hecho público y notorio) fue impulsada por los desafíos sufridos por el periódico La Nación, en el marco de la migración de sus lectores a otras plataformas (otro hecho público y notorio, que no exigía prueba).
Finalmente, debo hacer otra observación: De las declaraciones del presidente de la República antes y después de asumir el cargo, podría decirse que él mismo es quien hace la vinculación. No obstante, aquí no está en duda el ligamen financiero entre las dos unidades de negocio, pues ambas pertenecen al mismo Grupo Nación, sino la dependencia financiera del periódico respecto del Parque Viva y, como se ha visto, eso no fue probado por la parte recurrente ni analizado y constatado por la mayoría de la Sala. Se da por supuesta, siendo que es la condición para determinar si hay una vinculación jurídica entre actos impugnados y libertad presuntamente violada.
Además, a propósito de las palabras del presidente de la República, ya no en las declaraciones que dieron pie a la interposición del recurso, sino en las que contiene el informe a esta Sala, los recurrentes señalan:
“Pregunta el informe del señor Presidente: ?¿Como es posible, magistradas y magistrados, que Grupo Nación venga a decir que cifran todas sus esperanzas económicas en lo que pueda generar la actividad económica de Parque Viva para poder pagarle a sus empleados y que clausurar temporalmente ese lugar para la celebración de eventos masivos por incumplir con las condiciones mínimas de salubridad es un ataque directo a la libertad de prensa? Eso solo demuestra que la salud financiera de La Nación no es como la quieren hacer ver y que dependen de este lugar para subsistir financieramente'.
Nada de eso lo ha dicho Grupo Nación. Los recurrentes somos periodistas de Grupo Nación (…), somos profesionales a quienes se pretende limitar la libertad de expresión mediante acciones arbitrarias contra las ?estructuras' que sustentan nuestro libre ejercicio del periodismo, según lo prometió el mandatario. Por otra parte, no hemos hablado de un ?ataque directo' a la libertad de expresión, sino de uno indirecto, igualmente prohibido por el artículo 13.3 de la Convención y la jurisprudencia de la Corte Interamericana. Jamás dijimos que el pago de nuestros salaries dependa de Parque Viva, como también se afirma en el comunicado de prensa de la Presidencia. Para constatar todo lo dicho. basta leer el recurso, pero conviene señalar la insistencia en la supuesta demostración de que ?dependen de este lugar para subsistir financieramente'. ¡La infundada obsesión con las finanzas de la empresa se extiende hasta la interpretación de lo que no hemos dicho! Claro está, si los deseos transparentados por el pasaje resultaran ciertos, el cierre de Parque Viva pondría fin al molesto periodismo que hacemos los recurrentes y que motivo la amenaza proferida en campaña. Mas claro, imposible” (escrito de los recurrentes del 17 de agosto, p. 12; el destacado no es del original).
Este pasaje llama a la reflexión. Por un lado, como bien lo apuntan los recurrentes, el señor presidente confunde “Grupo Nación” con “periodistas de La Nación”. Por otro, el mandatario se extraña que ese Grupo Nación cifre sus esperanzas en el Parque Viva. Agrega que eso solo demuestra que la salud de La Nación (aquí no se sabe si se refiere al periódico o al grupo) no es buena y que, en efecto, según lo dicho por los recurrentes (que él confunde con el grupo) confirma que dependen del Parque Viva para subsistir financieramente (tanto el grupo como, se podría decir, el periódico). Con esas palabras no es que él dice que La Nación depende del Parque Viva, sino que dice que ellos afirman que La Nación (el grupo o el periódico) depende del Parque Viva.
Llegados a este punto, se resolvería el problema de la legitimación: los recurrentes afirman que el Periódico La Nación depende del Parque Viva y el recurrido lo acepta, pues entiende que esto es una confirmación de que el grupo (o el periódico) carece de salud financiera. (Esto último justificaría su proceder, su preocupación manifestada sobre los bonos; pero, para efectos del análisis por el fondo del presente amparo, es un elemento que claramente le desfavorece, pues sería la confesión de que la orden tenía por fin dejar sin sustento financiero al periódico). De todas formas, lo que aquí interesa subrayar es que el señor presidente, aunque no afirma que exista esa dependencia financiera (ya sea del periódico mismo o del grupo) respecto del Parque Viva, tampoco la niega.
Pero resulta que los recurrentes contestan que no es cierto que ellos, ni el Grupo Nación, hayan dicho que La Nación, la empresa en la que ejercen el periodismo, dependa de Parque Viva. En cambio, dicen, si eso fuera así, si sí dependieran, si fuera verdad lo que dice el mandatario, el cierre del Parque sí que consumaría la lesión a la libertad de expresión:
“Claro está, si los deseos transparentados por el pasaje resultaran ciertos, el cierre de Parque Viva pondría fin al molesto periodismo que hacemos los recurrentes y que motivo la amenaza proferida en campaña” (ibid.).
¿Entonces? ¿Dependen o no dependen?
En todo caso, estimo que la falta de acreditación de la dependencia financiera del periódico (en el que los recurrentes laboran) respecto del Parque Viva (inmueble sobre el que recayeron los actos impugnados y que es propiedad de otra unidad de negocio) tiene un efecto jurídico procesal: la ausencia de legitimación para acudir ante la Sala a interponer válidamente un recurso de amparo por una supuesta lesión a la libertad de expresión derivada del cierre del Parque Viva. Esto es, al no acreditarse esa dependencia, tampoco se dieron las condiciones para que la Sala examinara por el fondo la existencia de un nexo entre el cierre del recinto y el impacto concreto sobre el medio de comunicación y su funcionamiento ordinario y, concretamente, la libertad de expresión de los recurrentes.
Debo añadir que incluso en el caso de que se hubiese acreditado la legitimación, subsiste la falta de idoneidad del recurso de amparo para conocer de los actos impugnados.
Además, es oportuno subrayar que este no es un análisis sobre el fondo del asunto, sino sobre los presupuestos procesales, cuya existencia no es prescindible sino constitutiva del debido proceso.
A. Introducción Como se recordará, los recurrentes piden la anulación de los actos impugnados que recaen sobre el Parque Viva, pues los acusan de arbitrarios y de constituir una vía indirecta para lesionar su libertad de expresión, porque dejan sin sustento económico, y por eso sin verdadera independencia, al medio en el que laboran.
Como se pudo apreciar, mi voto salvado va en dos direcciones. Por un lado, muestro que los recurrentes no tienen legitimación para alegar esa presunta lesión por medios indirectos, puesto que no se constata la vinculación entre los actos impugnados (la orden sanitaria y el oficio conexo) y la alegada lesión a la libertad de expresión. Esto porque no probaron que hubiese una dependencia financiera del periódico respecto del Parque Viva. Por otro lado, porque determinar si los actos impugnados son o no arbitrarios excede la naturaleza sumaria del amparo.
La mayoría de la Sala no se refiere a esos aspectos, sino que admite la vinculación entre los actos impugnados y la lesión presuntamente provocada por ellos, tal como lo alegan los recurrentes, y declara con lugar el recurso bajo el entendido de que se violó el artículo 13. 3 de la CADH.
Yo me decanté por declarar con lugar el recurso, en lo que se refiere a la lesión a la libertad de expresión, pero por razones diferentes de las de la mayoría. Me propongo ahora exponerlas.
En primer término, haré referencia al principio procesal que hace posible entrar a conocer de esta lesión y a los motivos por los que no hay obstáculo jurídico alguno para hacerlo. Luego explicaré por qué considero que no corresponde declarar la lesión de la libertad de expresión por vías o medios indirectos, es decir, la violación del artículo 13.3 de la CADH. Después haré unos comentarios sobre toda la jurisprudencia de la Corte IDH y de la Sala Constitucional respecto de esta norma, que es invocada en el expediente, y que más bien parecen confirmar mi tesis. Posteriormente, aludiré a unos escenarios que permiten hacer unas reflexiones sobre el tema en discusión. Finalmente, mostraré por qué, a mi juicio, sí se configuró la lesión a la libertad de expresión de los recurrentes.
B. Posibilidad de conocer de la lesión invocada A lo largo del voto salvado he subrayado que la Sala Constitucional no es competente para conocer del objeto impugnado (la orden sanitaria y el oficio conexo) y que los recurrentes no ostentan la legitimación que dicen tener. De manera que comprendo la extrañeza que podría ocasionar el hecho de que, a la vez, sostenga que sí corresponde entrar a conocer por el fondo el asunto en lo relativo a la libertad de expresión.
El aparente dilema desaparece cuando se advierte en qué sentido y bajo qué supuesto entro a conocer por el fondo este recurso de amparo.
En efecto, lo que afirmo es que es posible entrar a conocer si se ha configurado la lesión a la libertad de expresión, pero no la que aducen los recurrentes; y es posible entrar a conocer de un objeto impugnable (acto o conducta), aunque no haya sido atacado expresa sino tácitamente por los recurrentes; y que tal objeto sería la causa de esa lesión. Como ese objeto impugnado incide directamente en los recurrentes, aunque no haya sido expresamente alegado así, es posible conocer de este. Por eso, ellos tienen legitimación y se cumple con ese presupuesto procesal. Además, como se verá, por sus características, ese objeto y esa lesión son susceptibles de ser conocidos en un proceso sumario como el amparo.
¿Cabe hacer esa distinción para entrar a conocer lo no alegado? ¿Qué me permite hacer eso? El principio iura novit curia, que se traduce así: “el juez conoce el derecho”. Este principio está ligado con el aforismo da mihi facta, dabo tibi ius que, en términos sencillos, se suele traducir así: deme Usted los hechos, que yo le daré el derecho. En otras palabras: explíqueme qué paso y yo le diré quién tiene razón desde el punto de vista jurídico.
Se trata del principio clásico por el cual el juez está habilitado para tomar en consideración los hechos y aplicar el derecho, según estime que corresponde hacerlo, sin atenerse de modo necesario a las argumentaciones que le presentan las partes.
El Diccionario panhispánico del español jurídico de la Real Academia de Lengua Española define ese principio así:
?El tribunal conoce el derecho'. Principio que permite a un órgano judicial aplicar normas distintas a las invocadas por las partes, previa audiencia de las mismas.
Y el mismo diccionario, de inmediato transcribe una sentencia del Tribunal Supremo de España que ilustra muy bien el concepto:
“El principio iura novit curia permite al Juez fundar el fallo en los preceptos legales o normas jurídicas que sean de pertinente aplicación al caso, aunque los litigantes no las hubieren invocado, y que el juzgador solo esté vinculado por la esencia y sustancia de lo pedido y discutido en el pleito, no por la literalidad de las concretas pretensiones ejercitadas, tal y como hayan sido formuladas por los litigantes, de forma que no existirá incongruencia extra petitum cuando el Juez o Tribunal decida o se pronuncie sobre una de ellas que, aun cuando no fuera formal y expresamente ejercitada, estuviera implícita o fuera consecuencia imprescindible o necesaria de los pedimentos articulados o de la cuestión principal debatida en el proceso” (STS, 3.ª, 16-VI-2015, rec. 3739/2013; el destacado no es del original) .
Reitero, este principio permite al juez aplicar el Derecho según estime que procede, pero, eso sí, sin modificar los hechos. Claro está, el juez le dará el valor a estos según la relevancia que considere razonable; pero esto también pasa cuando no se invoca este principio. Es decir, el juez al valorar los hechos –los sopesa– y determina qué es lo que piensa que es relevante. De manera que, en atención a ese principio, lo significativo no es lo que pretende los recurrentes sino lo que narran las partes.
La Sala ha aplicado ese principio desde sus inicios, tanto en procesos de control de constitucionalidad como en procesos de garantías jurisdiccionales de derechos fundamentales. He aquí algunos ejemplos referidos a estos últimos, concretamente a recursos de amparo:
“II.- El silencio del Ministro de Obras Públicas y Transportes en contestar las reiteradas peticiones y quejas de la recurrente y otros interesados constituye por si misma una violación de su derecho de petición consagrado en el artículo 30 de la Constitución Política. Aunque esa disposición no fue expresamente invocada en el recurso, sí lo fue el silencio del Ministro, el cual implica la indicada violación, que puede ser declarada por la Sala en virtud del principio "iura novit curia" y debe serlo en virtud de que los derechos y libertades fundamentales son de orden público, por definición” (sentencia 1989-73).
En el mismo sentido afirmó:
“En aplicación de este imperativo, y del principio "iura novit curia" el juez constitucional, está obligado a analizar cualquier aspecto que, aún si no ha sido alegado, pudiera resultar en una violación a un derecho constitucional” (sentencia 1991-1129).
En otra sentencia señaló que una lesión puede ser declarada, aunque no haya sido expresamente aducida en el recurso:
“El silencio del Banco Nacional al no contestar las reiteradas peticiones y quejas de los recurrentes en forma específica, constituye por sí misma una violación de su derecho de petición consagrado en el artículo 27 de la Constitución Política. Aunque esa disposición no fuere expresamente invocada en el recurso, sí lo fue el silencio del banco, el cual implica la indicada violación, que puede ser declarada por la Sala en virtud del principio "Iura Novit Curia" y debe serlo dado que los derechos y libertades fundamentales son de orden público por definición” (sentencia 1998-5839).
En la misma línea destacó que debe tenerse en cuenta la lesión que tácitamente alegó el recurrente:
“No habiendo lesión respecto de los derechos que el recurrente alega como violados, esta Sala, con fundamento en el principio iura novit curia, advierte que los hechos ponen en evidencia la lesión de un derecho que el recurrente, tácitamente, alega como lesionado: el derecho del acceso al expediente como parte integrante del derecho de defensa, cuyo ejercicio es una de las condiciones esenciales del debido proceso” (sentencia 2013-9403).
Si en todo proceso este principio clásico tiene cabida, mucho más en uno como el recurso de amparo, que es sumario e informal, y tiene como finalidad la protección de los derechos de las personas.
C. Inexistencia de la violación del artículo 13.3 de la CADH En primer término, deseo exponer por qué me parece que no se dio una violación de la libertad de expresión a través de medios indirectos. Para ello, antes de valorar el marco fáctico, haré un brevísimo análisis exegético de la norma que los recurrentes y la Sala consideran que ha sido violada.
1. Brevísimo análisis exegético del artículo 13.3 de la CADH Es oportuno transcribir de nuevo esa norma del Pacto de San José o CADH:
Artículo 13. (…) 3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones (el destacado no es del original).
Como se puede observar, este inciso tiene tres partes claramente definidas: la primera establece la prohibición de restringir, por vías o medios indirectos, la libertad de expresión; la segunda contiene los ejemplos de tales vías y la frase que suprime la taxatividad de tales ejemplos (o por cualesquiera otros); y la tercera recoge la característica esencial de esos medios, que hace relación a su finalidad (impedir la comunicación y la circulación de ideas y opiniones).
Además, aunque ciertamente el elenco de ejemplos vías o medios indirectos que recoge la norma tiene un carácter enunciativo y no taxativo, debe tenerse presente que esos “cualesquiera otros medios” deben seguir la lógica de los ejemplos mencionados, que tienen un común denominador: se trata conductas que recaen sobre la actividad comunicativa propiamente dicha. Incluso la tercera parte de la norma confirma esto, pues precisa que lo que hace ilegítimos a esas vías o medios indirectos es que están “encaminados a impedir la comunicación y la circulación de ideas y opiniones”.
Por otro lado, se habla de vías indirectas para lesiones directas, no de lesiones indirectas por vías indirectas. Eso es particularmente importante.
2. Consecuencia sustantiva de la no acreditación de la dependencia Como se examinó, los recurrentes no acreditan la dependencia financiera del periódico La Nación respecto del Parque Viva. Esto tiene un efecto procesal, pues al no haberse demostrado el vínculo entre los actos impugnados –que recaen sobre otra unidad de negocio distinta de aquella en la que laboran– y la presunta lesión a la libertad de expresión de los recurrentes, estos carecen de legitimación.
Sin embargo, en el presente caso, eso también tiene una consecuencia en la resolución sobre el fondo del asunto. No cabe entender que unos actos que recaen sobre un inmueble que pertenece a los mismos dueños del periódico sea un medio indirecto de lesionar la libertad de los recurrentes, pues, al no haber dependencia financiera, tampoco puede afirmarse que esos actos impiden “la comunicación y la circulación de ideas y opiniones” (artículo 13.3 de la CADH). Esto último incluso bajo el supuesto de que incidir en la situación financiera del periódico supone lesionar la libertad de expresión.
3. Inexistencia de la violación, aunque hubiese legitimación He dicho que no hay legitimación porque no se acreditó la dependencia, que constara la vinculación entre el objeto impugnado y la aducida lesión a la libertad de expresión. Pero ¿qué habría pasado si sí se hubiese acreditado? Es decir, ¿basta acreditar la dependencia financiera de un medio de comunicación a otra unidad de negocio de un giro comercial distinto, que pertenece al mismo dueño del periódico, para entender que todo acto presuntamente arbitrario que sufra ese negocio ajeno al ámbito de la comunicación incide en la libertad de expresión de quienes laboran en el periódico?
Este es un tema de gran importancia. Ahora bien, desde el momento en el que estimo que no se acreditó la dependencia, no sería necesario que me ocupara de reflexionar sobre él; pero no quisiera dar pie a confusiones.
La legitimación es un aspecto procesal, relativo a la admisibilidad del recurso (sobre el que el tribunal se puede pronunciar en cualquier momento, no solo en la fase inicial, esto es, puede declararlo sin lugar por falta de este presupuesto procesal: justamente eso es lo que hice en el voto salvado). Ahora bien, para entrar en estas reflexiones, se va a suponer que sí hay dependencia y, por eso, legitimación.
Evidentemente para que se entienda que se dio la lesión de la libertad de expresión por vías indirectas no es suficiente con acreditar la legitimación. Después hay que examinar dos extremos: si hubo afectación de esa libertad y si los actos impugnados fueron arbitrarios.
En efecto, nótese que el artículo 13.3 de la CADH habla de medios indirectos, pero la lesión debe ser directa. Al menos debe serlo para que sea objeto de un recurso de amparo, pues como se vio oportunamente en el voto salvado (al hablar de los elementos que condicionaban la competencia de la Sala para conocer de un recurso de amparo), hay abundantísima jurisprudencia en el sentido de que la lesión que se pretende proteger por esta vía ha de ser directa.
Dicha norma pone como condición esencial que esos medios o vías indirectas estén “encaminados a impedir la comunicación y la circulación de ideas y opiniones”. De hecho, como se ha apuntado, los ejemplos que el mismo artículo 13.3 de la CADH recoge, de modo enunciativo y no taxativo, se refieren a acciones que inciden en la empresa de comunicación.
Pero esto no lo digo yo solamente. Lo ha dicho la propia jurisprudencia de la Corte IDH y de la Sala Constitucional. En el siguiente apartado se hará referencia al particular con más detalle. Ahora corresponde analizar la otra condición: que los actos sean arbitrarios.
De manera que no sería necesario continuar con el análisis.
Pero vamos a suponer varias cosas que no están probadas con tal de continuar reflexionando sobre este asunto: Vamos a suponer que hay dependencia financiera de La Nación respecto del Parque Viva y que los actos impugnados impidieron o son una amenaza cierta por la que se impedirá “la comunicación y la circulación de ideas y opiniones”.
Entonces, bajo esos supuestos, correspondería entrar en el examen de la presunta arbitrariedad de los actos impugnados . Es claro que solo habría dos posibilidades: que sean arbitrarios o que no lo sean.
(2) Si los actos no son arbitrarios: consecuencias Si los actos fuesen legítimos (porque se cumplieron todos los requisitos de validez y eficacia), tendrían la misma incidencia en la salud financiera del periódico, pero no habría nada que amparar. Esto es, la libertad de expresión no se habría visto lesionada, pues la incidencia financiera que tendrían los actos impugnados que se declarasen legítimos es un efecto colateral legítimo también, aunque perjudicial para el periódico. Para afirmar esto basta recordar el clásico principio del doble efecto , en virtud del cual se da la no imputabilidad del mal indirecto producido por un acto voluntario directo lícito y proporcionado. Esto, para el caso concreto, se traduce en lo siguiente: si se demostrase que los actos impugnados dictados por la Administración son legítimos (actos voluntarios directos que recaen sobre el Parque Viva), no se puede atribuir responsabilidad alguna a aquella (a la Administración, esto es, al Ministerio de Salud) por los efectos indirectos (aunque fuesen perjudiciales) que recaen sobre el periódico La Nación y, concretamente, sobre sus periodistas.
Entonces, si en la Sala –o en la jurisdicción contencioso-administrativa, que es donde a mi juicio procedía conocer de esos actos– se hubiese declarado que los actos son legítimos y no arbitrarios, materialmente habrían tenido la misma incidencia en la salud financiera del periódico; pero formalmente no se habría configurado ninguna lesión a la libertad expresión, tampoco bajo el supuesto del artículo 13.3 de la CADH. Es decir, los periodistas estarían en la situación vulnerable financieramente en la que, según sus alegatos, padecen; pero esa situación no sería fruto de una conducta lesiva sino legítima de la Administración y, por tanto, no habría lesión amparable de la libertad de expresión .
(1) Si los actos son arbitrarios: consecuencias Si se constata que los actos impugnados son arbitrarios, y todo bajo el supuesto de que hay dependencia financiera y de que hay afectación porque se impide “la comunicación y la circulación de ideas y opiniones”, entonces los actos, en principio, se tornarían lesivos de la libertad de expresión de los periodistas.
Sin embargo, como he explicado en el voto salvado –y me parece que quedará aún más claro en el epígrafe final sobre las reflexiones respecto del expediente y la sentencia–, el examen sobre los actos impugnados no corresponde hacerlo en esta sede. Por tanto, si la declaración de la arbitrariedad de estos se dio sin los necesarios recaudos procesales, entonces, la declaración de la lesión de la libertad de expresión por medios indirectos padece del idéntico vicio procesal.
Pero ¿por qué acabo de señalar que “entonces tales actos, en principio, se tornarían lesivos de la libertad de expresión de los periodistas”? Porque, desde mi perspectiva, incluso si los actos fueran arbitrarios no necesariamente se daría una lesión a la libertad de expresión por vías indirectas. Pero las reflexiones sobre este punto serán objeto de un epígrafe posterior.
Ahora lo que conviene subrayar es que, como se ha visto, en el presente caso no se dio una afectación a la libertad de expresión en los términos que lo señala el artículo 13.3 de la CADH y que, aunque se hubiese dado, esta solo habría sido amparable si la declaratoria de la arbitrariedad de los actos se hubiese dado con los recaudos procesales adecuados.
Es oportuno ahora detenerse en la jurisprudencia invocada, tanto por los recurrentes como por la mayoría de la Sala para sustentar la violación del artículo 13.3 de la CADH.
D. Consideraciones sobre la jurisprudencia invocada en el expediente Como se sabe, los recurrentes y la mayoría invocan el artículo 13.3 de la CADH para afirmar que una orden sanitaria y su oficio conexo dictados sobre el inmueble del Parque Viva lesionan la libertad de expresión de los periodistas que laboran en el Periódico La Nación ?sea, en otra unidad de negocio distinta al negocio Parque Viva?. Como parte de sus argumentos invocan jurisprudencia, tanto de la Corte IDH como de la Sala Constitucional.
Haré de inmediato unas consideraciones al respecto para mostrar que más bien esas sentencias abonan a mi tesis.
1. La jurisprudencia de la Corte IDH Desde mi perspectiva, es muy valiosa la jurisprudencia dictada por la Corte IDH que se trae a colación para aducir que en el presente asunto se produjo una infracción del artículo 13.3 de la CADH, pero los casos mencionados no tienen semejanza fáctica con el que se examina en el sub lite. Por eso las rationes en las que se sustentan esas sentencias no calzan ni pueden ser válidamente invocadas. Además, los recurrentes invocan algunos casos resueltos por la Corte IDH que, como se verá, lógicamente la mayoría de la Sala no la incorpora en la sentencia, pues supondría poner de manifiesto una debilidad en la argumentación. Esto lo paso a ilustrar de seguido.
En primer término, los recurrentes ?pero no la mayoría de la Sala en la sentencia? citan el caso “Ríos y otros vs. Venezuela” , dictada en un contexto de agresión y amenaza continuada contra periodistas, camarógrafos, fotógrafos y demás trabajadores de los medios de comunicación social. En dicha resolución la Corte IDH desarrolla así el contenido del artículo 13.3 de la CADH:
“340. Una interpretación literal de esta norma [artículo 13.3 de la CADH] permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas. La enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. Además, el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también “controles... particulares” que produzcan el mismo resultado. Para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones.
360. En cuanto al propósito perseguido por esos oficios, en el sentido de incidir indirectamente y presionar a los directivos respecto al contenido de la información difundida, el Tribunal nota que la Comisión y los representantes no han aportado pruebas o elementos que evidencien que la emisión de los oficios haya afectado la libertad de buscar, recibir y difundir información de las presuntas víctimas. Tampoco han aportado pruebas para desvirtuar el contenido de los oficios, emitidos con base en una normativa vigente en Venezuela (…).
380. Como ha sido señalado (supra párr. 340), este Tribunal estima que para que se configure una violación del artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones.
381. La Corte observa que si bien la presencia y manifestaciones de los agentes de la DISIP o de la Casa Militar en la estación “Los Mecedores”, donde se encontraban las antenas de transmisión de RCTV, pudieron ser percibidas como amenazas y provocar en las presuntas víctimas algún efecto amedrentador, el Tribunal no cuenta con prueba suficiente que demuestre que la amenaza de intervenir la señal del canal se hubiese materializado en actos concretos que afectaran los derechos de las presuntas víctimas de recibir y difundir información, en los términos del artículo 13 de la Convención (…).
394. En definitiva, no ha sido comprobado ante la Corte que los tres oficios emitidos por CONATEL relativos al contenido de un programa transmitido por RCTV y las intervenciones a sus emisiones hayan constituido restricciones indebidas e indirectas al derecho de las presuntas víctimas a buscar, recibir y difundir información, que constituyeran violación del artículo 13.1 y 13.3 de la Convención Americana, en perjuicio de aquéllas” (el destacado no es del original).
De lo transcrito es oportuno resaltar lo siguiente: “para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones”. Es decir, que el mecanismo indirecto empleado por las autoridades tenga un efecto directo sobre la libertad de expresión y la libre circulación de ideas y opiniones. La Corte IDH declaró que no quedó establecido que el Estado hubiera violado el derecho a buscar, recibir y difundir información, en los términos del artículo 13.3 de la CADH. Seguramente, por haberse rechazado la infracción a dicho numeral, la mayoría de la Sala no invocó esta sentencia como apoyo de su decisión . Sin embargo, considero que la ratio señalada es sumamente importante, y en lo sucesivo se repite en los votos posteriores sobre el particular, manteniéndose incólume la condición advertida: “que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones”.
En segundo lugar, la sentencia de la mayoría se apoya en lo dispuesto en el “Caso Ivcher Bronstein vs. Perú” . En esta resolución, la Corte IDH sí declaró una infracción al artículo 13.3 de la CADH, pues constató que a través de presiones indirectas ejercidas contra el señor Baruch Ivcher Bronstein ?dejar sin efecto legal el título de nacionalidad peruana, sin el cual no podía continuar como propietario de una empresa concesionaria de canal televisivo en el Perú? se lesionó su libertad de expresión. En ese caso, al declarar la violación de esa norma, indicó:
“162. En el contexto de los hechos señalados, esta Corte observa que la resolución que dejó sin efecto legal el título de nacionalidad del señor Ivcher constituyó un medio indirecto para restringir su libertad de expresión, así como la de los periodistas que laboraban e investigaban para el programa Contrapunto del Canal 2 de la televisión peruana.
163. Al separar al señor Ivcher del control del Canal 2, y excluir a los periodistas del programa Contrapunto, el Estado no sólo restringió el derecho de éstos a circular noticias, ideas y opiniones, sino que afectó también el derecho de todos los peruanos a recibir información, limitando así su libertad para ejercer opciones políticas y desarrollarse plenamente en una sociedad democrática.
164. Por todo lo expuesto, la Corte concluye que el Estado violó el derecho a la libertad de expresión consagrado en el artículo 13.1 y 13.3 de la Convención, en perjuicio de Baruch Ivcher Bronstein” (el destacado no es del original).
Así, en dicha sentencia se determinó que –como consecuencia de la línea editorial asumida por el Canal 2– el señor Ivcher fue objeto de acciones intimidatorias de diverso tipo, que culminaron en restricciones concretas sobre la libertad de expresión: se le suspendió en el ejercicio de los derechos como accionista mayoritario y presidente de la compañía televisiva, y se le revocó su nombramiento como director de esta; y, por lo tanto, se le restringió la circulación de ideas que el amparado promovía. Es decir, se constató una restricción cierta al derecho a circular noticias, ideas y opiniones.
La mayoría de esta la Sala luego alude al caso “Ricardo Canese vs. Paraguay” . En dicha resolución, la Corte IDH tuteló en genérico el artículo 13 de la CADH, declarando lo siguiente:
“[E]l Estado violó el derecho a la libertad de pensamiento y de expresión consagrado en el artículo 13 de la Convención Americana sobre Derechos Humanos, en relación con el artículo 1.1 de dicho tratado, en perjuicio del señor Ricardo Nicolás Canese Krivoshein”.
El marco fáctico de ese caso evidencia que se causó una lesión cierta a la posibilidad del señor Canese de ejercer su libertad de expresión. Esto por cuanto se constató que, luego de sus manifestaciones en el contexto de un proceso electoral, fue sometido a un proceso penal y a restricciones a su libertad de tránsito. En síntesis, la Corte IDH concluyó lo siguiente:
“[E]l Tribunal considera que, en este caso, el proceso penal, la consecuente condena impuesta al señor Canese durante más de ocho años y las restricciones para salir del país durante ocho años y casi cuatro meses constituyeron medios indirectos de restricción a la libertad de pensamiento y de expresión del señor Canese”.
En relación con este caso, se debe decir que hubo consecuencias directas sobre la persona emisora de las manifestaciones, quien, en virtud de estas se vio castigado penalmente con restricciones a su libre tránsito .
Seguidamente, corresponde aquí hacer referencia al caso “Perozo y otros vs. Venezuela” que también fue invocado por los recurrentes, pero no por la mayoría de la Sala. Dicha sentencia versa sobre una situación política convulsa y un contexto de “amenazas [y agresiones] a comunicadores sociales”. La Corte IDH amparó la situación de los comunicadores a tenor del artículo 13.1, pero no del artículo 13.3, ambos de la CADH, en los siguientes términos:
“El ejercicio efectivo de la libertad de expresión implica la existencia de condiciones y prácticas sociales que lo favorezcan. Es posible que esa libertad se vea ilegítimamente restringida por actos normativos o administrativos del Estado o por condiciones de facto que coloquen, directa o indirectamente, en situación de riesgo o mayor vulnerabilidad a quienes la ejerzan o intenten ejercerla, por actos u omisiones de agentes estatales o de particulares. En el marco de sus obligaciones de garantía de los derechos reconocidos en la Convención, el Estado debe abstenerse de actuar de manera tal que propicie, estimule, favorezca o profundice esa vulnerabilidad y ha de adoptar, cuando sea pertinente, medidas necesarias y razonables para prevenir o proteger los derechos de quienes se encuentren en tal situación, así como, en su caso, investigar hechos que los perjudiquen (…).
367. (…) Una interpretación literal de esta norma [artículo 13.3 de la CADH] permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas. La enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. Además, el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también “controles... particulares” que produzcan el mismo resultado.
368. Este Tribunal estima que para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinja efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones.
369. Las declaraciones señaladas, examinadas en el contexto en que se produjeron, contienen opiniones sobre la supuesta actuación o participación de Globovisión, o de personas vinculadas a éste, en eventos desarrollados bajo circunstancias de alta polarización política y conflictividad social en Venezuela, lo cual se halla fuera del objeto del presente caso (supra párrs. 72 a 74). Independientemente de la situación o motivación que generó esas declaraciones, en un Estado de derecho las situaciones conflictivas deben abordarse a través de las vías establecidas en el ordenamiento jurídico interno y conforme a los estándares internacionales aplicables. En el contexto de vulnerabilidad enfrentado por las presuntas víctimas, ciertas expresiones contenidas en las declaraciones sub examine pudieron ser percibidas como amenazas y provocar un efecto amedrentador, e incluso autocensura, en aquéllas, por su relación con el medio de comunicación aludido. Sin embargo, el Tribunal considera que, en consideración de los criterios señalados en el párrafo anterior, esos otros efectos de tales pronunciamientos ya fueron analizados supra, bajo el artículo 13.1 de la Convención, en relación con el artículo 1.1 de la misma” (el destacado no es del original).
Luego de la lectura de tal pasaje, se comprende por qué la mayoría no hizo alusión a esa sentencia de la Corte IDH. Conviene destacar la ratio de la Corte, en el sentido de que para que se configure una violación al artículo 13.3 de la CADH es necesario que la vía o el medio restrinja efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones. Esto, como es público y notorio, no ha sucedido en el presente caso, pues, luego del dictado de los actos administrativos, los periodistas han podido manifestar sin dificultad alguna sus ideas y opiniones, y la imposibilidad o dificultad cierta de hacerlo en el futuro ?debido a la existencia de tales actos? no fueron debidamente acreditadas.
Finalmente, es preciso hacer referencia al “Caso Granier y otros (Radio Caracas Televisión) vs. Venezuela , que sí fue invocado por los recurrentes y la mayoría de la Sala, en el cual se declaró la violación a la libertad de expresión por medios indirectos. Se enmarca dentro de la crisis política y social ocurrida en Venezuela, en la que “desde el año 2002 funcionarios del Estado venezolano, entre ellos el Presidente Chávez, realizaron distintas declaraciones respecto a que no serían renovadas las concesiones a algunos medios privados de comunicación social en Venezuela y luego “a partir de diciembre de 2006, funcionarios del Estado pasaron a anunciar la decisión oficial de no renovar la concesión de RCTV”. En esa sentencia se realizaron las siguientes consideraciones de interés:
“1.3. Restricciones indirectas – alcances del artículo 13.3 de la Convención 161. (…) Este Tribunal considera que el alcance del artículo 13.3 de la Convención debe ser el resultado de una lectura conjunta con el artículo 13.1 de la Convención, en el sentido que una interpretación amplia de esta norma permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas.
162. Al respecto, la Corte señala que lo que busca este inciso es ejemplificar formas más sutiles de restricción al derecho a la libertad de expresión por parte de autoridades estatales o particulares. En efecto, este Tribunal ha tenido la oportunidad de declarar en casos anteriores la restricción indirecta producida, por ejemplo, mediante una decisión que dejó “sin efecto legal el título de nacionalidad” del accionista mayoritario de un canal de televisión” o por “el proceso penal, la consecuente condena impuesta […] durante más de ocho años y las restricciones para salir del país durante ocho años” en contra de un candidato presidencial.
163. Por otra parte, la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. En este sentido, el artículo 13 de la Declaración de Principios sobre la Libertad de Expresión indica otros ejemplos de medios o vías indirectas, al manifestar que “[l]a utilización del poder del Estado y los recursos de la hacienda pública; la concesión de prebendas arancelarias; la asignación arbitraria y discriminatoria de publicidad oficial y créditos oficiales; el otorgamiento de frecuencias de radio y televisión, entre otros, con el objetivo de presionar y castigar o premiar y privilegiar a los comunicadores sociales y a los medios de comunicación en función de sus líneas informativas, atenta contra la libertad de expresión y deben estar expresamente prohibidos por la ley. Los medios de comunicación social tienen derecho a realizar su labor en forma independiente. Presiones directas o indirectas dirigidas a silenciar la labor informativa de los comunicadores sociales son incompatibles con la libertad de expresión”. Igualmente, el perito García Belaunde durante la audiencia pública hizo referencia a otras posibles formas de restricción indirecta relacionadas con: i) “la publicidad, [ya que] los Estados son importantes agentes de publicidad y […] dar mucha publicidad o quitarla puede ser importante y, dado el caso, puede haber una especie de asfixia para los medios que básicamente viven de la publicidad”, o ii) “la tributación [cuando se dan] casos [en] que [las] empresas […] han sido cargadas tributariamente” con el fin de generar molestias o enviar mensajes al medio de comunicación” (el destacado no es del original).
Hasta aquí lo más relevante de ese pasaje es que la Corte IDH afirma que las restricciones de la libertad de expresión por vías indirectas son más sutiles, luego hace alusión a su propia jurisprudencia y subraya que la enumeración de estas que contiene el artículo 13.3 de la CADH no es taxativa y, finalmente, menciona otros posibles ejemplos, incluidos los que mencionó el perito. Al respecto, téngase presente que esas medidas –publicidad y tributos– recaen directamente sobre esos medios de comunicación. Después señala:
“164. Asimismo, la Corte recuerda que para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, en forma indirecta, la comunicación y la circulación de ideas y opiniones. Además, la Corte reitera que el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también controles particulares que produzcan el mismo resultado. Al respecto, la Corte resalta que la restricción indirecta puede llegar a generar un efecto disuasivo, atemorizador e inhibidor sobre todos los que ejercen el derecho a la libertad de expresión, lo que, a su vez, impide el debate público sobre temas de interés de la sociedad” (el destacado no es del original).
Como se puede observar, este párrafo es especialmente significativo porque reitera que para que se configure la violación de dicha norma la vía o medio indirecto debe restringir efectivamente la comunicación y la circulación de ideas y opiniones. En otros términos, para que una conducta se tenga como medio indirecto de restricción debe darse tal restricción. Si el efecto restrictivo no se da, el medio que se aduce como restrictivo no es tal, justamente porque le falta una condición esencial, la de incidir efectivamente en la libertad de expresión, esto es, en la comunicación y la circulación de ideas y opiniones. Esto que parece una obviedad es precisamente lo que lleva a concluir que aquí en el presente caso no se ha dado la alegada violación del artículo 13.3 de la CADH.
En ese mismo pasaje se dice que tal restricción puede manifestarse de varias maneras: puede tener un efecto disuasivo, atemorizador e inhibidor sobre todos los que ejercen el derecho a la libertad de expresión, lo que, a su vez, impide el debate público sobre temas de interés de la sociedad. Y es un hecho público y notorio que los periodistas recurrentes, luego del dictado de la orden sanitaria y el oficio conexo, han seguido realizando su labor según su propio criterio y posición, como procede en una sociedad democrática. Además, no mostraron fehacientemente –ni siquiera de manera indiciaria– que, debido a esos actos administrativos impugnados, en el futuro no podrían seguir haciéndolo.
En esa sentencia, después de referirse al contenido e importancia de la libertad de expresión en una sociedad democrática, la Corte IDH afirma:
“171. Teniendo en cuenta lo anteriormente señalado, la Corte recalca la necesidad de que los Estados regulen de manera clara y precisa los procesos que versen sobre el otorgamiento o renovación de concesiones o licencias relacionadas con la actividad de radiodifusión, mediante criterios objetivos que eviten la arbitrariedad. Específicamente, es preciso que se establezcan las salvaguardas o garantías generales de debido proceso, que cada Estado determine como necesarias en estos procesos a la luz de la Convención Americana, con la finalidad de evitar el abuso de controles oficiales y la generación de posibles restricciones indirectas (…).
189. Ahora bien, tanto la Comisión Interamericana como los representantes han aseverado que esta no era la finalidad real, por cuanto habría pruebas que demostrarían que existía una intención de castigar a RCTV por la línea editorial crítica contra el Gobierno. Al respecto, en el presente caso, la Corte considera necesario, tener en cuenta que el motivo o propósito de un determinado acto de las autoridades estatales cobra relevancia para el análisis jurídico de un caso, por cuanto una motivación o un propósito distinto al de la norma que otorga las potestades a la autoridad estatal para actuar, puede llegar a demostrar si la acción puede ser considerada como actuación arbitraria o una desviación de poder. Con relación a ello, el Tribunal toma como punto de partida que las actuaciones de las autoridades estatales están cubiertas por una presunción de comportamiento conforme a derecho. Y por ello una actuación irregular por parte de las autoridades estatales tiene que aparecer probada, a fin de desvirtuar dicha presunción de buena fe. Para lo anterior, la Corte procederá a: a) realizar un recuento de la prueba obrante en el expediente sobre la alegada finalidad no declarada, y b) examinar dicha prueba”.
Es decir, admite que corresponde hacer un examen para determinar si hubo o no desviación de poder, y para ello estima que es ineludible analizar la prueba . Sobre el particular, la Corte IDH señala:
“197. La Corte concluye entonces, como lo ha hecho en otros casos, que los hechos del presente caso implicaron una desviación de poder, ya que se hizo uso de una facultad permitida del Estado con el objetivo de alinear editorialmente al medio de comunicación con el gobierno. La anterior afirmación se deriva a partir de las dos conclusiones principales a las cuales puede arribar este Tribunal a partir de lo descrito anteriormente, a saber, que la decisión se encontraba tomada con anterioridad y que se fundaba en las molestias generadas por la línea editorial de RCTV, sumado al contexto sobre el “deterioro a la protección a la libertad de expresión” que fue probado en el presente caso (supra párr. 61).
198. Asimismo, este Tribunal considera necesario resaltar que la desviación de poder aquí declarada tuvo un impacto en el ejercicio de la libertad de expresión, no sólo en los trabajadores y directivos de RCTV, sino además en la dimensión social de dicho derecho (supra párr. 136), es decir, en la ciudadanía que se vio privada de tener acceso a la línea editorial que RCTV representaba. En efecto, la finalidad real buscaba acallar voces críticas al gobierno, las cuales se constituyen junto con el pluralismo, la tolerancia y el espíritu de apertura, en las demandas propias de un debate democrático que, justamente, el derecho a la libertad de expresión busca proteger. Se encuentra probado, en consecuencia, que en el presente caso se configuró una restricción indirecta al ejercicio del derecho a la libertad de expresión producida por la utilización de medios encaminados a impedir la comunicación y circulación de la ideas y opiniones, al decidir el Estado que se reservaría la porción del espectro y, por tanto, impedir la participación en los procedimientos administrativos para la adjudicación de los títulos o la renovación de la concesión a un medio que expresaba voces críticas contra el gobierno, razón por la cual el Tribunal declara la vulneración del artículo 13.1 y 13.3 en relación con el artículo 1.1 de la Convención Americana en perjuicio Marcel Granier, Peter Bottome, Jaime Nestares, Inés Bacalao, Eladio Lárez, Eduardo Sapene, Daniela Bergami, Miguel Ángel Rodríguez, Soraya Castellano, María Arriaga y Larissa Patiño” (el destacado no es del original).
De lo subrayado se desprende con claridad que hubo una conducta encaminada a impedir la libertad de expresión a partir de la decisión estatal de no renovar la concesión a un medio periodístico que lucía contrario a los intereses del gobierno. Se trata, como se destacó, de una medida que “tuvo un impacto en el ejercicio de la libertad de expresión”. Además, debe ponerse de relieve un dato en extremo relevante: que esa medida recayó directamente sobre la empresa de comunicación.
Vale la pena hacer una recapitulación de las sentencias en las que la Corte IDH sí declaró la violación del artículo 13.3 de la CADH: En el caso “Ivcher Bronstein vs. Perú” se constató la privación arbitraria del título de nacionalidad por parte del Estado peruano al señor Ivcher Bronstein, con el objeto de privarlo del control editorial del canal de televisión que dirigía, por cuanto la legislación peruana vigente en el año de 1997 disponía que, para ser propietario de empresas concesionarias de canales televisivos en el Perú, se requería gozar de la nacionalidad peruana. En el caso “Ricardo Canese vs. Paraguay” se examinó la condena y las restricciones para salir del país, impuestas al ingeniero Ricardo Canese como consecuencia de manifestaciones hechas mientras era candidato presidencial; y, producto del proceso penal en su contra, el señor Canese fue sometido a una restricción permanente para salir del país que, en criterio de la Corte IDH, no cumplió los requisitos de legalidad, necesidad y proporcionalidad, exigidos en una sociedad democrática. Finalmente, el caso “Granier y otros (Radio Caracas Televisión) vs. Venezuela” no se renovó la concesión a RCTV y el cese de la transmisión correspondiente.
Las líneas de la Corte IDH son reiterativas en el sentido de que “para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, en forma indirecta, la comunicación y la circulación de ideas y opiniones”. En definitiva, lo que se procura es evitar que existan o se generen obstáculos al libre flujo informativo o de opinión. Por lo tanto, si no se demuestra que se impidió esta libre circulación, entonces, no se configura la lesión al artículo 13.3 de la CADH. Además, todos los casos tienen otro denominador común: se trata de medidas que recayeron directamente en la persona o en el medio de comunicación. La lógica de esa norma es que son lesivas las conductas que de forma indirecta causan una lesión directa a la libertad de expresión.
En el sub lite, por el contrario, no se logró demostrar cuál ha sido el impacto que el dictado de una orden sanitaria y su oficio conexo que recaen sobre un inmueble de otra unidad de negocio ajena al periódico haya tenido en la libertad de expresión de los recurrentes. En otras palabras, no se ha cumplido lo que la Corte IDH exige que para que se configure una violación al artículo 13.3 de la Convención: que la vía o el medio indirecto restrinja, efectivamente, la comunicación y la circulación de ideas y opiniones. Resalto la palabra efectivamente, esto es, que en efecto o verdaderamente, se restrinja la circulación de ideas y opiniones. En otras palabras, las rationes de las sentencias de la Corte IDH no pueden invocarse en el presente caso, pues el marco fáctico que se tiene por probado lo impide, porque no hay una constatación de que los actos administrativos que se acusan de arbitrarios (la orden sanitaria y el oficio conexo) hayan impactado, efectivamente, en la libertad de expresión de los recurrentes.
En síntesis, las sentencias de la Corte IDH que aquí se acaban de analizar (que fueron las invocadas por los recurrentes y/o por la mayoría de la Sala) permiten concluir que se declaró la violación del artículo 13.3 de la CADH solo cuando las vías o medios indirectos tuvieron una incidencia directa en el ejercicio de la libertad de expresión. Al sub lite, por el contrario, no se le puede aplicar válidamente dicha jurisprudencia para fundamentar la estimatoria del recurso, pues se trata de unos actos que tienen una incidencia directa en la unidad de negocio que pertenece también al grupo dueño del periódico, pero de los que no se demostró que hubiese tenido impacto directo sobre el ejercicio de la libertad de expresión de los recurrentes.
2. La jurisprudencia de la Sala Constitucional Corresponde ahora examinar la jurisprudencia constitucional que la mayoría de la Sala invoca para mostrar que en el presente asunto se sigue la línea de esas sentencias en las que se acreditó que, a través de medios indirectos, se causó una lesión directa a la libertad de expresión.
El primer caso que la mayoría trae a colación se refiere a un recurso en el que se examinó el proceder de un diputado de la República, que envió cartas a instituciones públicas con el aparente propósito de solicitar que se le retirara la publicidad al medio de comunicación. El recurrente alegó que esto debía ser considerado como tráfico de influencias, abuso de poder y censura previa. Se constató la existencia de las notas dirigidas a las instituciones públicas con las siguientes afirmaciones: “les insto a valorar como una responsable medida cautelar, la posibilidad de sacar del aire la publicidad institucional que pagan en este programa radial, mientras resolvemos en los tribunales la querella que estamos por incoar”. Al resolver, esta Sala recogió la ratio de las sentencias de la Corte IDH y concluyó:
“En este sentido, la censura puede ser directa –por ejemplo, la prohibición directa de cierta publicación- o indirecta (también denominada soft censorship, censura sutil, velada) –por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación–. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería ?…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones' (…).
La excitativa enviada a las instituciones públicas con el fin de que ellas retiraran la publicidad del programa de radio del amparado, se enmarca dentro de los casos de censura indirecta a la libertad de expresión por varias razones.
Primeramente, la publicidad provee el principal soporte financiero que permite la transmisión de los programas radiales y, a la postre, el sustento económico de las personas que trabajan en dicho programa. Es evidente que si se limita el ingreso económico del programa, también se llega a perjudicarlo o –inclusive– eliminarlo, todo en detrimento tanto de la libertad de expresión como de la de información. La situación descrita resulta incluso más grave cuando se trata medios de comunicación pequeños, como periódicos locales o pequeñas estaciones de radio, cuya estabilidad financiera puede llegar a depender en gran medida de la publicidad estatal”.
Nótese que la mencionada publicidad era la que se daba a conocer en el medio de comunicación recurrente. Se trataba de un ingreso económico derivado del funcionamiento del programa, no de la actividad propia de una unidad de negocio ajena a este.
La sentencia continúa:
“En segundo lugar, un diputado de la República no es un ciudadano cualquiera, sino que ostenta un poder político particular debido a su incidencia en la aprobación de proyectos de ley, respecto de los cuales existe cantidad de intereses tanto privados como públicos. Ergo, una recomendación o retiro de publicidad de un programa radial, emitido por un funcionario en una particular posición de poder político y teniendo como leitmotiv su disconformidad con las críticas contra él difundidas por determinado medio de comunicación, constituye una forma velada de intimidación que no solo afecta al programa radial directamente aludido, sino que además envía un mensaje intimidante al resto de medios fomentando un ambiente hostil a las libertades de expresión e información esenciales en un sistema democrático. En el sub iudice, tal amenaza incluso pasó a tener efectos concretos, en la medida que, según la prueba aportada por el accionante, la pauta publicitaria del ICAA, programada para el periodo del 15 de octubre al 15 de noviembre de 2014, fue suspendida mientras se respondía el oficio del recurrido (…).
En ese sentido, el envío de una nota a los patrocinadores del programa indicando que consideren retirar su patrocinio por el contenido negativo del mismo contra su imagen, constituyó una censura indirecta –en los términos señalados en la jurisprudencia de la Corte Interamericana supra citada-, al programa radial “Rompiendo El Silencio”. En la valoración que se hace tiene un peso específico el hecho de que el recurrido ostenta una posición de poder político por su cargo de Diputado de la República, y que efectivamente su misiva causó un efecto negativo más allá de un simple reclamo, al haberse acreditado en autos que produjo efectos sobre uno de los patrocinadores, quien suspendió temporalmente la publicidad (ICAA). Consecuentemente, se declara con lugar dicho extremo” (sentencia 2015-1782; el subrayado es del original; el subrayado con negrita no es del original).
Si se examina con detenimiento dicha resolución, se aprecia que la mayoría de la Sala que declaró con lugar el recurso hizo énfasis en el hecho de que la amenaza tuvo efectos concretos, puesto que una pauta publicitaria prevista para el programa del amparado fue suspendida. De modo que la conducta del legislador recurrido tuvo una incidencia directa sobre los ingresos y la publicidad del programa radial. Ahora bien, en el voto de minoría se consignó lo siguiente:
“La única circunstancia fáctica, a partir de la cual la mayoría de este Tribunal estimó que se produjo una censura, es que el Instituto Costarricense de Acueductos y Alcantarillados suspendió la pauta del 15 de octubre al 15 de noviembre de 2014, a la espera de la respuesta que se le ofrecería al co-recurrido Oscar López, cuando lo cierto del caso es que el programa radial siguió en el aire y difundiéndose, por cuanto, contaba con otros patrocinadores. En todo caso, la Directora de Comunicación de esa entidad pública informó que la pauta se reinició el 1° de noviembre de 2014. Estimo que tales circunstancias fácticas son absoluta y rotundamente insuficientes para tener por acreditada una censura directa o indirecta que, como se apuntó, nunca se dio. Debe tomarse en consideración que para acoger o estimar un proceso de amparo, de acuerdo con el artículo 29 de la Ley de la Jurisdicción Constitucional, debe existir una violación o amenaza de violación del derecho fundamental invocado, lo que no sucedió en el sub-lite. Adicionalmente, es menester apuntar que la censura previa, tiene su origen en conductas activas u omisivas de los poderes públicos que despliegan algún tipo de control o dejan de hacerlo para impedir la difusión de ideas, pensamientos, opiniones, lo que no sucedió en el sub-lite. Lo anteriormente apuntado queda patente, a manera de ejemplo, en dos casos emblemáticos de la Corte Interamericana de Derechos Humanos sobre la materia, que son los casos ?La última tentación de Cristo vs. Chile' e ?Ivcher Bronstein vs. Perú' en los que, respectivamente, la producción cinematográfica no se pudo exhibir entre 1988 y 2003, por resolución administrativa sustentada en una norma constitucional y se revocó, por decisión administrativa, la ciudadanía peruana del dueño de un canal televisivo que difundía un programa de críticas en contra del gobierno, por lo que dejó de transmitirse. En definitiva, no nos enfrentamos a ninguna supresión ilegítima, radical o no, de la libertad de expresión. Tampoco, resulta posible inferir, a partir de la circunstancia fáctica apuntada, un control o medio ilegítimo de censura indirecto o velado de carácter idóneo” (voto salvado del magistrado Jinesta Lobo a la sentencia 2015-1782; el destacado no es del original).
Esa postura disidente se acerca más a la jurisprudencia de la Corte IDH, en el sentido de que sostiene que para que exista una lesión al artículo 13.3 de la CADH se requiere una afectación directa y cierta en la libertad de difusión de ideas, pensamientos y opiniones. Pero, en todo caso, sí que cumple con otra de las condiciones de esa jurisprudencia: que la conducta recae directamente sobre el recurrente.
En segundo término, en el presente asunto la mayoría de la Sala invocó la sentencia de un recurso en el que se cuestionó que el Banco Nacional paulatinamente fue reduciendo la pauta publicitaria en el periódico La Nación. En el hecho probado e) de dicha sentencia se consignó como debidamente demostrado lo siguiente:
“e) En el primer semestre del año 2016, el Banco Nacional de Costa Rica dispuso la reducción paulatina de la pauta publicitaria en las páginas del Diario La Nación. De los $732.402,54 dólares estadounidenses invertidos en el 2014 y los $696.373,73 dólares estadounidenses invertidos en el año 2015, en el período citado del año 2016 se pasó a una pauta publicitaria de $123.347,47 dólares estadounidenses (ver documentación e informe rendido bajo juramento)” (sentencia 2016-15220).
Al respecto, luego de acreditados tales hechos, se realizaron las siguientes consideraciones:
“En conclusión, sobre este tema debe tenerse por demostrado que aun cuando pudieran existir razones técnicas u objetivas que apuntaban a una disminución de las pautas publicitarias del Banco al Periódico La Nación, lo cierto es que estas razones no fueron tomadas en cuenta para disponer, como en efecto se hizo, una pausa en la publicidad contratada a dicho medio de comunicación, a partir de la publicación de las primeras noticias a finales de febrero, y en particular, durante los meses de junio y julio, las cuales queda acreditado se dieron con el fin de ?lograr un cambio en la actitud' del Periódico La Nación, respecto de la manera en que se venían abordando los temas relacionados con el Banco Nacional desde hacía varios meses.- En síntesis, se logra acreditar en el caso, como se dirá, que se ha producido una censura indirecta de parte de un funcionario público a un medio de comunicación, como reacción a su línea editorial, con el único propósito de ?motivar' un cambio, es decir, manipular al medio para acercarlo a sus propósitos, ya fuera conseguir una cita con uno de los dueños del medio, o un mayor espacio sobre la versión del Banco frente a los cuestionamientos hechos. Todo lo cual sin duda, resulta lesivo del artículo 13.1 de la Convención Americana sobre Derechos Humanos y 28 y 29 de la Constitución Política (…).
El problema en este caso surge más bien cuando las empresas públicas se separan de ese cauce para gestionar su pauta publicitaria de acuerdo con finalidades ajenas a razones objetivas y técnicas, e incompatibles con marco constitucional de derechos fundamentales. Es en ese punto donde la participación de esta Sala adquiere plena justificación y ello es lo que se busca confirmar o descartar a través de este recurso de amparo (…).
Resulta constitucionalmente reprochable que el Gerente General de un Banco púbico, es decir, un funcionario público, haya emitido una orden de retiro de una pauta publicitaria a un determinado diario escrito, sin un fundamento objetivo y técnico válido, sino en razón de su disconformidad, con la forma en que se elaboraban las noticias y reportajes emitidos respecto de las actividades y situación de la entidad bancaria que representa. El Tribunal entiende que lo anterior constituye una censura indirecta, una forma clara de intentar influir en los contenidos informativos del medio de comunicación, y además envía un mensaje intimidante al resto de medios que fomenta un ambiente hostil a las libertades de expresión e información esenciales en un sistema democrático (…).
Eso es precisamente lo que ha quedado demostrado en este amparo, que el retiro de la publicidad durante el primer semestre del año 2016, pero en particular de los meses posteriores a las publicaciones de finales de febrero, se dio en un contexto de confrontación con el medio, donde se logra comprobar que la estrategia no obedeció a criterios objetivos, sino que se dio, en palabras del propio gerente, con el fin de ?motivar' al diario a cambiar su línea editorial y enfoque noticioso, en vez de utilizar los mecanismos legales, existentes como el derecho de rectificación y respuesta si se estimaba que se trataba de informaciones inexactas o agraviantes” (sentencia 2016-15220; el destacado no es del original).
En el caso aludido hay conductas que impactan directamente al medio de comunicación. En efecto, se demostró que hubo una intención manifiesta de reducir la pauta publicitaria, que es una de las fuentes de ingresos que sostienen al periódico amparado. Aquí cabe destacar que es cierto que la Sala tuteló propiamente los ingresos que recibe el medio de comunicación por concepto de publicidad, pero también lo es que esa tutela no alcanza a proteger cualesquiera actividades comerciales de los dueños del medio de comunicación, por el hecho mismo de que también pertenecen a ellos.
La mayoría de la Sala en el presente asunto también refiere un caso en el que la parte recurrente adujo que se realizó la entrevista denominada “La violencia doméstica contra el hombre” en el programa “Café Nacional” de la empresa pública Radio Nacional de Costa Rica y que, con posterioridad, el director de Radio Nacional publicó un artículo titulado “Amarga vergüenza”, en el que advirtió que censuraría de previo el tema de la agresión hacia los hombres e impediría que se volviere a hablar de eso en Radio Nacional. Ello implicó que la entrevista fuera borrada por completo del portal de Internet del Sistema Nacional de Radio y Televisión (Sinart) y de la página de Facebook. En dicha sentencia se dijo lo siguiente:
“En aplicación de lo anterior al sub-lite, la Sala advierte suficientes elementos para concluir que las declaraciones de los amparados fueron censurados y, con ello, se lesionaron sus derechos fundamentales. Tal conclusión se desprende de las manifestaciones expresas del Director de Radio Nacional al señalar, que la repetición de entrevistas como la de los tutelados ?por supuesto no va a suceder', y que él ?jamás hubiera permitido que esta entrevista saliera al aire...', pero ?...una situación como esta no volverá a pasar...'. La Sala observa que la parte recurrida advierte con absoluta claridad la censura que existirá ante futuras entrevistas como la cuestionada y el arrepentimiento por no haber censurado la efectuada. Para este Tribunal, no existe duda de que las expresiones transcritas constituyen una censura, especialmente por provenir del director del medio que sirvió para la transmisión de la entrevista de marras” (sentencia 2018-8396).
De lo reseñado tampoco hay duda de que existió una finalidad explícita a suprimir los contenidos que el amparado pretendía dar a conocer, por lo que se justifica la tutela a su libertad de expresión. Además, más bien parece ser un ejemplo lesiones por amenaza de censura y por censura posterior, realizadas por medios directos, por lo que es un tanto debatible que la norma que proceda aplicar a ese caso sea el artículo 13.3 de la CADH. Pero, de nuevo, nótese que los actos arbitrarios recaen directamente sobre quien comunica.
Luego, la mayoría de la Sala se refiere a otra sentencia que declaró una intromisión de parte de la Prodhab en la libertad de expresión del medio amparado, pues dicha agencia había dispuesto que se eliminara la imagen de una persona en un hecho noticioso concreto que, en criterio de la Sala, era de interés público y justificaba el uso de la imagen de esa persona investigada. En lo conducente, se resolvió lo siguiente:
“En este sentido, la censura de la libertad de prensa puede ser directa –por ejemplo, la prohibición directa de cierta publicación– o indirecta (también denominada soft censorship, censura sutil, velada) –por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación–. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería ?…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones' (2015-1782).
Considera la Sala que el ejercicio de las competencias de la Prodhab para fines de la Ley de Protección de la Persona frente al Tratamiento de sus datos personales, no puede ser utilizada como un censor del ejercicio legítimo de la libertad de prensa, porque ello sería, una censura indirecta, en control del Estado, de un derecho toral, esencial, para el sostenimiento del régimen democrático.
En ese sentido, estima la Sala que si el uso de la imagen (fotografía de la página del pasaporte) como en este caso, se da dentro de un contexto de un hecho noticioso de interés público, insertada en un documento público, relacionado directamente con el contenido de la noticia, –puesto que se trata de un tema migratorio fronterizo–, cuya utilización, además, no denigra ni afecta la imagen de su titular, no es válido, separar o descontextualizar esa imagen de su noticia, ni mucho menos pretender eliminarla, porque forma parte integral de ésta” (sentencia 2020-10961).
La estimatoria de dicho recurso de amparo se justifica precisamente en que hubo una restricción directa al medio de comunicación y, por tal motivo, concurrí con el voto unánime del asunto. Adviértase que aquí también el acto arbitrario recayó directamente sobre el periódico.
La mayoría de la Sala además invoca otra sentencia que también suscribí. En dicho asunto se constató que hubo manifestaciones o instrucciones de la entonces presidenta ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados, dirigidas a servidores de dicha institución, para que no se brindaran declaraciones a dos medios de comunicación concretos. De forma sintética la Sala concluyó lo siguiente:
“En cuanto al punto, el Tribunal estima que en el sub examine existen indicios suficientes de que la presidenta ejecutiva del ICAA dijo la frase antes transcrita, lo cual, a todas luces, constituye una afectación a los derechos constitucionales a la libertad de pensamiento y expresión, de prensa y a la igualdad, todo esto en relación con los principios constitucionales democrático, de rendición de cuentas y de transparencia en la gestión pública, en virtud de que se trata de una especie de censura velada, dado que el resultado práctico de tal llamado es evitar que los medios de comunicación perjudicados tuviesen acceso a información pública” (sentencia 2020-016167; el destacado no es del original).
De esa cita se desprende una incidencia directa en relación con los medios de comunicación. Esto es, que se instó a los servidores de la institución aludida a abstenerse de “alimentar” o brindar información a dos periódicos concretos.
La mayoría de la Sala también cita lo resuelto recientemente en la sentencia 2022-23107, en la que también concurrí, mediante la cual se puso en conocimiento de este Tribunal un supuesto comunicado que la entonces ministra de Comunicación, Patricia Navarro Molina, les remitió por WhatsApp a todos los ministros y presidentes ejecutivos del Gobierno. Se adujo que, en la referida comunicación, la ministra instruía a todos los jerarcas a suspender, con carácter de urgencia, todo tipo de publicidad estatal a los medios Amelia Rueda, La Nación, CRHoy y Canal 7. Asimismo, que ahí mismo se les instaba “con carácter de urgencia a no participar en entrevistas en Hablando Claro y Amelia Rueda”. No obstante, dicho recurso fue desestimado en cuanto a tal extremo, dado que esta Sala no pudo tener por demostrado que se hubiera girado la orden o directriz que cuestionaba la recurrente. Sin embargo, como marco considerativo, se invocó la sentencia 2015-1782, sobre la que ya se hizo referencia al inicio de este acápite.
Por último, cabe apuntar que, aunque no fue invocado por la mayoría, es pertinente hacer referencia a la reciente sentencia dictada el 30 de setiembre de 2022, cuya parte dispositiva fue adoptada en los siguientes términos:
“Se declara parcialmente con lugar el recurso. En consecuencia, se anula parcialmente el oficio N°MS-DM-6218-2022 del 22 de julio de 2022, en cuanto a la prohibición en brindar declaraciones o información sin antes contar con la aprobación respectiva de los jerarcas del Ministerio de Salud. Se mantiene incólume dicho oficio, en cuanto a la gestión de consultas mediante un correo institucional (vocería institucional). Se advierte a las autoridades recurridas que, de conformidad con lo establecido por el artículo 71, de la Ley de la Jurisdicción Constitucional, se impondrá prisión de tres meses a dos años o de veinte a sesenta días multa, a quien recibiere una orden que deba cumplir o hacer cumplir, dictada dentro de un recurso de amparo y no la cumpliere o no la hiciere cumplir, siempre que el delito no esté más gravemente penado” (sentencia 2022-23075; el destacado no es del original).
En ese asunto la Sala acreditó que el oficio establecía la prohibición dirigida a los servidores del Ministerio de Salud de brindar declaraciones o información sin antes contar con la aprobación respectiva de los jerarcas de ese ministerio. Se estimó que eso implicaba una restricción a la libertad de información y se anuló parcialmente dicho oficio. También podría ser debatible si aplica a este caso el artículo 13.3 de la CADH, pero, sí lo fuera, nótese que el acto arbitrario se dirige a restringir directamente la libre circulación de información que nutre a los medios de comunicación.
En todo caso, todas las sentencias citadas por la mayoría tienen en común que de alguna manera se constató una restricción a la libertad en el flujo de la comunicación y las ideas, ya sea a través de la reducción en la publicidad que alimenta al propio medio de comunicación, de directrices concretas tendientes a eliminar contenidos noticiosos, o bien de restricciones a los servidores públicos para entrar en contacto con determinados medios de comunicación. Las rationes que fundamentaron esas sentencias, desde mi perspectiva, no resultan aplicables al presente asunto. En efecto, en este, como se ha afirmado a lo largo de estas páginas, no se logró acreditar una conducta específica destinada a restringir la libre circulación de la información y los derechos fundamentales de los periodistas amparados. Es decir, no consta dato alguno por el cual se pueda afirmar que los actos impugnados hubieran impedido que los recurrentes realizaran su labor periodística, es decir, el ejercicio de su libertad de expresión. Por lo tanto, por no acreditarse una restricción concreta, no resultan aplicables los antecedentes hasta acá invocados. Si hubiese habido una lesión a tal libertad, cabría entrar a examinar si los medios indirectos en efecto la restringieron, pero aquí no se advierte la lesión como tal. Además, y esto es particularmente relevante, en todos los casos en que la Sala declaró que los actos conculcaron la libertad de expresión, estos recayeron directamente sobre el comunicador o el medio de comunicación.
Estas luces que arrojan esa jurisprudencia, tanto de la Corte IDH como de la Sala Constitucional, son un punto de partida para retomar las reflexiones que se estaban haciendo en el epígrafe relativo a la inexistencia de la lesión.
E. Reflexiones adicionales sobre la inexistencia de la violación Como he dicho, desde el momento en el que se constata que no hay legitimación activa, no corresponde examinar por el fondo el asunto con el fin de determinar si se produjo o no la lesión alegada. Pero, si hubiese legitimación, esta no bastaría para declarar con lugar el recurso, pues deben darse al menos dos condiciones: que haya afectación a la libertad de expresión y que los actos sean arbitrarios.
Con la jurisprudencia anteriormente comentada, estimo que ha quedado más claro aún que en el presente caso no se configuró la afectación a la libertad de expresión, porque no hubo impedimento a “la comunicación y la circulación de ideas y opiniones”. Respecto de los actos, ya se indicó que en principio debe ser arbitrario para que se pueda plantear la posibilidad de sea formalmente lesivo. Si los actos son legítimos de suyo no cabría hablar de afectación a la libertad de expresión sino de un perjuicio, que no es antijurídico. Como dice la sentencia en un pasaje que fue transcrito en su totalidad y que aquí se cita en lo conducente:
“[N]o todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen” (considerando VIII).
Ahora bien, ¿qué pasaría si el acto fuera legítimo de suyo, pero tiene reales y nocivas repercusiones en la estabilidad financiera del periódico, que harían imposible o dificultarían gravemente la libertad de expresión, en el sentido de que no sería posible hacer un periodismo independiente?
Para responder a esa interrogante cabría invocar el artículo 3 de la LJC:
Artículo 3. Se tendrá por infringida la Constitución Política cuando ello resulte de la confrontación del texto de la norma o acto cuestionado, de sus efectos, o de su interpretación o aplicación por las autoridades públicas, con las normas y principios constitucionales. (El destacado no es del original).
La norma es más aplicable en los procesos de control de constitucionalidad, pero, al estar en la parte preliminar de la ley y al referirse a “acto cuestionado”, nada impide que se utilice en procesos de garantías de derechos fundamentales, como el recurso de amparo.
Entonces, a tenor de esa norma, los actos de suyo legítimos podrían lesionar grave y formalmente la libertad de expresión, por lo que por esa razón podría entenderse que procedería su anulación.
Sin embargo, estimo que la aplicación del artículo 3 de la LJC tiene un límite. O más bien quizá ese mismo artículo aplicado vigorosamente es la llave para esclarecer sus propios límites.
En primer lugar, será preciso examinar si esos efectos lesivos son antijurídicos, pues, aunque sean perjudiciales, no necesariamente los actos que provocan tales efectos serían arbitrarios. Pero, además, no se trata solo de valorar los concretos efectos de los actos en su destinatario directo (Parque Viva), sino en otras esferas (el periódico La Nación y, por eso, los recurrentes) . Es decir, sería necesario atender a los efectos que los actos impugnados tienen en la otra unidad de negocio (el periódico). Aun así, todo apunta a que hay que ir más allá. Corresponde considerar cuáles son los efectos de que estime que los actos arbitrarios son lesivos porque inciden en otra unidad de negocio y que, presumiblemente, al dejarla sin sustento económico, cercenan la libertad de expresión de los recurrentes.
En el presente asunto debe tenerse muy presente cuáles son las coordenadas de la cuestión: se trata de dos unidades de negocio –Parque Viva y periódico La Nación– que pertenecen al Grupo Nación, pero que no forman parte de un proceso de producción. Cada una tiene giros comerciales distintos y plenamente independientes, tanto por el objeto (a qué se dedican) como por los sujetos que en ellos intervienen. Cada unidad de negocio está sometida a reglas distintas en los diversos planos normativos y de gestión.
Pues bien, como se ha visto, el artículo 13.3 de la CADH señala que la lesión a la libertad de expresión por medios indirectos se da cuanto estos están “encaminados a impedir la comunicación y la circulación de ideas y opiniones”. Además, por jurisprudencia, tanto de la Corte IDH como de la Sala Constitucional, los actos deben recaer sobre el sujeto que comunica (personal física o jurídica). Entonces, la interrogante es: ¿aquellos actos que recaen sobre una unidad de negocio (Parque Viva) distinta del periódico son lesivos de la libertad de expresión porque inciden en la salud financiera de este?
Si se dijera que sí, esto es, que los actos son arbitrarios y son lesivos de la libertad de expresión porque repercuten en la estabilidad financiera del periódico, lo que se estaría afirmando es que la causa de la violación de la libertad de expresión es esa incidencia en tal estabilidad. Si de verdad fuera así, sería casi irrelevante que los actos sean de suyo arbitrarios o no, pues bastaría que incidiesen en la estabilidad financiera para que se tengan por lesivos antijurídicamente, porque lo que importaría es si por sus efectos los actos son lesivos antijurídicamente. Desde mi perspectiva, sostener eso tendría unas consecuencias contraproducentes para la sociedad y, paradójicamente, para los dueños del Grupo Nación.
De nuevo, la pregunta es : ¿Los actos impugnados que recaen en el Parque Viva (que es una unidad de negocio dedicado a un giro comercial ajeno a los medios de comunicación) inciden en la libertad de expresión de los periodistas de La Nación (que es la unidad de negocio dependiente) por dejar sin sustento financiero al periódico y por eso son arbitrarios ?
La repuesta esta vez añade otro dato: Si se respondiera que sí, entonces, se tendría que admitir que todo acto que vaya en perjuicio de la salud financiera del Parque Viva lesionaría la libertad de expresión de los periodistas de La Nación, por dejar sin sustento financiero al periódico. En último término, como se ha adelantado, la causa de la lesividad antijurídica sería la incidencia en la salud financiera del periódico. Sin embargo, eso no parece razonable por varios motivos concatenados:
Para facilitar el análisis, se entenderá que la unidad de negocio A es la que tiene un giro comercial ajeno a los medios de comunicación (Parque Viva) y la unidad de negocio B es el periódico.
Primero. Toda persona física o jurídica desearía tener una unidad de negocio como B, para tener una suerte de impunidad respecto de la Administración en su unidad de negocio A, porque esta unidad deberá estar siempre indemne, protegida, de toda afectación financiera que se pruebe que incide en la actividad de la unidad de negocio B.
Segundo. Cabría el peligro de que todo acto legítimo de la Administración que recaiga en la unidad de negocio A, pero del que se pruebe que tiene incidencia financiera en la unidad de negocio B, se considere ilegítimo debido a sus efectos en la libertad de expresión de quienes allí laboran. Es decir, la Administración tendría serias limitaciones para obligar a respetar las propias normas de cada giro comercial, porque una vez probada la dependencia financiera de B respecto de A, todo se reconduciría a una lesión a la libertad de expresión, incluso aquellos actos de suyo legítimos.
Tercero. Ese peligro incluso podría comportar un riesgo para el propio dueño de la unidad de negocio A, pues si realiza un acto legítimo sobre esta que incida en la salud financiera de la unidad de negocio B, estaría incurriendo en un acto lesivo de la libertad de expresión de los periodistas que laboran en la unidad de negocio B. La presunta impunidad de la que gozaría la unidad de negocio A frente a la Administración, se convierte en una fuente de propia responsabilidad horizontal y sin fronteras frente a los periodistas que laboran en la unidad de negocio B.
Lo anterior sería así porque lo que haría que el acto fuera lesivo antijurídicamente de la libertad de expresión no sería la falta de alguno de los requisitos de validez (sustanciales y formales) y de eficacia , sino sus efectos sobre la salud financiera de la unidad dependiente; y se entendería que tal incidencia necesariamente afecta la libertad de expresión. Esto es, se consideraría que esa libertad quedaría lesionada con cualquier afectación financiera a la unidad de negocio B que provenga de la unidad de negocio A. De manera que bajo esa lógica todo acto que recaiga sobre la unidad A (no solo el arbitrario de suyo) que incida en la salud financiera de B impide “la comunicación y la circulación de ideas y opiniones” (artículo 13.3 de la CADH). Esto sin importar la naturaleza del acto, ni su carácter legítimo o no, ni la intensidad del impedimento.
Me pregunto si esa tesis resiste una aplicación universal. Parece que más pronto que tarde llevaría al absurdo.
Además, ha de tenerse presente que los holdings o conglomerados de empresas están integrados por unidades de negocio paralelas que se encuentran sometidas a reglas propias del giro al que se dedican. Por eso, la misma raíz financiera no permite extrapolar reglas de un negocio a otro: ni las prohibiciones, ni las protecciones ni los beneficios.
Tanto es así que, ante una quiebra de una de las unidades (que no sean parte de un mismo proceso de producción, sino que se dedican a giros comerciales distintos), los trabajadores de la unidad en crisis no podrían acudir al patrimonio de la otra unidad solvente, justamente porque se trata de dos unidades de negocio distintas y sus responsabilidades y derechos no son intercambiables.
Al respecto, dice la sentencia:
“[C]abe advertir que como toda persona administrada, estas estructuras se encuentran afectas y sujetas a las normas jurídicas que regulan, precisan y delimitan el ejercicio de sus respectivas actividades económicas. En ese sentido, su funcionamiento debe satisfacer y cumplir con las regulaciones propias de su actividad, lo que incluye, contar con las respectivas habilitaciones administrativas para el despliegue de la materia comercial” (sentencia, considerando VIII; el destacado no es del original).
Esto es así también por exigencias del principio de igualdad, pues de lo contrario, se trataría desigualmente a los iguales. Es decir, los dueños de medios de comunicación que, a la vez, sean dueños de otra empresa con un giro comercial distinto tendrían en este otro giro unas ventajas sobre los otros competidores, como se acaba de explicar.
Entonces, tal parece que la aplicación de un acto administrativo a una de las unidades de negocio, aunque tenga incidencia financiera en otra unidad de negocio que es paralela e independiente (por su objeto y por los sujetos que intervienen, y no forma parte de un mismo proceso de producción), no es suficiente para entender que se trata de un medio indirecto para lesionar antijurídicamente algún de derecho de los quienes estén vinculados a la otra unidad, tampoco si se trata de la libertad de expresión. Además, como se ha señalado, el artículo 13.3 de la CADH claramente indica que se entenderá lesivo si esa vía o medio indirecto impide “la comunicación y la circulación de ideas y opiniones”.
Hay un último elemento que vale la pena comentar. Aunque no sea posible consignar una respuesta unívoca, porque el tema tiene muchas facetas, cabe preguntarse sobre si el formato es parte del núcleo duro de la libertad de expresión, al menos, de la que es ejercida a través de un medio de comunicación. Para esto debe recordarse que la libertad de expresión conlleva por definición el deber de no hacer por parte del Estado: no impedir su ejercicio. Y, a tenor del artículo 13.3 de la CADH, se debe añadir que también hay una obligación de garantizar que no se impida ese ejercicio por medios indirectos. ¿Pero qué es lo que se debe proteger? Dice esa norma que “la comunicación y la circulación de ideas y opiniones”. No dice nada sobre el modo de hacerlo . Es decir, no parece que proteger la libertad de expresión necesariamente signifique que el Estado deba garantizar absolutamente que alguien continúe ejerciendo esa libertad mediante un formato libremente elegido por quien comunica, sobre todo si se está ante la presencia de otras opciones de comunicación igual o más eficaces. Por eso no es palmario que esa obligación de garantizar alcance al deber de “fomentar” o proteger a toda costa “la comunicación y la circulación de ideas y opiniones” en un formato que por diversas las razones (causadas o padecidas) se torna inviable. Tales razones pueden ser logísticas, financieras o, incluso, técnicas. Esta es una cuestión abierta al debate.
F. Motivos para acoger el recurso respecto de la libertad de expresión Los recurrentes dan cuenta de unos hechos para probar la vinculación entre el objeto impugnado y la lesión aducida. Parece que para ellos la importancia que algunos de estos tienen es que reflejan el contexto que permite valorar esa vinculación. Sin embargo, estimo que hay hechos que son en sí mismos significativos. Aquí se analizarán con el fin de determinar si constituyen violaciones directas a la libertad de expresión.
1. Marco normativo y jurisprudencial Hay dos normas que han de tomarse en consideración. Por un lado, el artículo 29 de la Constitución Política que establece:
Artículo 29. Todos pueden comunicar sus pensamientos de palabra o por escrito, y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca.
Por otro, en lo conducente, el artículo 13 de la CADH que señala:
Artículo 13. Libertad de Pensamiento y de Expresión 1. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
2. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar: a) el respeto a los derechos o a la reputación de los demás, o b) la protección de la seguridad nacional, el orden público o la salud o la moral públicas.
3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.
4. Los espectáculos públicos pueden ser sometidos por la ley a censura previa, con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2.
5. Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional. (El destacado no es del original).
La Sala Constitucional tiene una robusta jurisprudencia que subraya que el respeto a la libertad de expresión es una de las condiciones indispensables del Estado de Derecho y del ejercicio de la vida democrática. Entre muchas otras sentencias se puede transcribir parcialmente la siguiente:
“VIII.- La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle contenido a varios principios del Estado constitucional, como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos. Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa” (sentencia 2006-5977; el destacado no es del original; esas consideraciones han sido muchas veces reiteradas por la Sala, por ejemplo, en las sentencias 2015-1782, 2018-8396, 2019-8263 y 2020-16167).
Esta sentencia continúa con un pasaje particularmente relevante para el análisis que de inmediato se va a hacer:
“La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca; la no censurabilidad de los contenidos, si bien no se da en forma previa, encuentra algunas limitaciones, sin embargo, éstas deben ser tales que la libertad siga teniendo sentido o no sea vaciada de su contenido, básicamente, como toda libertad, debe ejercerse con responsabilidad, en fin para perseguir fines legítimos dentro del sistema” (ibid.; el destacado no es del original).
Es decir, se habla de la censura –entendida como el acto de reprobar– como un acto contrario a la libertad de expresión. Dicho de otro modo, se afirma que la consecuencia de esa libertad es la prohibición de toda clase de censura. Luego, no existe solo la censura previa, prohibida expresamente por los artículos 29 de la Constitución y 13 de la CADH, sino que puede darse una censura posterior, que tiene el propósito de inhibir cierto contenido informativo o de opinión. También se dice que la protección contra la censura alcanza no solo a los sujetos (quien comunica) sino al contenido (lo que se comunica).
Además, aunque no se desprende de esas líneas jurisprudenciales, estimo que se podrían incorporar otros criterios para completar una tipología de censura. Así, por su apariencia, puede ser velada o manifiesta; por los medios para ejercerla, puede ser directa o indirecta (por ejemplo, según lo previsto en el artículo 13.3 de la CADH); por sus efectos, puede ser absoluta (si la reprobación va de manera concomitante con la supresión) o relativa.
Finalmente, de manera sintética, ha dicho:
“La Sala recuerda que la defensa de la libertad de expresión es vital para el funcionamiento de un régimen democrático” (sentencia 2017-014977; el destacado no es del original).
Naturalmente, coincido plenamente con esa jurisprudencia, y he concurrido en muchas otras sentencias posteriores que fortalecen esa línea (vid. sentencias 2021-15417, 2022-4244, 2022-5915, 2022-9856, 2022-23107, entre otras).
2. Marco fáctico Cuando se leen los alegatos, se advierte que los recurrentes estiman que los actos administrativos son el último eslabón de una cadena de manifestaciones amenazantes de la libertad de expresión. Como he dicho, aluden a estas para reflejar un contexto y mostrar la vinculación entre la orden sanitaria (y el oficio conexo) y la lesión a la libertad de expresión. Sin embargo, a mi juicio, es preciso detenerse a examinar cuáles manifestaciones del presidente de la República –no solo las alegadas, sino las que tienen carácter de hecho público y notorio y que indubitablemente pueden considerarse parte de ese contexto– podrían constituir en sí mismas lesiones directas a la libertad de expresión.
Este examen debe estar medido por los requisitos de orden procesal: temporalidad, legitimación activa , legitimación pasiva, etc. Por eso, solo corresponde analizar los hechos acaecidos a partir del momento en el que el señor presidente asume el poder (pues antes no era funcionario público), hasta el momento en el que se interpuso el presente recurso de amparo (29 de julio de 2022).
Ese es el motivo por el cual se excluyen dos manifestaciones particularmente significativas: la del 29 de enero de 2022, en la que se refiere por sus nombres a los directores de medios , y la del 3 de agosto de 2022, que llama a los periodistas “fauna”, y afirma que una de las especies es la de las “ratas” .
Especial mención merece lo referente al término “prensa canalla”. Al respecto, los recurrentes dicen:
“En nuestro caso, como es público y notorio, además del constante uso de la palabra “canalla”, una injuria para deslegitimar, amedrentar y estimular el repudio a la prensa entre los seguidores del gobierno, lo cual es por sí mismo peligroso” (escrito de interposición, p. 6).
Sin embargo, es un hecho constatado que a partir del momento en el que asumió el poder, el mandatario no ha utilizado esa palabra, al menos en público. Por eso, este punto también se debe excluir del examen.
No obstante, es oportuno hacer dos consideraciones. En primer lugar, ciertamente no se ha dicho que una persona determinada es canalla, pero cuando se dice “prensa” no se alude solo a la empresa o medio como tal sino a quienes en ella ejercen el periodismo. En segundo lugar, es difícil encontrar un término más vejatorio que ese. Dice el Diccionario de la Real Academia Española:
canalla: Del it. canaglia, y este der. de cane perro.
1. f. coloq. Gente baja, ruin.
2. f. desus. perrería (?muchedumbre de perros).
3. m. y f. Persona despreciable y de malos procederes.
Es palmario que nadie merece ese calificativo.
Tampoco se toman en cuenta las manifestaciones hechas en la conferencia de prensa del 9 de julio ni la del 20 de julio de 2022, que se refieren a los dueños del Grupo Nación, no propiamente a los recurrentes.
Sin embargo, es suficiente para este análisis circunscribirse a la conferencia de prensa del 13 de julio de 2022. En esta ocasión, el señor presidente manifestó lo siguiente:
1:13:26 “La libertad de prensa en Costa Rica goza de buena salud. Tiene un Gobierno que la va a defender a toda costa. ¿Hay algún medio cerrado? ¿Algún periodista detenido? ¿Alguna rotativa parada? Obviamente no”.
Al respecto, debe señalarse que el señor presidente parece olvidar que esos no son los únicos modos de lesionar la libertad de expresión de los periodistas. No solo cerrar un periódico o arrestar injustificadamente a un periodista son conductas que violan la libertad de expresión. Esto es así no solo porque las lesiones directas se pueden dar por medios indirectos, a tenor del artículo 13.3 de la CADH, sino porque las lesiones directas por medios directos pueden darse de muchas formas.
En esa conferencia de prensa, el señor presidente hizo también otras manifestaciones sobre las que cabe hacer una advertencia preliminar. En muchos momentos alude al Grupo Nación y en otros de los periodistas que laboran en el periódico La Nación. A veces no es posible distinguir si se está dirigiendo a uno o a otros, porque se refiere a ellos como a un todo. Sin embargo, aquí se hizo una selección de las manifestaciones que indubitablemente se dirigen al periódico La Nación, aunque también podría entenderse que se está refiriendo a la vez al Grupo Nación como tal. Entonces, visto que los recurrentes laboran para tal medio, se ha de entender que son dirigidas a ellos:
1:16:46 “El artículo 50 de la Constitución Política, que yo juré defender (…), me obliga a hacer que los funcionarios hagan lo que La Nación dice de manera mentirosa, patrañosamente, es un ataque a la libertad de prensa” [lo destacado en cursiva con inflexión de voz, en tono burlesco e irónico].
1:17:25 “En el año 2017 un medio que no es parte de esta categoría, de esta especie, de este grupo, publicó e-mails internos del Parque Viva diciendo (…) ?aquí tenemos un problema serio y tenemos que ponernos a arreglarlo'” [lo destacado en cursiva con inflexión de voz, en tono burlesco e irónico]. 2017 al 2022: ¿qué ha pasado? Nada. ¿Dónde está el plan remedial?”.
1:18:08 “No solo le ha mentido a la población, el grupo La Nación. Ha difamado a la patria, ha difamado a los costarricenses ante la prensa y comunidad internacionales, (…) pidiéndole favorcitos a sus socios y amigos en la Sociedad Interamericana de Prensa para defender intereses mezquinos”.
1:18:50 “Lo que La Nación debió haber hecho en lugar de haber difamado esa patria bendita, donde la libertad de prensa está garantizada, fue ponerse a trabajar duro y honestamente para preparar un plan viable y honesto. Han tenido cinco años desde que ellos mismos reconocieron que había niveles de riesgo inaceptables y que había que arreglarlos”.
1:19:49 “¿Oyeron la mentira descarada que publicó La Nación? (…) que tiene desde hace dos años pidiendo acceso para la ruta 27 (…) Dice la Nación: ¡Los acusamos!: Esto es contra la libertad de prensa porque se mueven rápido. ¿A eso hemos llegado en Costa Rica?”.
1:23:56 “¿A quiénes defienden el Grupo La Nación?… ¿a la libertad de prensa o a sus intereses?”.
1:28:00 “Porque ellos se creen encima de la ley…”.
1:28:26 “Yo daría mi última sangre para proteger las libertades de nuestro pueblo, incluyendo la libertad de mentir y de desinformar que han ejercido con gusto, frecuentemente, esos estos medios aliados de la casta que se piensa monárquica de este país”.
1:29:50 “Ustedes, La Nación, tienen la libertad para trabajar. Les debería dar vergüenza difamar a su país (…)”.
Yo hubiera querido tener una conferencia de prensa normal (…), pero la cantidad de tinta, la cantidad de minutos en canales de televisión que se han dedicado a malinformarle a usted señora, a usted señor, a usted joven, en su casa, en su carro, donde quiera que esté oyendo esto, fue demasiado (sic), y este es mi derecho de respuesta, porque el derecho de respuesta esos medios (Ustedes saben la palabra, yo me la voy a callar) no creo que me lo hayan dado, porque me lo negaron en el pasado (…).
Yo sé que es una serie de expresiones y de meditaciones pasionales, fuertes. Yo sé que el pueblo de Costa Rica no está acostumbrado a ver un presidente diciéndole al Grupo de La Nación que se creen reyes con corona, costarricenses con corona. Pero esa es una nueva era. Aquí todos y todas somos iguales en libertad, en respeto, con absoluta libertad de expresión, aunque sean mentiras, pero la libertad de expresión no significa que alguien puede mentir descaradamente y que el gobierno y las personas ofendidas tengan que callarse”. (Lo destacado es lo que se estima relevante).
3. Consideraciones sobre las manifestaciones Estas manifestaciones reflejan el contexto de tensión, posterior al cierre temporal del Parque Viva, entre el mandatario y el Grupo Nación y el periódico La Nación. Aluden a personas determinables, algunos de las cuales son los recurrentes en el presente amparo.
Esas manifestaciones fueron públicas y hechas en su carácter de presidente de la República, es decir, de quien ostenta la más alta investidura. Eso significa que su conducta por sí misma tiene una grandísima proyección y relevancia El estilo vehemente no es lesivo de suyo. No obstante, las palabras y el tono beligerante en extremo sí pueden serlo, pues destruyen el clima pacífico que es necesario para el libre intercambio de ideas en una sociedad democrática. Más todavía cuando las manifestaciones desacreditan a personas concretas o a una línea informativa.
Como se dijo en una de las sentencias transcritas, esta Sala ha señalado:
“La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca” (sentencia 2006-5977; el destacado es del original).
Esto quiere decir que toda manifestación que suponga una censura, aunque por sus efectos sea solo relativa y no absoluta, pues con ella no se impidió la difusión posterior de las ideas reprobadas, constituye una lesión directa a la libertad de expresión, pues la libertad de expresión exige el respeto de quienes disienten y supone facilitar la comunicación de ideas sin desacreditación alguna, ni de los sujetos ni de los contenidos.
Los recurrentes merecen respeto en primer lugar por la dignidad propia de su condición de personas. Justamente, la salvaguarda de esa dignidad es el fin de todo Estado de Derecho. También merecen respeto por el hecho mismo de ser periodistas, cuya labor tiene particular importancia en una sociedad pluralista y democrática.
Ciertamente, el presidente de la República también tiene libertad de expresión, pero por su carácter de funcionario público, está limitada por los deberes propios de su cargo: el respeto a la Constitución y a las leyes, y a dignidad de los demás, y a las manifestaciones de críticas y disensiones.
En ese sentido, la Constitución Política dice:
Artículo 140. Son deberes y atribuciones que corresponden conjuntamente al Presidente y al respectivo Ministro de Gobierno:
Mantener el orden y la tranquilidad de la Nación, tomar las providencias necesarias para el resguardo de las libertades públicas.
Entonces, resguardar las libertades públicas –y dentro de estas se encuentra la libertad de expresión– es tarea asignada constitucionalmente al señor presidente. La norma también se refiere al orden y a la tranquilidad, necesarias no solo en el plano de la seguridad pública, sino en la convivencia pacífica propia de un régimen democrático. Por eso, provocar o contribuir a un nivel de violencia verbal dirigido contra los periodistas que disienten de sus enfoques luce como una afrenta al ambiente de paz social que debe promover.
Asunto distinto es si ese clima de violencia es magnificado por otros actores sociales, pero eso excede los alcances de estas páginas.
Corresponde ahora distinguir y analizar tres pasajes especialmente relevantes:
Primero. En los que llama mentirosos a los periodistas.
No procede pronunciarse sobre quién lleva razón sobre el fondo del asunto (ya he dicho hasta la saciedad, en el voto salvado, que a mi juicio debió conocerse en la jurisdicción contencioso-administrativa), pero es claro que en el marco de una sociedad democrática y pluralista no cabe llamar mentiroso a quien disiente, pues eso –además de denigratorio– ahoga el debate público, desestimula la libre circulación de ideas y opiniones. Por eso, si se estima que una persona o grupo de personas falta a la verdad y que eso tiene consecuencias relevantes –además de decirlo públicamente, pero sin censurar–, bien se pueden utilizar los cauces que el ordenamiento jurídico ofrece para zanjar la cuestión. Pero desacreditar a las personas de un modo tan beligerante no es solución, mucho menos lo es en una sociedad democrática.
Lo propio del periodismo es comunicar lo que se entiende que es veraz y justo. Por esa razón, llamar mentirosos a los periodistas significa calificarlos carentes de una cualidad que por su condición deberían tener. Es decir, cuando es dirigido a los periodistas, ese adjetivo adquiere una connotación particularmente peyorativa y es, sin duda, una censura.
Segundo. En los que afirma que La Nación, y por tanto los periodistas que trabajan en ese medio, han difamado a la patria y a los costarricenses.
El contexto de esto es el siguiente. El cierre del Parque Viva fue un hecho noticioso que fue recogido en prestigiosos periódicos latinoamericanos, bajo los siguientes titulares:
“Gobierno de Costa Rica cierra Parque Viva tras ataque de Rodrigo Chaves al diario ‘La Nación’” .
“Gobierno de Costa Rica cierra Parque Viva en medio de ataques del presidente al diario ‘La Nación’” .
“El gobierno de Costa Rica atacó a uno de los principales medios del país y luego cerró un estadio de esa empresa” .
Entonces, el señor presidente estima que el hecho de que tales medios y otros hayan dado cuenta del cierre del Parque Viva con un enfoque coincidente con el de La Nación, y sus periodistas, responde a las gestiones de ellos ante tales medios. Si así fuera, ¿porque qué sería eso reprochable? Tanto los periodistas de La Nación como los de otros medios son libérrimos para comunicar la noticia desde su ángulo. Y ¿por qué es deleznable que el periódico La Nación y sus periodistas busquen alianzas fuera de las fronteras? Este proceder es natural, lógico, comprensible, y no parece que por sí mismo suponga “difamación” de la patria y de los costarricenses, entre otras cosas, porque ni “patria” ni “costarricenses” son categorías o términos que se identifican con “gobierno”. De nuevo, esa desacreditación tan gravosa de los recurrentes constituye una censura que cercena el ejercicio de su libertad de expresión.
Tercero. En el que dice que lo manifestado en esa conferencia de prensa responde a su derecho a respuesta, que cree que le habrían negado.
Vale advertir que en ese pasaje no pronuncia “la palabra”: “Ustedes saben la palabra, yo me la voy a callar”; pero no es aventurado afirmar que alude a aquella que ha evitado decir desde que es presidente de la República. Esto por tres motivos: la supresión no significa que no aluda a ella; la suprime porque es denigratoria; la palabra parece evocar inequívocamente una palabra que los demás saben que es aquella que en su momento dijo que se refería también al periódico La Nación. Pero como lo anterior es solo una tríada de conjeturas, basta referirse a otro aspecto de ese pasaje: a la presunción de que el periódico no acogería su derecho a respuesta. Al respecto es obligado decir que bajo esa lógica se socaban las bases de un Estado de Derecho, pues es tomarse la justicia por propia mano. Otra cosa es que en la conferencia de prensa el mandatario estime oportuno hacer las aclaraciones y mostrar los motivos de la divergencia con el periódico, pero no es jurídicamente procedente que la justificación de esto se base en la presunción del incumplimiento, por parte del periódico y de quienes allí laboran, de lo establecido en los artículos 66 y siguientes de la LJC, relativo al derecho de rectificación y respuesta.
Esas manifestaciones hostiles y deslegitimadoras del medio en el que laboran los periodistas recurrentes, y por tanto de ellos mismos, no contribuyen a crear un clima de libre intercambio de ideas. Por el contrario, como he dicho, suponen una censura, que constituyen lesiones directas a los periodistas recurrentes.
Claro que toda autoridad, y por supuesto el señor presidente, puede utilizar los foros que tenga a su disposición para aclarar, contrastar, negar lo dicho por los periodistas; pero lo procedente es hacerlo en el marco del respeto, propio de una sociedad pluralista y que va en consonancia con nuestra tradición democrática.
Sobre esto último es llamativo que prácticamente no hay jurisprudencia sobre esta temática. Quizá esto se debe a que la tónica en este país hasta la fecha nunca ha sido que los funcionarios públicos ejerzan una censura de esta naturaleza ni con periodistas de La Nación ni con los de otros medios.
En vista de que por razones procesales no es posible conocer de las demás manifestaciones que son hechos públicos y notorios y son parte del contexto de tensión ya mencionado, tampoco es factible jurídicamente que me pronuncie sobre la existencia o no de un patrón de conducta sobre el particular.
4. Conclusión Es posible concluir que las manifestaciones del presidente hechas el 13 de julio en la conferencia de prensa, que son parte del contexto referido por los recurrentes, constituyen ejemplos de censura directa, manifiesta, aunque relativa, y por ello son lesiones directas a la libertad de expresión de los recurrentes, por lo que estimo que procede declarar con lugar el recurso de amparo respecto de este extremo.
En vista de que no me pronuncio sobre los actos administrativos impugnados, esto es, la orden sanitaria y el oficio conexo, pues estimo que esta Sala no es competente para conocer de ellos en el marco de este recurso de amparo, no haré referencia a esos actos administrativos en sí mismos, es decir, si son o no arbitrarios. Sin embargo, me parece pertinente hacer unas consideraciones sobre el expediente y la sentencia. Ello permitirá confirmar lo dicho en el voto salvado, en el que sostengo que el recurso de amparo no era el proceso idóneo para resolver este asunto.
El dilema: “ordinariar” el amparo o respetar su carácter sumario El presente caso puso a la Sala Constitucional en una disyuntiva: desnaturalizar el recurso de amparo, transformándolo en un proceso ordinario –lo que de manera coloquial se llama “ordinariar” el amparo– o resolver sin todos los elementos necesarios. Por lo visto, la mayoría quiso salvar en lo posible la naturaleza sumaria del amparo. En efecto, aunque esta sentencia es voluminosa, hay motivos para estimar que respecto del examen de los actos impugnados se dieron dos tipos de falencias: uno en el plano probatorio y otro referido a las partes allegadas al proceso. Esto es lo que de inmediato paso a mostrar.
1. Sobre los aspectos probatorios Es preciso recordar que el recurso de amparo es sumario por naturaleza. Esto en palabras de la Sala, que por cierto todas las semanas utiliza en sus rechazos de plano, significa lo siguiente:
“[La finalidad del recurso de amparo es brindar tutela oportuna contra infracciones o amenazas a los derechos y libertades fundamentales, no servir como instrumento genérico por medio del cual sea posible accionar contra cualquier otra clase de quebrantos constitucionales o legales. Consecuentemente, la procedencia del recurso de amparo, en general, está condicionada, no sólo a que se acredite la existencia de una turbación —o amenaza de turbación— a uno o más de los derechos o garantías contemplados en la Carta Política o en los instrumentos internacionales de derechos humanos suscritos por el país, sino también a que el agravio alegado comporte una amenaza o quebranto directo y grosero de aquellos derechos, que ponga en peligro aquella parte de su contenido que les es esencial y connatural, es decir, el núcleo que les presta su peculiaridad y los hace reconocibles como derechos de una naturaleza determinada. Lo anterior, en doctrina, es conocido como el contenido mínimo esencial del derecho, el cual es vulnerado, por ejemplo, cuando se condiciona el ejercicio del derecho que sea, al cumplimiento de condiciones, presupuestos o requisitos de tal naturaleza que, en la práctica, hacen materialmente imposible o nugatorio su uso. En este sentido, la jurisprudencia constitucional ha precisado que el problema de las violaciones directas e indirectas a la Constitución involucra, también, una necesaria apreciación de la idoneidad y naturaleza expedita que debe caracterizar a la vía del amparo. Se ha dicho que “…en esencia, la idea básica puede estar en la distinción entre una lesión directa y otra indirecta de los derechos fundamentales. En buena doctrina constitucional el criterio se basa en que cualquier infracción de legalidad, en cuestiones relacionadas con esos derechos, puede causar eventualmente lesión de aquellos derechos fundamentales, pero cuando se trate de una lesión simplemente indirecta, por existir dentro del aparato estatal, órganos que pueden y deben resguardar esos derechos y reparar su violación, les corresponde a ellos conocer y no a esta Sala...” (Sentencia N° 1610-90 de las 15:03 horas del 9 de diciembre de 1990). Esto último pone de relieve el motivo por el cual el proceso de amparo es de carácter eminentemente sumario –es decir, breve y sencillo– y su tramitación no es compatible con la práctica de diligencias probatorias lentas y complejas, o con la necesidad de entrar previamente a examinar –con carácter declarativo– si los derechos de rango infra constitucional que las partes citan como parte del elenco fáctico del recurso de amparo o del informe de ley, según sea el caso, existen en realidad” (sentencia 2021-001965; el destacado no es del original; estas líneas jurisprudenciales son constantemente repetidas por este Tribunal, y por citar algunos ejemplos, vid. las sentencias 2018-18079, 2019-17891 y 2020-12053) .
Sin embargo, por las características de los actos aquí impugnados, se hacía necesario un riguroso análisis y contraste de amplia prueba técnica y criterios de las autoridades recurridas, a saber: los permisos otorgados por la Unidad de Permisos de la Dirección General de Ingeniería de Tránsito del MOPT; las condiciones en las que fue otorgado el permiso sanitario de funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 por el Ministerio de Salud; las autorizaciones de aforo dadas por el Área Rectora de Salud Alajuela 2 del Ministerio de Salud ?oficios MS-DRRSCN-DARSA2-4070-2021 del 16 de diciembre de 2021 y MS-DRRSCN-DARSA2-0163-2022 del 20 de enero de 2022?; el acta de inspección MS-DRRSCN-DARSA2-1639-2022 y el informe resultado de la inspección MS-DRRSCN-DARSA2-1641-2022 del 5 de julio de 2022 emitidos por el Área Rectora de Salud de Alajuela 2; el oficio DVT-DGIT-2022-339 del MOPT, que hizo referencia a las condiciones viales de la zona y que fue contundente al asegurar que, en el momento en que se realizan eventos de concentración masiva, la vía que da acceso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado; los criterios técnicos de los expertos del Comité Asesor Técnico de Concentraciones Masivas, que está integrado, entre otros, por representantes de la Comisión Nacional de Emergencias, el Benemérito Cuerpo de Bomberos y la Cruz Roja Costarricense .
De paso, cabe recordar que en un primer momento la orden sanitaria se dictó “hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los criterios técnicos emitidos por el Benemérito Cuerpo de Bomberos de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud” .
Además, correspondía valorar diversos criterios técnicos recabados por las autoridades competentes. Así, entre otros, los siguientes que parecen tener relevancia : el oficio MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 del 10 de julio de 2022, suscrito por el subdirector regional de la Dirección de la Fuerza Pública de Alajuela, del que se desprende que la Fuerza Pública “ha venido enfrentando una situación de entorpecimiento en la atención de incidentes de carácter policial, en el perímetro externo inmediato del Parque Viva, situado en Rincón Chiquito en el distrito de La Guácima de Alajuela, en momentos en que se realizan actividades en ese lugar. Esta zona está catalogada por la Fuerza Pública como un área sensible; ya que convergen diferentes acciones delictivas”; el oficio CBCR-027150-2022-OPB-00741 del Benemérito Cuerpo de Bomberos, en el que se concluyó que “debido a las situaciones planteadas anteriormente, como consecuencia, existen varias comunidades como Rincón Chiquito, Rincón Herrera, Guácima centro, al igual que las propias instalaciones del Parque Viva, se podrían ver afectadas debido a que el tiempo de respuesta de las unidades de Bomberos aumenta de forma considerable, además, cuando se dan bloqueos en las carreteras, se imposibilita el acceso a las comunidades, situación que pone en riesgo las vidas y las propiedades”; los informes técnicos CRC-GG-SO-OF-074-2022 y CRC-GG-OF-012-2022, suscritos respectivamente por el sub gerente operativo y por el gerente general de la Asociación Cruz Roja Costarricense; el oficio 911-DI-2022-2202 del 11 de julio de 2022, rendido por la directora del Sistema de Emergencias 9-1-1; el criterio técnico DM-2022-3121 del 11 de julio de 2022, suscrito por el ministro de Obras Públicas y Transportes.
Todos esos son informes mencionados en la sentencia, pero en ella no se observa una valoración pormenorizada sobre los mismos, como seguramente habría sido lo procedente de cara a lo que la mayoría se propuso al conocer de los actos impugnados: determinar si eran arbitrarios y carentes de fundamento. Esto como premisa sin la cual no era posible declarar la lesión a la libertad de expresión. En efecto, como se ha visto, si el acto no era arbitrario, aunque se hubiese probado una afectación a los recurrentes derivada de dicho acto, no habría sustento para declarar con lugar el recurso por lesión a la libertad de expresión. Por eso se puede afirmar que, si se iba a hacer un examen por el fondo, era del todo pertinente el análisis sobre los aspectos técnicos.
2. Sobre las partes allegadas al proceso De la lectura de la sentencia, se advierte la ausencia de muchos sujetos involucrados de algún modo en los actos administrativos impugnados. Ciertamente, este asunto se cursó exclusivamente contra el presidente de la República y la ministra de Salud; sin embargo, la sentencia alude a una serie de conductas, competencias y criterios de otras autoridades que no fueron integradas a este proceso y cuyas consideraciones eran necesarias para llegar a una conclusión fundada. Por ejemplo, no se integró al ministro del MOPT, y a los jerarcas del Consejo Nacional de Vialidad, de la Dirección General de Policía de Tránsito, de la Dirección General de Ingeniería de Tránsito, del Consejo Nacional de Concesiones y de la Comisión de Carreteras de Acceso Restringido; a otras autoridades del Ministerio de Salud, a saber: las del Área Rectora de Salud Alajuela 2 y de la Dirección Regional Rectoría de Salud Central Norte; a los integrantes que emitieron criterio en el Comité Técnico de Concentraciones, en el que hay representantes de la Cruz Roja Costarricense, de la Comisión Nacional de Emergencias, del Benemérito Cuerpo de Bomberos, del Sistema de Emergencias 9-1-1 y de Gestión de Riesgo del Ministerio de Salud. Tampoco se integró al proceso a la Municipalidad de Alajuela ?autoridad a la que la mayoría de esta Sala le atribuye parte de la problemática que acá se examina y que bien pudo dar criterios orientativos para solucionar la situación que está en la base de esta litis?.
Muchas de esas autoridades pudieron haber sido integradas en calidad de recurridos, pues, como se sabe, en el trámite de un el amparo, el órgano jurisdiccional tiene facultades para ampliar el proceso, respecto de las partes y el objeto . También las tiene para pedir prueba para mejor resolver, tanto sobre informes rendidos que merecen ser aclarados, como sobre prueba que consta –oficios, por ejemplo, que fueron emitidos por personas ajenas al proceso– y, naturalmente, sobre datos que aún no constan. Mucha de esa prueba adicional la puede pedir también a autoridades que no corresponde que se les tenga como partes.
Entonces muchas de las autoridades mencionadas pudieron estar como recurridos o como simples informantes –en el contexto de una prueba para mejor resolver–. Esto último incluso en el caso de que constaran oficios suscritos por esas autoridades.
En ese sentido hay otras autoridades que también pudieron haber nutrido el análisis de la cuestión. Por ejemplo, la Contraloría General de la República, que rindió un informe sobre la eficacia y la eficiencia en el uso de los recursos de la red vial cantonal en la Municipalidad de Alajuela; el Ministerio de Seguridad Pública y, particularmente, la Dirección General de la Fuerza Pública, por sus informes técnicos tan contundentes. Lo mismo cabría señalar del Instituto Nacional de Vivienda y Urbanismo (INVU), que emitió un informe, e incluso de la Secretaría Técnica Nacional Ambiental, que afirmó que el local de Parque Viva contó con una viabilidad ambiental únicamente para mejoras en el autódromo.
Con el fin de realizar un análisis cabal de la situación planteada, habría sido necesario examinar aspectos que no son propios de un recurso de amparo, por ejemplo: la legitimidad de una denuncia anónima; la supuesta irregularidad en la diligencia y premura de las conductas administrativas; la necesidad, oportunidad y conveniencia de emitir una orden sanitaria en aras de proteger la vida y salud humanas, supeditada también la recolección de mayores elementos técnicos que confirmaran la decisión; los alcances de la orden sanitaria y del oficio conexo; la vigencia de los permisos sanitarios y el cumplimiento de los aforos dispuestos por las autoridades del Ministerio de Salud; la competencia de esas autoridades para ordenar la presentación de una propuesta de mejora del flujo vial para la realización de eventos masivos; la responsabilidad de las empresas privadas en la solución de los problemas de colapso vial derivadas de actividades comerciales ejecutadas por ellas mismas. También, seguramente, valorar el adecuado control del desarrollo urbano y de la emisión de permisos sanitarios y de construcción en la zona en cuestión. Adicionalmente, determinar las causas objetivas que provocan el congestionamiento vial y los proyectos remediales de la Municipalidad de Alajuela y otras autoridades competentes en la materia; y atender a los posibles escenarios de respuesta en una situación de emergencia juntamente con un cuadro de congestionamiento vial severo. Del mismo modo, y a la luz de los cuestionamientos de los amparados, habría sido procedente sopesar la razonabilidad y proporcionalidad de la orden dictada en relación con las posibilidades materiales y los alcances de la responsabilidad de la sociedad propietaria del inmueble de dar solución a la problemática vial que se les atribuye.
Debe tenerse presente que los recurrentes argumentan que la orden sanitaria se ejecutó de manera arbitraria, pese a que aún no se contaban con criterios técnicos de la Cruz Roja y del Cuerpo de Bomberos, relativos a la capacidad de la vía de acceso al establecimiento, y que estos fueron aportados y comunicados días después del dictado de esa orden y que, además, resultan cuestionables. Esos señalamientos confirman que lo alegado y lo pretendido requería un juicio plenario en el que, al evacuar toda la prueba pertinente, fuera posible analizar también los cuestionamientos realizados a los informes técnicos posteriores a la orden, que vinieron a confirmar la problemática vial examinada por parte del Ministerio de Salud y otras instancias técnicas. En una sede y proceso apropiados no solo habría sido posible una adecuada recepción y valoración de la prueba, sino que se habría conferido la oportunidad de contrastar los criterios de las autoridades técnicas competentes. Por el contrario, por ejemplo, puede observarse que en la sentencia se pretende contrarrestar el criterio de la presidencia ejecutiva del INVU con una publicación realizada por el alcalde Municipal de Alajuela en una red social. Naturalmente no me pronuncio sobre si una u otra autoridad lleva razón, sino sobre el modo elegido por la mayoría de la Sala para contrastar opiniones de las autoridades que son contradictorias entre sí. En ese sentido, se podría decir que no parece que haya sido el más acertado desde el punto de vista jurídico procesal.
Todo lo que he consignado aquí, como se desprende del título de este acápite, pone en evidencia el severo dilema al que estuvo sometido este tribunal: “ordinariar” el recurso de amparo, para evacuar y examinar toda la prueba pertinente, o resolver sin todos los elementos necesarios para efectuar un análisis riguroso y pormenorizado de la cuestión, como esta lo demandaba. Esto último, por cuanto no solo estaba de por medio el resguardo de la libertad de expresión que se alegaba infringida, sino también el derecho de los habitantes a que se proteja su salud, su integridad física y su vida.
En mi voto salvado he mostrado que ese dilema se resolvía con solo que la Sala hubiese respetado la naturaleza sumaria del proceso de amparo, continuando así con su sólida jurisprudencia sobre el particular. De ese modo, habría declarado que este conflicto debió residenciarse en las vías ordinarias de la legalidad. Pues bien, ahora, la atenta lectura de la sentencia me lleva a confirmar que para determinar con certeza si los actos impugnados fueron arbitrarios, infundados o desproporcionados ?tal y como lo afirma la mayoría de la Sala? lo procedente era que este asunto fuera decidido en la vía ordinaria, luego de un examen integral de la situación y de todos los elementos probatorios acá esbozados. Al haberse analizado el objeto impugnado en un proceso sumario como el amparo, lamentablemente, están ausentes diversos elementos, en el plano probatorio y en el argumentativo, que habrían sido necesarios para arribar a la conclusión que la sentencia presenta. Como he dicho, se echa en falta que al menos se integrara a todas las partes involucradas en el fundamento técnico de la orden sanitaria cuestionada y que se desmintieran con precisión los argumentos técnicos invocados en dicho acto administrativo.
Es oportuno subrayar que, según el criterio de la mayoría, las autoridades recurridas ?al dictar la orden sanitaria? debieron “realizar una adecuada ponderación y adoptar la medida menos gravosa para los derechos fundamentales, propiciando su equilibrio y limitando su afectación al mínimo” . No obstante, la sentencia no demuestra previamente en qué medida concretamente la orden sanitaria había afectado los derechos fundamentales de los periodistas amparados, esto es, si había una incidencia real sobre su libertad de expresión.
Finalmente, es plenamente justificado que los recurrentes y la sentencia tomen en cuenta manifestaciones del señor presidente cuando era candidato, pues eso ayuda a contextualizar los agravios que se acusan. Pero es llamativo que la sentencia valore manifestaciones del mandatario ulteriores a la fecha de la interposición del recurso de amparo.
B. Las consecuencias de la anulación de los actos impugnados La mayoría de la Sala dispuso anular la orden sanitaria MS-DRRSCN-DARSA2-OS-0368-2022 del 8 de julio de 2022, así como lo dispuesto en el oficio MS-DRRSCN-DARSA2-1724-2022 del 15 de julio de 2022, que la confirmó.
Esto hace que la situación sobre la problemática de acceso al Parque Viva, que es de conocimiento público, que ni los recurrentes ni los dueños del inmueble han negado, y que está reflejada en la gran cantidad de informes técnicos citados, retorne al momento en el que se presentó la denuncia ante las autoridades del Ministerio de Salud. De manera que, de haber algún siniestro que afecte la salud pública o la integridad de las personas, tal parece que la responsabilidad será compartida por la mayoría de la Sala.
Reitero que tanto el examen sobre la legitimidad de los actos impugnados como la ponderación de los derechos e intereses legítimos de los vecinos y usuarios bien pudieron llevarse a cabo ante la jurisdicción contencioso-administrativa. También porque ahí, mediante el ejercicio de la justicia cautelar, se habrían podido dictar medidas que modularan los efectos de la suspensión del acto e impusieran condiciones que procuraran proteger a terceros. En el sub lite, se ordenó sin más la anulación de los actos administrativos, omitiéndose toda condición que permitiera de alguna manera resguardar tales derechos e intereses.
En la sentencia, por un lado, se hace referencia al avance de un plan para dar solución al congestionamiento vial y, por otro, al anular los actos impugnados, no se indica prevención alguna sobre la necesidad de llevar a término la ejecución de las medidas que resuelvan definitivamente dicha problemática. Consignar esa prevención, al menos, habría tenido un valor simbólico: reflejar que la Sala es consciente de que realmente existe un riesgo para los vecinos y usuarios del Parque Viva.
C. Sobre el alcance de la condenatoria en daños y perjuicios Finalmente, me permitiré hacer unos comentarios sobre la condenatoria en daños y perjuicios. Como se recordará, en el escrito de interposición los recurrentes manifestaron que renunciaban a estos. Claro está, si el recurso fue declarado con lugar, la Sala no está legalmente habilitada para omitir esa condenatoria. Pero, ciertamente, el reclamo de estos daños y perjuicios es renunciable. Por otro lado, a la luz del escrito de interposición y de la lógica de la sentencia, debe entenderse que la condenatoria es solo en beneficio de los recurrentes y solo por la lesión a la libertad de expresión que se declaró derivada de los actos administrativos impugnados. No cabe entender que tales daños y perjuicios incluyen las eventuales situaciones patrimoniales relacionadas con el giro comercial de Parque Viva. Asunto distinto, y no descubro nada, es que los dueños de Parque Viva, están habilitados para interponer una demanda por responsabilidad del Estado en la jurisdicción contencioso-administrativa sobre la base de la anulación de esos actos administrativos. Como estos ya dejaron de existir jurídicamente, no corresponde que ahí se valore si procedía o no la nulidad. Ya no será necesario alegar los motivos por los que se consideraron arbitrarios, ni habrá fase probatoria sobre este aspecto. Ahí únicamente se deberá acreditar la existencia y naturaleza antijurídica de los daños y perjuicios sufridos en su giro comercial, y el nexo causal de estos con los actos anulados. Este es un motivo más para meditar sobre si cabía que la Sala conociera de los actos impugnados. Lo cierto es que en un proceso sumario se resolvió sobre unos actos –de gran complejidad y enormes consecuencias, también en el plano patrimonial– cuya anulación agiliza el reclamo de unos daños y perjuicios a una unidad de negocio que no estuvo en el amparo ni se dedica al giro periodístico.
VII.Conclusión En atención a los argumentos antes expuestos, me pronuncio así sobre este recurso de amparo: Lo declaro con lugar respecto de la libertad de expresión, por cuanto se acreditaron manifestaciones del recurrido que configuran actos de censura directa, manifiesta, aunque relativa, que lesionan esa libertad de los recurrentes. Lo declaro sin lugar respecto de la anulación de la orden sanitaria y del oficio conexo porque, además de no acreditarse la legitimación activa, no procede conocer de esos actos en esta jurisdicción.
Anamari Garro Vargas VCG02/2023 ... Ver más Res. Nº 2022025167 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las trece horas y treinta minutos de veintiuno de octubre de dos mil veintidós.
RESULTANDO:
Recurso de amparo interpuesto por ARMANDO MANUEL GONZÁLEZ RODICIO, cédula de identidad 0800490965, ARMANDO MAYORGA AURTENECHEA, cédula de identidad 700740035, DANIELA CERDAS ESPINOZA, cédula de identidad 0113180033, DIEGO DE JESÚS BOSQUE GONZÁLEZ, cédula de identidad 0401930351, ESTEBAN ENRIQUE OVIEDO ÁLVAREZ, cédula de identidad 0109830215, FABRICE LE LUOS, cédula de identidad 801050436, GUISELLE MORA MORALES, cédula de identidad 0302890790, HARLEN NATASHA CAMBRONERO JIMÉNEZ, cédula de identidad 0112870182, JUAN FERNANDO LARA SALAS, cédula de identidad 0108810870, KIMBERLING TATIANA HERRERA SALAZAR, cédula de identidad 0114490425, KRISIA LORENA CHACÓN JIMÉNEZ, cédula de identidad 0115180868, ÓSCAR GERARDO RODRÍGUEZ ARGUEDAS, cédula de identidad 0205380773, RONALD ARTURO MATUTE CHARPENTIER, cédula de identidad 0107430460 y VANESSA AUXILIADORA LOAIZA NARANJO, cédula de identidad 0109700875, todos periodistas, contra la PRESIDENCIA DE LA REPÚBLICA y el MINISTERIO DE SALUD.
RESULTANDO:
1.- Por escrito aportado a la Sala los recurrentes interponen recurso de amparo y manifiesta que el 29 de enero de 2022, el entonces candidato a la presidencia, Rodrigo Chaves Robles, expresó ante un grupo de seguidores reunidos en Tibás, la siguiente promesa: “(…) Somos un tsunami y sí, vamos a causar destrucción. Vamos a causar la destrucción de las estructuras corruptas de La Nación y de Canal 7. Óigame Ignacio Santos, óigame el otro (...) René Picado, óigame Armando González. Aquí estamos. Sígannos invisibilizando en lo nuevo, en lo bueno y acusando injuriosamente en lo malo, porque ustedes ya no ponen presidentes en Costa Rica (…)”. Acotan que, a menos de dos meses de juramentado, el 6 de julio de 2022, el presidente Chaves comenzó a materializar la amenaza. Indican que luego de semanas de violentos ataques verbales contra la prensa y los periodistas, a quienes calificó como “canallas”, aprovechó la conferencia de prensa después del Consejo de Gobierno para sembrar dudas sobre la salud financiera de Grupo Nación. Señalan que puso en incertidumbre la capacidad de la referida sociedad para pagar los bonos comprados por la Caja Costarricense de Seguro Social (CCSS) y hasta insinuó el debilitamiento de la garantía de la deuda por el futuro traspaso de algunos terrenos de la empresa a un fideicomiso para hacer un prometedor desarrollo inmobiliario. Agregan que el 5 de julio de 2022, la Ministra de Salud recibió una “denuncia anónima” atinente al Parque Viva, por lo que dicha jerarca solicitó un criterio urgente al Ministerio de Obras Públicas y Transportes sobre la calle de acceso al parque, que es una vía pública. Relatan que, al día siguiente, la Ministra de Salud recibió respuesta y de inmediato se celebró una sesión extraordinaria del Comité Asesor Técnico en Concentraciones Masivas, solo para conocer el caso y retirar el permiso de funcionamiento. Discuten que el informe se emitió sobre las vías públicas fuera del parque, no sobre las instalaciones o sus accesos. Aseveran que el informe de los inspectores del Ministerio de Salud, fechado 5 de julio de 2022, no evidenció incumplimiento alguno en las instalaciones de Parque Viva, documento en el que se omitió emitir criterio sobre las calles públicas aledañas, por no ser de su competencia. Arguyen que el 8 de julio de 2022, el Ministerio de Salud propinó un nuevo golpe a la “estructura” mediante la emisión de la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 atinente a la suspensión temporal del permiso sanitario de funcionamiento de Parque Viva. Cuestionan que la referida medida se dictó sin previo aviso y sin la posibilidad de ejercer el derecho a la defensa; además, se ejecutó mientras se recababan criterios técnicos del Cuerpo de Bomberos y la Cruz Roja en relación con la capacidad de la vía de acceso al citado establecimiento por las unidades de primera respuesta de esas instituciones. Enuncian que la orden sanitaria ejecutada el viernes 8 de julio de 2022 exigió a la empresa aportar un plan remedial que abarque “la solución a la problemática de los accesos”. Sin embargo, afirman que, según el acta, los inspectores del Ministerio de Salud no encontraron problema alguno con los accesos. Aseguran que, al momento del cierre, el Parque Viva contaba con todos los permisos al día y con un renovado visto bueno de los aforos emitido por el Ministerio de Salud el 16 de diciembre de 2021. Incluso, el 20 de enero pasado, se amplió el aforo, mediante un oficio del Ministerio de Salud. Señalan que en declaraciones publicadas el 13 de julio de 2022 por La Nación, el Alcalde de Alajuela afirmó que los permisos concedidos en el 2014 coinciden con el inicio de un rápido desarrollo habitacional de la zona y no se puede atribuir a Parque Viva la causa de los congestionamientos viales. Mencionan que en asamblea comunal celebrada el 13 de julio de 2022, el regidor y residente de La Guácima, Alonso Castillo, señaló que las presas en la zona se dan “(…) con Parque Viva y sin Parque Viva (…)” y dijo estar “(…) muy contento de que haya pasado lo de Parque Viva, porque hoy toda la prensa nacional está hablando de un problema que La Guácima tiene todos los días (…)”. Explican que el 15 de julio de 2022, luego de las críticas formuladas públicamente y en un recurso de revocatoria interpuesto por la empresa, el Ministerio de Salud emitió un nuevo acto administrativo, con las mismas consecuencias del primero y con una clara intención de rectificar sus deficiencias más obvias, especialmente en cuanto a los criterios técnicos. Detallan que el documento No. MS-DRRSCN-DARSA2-1724-2022 confirmó la orden sanitaria No. MS-DRRSCN-DARSA2-05-0368-2022 y procuró dar la apariencia de perseguir fines públicos legítimos. Estima que lo descrito ha implicado un claro propósito de limitar la libertad de expresión por medios indirectos. Arguyen que es más que evidente la amenaza de destruir a las empresas, como represalia por las líneas editoriales de los medios de su propiedad y las actuaciones de sus directores periodísticos, mencionados con nombre y apellido en el discurso del 29 de enero de 2022 pronunciado por el actual presidente de la República. Indican que la promesa, tal y como se constata en el video aportado como prueba, es destruir las “estructuras” temerariamente calificadas como corruptas, para castigar la supuesta invisibilización de lo bueno y la divulgación de lo malo. La amenaza se dirige a los directores periodísticos de los medios, cuya función se limita a lo editorial. Añaden que en esa ocasión se mencionó a un accionista de Canal 7, René Picado, a quien el mandatario increpó por una línea editorial, cuya independencia los propietarios de los medios profesionales se han comprometido a respetar. Detallan que el disgusto del entonces candidato se debía a la publicación de informaciones de evidente interés público sobre las sanciones de las que había sido objeto en el Banco Mundial por acoso sexual, así como de la crítica a otras propuestas y declaraciones, como la de gobernar mediante referendo. Aseveran que luego el enojo del presidente aumentó con motivo de la información publicada sobre las estructuras paralelas de financiamiento de la campaña política de su partido y otros temas, como las referencias a un fraude electoral que la democracia costarricense no toleraría. Expresan que lo anterior se trató de publicaciones periodísticas serias, bien documentadas y pertinentes, de manera tal que el hecho de no difundirlas habría afectado directamente el derecho de los ciudadanos a informarse sobre temas de interés público, así como el principio del votante informado. Afirman que como consecuencia del cumplimiento de ese deber y el ejercicio de ese derecho, a los directores y colaboradores periodísticos se les advirtió de la destrucción de las estructuras que permiten ejercer el periodismo independiente. Sostienen que Parque Viva fue una de las estructuras de periodismo independiente de Grupo Nación que resultó afectada como consecuencia de la amenaza emitida por el actual mandatario. Al respecto, pormenorizan que Parque Viva fue creado para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de entradas experimentada por los medios de comunicación en todo el mundo, debido a la migración de la publicidad hacia los gigantes de la internet. Este hecho es público y consta en diversas manifestaciones de la empresa y sus personeros desde al menos el año 2013. Mencionan que Parque Viva fue creado como una fuente complementaria de ingresos, menos dependiente de la venta de publicidad. Por ende, se invirtieron importantes recursos y esfuerzos en la creación del citado Parque. Indican que el Presidente lo sabe perfectamente y como economista también conoce el daño que puede causar a una empresa poniendo en duda la capacidad de pago a los inversionistas. Afirman que esto fue precisamente lo que hizo el Presidente en la conferencia de prensa celebrada dos días antes del cierre del Parque Viva con el evidente propósito de cumplir su promesa de destruir las estructuras que permiten a los recurrentes ejercer libremente el periodismo. En este caso, el golpe lo dirigió a la estructura financiara del Grupo Nación, y confesó haber sido él, personalmente, quien pidió al Presidente Ejecutivo de la CCSS formular preguntas a Grupo Nación mediante la Superintendencia General de Valores (SUGEVAL), en lugar de acudir directamente al emisor de los bonos adquiridos por esa institución en el mercado de valores; lo anterior, sin conocimiento de Grupo Nación, contrario a lo que estipula la ley. Agregan que luego, sin esperar la respuesta a las preguntas, dedicó una conferencia de prensa a informar que las había formulado en defensa de la pensión de “la abuelita”. Aluden que cuando el presidente ejecutivo de la CCSS reconoció el cumplimiento de los pagos, el mandatario lo calificó de “diplomático” y tornó la palabra para insistir en la desinformación y en las insinuaciones. Manifiestan que la novedad de la conferencia de prensa fue el anuncio de la presentación a la SUGEVAL de las preguntas que la CCSS pudo haber formulado sin intermediarios a la empresa. Declaran que quedó claro que el accionar del mandatario no tuvo otro fin que perjudicar al Grupo Nación, poniendo en duda sus finanzas, para coartar la libertad de expresión porque “la práctica habitual de inversionistas institucionales” es consultar directamente al emisor y valerse de la información publicada por mandato de ley. Al respecto, señalan que se debe tomar en cuenta que la SUGEVAL contestó a la CCSS que debía formular sus consultas directamente a La Nación S.A.; además, se recordó que la información sobre la situación legal, financiera y de negocios de un emisor autorizado, así como de los valores que ofrecen, pueden accederse en el Registro Nacional de Valores e Intermediarios. Revelan que nunca antes un presidente se había ocupado personalmente de la suerte corrida por inversiones de una institución pública que ninguna autoridad financiera ha cuestionado. Tampoco ningún mandatario había dedicado buena parte de una conferencia de prensa presidencial a informar que se le formularon preguntas al emisor mediante SUGEVAL, en lugar de hacerlo directamente. Describen que el cierre de Parque Viva, dos días después de la conferencia, se dispuso para ver “si a La Nación se le ahorca el flujo de caja”. Exponen que en el caso Ríos y otros vs. Venezuela, la Corte Interamericana de Derechos Humanos se ocupó de expresiones semejantes, pronunciadas desde la palestra del poder, para limitar de forma directa o indirecta la expresión y difusión del pensamiento, en los siguientes términos: “(…)139. En una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento. Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado. (…)”. Alegan que en su caso, como es público y notorio, además del constante uso de la palabra “canalla”, que constituye una injuria para deslegitimar, amedrentar y estimular repudio a la prensa entre los seguidores del gobierno, las irresponsables referencias a la salud financiera de Grupo Nación envuelve manifestaciones que han resultado ser contrarias al criterio emitido por la Corte Interamericana de Derechos Humanos, conforme lo señalado anteriormente. Afirman que el Presidente, según lo dicho por la Corte, debe hacer esta referencias “(…) con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos (…)”. Sostienen que la prueba de la arbitrariedad está en las manifestaciones mismas: anuncian inusitadamente el planteamiento de una serie de preguntas y, sin esperar respuesta, lanzan al aire afirmaciones, especulaciones e insinuaciones infundadas, falsas y temerarias. De otra parte, acusan que en este caso hay una clara desviación de poder y deviene en arbitraria la suspensión del permiso sanitario otorgado a Parque Viva. Exponen que con las medidas adoptadas no se persigue la satisfacción de intereses públicos, sino la de intereses espurios consistentes en intimidar a un medio de comunicación para que no ejerza libremente su derecho a informar. Apuntan que esos actos no solo afectan económicamente a la empresa dueña de Parque Viva, sino también al medio de información en el que laboran, por ende, se les lesiona su derecho a informar. Afirman que este es el verdadero fin que tienen los actos adoptados. Indican que las actuaciones resultan arbitrarias, precipitadas, discriminatorias y absurdas y son distantes de la tutela a los fines públicos. Anotan que el cierre del Parque Viva se ejecutó a partir de una “denuncia anónima” contra instalaciones abiertas hace más de cuatro décadas para albergar el autódromo La Guácima. Aclaran que Parque Viva ya tiene más de siete años de operar en el sitio, sin ningún incidente, al amparo de permisos y patentes oportunamente concedidos por las autoridades competentes sobre la base de estudios exigidos en su momento. Incluso, confirman que la inspección más reciente concluyó que las instalaciones son idóneas para las actividades celebradas en el lugar; no obstante, la Ministra de Salud solicitó un criterio “urgente” sobre la capacidad de la vía pública que conduce al parque y “preventivamente” canceló en tiempo récord el permiso de funcionamiento del sitio. Mencionan que la premura de las actuaciones con intervención directa e insistente de la Ministra ante una denuncia anónima con petición de criterios urgentes, inspecciones instantáneas y reuniones de emergencia, llama la atención por inusual. En lo que atañe a las vías públicas, señalan que las calles aledañas son las mismas de los estudios iniciales exigidos hace años para tramitar los permisos del Parque Viva, lo que denota que el establecimiento ya estaba en el sitio cuando comenzó la explosión inmobiliaria de la zona. Puntualizan que, desde el 2014, se ha aprobado la construcción de 44 condominios y otras edificaciones. Refieren que el Estado creó el problema con su anuencia a la vertiginosa expansión urbanística de la zona sin proveer la infraestructura pública necesaria. Narran que hace pocos días, la Contraloría General de la República publicó una “auditoría operativa sobre la eficacia y la eficiencia en el uso de los recursos de la red vial cantonal en la Municipalidad de Alajuela”, en cuyo informe se concluyó, entre muchas cosas lo siguiente: “(…) En relación con la ejecución de recursos para la atención de la RVC, se identificó que en el periodo 2019-2021 la Municipalidad ejecutó en promedio el 36,48% de los recursos asignados por año, en otras palabras, quedaron ociosos un total de ¢4.870,61 millones, ¢4.874,56 millones y ¢7.947,83 millones por año, respectivamente. Lo expuesto muestra la ineficiencia en el uso de los recursos pese a las necesidades existentes en cuanto a la mejora de superficie de ruedo, atención de puentes y aceras. (…)”. Asimismo, el informe señaló: “(…) En complemento a lo anterior, el porcentaje de ejecución promedio del periodo 2019-2021 reflejado por la Municipalidad (36,48%), alcanza niveles muy inferiores al promedio de ejecución de las ocho municipalidades consultadas por la Contraloría General, el cual es de 85,47% (…)”. Ante tal panorama cuestionan: ¿A cuánto más asciende la sub ejecución desde el 2014, cuando se estableció Parque Viva y el Alcalde marca el inicio del desarrollo acelerado? Comentan que en los tiempos en que operaba en el lugar el autódromo La Guácima, se llevaron a cabo múltiples eventos masivos y únicamente existía una salida, sin que se diera ningún inconveniente. Acotan que en la actualidad el Parque Viva tiene cuatro salidas. Afirman que, en septiembre de 2014, cuando el Alcalde sitúa el inicio del desarrollo habitacional de la zona, el Ministerio de Obras Públicas y Transportes (MOPT) aprobó el estudio de planificación vial de Parque Viva. El parque obtuvo todos los demás permisos, sin faltar uno, y sobre esa base la empresa invirtió más de $40 millones, amparada al principio de confianza legítima y a la seguridad jurídica garantizada por el orden constitucional. Discuten que, a pesar de lo anterior, de pronto, el Estado procede a cancelar el permiso de funcionamiento, anular los legítimos réditos de la inversión, después de dos años de cierre por la pandemia, y exige a un particular un plan remedial para los defectos de la vía pública so pena de clausura o grave daño a sus ingresos. Aseveran que es obvio que lo pretendido por las autoridades recurridas es destruir “(…) sin razón ni derecho, las “estructuras” que no permiten ejercer a decenas de periodistas, una función indispensable para la sociedad y un derecho humano inviolable (…)”. Mencionan que el 16 de diciembre de 2021, el mismo funcionario del Ministerio de Salud que recientemente suspendió el permiso sanitario de funcionamiento de Parque Viva, fue quien dio su visto bueno a los aforos de los diversos sectores del establecimiento. Entre ese momento y la actualidad, el único cambio en el Ministerio ha sido la conducción política que ahora tramita con urgencia denuncias anónimas, ejecuta suspensiones de permisos sin proceso ni derecho a la defensa y exige planes remediales a los particulares y no a todos, solo a uno, para los embotellamientos en la vía pública. Explican que son contadas las ocasiones en las que se dan presas en el sector a causa del Parque Viva, toda vez que la mayor parte de las actividades no atraen tanto tráfico y se llevan a cabo de noche o en fines de semana. Puntualizan que en el 2022 solo ha habido nueve conciertos y de ellos únicamente dos atrajeron más de 7000 personas. Por otra parte, aluden que en el Parque Viva hay un proyecto avanzado para contribuir a remediar el problema por cuenta de Grupo Nación, para beneficio propio y de toda la comunidad. Exponen que la idea es construir un acceso de cuatro carriles para el cual ya se adquirieron los terrenos y se tramitaron la mayoría de los permisos; sin embargo, esa propuesta está paralizada en una comisión de permisos del MOPT, mientras el gobierno alega la necesidad de un plan remedial preparado por quien precisamente le ha planteado una solución que no le cuesta un centavo al gobierno. Empero, ilustran que en conferencia de prensa del 13 de julio de 2022, el Presidente de la República planteó un argumento lleno de falsedades, para anunciar oposición al proyecto, al expresar: “(…) ¿Oyeron la mentira descarada que publicó La Nación que tiene desde hace dos años de pedir un acceso a la ruta 27 para arreglar el Parque Viva? Ah no, diay, si metemos un gol metamos cuatro goles más porque es cuatro veces el volumen de área lo que querían conseguir el permiso., ¿No les da vergüenza colapsar la Ruta 27 arriesgando todo el Occidente, Grecia, Naranjo, Atenas, San Carlos, todo Guanacaste y todo Puntarenas? (…)”. Estiman absurdas las advertencias del colapso de todo Occidente, Guanacaste y Puntarenas por la construcción de un acceso que mejoraría dramáticamente y de inmediato el tráfico en toda La Guácima hacia Parque Viva y sí, hacia un futuro desarrollo urbanístico que Grupo Nación ha anunciado desde hace años. Precisamente, aclaran que el mejoramiento de la circulación es necesario para que ese proyecto sea viable. Elucidan que el desarrollo proyectado se ejecutaría en quince o veinte años, pero el impacto benéfico del acceso se hará sentir de inmediato en toda la comunidad y sin duda facilitará el acceso a Parque Viva. Al pronosticar el colapso de la mitad del país por la construcción de un eventual proyecto urbanístico, el mandatario parece haber olvidado la promesa de su propio gobierno de ampliar la Ruta 27. Además, la Dirección General de Ingeniería de Tránsito, el Consejo Nacional de Vialidad, el Consejo Nacional de Concesiones y la Comisión de Carreteras de Acceso Restringido, manifestaron su no objeción. Sin embargo, el mandatario, en un arranque frente a micrófonos, anuló esos criterios y borró los años de trámite y planificación invertidos en el proyecto. Expresan que el intempestivo rechazo a considerar siquiera la posibilidad de permitir el acceso y las razones alegadas por el mandatario, demuestran su ánimo persecutorio y su intención de cumplir la amenaza de destruir las “estructuras” de su periodismo. Afirman que solo un plan remedial le complace: un aforo suficientemente bajo para hacer inviable a Parque Viva y así golpear las “estructuras” del periodismo que tanto le molesta y prometió destruir. Exponen que Grupo Nación no está obligado a proveer ese remedio ni se le puede exigir un plan remedial como lo ordenó el gobierno. El parque fue construido con todos los permisos necesarios antes de la explosión inmobiliaria de la zona permitida por el Estado sin proveer la infraestructura necesaria y, más bien, sub ejecutando los recursos para ese fin. Señalan que el Estado supo de la cuantiosa inversión requerida para levantar el proyecto y dio, en varias ocasiones, su consentimiento. El Ministerio envió a hacer una inspección en el parque con intención de encontrar un problema, pero hallaron todo conforme. Entonces, decidieron que el defecto estaba en la vía pública, donde no corresponde a los particulares, sino al Estado, proveer el remedio. Argumentan que el propósito del “plan remedial” exigido por el gobierno es “remediar” el periodismo crítico mediante una desviación de poder para ejercer presión sobre la empresa, consecuente con la amenaza de campaña, y no enfrentar el problema de los embotellamientos. Por eso el Presidente ya expresó en su conferencia de prensa de 13 de julio, su negativa a la construcción del acceso que, de buena fe, Grupo Nación está dispuesto a financiar. Todo está listo para ejecutar la obra a cuatro carriles, pero ya la administración dejó claro su intención de no permitirlo. Narran que los estudios técnicos elaborados a posteriori por instituciones dependientes del gobierno nada dicen del verdadero origen del problema. Tampoco dice a qué hora hay presas, qué días ni cómo se forman. Enuncian que tan arbitraria fue la medida adoptada inicialmente y tan débiles los criterios técnicos, que el gobierno se vio obligado a emitir otra, basada en nuevos criterios, que de igual forma devienen cuestionables, para disimular sus intenciones e intentar rectificar los obvios defectos del acto inicial. Describen que en un oficio emitido por la Cruz Roja Costarricense se consignó que los tiempos de respuesta para la atención de emergencias se han visto afectados por la congestión vial en diversos puntos del territorio nacional, situación que también ocurre en La Guácima. Además, sostienen que la benemérita institución admitió no proveer servicios en los eventos de Parque Viva, pues lo organizadores contratan empresas privadas. Adicionan que el Cuerpo de Bomberos también enfatizó el problema de estrechez de las calles, sin hacer referencia a ningún problema propio de Parque Viva; mientras que el informe del 9-1-1 no pasó de enumerar reportes de los más diversos incidentes en la zona, sin establecer relaciones de causalidad con Parque Viva. Alegan que el informe del MOPT realizó una extraña comparación con algún sitio del Reino Unido, con “tres eventos similares” que no describió; sin embargo, pidió limitar el aforo a 2400 personas, no por las condiciones del parque sino por supuestos relacionados con la vía pública. Reseñan que, para justificar su actuación, el gobierno procuró obtener, a posteriori, quejas de la comunidad, distribuyendo a la asociación de desarrollo un machote de carta, según el testimonio de Hellen Espinoza, dirigente comunal de La Guácima, quien dijo “quieren que desembarremos lo que ellos embarraron”. Indican que en una reunión comunal realizada el 13 de julio de 2022, el regidor y residente de La Guácima, Alonso Castillo, pronunció ante sus vecinos un discurso esclarecedor, al señalar: “(…) Hay una realidad ineludible, del 2010 a la fecha, en La Guácima se han formado 48 proyectos urbanísticos en el Concejo Municipal de Alajuela, sin contar Parque Viva, sin contar desarrollos comerciales, sin contar Automercado, sin contar centros comerciales (...) cada proyecto de esos, implica (...) muchos carros. Eso nos da una realidad vehicular que no era para las carreteras que nosotros teníamos (...) Aquí hay presas todos 1os días, a las siete de la mañana y a las cinco de la tarde, con concierto, o sin concierto. Si aquí pasa un accidente hoy, colapsa La Guácima porque no hay para dónde coger. (…)”. Se cuestionan de porqué se escogió selectivamente a Parque Viva si hay congestionamientos todos los días, en varias franjas horarias y, por su parte, las actividades más concurridas de este sitio suelen celebrarse de noche y los fines de semana. Afirman que el gobierno atendió una denuncia anónima sobre el parque con la urgencia de una catástrofe nacional. Además, celebró reuniones de emergencia, pidió “criterios técnicos” inmediatos, ordenó inspecciones y emitió resoluciones. Todo esto, supuestamente, para evitar presas dos o tres veces por mes, de noche y en fin de semana. Cuestionan si esto mismo se exigirá a comercios y condominios instalados en la zona luego de Parque Viva y si también los cerrará. Indican que el ánimo de singularizar y discriminar a Grupo Nación, como represalia por su periodismo, no puede ser más obvio, además involucra la desviación de poder contra el derecho a la libre expresión de los periodistas del Grupo Nación. Sostienen que el problema no es Parque Viva, sino la infraestructura pública que poco ha avanzado para adaptarse a la densidad habitacional desarrollada después de su existencia. Señalan que no sería difícil producir similares “estudios técnicos” sobre los embotellamientos cotidianos cerca del complejo de oficinas Forum, atribuirlos a las edificaciones y cancelar los permisos de operación. Lo mismo se podría decir de la gran cantidad de centros comerciales y oficinas que atraen tráfico a Lindora por donde es imposible transitar en determinadas horas del día o de la entrada a Multiplaza Escazú en diciembre. Argumentan que los ejemplos son infinitos, pero el Ejecutivo se fija, exclusivamente, en Parque Viva. Disertan que, en síntesis, los problemas de acceso a La Guácima existen “con Parque Viva o sin él”, por omisiones y excesos del Estado. Apuntan que ningún estudio acredita que la situación cambiará con el cierre de Parque Viva o la disminución de su actividad por debajo de los niveles autorizados; por el contrario, hay evidencia de la continuidad del problema cuando no hay actividad alguna en Parque Viva. Asientan que si algo celebra la comunidad es que la desviación de poder del gobierno vertió luz sobre un problema de larga data que no se resuelve con las actuaciones administrativas arbitrarias señaladas. Reiteran que la ineficacia de esos actos desvirtúa su pretendido fin público y evidencia que el único propósito es afectar las finanzas de Grupo Nación, en represalia por el libre ejercicio del periodismo. Arguyen que con el ánimo de continuar persiguiendo e intimidando con la afectación de intereses económicos, el 20 de julio de 2022, en conferencia de prensa, el presidente citó, entre los motivos para cancelar el plan del tren eléctrico, la existencia de un ramal que pasa por Parque Viva, lo cual le “preocupa” y al parecer está entre los fundamentos de tan trascendental decisión. Al respecto, señalan que el parque tiene la suerte o tal vez la desdicha de estar situado próximo al derecho de vía del tren existente desde hace bastante tiempo, por ende, si se pretende construir un tren con aprovechamiento de ese derecho de vía, deberá pasar por ahí y sería útil que lo hiciera, porque más adelante está la zona franca del El Coyol donde laboran 16.000 personas, además de otros 16.000 ciudadanos en el área circundante. Manifiestan que, por esa razón, el ramal está en los planes del tren eléctrico desde el 2016 y, según explicó INCOFER, no cuesta ¢150.000.000,00 como lo pretende hacer creer el mandatario. Discuten que el presidente es quien menos debería albergar “preocupación” porque fue él, como Ministro de Hacienda, quien firmó el proyecto de crédito para el tren eléctrico que, según dijo ahora, será reemplazado por un proyecto anterior, mucho más caro, que solo se construirá entre San José y Paraíso de Cartago, el cual constituye el segmento de menos tránsito, de conformidad con los estudios. Consideran que las arbitrariedades apuntadas no dejan duda sobre el propósito persecutorio contra el periódico en que el que laboran, así como el carácter de represalia, con desviación de poder, contra la línea informativa y editorial, con grave lesión del derecho a la libre expresión. Refieren que la presión ejercida sobre las finanzas de la empresa pone en riesgo el ejercicio periodístico futuro e invita a entendimientos que lo comprometen. Aseveran que las acciones descritas conculcan el artículo 29 de la Constitución Política, en tanto procuran coartar la libertad de expresión. Asimismo, lo apuntado deviene contrario a lo dispuesto en el artículo 13.3 de la Convención Americana sobre Derechos Humanos, integrado al bloque de constitucionalidad, en el que se contempla la prohibición de emplear mecanismos indirectos para coartar la libertad de expresión y el derecho del público a conocer informaciones de interés de la sociedad. Sustentan que esos mecanismos indirectos se disfrazan para parecer acciones legítimas, pero sus efectos sobre un derecho humano tan fundamental pueden ser devastadores. Añaden que la Corte Interamericana de Derechos Humanos ha desarrollado una extensa línea jurisprudencial sobre los mecanismos indirectos de represión y tiene establecido, de larga data, que es contrario a la Convención “(…) todo acto del poder público que implique una restricción al derecho de buscar, recibir y difundir informaciones e ideas, en mayor medida o por medios distintos de los autorizados por la misma Convención (…)”. (Opinión Consultiva No. OC-5/85 de 13 de noviembre de 1985, Serie A No. 5, párr. 55). También sostuvo que “(…) [al] evaluar una supuesta restricción o limitación a la libertad de expresión, el Tribunal no debe sujetarse únicamente al estudio del acto en cuestión, sino que debe igualmente examinar dicho acto a la luz de los hechos del caso en su totalidad, incluyendo las circunstancias y el contexto en los que éstos se presentaron. (…)”. (Caso Baruch Ivcher Bronstein vs. Perú, sentencia de 6 de febrero de 2001. Serie C No. 74, párr. 154). En sentido similar, caso Perozo y otros vs. Venezuela, sentencia de 28 de enero de 2009. Serie C No. 195. Agregan que la Corte Interamericana de Derechos Humanos estableció que “(…) la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar 'cualesquiera otros medios' o vías indirectas derivados de nuevas tecnologías (…)” (La Colegiación Obligatoria de Periodistas. Opinión Consultiva No. OC-5/85 del 13 de noviembre de 1985. Serie A No. 5, párr. 48. Cfr.). Asimismo, Caso Ríos y otros vs. Venezuela. Sentencia de 28 de enero de 2009. Serie C No. 194, párr. 340. Amplían que el alto tribunal ha manifestado que la libertad de expresión tiene una dimensión individual y una dimensión social. Sobre ese aspecto describen que se exige, por un lado, que nadie sea arbitrariamente menoscabado o impedido de manifestar su propio pensamiento y representa, por tanto, un derecho individual, y, por otro lado, implica un derecho colectivo a recibir cualquier información y a conocer el pensamiento ajeno (casos La colegiación obligatoria de periodistas, La última tentación de Cristo, Herrera Ulloa vs. Costa Rica, sentencia de 2 de julio de 2004, serie C no. 107, párr. 108). Impugnan que las actuaciones objeto de este recurso también resultan discriminatorias contra La Nación y sus periodistas. Concluyen que en juego no están solamente los intereses económicos de La Nación o siquiera los de otros medios más frágiles y pequeños, sino el derecho de todos a informar y opinar libremente, así como el derecho de la ciudadanía a recibir esas informaciones y opiniones desde una pluralidad de fuentes, de conformidad con la garantía establecida en los artículos 28 y 29 de la Carta Magna. En virtud de todo lo expuesto, solicitan que se declare con lugar el recurso y se anule la suspensión temporal del permiso sanitario de funcionamiento del Parque Viva, así como los actos administrativos que la sustentan. Además, solicitan que se le ordene al Presidente de la República, abstenerse de ejecutar actos tendentes a lesionar directa o indirectamente la libertad de expresión.
2.- Por resolución de las 16:06 hrs. de 29 de julio de 2022, se le da curso al proceso y se requieren los informes a las autoridades recurridas.
3.- Mediante memorial aportado a la Sala el 8 de agosto de 2022, Joselyn María Chacón Madrigal, en su condición de Ministra de Salud, rinde informe y señala expresamente lo siguiente: “(…) De conformidad con lo expuesto, atendiendo el presente informe de ley con sustento en el Oficio N°MS-DM-5756-2022, Expediente Administrativo relacionado con Parque Viva (adjunto como prueba), mediante el cual se afirma, en síntesis, lo siguiente: Para poner en contexto existencia de denuncia con fecha 05 de julio del 2022, misma trasladada para su atención por este Despacho Ministerial mediante Oficio N°MS-DM5756-2022 2, a la Dra. Karina Garita Montoya, Directora de la Dirección Regional de Rectoría de la Salud Central Norte, denuncia presentada contra el “Parque Viva”, ubicado en La Guácima de Alajuela, denuncia referida propiamente a condiciones estructurales y de acceso y salida de dicho lugar. Cito: “…Este recinto es comúnmente utilizado para llevar a cabo conciertos masivos, donde se reúne una gran cantidad de personas. el problema con este lugar son sus puntos de acceso y la poca capacidad que tiene las carreteras, que son de una comunidad rural para recibir una enorme cantidad de vehículos al mismo tiempo. Todas las calles que dan al Parque Viva, son calzadas de un carril por sentido, muy angostas, sin bahías para autobuses, ni condiciones para alto tránsito. Cada vez que hay un concierto, las calles de la comunidad colapsan absolutamente, al punto que las personas tardan horas en desplazarse en distancias cortas o salir del parqueo del lugar. La situación es sumamente grave, pues durante una eventual emergencia, podría verse comprometida la respuesta de los cuerpos de socorro. Y es que estamos hablando de situaciones tan riesgosas como incendios, terremotos, caídas de estructuras, entre otros eventos trágicos que podrían ocurrir en eventos masivos. Las calles de la Guácima de Alajuela no pueden soportar la afluencia masiva de vehículos, pues sus vecinos también podrían ver menoscabados sus derechos por este tipo de eventos, ya que, ante emergencias en sus hogares o comunidades, la respuesta de las autoridades de auxilio tardaría muchísimo más que lo normal, por las enormes presas que genera este lugar. En vista de lo anterior, y ante la gravedad de los hechos denunciados se solicita la clausura definitiva del lugar, hasta tanto no encuentren una solución a la problemática. La solicitud se realiza en aras de proteger la salud pública y el interés común. PARQUE VIVA NO REUNE LAS CONDICIONES PARA ALBERGAR EVENTOS DE CONVOCATORIA MASIVA. Cierro indicando que es responsabilidad del Estado, de conformidad con el artículo 50 de la Constitución Política, velar porque se tutelen los derechos de los habitantes de la República y otorgarles el mayor grado de bienestar. Como prueba adjuntó (sic) ocho fotografías de los únicos 2 accesos de lugar, que demuestran las condiciones de las calles circundantes. Además, se adjunta 2 notas de medidas de comunicación donde se expone la problemática con las presas provocadas por los eventos masivos”. En atención a lo denunciado, las autoridades del Área Rectora de Salud de Alajuela 2, al ser las 13:50 horas del 05 de julio de 2022, llevaron a cabo una inspección físicosanitaria al inmueble de cita, incluyendo la valoración correspondiente a sus vías de acceso, concluyendo, según el informe N°MS-DRRSCN-DARSA2-1641-2022, lo siguiente: “…que las Instalaciones de Parque Viva cumplen con condiciones físico-sanitarias y estructurales adecuadas a lo interno de estas, se procederá a trasladar los planes de emergencia al Encargado Regional de Salud Ocupacional para su valoración y revisión a profundidad, además se recomienda realizar el traslado de la denuncia al Ministerio de Obras Públicas y Transporte para que estos valoren las condiciones denunciadas que son competencia de esta dependencia (calles en mal estado, un solo carril por sentido vial, dificultad de acceso de cuerpos de emergencias por vía pública, entre otros...” Así las cosas, mediante el oficio N°MS-DM-5754-2022, este Despacho Ministerial, con carácter de urgencia, solicitó al señor Luis Esteban Amador Jiménez, en su condición de Ministro de Obras Públicas y Transportes, y a la señora Laura Ulloa Albertazzi, Viceministra de Transportes y Seguridad Vial, criterio técnico en relación con las calles de acceso al recinto comercial privado, denominado “Parque Viva”, ubicado en La Guácima de Alajuela, con el fin de dilucidar aspectos estructurales y de seguridad humana, específicamente en cuanto a los aspectos de capacidad que tienen sus vías de acceso, en el escenario de la enorme cantidad de vehículos y personas que asisten a los eventos masivos programados en dicho lugar, en relación con aspectos de eventuales emergencias, respuesta y acceso de cuerpos de socorro y riesgo, entre otros. Bajo esa perspectiva, mediante oficio N°DVTSV-2022-0341 de fecha 06 de julio del 2022, la Licda. Laura Ulloa Albertazzi, Viceministra de Obras Públicas y Transportes, remite el oficio N°DVT-DGIT-2022-339, suscrito por el Ing. Junior Araya Villalobos, funcionario de la Dirección General de Ingeniería de Tránsito, el cual emite criterio señalando que: “…el establecimiento denominado “Parque Viva” empezó a funcionar en el año 2015, para la realización de varios eventos (deportivos de motores, congresos, ferias, así como eventos de concentración masiva de personas, como conciertos y festivales) el cual se localiza frente a ruta cantonal denominada “Calle Rincón Chiquito”, siendo que corresponde a la Municipalidad de Alajuela el otorgamiento de los permisos de acceso, indica que la calle Rincón Chiquito es una calle urbana de dos carriles -un carril por sentido de circulación-, donde ese tipo de vía podría alcanzar una capacidad máxima alrededor de los 1.200 vehículos por hora por sentido y, de acuerdo con las condiciones de la vía, un estudio detallado podría arrojar una capacidad menor a la mencionada, siendo que se puede asegurar que en el momento en que se realizan los eventos de concentración masiva, la vía de acceso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado. Refiere que, bajo un escenario conservador, sin considerar los estacionamientos periféricos al parque, ni la utilización de la pista de carreras, se tendría una generación de 4.900 vehículos por hora, lo cual representa más del doble de lo que la vía podría soportar…” Por su parte, el Comité Asesor Técnico de Concentraciones Masivas, según Acta N°28643-S-MOPT-SP del 07 de Julio de 2022, indicó: “…Vistos los oficios mencionados, y la recomendación del Ministro de Obras Públicas y Transportes sobre tomar un curso de acción a raíz de la situación presentada con relación a la capacidad de la vía de acceso del recinto denominado Parque Viva, se acuerda proponer a las autoridades correspondientes una Orden Sanitaria de Cierre para eventos masivos, del establecimiento denominado Parque Viva, y las medidas que correspondan con otras autoridades pertinentes. Debe solicitarse un plan remedial para las condiciones denunciadas, el cual debe ser puesto en conocimiento de este Comité Asesor técnico de Concentraciones Masivas…”, lo cual fue debidamente comunicado a través del oficio N°MS-DM-5838-2022 del 08 de julio de 2022- a la Dra. Karina Garita Montoya, Directora de la Dirección Regional de la Rectoría de la Salud Central Norte, procediendo, el día 08 de julio de 2022, autoridades del Área Rectora de Salud de Alajuela 2, girar la orden sanitaria N°MS-DRRSCN-DARSA2-OS-0368-2022, al señor Maykol Gómez Trejos, representante legal de “Parque Viva”, con la figura jurídica “Grupo Nación GN Sociedad Anónima”, ordenando en lo que interesa: “… en concordancia con el principio precautorio y en atención a los oficios: MS-DM5814-2022, mediante el que se remite el Informe Técnico DVT-DGIT-2022-339 emitido por la Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes, el oficio MS-DM-5838-2022 mediante el que se remite el Acta N°28643-SMOPT-SP del Comité Asesor Técnico en Concentraciones Masivas, se ordena mediante el siguiente acto administrativo la suspensión temporal del Permiso Sanitario de Funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 (parque temático, autódromo, anfiteatro, eventos deportivos, culturales, ferias y exposiciones varias) hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los Criterios técnicos emitidos por el Benemérito Cuerpo de Bomberos de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud… Así mismo, su representada deberá presentar un plan remedial que abarque la solución a la problemática de los accesos y el consecuente riesgo a la Seguridad y Salud Publica ante la realización de Actividades de Concentración Masiva, y la generación de una eventual emergencia en dichas actividades…”. Posteriormente, en respuesta a la solicitud planteada por este Despacho Ministerial según el oficio N°MS-DM-5870-2022 para cuerpos de socorro, en relación con la situación del “Parque Viva”, instituciones como el Benemérito Cuerpo de Bomberos, la Cruz Roja Costarricense y el Sistema de Emergencias 911, remiten a este Despacho Ministerial el informe N°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Jim Batres Rodríguez, Sub-Gerente operativo de la Cruz Roja Costarricense; informe N°CRC-GG-OF-012-2022 del 12 de Julio de 2022, suscrito por el señor José David Ruiz Piedra, Gerente General de la Asociación Cruz Roja Costarricense; Informe técnico N°CBCR-027150-2022-OPOB-00741 del 10 de Julio de 2022, suscrito por el señor Alexander Araya Mico, de Operaciones de Bomberos; Informe N°911-DI-2022-2202 del 11 de julio 2022, suscrito por la Señora María Elena Amuy Jiménez del sistema de Emergencia 9-1-1, donde la Cruz Roja Costarricense, en resumen, indican: “…que sí debe existir medidas preventivas que permita reducir riesgos, como planes de emergencia que definan rutas de acceso suficiente, con la amplitud necesaria que permita una respuesta eficaz en caso de emergencias, que dependiendo del tipo de incidente que se produzca así se requerirá de la participación interinstitucional, incluida la Cruz Roja Costarricense, el Benemérito Cuerpo de Bomberos, Policía, empresas privadas prestatarias de Servicios de Ambulancia, entre otros actores, donde las vías públicas de la comunidad de La Guácima y zonas aledañas resultan insuficientes para el rápido acceso de unidades de emergencia, situación que se puede agravar ante eventos de concentración masiva, los cuales pueden verse afectados por el alto congestionamiento vial y que es ocasionado por la gran cantidad de vehículos que se ubican en los costados de la vía, generando atrasos de hasta 30 minutos para su llegada, donde atienden accidentes de tránsito, incendios estructurales y casos médicos, donde en todos los casos está en riesgo la vida de las personas, por lo que se requiere de un acceso rápido y oportuno de las unidades de rescate especializadas; por su parte, indican los personeros de bomberos, que las unidades extintoras tienen una longitud aproximada de 11 metros y un ancho de 3 metros, lo que genera precisamente que se requiera suficiente espacio para su ingreso a los lugares donde se presentan los incidentes (emergencias como incendios, accidentes de tránsito, otros) siendo que específicamente el ingreso al “Parque Viva” se dificulta cuando deben pasar dos vehículos, en sentido contrario, al mismo tiempo, lo cual hace imposible el ingreso, o cuando existen vehículos estacionados en la vía, siendo el tiempo de respuesta mucho mayor al que se puede atender en condiciones aptas de accesibilidad…”. Por su parte es de observar, de lo informado por el sistema 911, que efectivamente existen un sin número de denuncias que son ingresadas al sistema, en mayor número cuando se están llevando a cabo en el lugar eventos de concentración masiva, así como por vehículos mal estacionados, aglomeración de personas, embotellamiento de vehículos, riñas por no poder salir, colisiones, quejas por escándalos ocasionados por actividades propias del Parque Viva”, como por ejemplo carreras en el autódromo La Guácima, problemas de tránsito vehicular, entre otros, siendo de notar que sí existe una situación de riesgo potencial en el lugar, por falta de acceso seguro y fluido al sitio, que afecta las comunidades aledañas al inmueble y que debe el Ministerio de Salud atender de manera diligente, donde el acto administrativo lo que busca precisamente es evitar ante futuras actividades de concentración masiva- poner en riesgo la salud, seguridad y la vida de las personas que asisten a los eventos, así como la de las que viven en los alrededores del Parque Viva, y que requieren de un acceso fluido a sus comunidades (casas) y de ser necesario un adecuado acceso de los medios de socorro, por lo que resulta indispensable presentar el Plan Remedial solicitado, el cual debe abarcar en su contenido la solución a la problemática de acceso en las comunidades de La Guácima de Alajuela, ante la realización de actividades de concentración masiva. Es de mencionar que los actos administrativos realizados por esta instancia Ministerial fueron recurridos y resueltos en apego de tiempo y forma, respetando así el debido procedimiento y derecho en defensa de los administrados que sintieran afectados sus derechos, recursos declarados sin lugar al considerar que se deben mantener los actos administrativos impugnados, ya que se desprende de la valoración realizada por el Ministerio de Obras Públicas y Transportes y de las instituciones de primera respuesta (Cruz Roja, Bomberos, Fuerza Pública y otros). Asimismo se resolvió que dicha medida de suspensión temporal de las actividades de concentración de personas se mantendrá hasta que se garantice con la presentación, aprobación e implementación de un plan remedial, que la realización de las actividades de concentración masiva de personas en Parque Viva no conlleve al colapso de las vías de acceso, no genere molestias a las comunidades vecinas y permita el ingreso de los vehículos y personal de las instituciones de primera respuesta de manera pronta y segura. Ahora bien, sobre lo señalado en el sentido de que existen otras actividades autorizadas al establecimiento que no causan el colapso de las vías, deberán los representantes legales del establecimiento, indicar en el plan remedial solicitado a la autoridad sanitaria del Área Rectora de Salud Alajuela 2, cuáles son esas actividades, así como la cantidad de personas por actividad a fin de que no superen lo señalado en el criterio técnico emitido por las autoridades del Ministerio de Obras Públicas y Transportes, para valorar, autorizar y vigilar su realización (…) FUNDAMENTO DERECHO Constitución Política, en sus artículos 21 y 50, el derecho a la vida y a la salud de las personas es un derecho fundamental, así como el bienestar de la población, los cuales se tornan en bienes jurídicos de interés público y ante ello, el Estado tiene la obligación inexorable de velar por su tutela. Derivado de ese deber de protección, se encuentra la necesidad de adoptar y generar medidas de salvaguarda inmediatas cuando tales bienes jurídicos están en amenaza o peligro, siguiendo el mandato constitucional estipulado en el numeral 140 incisos 6) y 8) del Texto Fundamental. Ley 6227 denominada -Ley General de la Administración Pública-, en su artículo N°214, cito: “…-1 El procedimiento administrativo servirá para asegurar el mejor cumplimiento posible de los fines de la Administración; con respeto para los derechos subjetivos e intereses legítimos del administrado, de acuerdo con el ordenamiento jurídico…(o)…-2 Su objeto más importante es la verificación de la verdad real de los hechos que sirven de motivo al acto final...”. Ley General de Salud N°5395 en sus artículos 1, 2 y 341 cito: “…. La salud de la población es un bien de interés público tutelado por el Estado, siendo del Ministerio de Salud función esencial velar por la salud de la población… Podrán, asimismo, dentro de las atribuciones y jurisdicciones mencionadas, ordenar y tomar las medidas especiales que habilita esta ley para evitar riesgos o daños a la salud de las personas o que éstos se difundan o se agraven y para inhibir la continuación o reincidencia en la infracción de los particulares …” Sala Constitucional de la Corte Suprema de Justicia ha reiterado que la protección y preservación de la integridad del medio ambiente natural, la salud y vida de las personas, es un derecho fundamental, de modo que frente a los intereses particulares prevalece, sin duda alguna, el derecho a disfrutar de un ambiente sano y ecológicamente equilibrado, lo que evidencia que no existe duda de que estando de por medio el ambiente, la salud y vida de las personas y por tratarse de normativa de orden público, se hace imposible alegar la existencia de derechos adquiridos o de situaciones jurídicas consolidadas, cuando estos se encuentran en contraposición del derecho fundamental al ambiente sano y ecológicamente equilibrado. CONCLUSIÓN Partiendo que la Ley N.º 5395, Ley General de Salud, establece que la salud de la población es un bien de interés público tutelado por el Estado y que es función del mismo Estado -a través del Ministerio de Salud- velar por su protección efectiva y que toda persona -natural o jurídica- está sujeta a lo que ella establece, a sus reglamentos y a las órdenes que emita la Autoridad de Salud dentro de su competencia (Artículos 1 y 4). Este bien jurídico “salud”, derivado directo del derecho a la vida, consagrado en el Artículo 21 de la Constitución Política, ha sido protegido desde “tempranas sentencias” de Nuestra Sala Constitucional, y el Ministerio de Salud en su condición de Rector de la Salud de la nación debe garantizar que su producción social, se realice de manera eficiente y contribuya a mantener y mejorar la calidad de vida de la población, en forma equitativa, solidaria y universal. Ahora bien, no podría el Ministerio cumplir con esta función de organización y coordinación suprema si no se preocupara por atender, vigilar, regular y corregir, aquellas situaciones o circunstancias que afectan o ponen en riesgo esa salud de la población. Por eso en su función rectora dicta medidas y normas sanitarias, y por medio de sus programas operativos y de sus órganos y agentes, aplica y vigila su acatamiento, denunciando o sancionando si fuera el caso, a quienes incumplen los requerimientos o ignoran las órdenes sanitarias emanadas de una Autoridad de Salud (Artículos 1 y 2, Ley Orgánica del Ministerio de Salud). Como se desprende del análisis fáctico en el abordaje del Área Rectora de Salud Alajuela 2, a la Denuncia Confidencial N°243-2022, en cumplimiento apego al principio Constitucional, en que se obtenga Justicia Pronta y Cumplida a los tramites presentados ante la administración, me permito hacer mención en lo que interesa, a la resolución N°2008-013962, dictada por la Sala Constitucional a la 9:31 horas del 19 de setiembre del 2008 sobre derecho a justicia pronta y cumplida: “…justicia pronta y cumplida. El artículo 41 de la Constitución Política estipula: "Ocurriendo a las leyes, todos han de encontrar reparación para las injurias o daños que hayan recibido en su persona, propiedad o intereses morales. Debe hacérseles justicia pronta, cumplida, sin denegación y en estricta conformidad con las leyes". En igual sentido, el artículo 8° de la Convención Americana de Derechos Humanos, suscrita en San José el 22 de noviembre de 1969 indica: "Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la substanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral, fiscal o de cualquier otro carácter". De lo anterior se colige que la Administración de Justicia está obligada a resolver en un plazo razonable los asuntos que le son planteados. El artículo 41 de la Constitución Política -antes transcrito-, no ha constitucionalizado un derecho a los plazos, sino el derecho fundamental de toda persona a que su causa sea resuelta dentro de un plazo razonable, lo que ha de ser establecido en cada caso concreto, atendiendo a la complejidad del asunto, la conducta de los litigantes y de las autoridades, así como las particularidades de cada tipo de proceso…” Por ende, el Ministerio de Salud no está exento en cumplir con el deber de concluir con los trámites presentados, en este caso, de la denuncia que nos ocupa, siendo necesario reforzar la seguridad jurídica tanto para el denunciante, denunciado y la misma administración, en saber que los hechos descritos tienen su seguimiento pertinente y un abordaje ajustado en tiempo y derecho, mismo dentro de una línea de tiempo determinado. Partiendo de la existencia de un orden público ambiental y de salud, propio de un Estado Social de Derecho como lo es el nuestro, donde el interés público ambiental y de salud, por regla general, prevalece por sobre los intereses particulares, los derechos adquiridos y situaciones jurídicas consolidadas, estas no encuentran cabida cuando entran en conflicto y puedan afectar los derechos ambientales y de salud de incidencia colectiva, Siendo ayunos los recurrentes en demostrar sus aseveraciones demás temerarias, por cuanto a la luz de los hechos expuestos, se demuestra que el actuar del Ministerio de Salud esta (sic) ajustado a derecho y que están tratando de utilizar su relación patronal con los medios de comunicación conocidos, como un medio coercitivo de “ataque a la prensa”, siendo que la carga a las obligaciones y situaciones comerciales deben ser soportadas independientemente que los recurrentes ostenten algún cargo de interés público como lo es ser propietarios de un medio de comunicación, pretendiendo tener un trato diferenciado o privilegiado en relación con otro comercio que enfrente tales Ordenes (sic) Sanitarias ya que concatenan esto, con un ataque o coerción al interés de información por ver menoscabadas sus actividades comerciales e ingresos económicos, siendo contradictorio en su totalidad con el principio constitucional emanado del artículo 33; - Toda persona es igual ante la ley y no podrá practicarse discriminación alguna contraria a la dignidad humana-. Estando las Autoridades Públicas en cumplimiento de ley en aplicar el Principio Precautorio en materia Sanitaria, en el sentido de que deben tomar las medidas preventivas que fueren necesarias para evitar daños graves o irreparables a la salud de los habitantes. Siendo un derecho antes mencionado la culminación de las denuncias o cualquier trámite llevado ante este Ministerio ya que los mismos no pueden quedar sin resolución final por tiempo indefinido, y es en aplicación del artículo 41 de la Constitución Política, artículo 264 de la Ley General de la Administración Pública y Decreto Ejecutivo N°37045 del 22/02/2012 denominado Reglamento a la Ley de Protección al Ciudadano del Exceso de Requisitos y Trámites Administrativos, que esta representación Ministerial actuó ajustada al principio de legalidad que está llamado a cumplir. Aprovecho para hacer mención al comunicado de prensa del martes 12 de julio del 2022, por parte del Colegio de Periodistas y Profesionales en Ciencias de la Comunicación Colectiva de Costa Rica en sus siglas -COLPER-, donde menciona en síntesis; “…La Junta Directiva del Colper se reunió con el Presidente de la República y el Presidente del Grupo Nación, de ambas conversaciones concluimos que: 1.-La Libertad de prensa es pilar fundamental de la democracia y así lo reconocieron ambas partes. 2.- Por encima de cualquier interés individual debe imperar el interés de las mayorías. 3.- La situación del Parque Viva debe ser abordada desde el principio de legalidad en que opera la administración pública, para lo cual existe la vía recursiva de impugnación del acto administrativo que ordena la suspensión del Permiso Sanitario de Funcionamiento y se resuelve con la presentación de un plan remedial por lo que no guarda relación ni afecta la libertad de prensa toda vez que corresponde a una actividad que se ajusta al derecho comercial y al derecho público que nos rige en relación de los administrados con la administración pública máxime que la Constitución Política en su artículo 50 ordena al estado garantizar el mayor bienestar a todos los habitantes del país. 4.- La presidencia de la República reiteró su compromiso de respetar a los medios de comunicación colectiva, indistintamente de su línea y de editorial o de los intereses del grupo empresarial que represente, y reafirmó el compromiso de construir un protocolo que rija las relaciones prensa gobierno para garantizar el acceso a las fuentes a la información y al respeto mutuo con los periodistas y medios de comunicación…La Junta directiva del COLPER estará vigilante del respeto a la libertad de prensa y libertad de expresión para el resguardo de nuestra institucionalidad (…)”.
4.- Por escrito aportado a la Sala el 9 de agosto de 2022, Rodrigo Chaves Robles, en su condición de Presidente de la República, rinde informe y señala expresamente lo siguiente: “(…) La Constitución Política de Costa Rica es absolutamente clara en que constituye una obligación ineludible del Estado garantizar, defender y preservar el mayor bienestar de todos los habitantes del país. Además, que toda persona tiene derecho a reclamar un ambiente sano. Asimismo, nuestra Carta Magna protege la libertad de decir lo que se piensa, cuando esto no constituya un exceso que violente o perjudique de manera ilegítima a un tercero, o cuando lo que se dice no encuentra respaldo en la realidad. Esta garantía abarca no solamente la libertad de los medios de comunicación de informar con la verdad, sino también la de los individuos de ejercer su pleno derecho de manifestarse. Ustedes, magistradas y magistrados de la honorable Sala Constitucional, más que nadie, conocen del deber que me fue conferido cuando juré ante el pueblo de Costa Rica como presidente de la República, en donde la protección y resguardo de la ciudadanía representan un pilar fundamental dentro del Estado Social de Derecho. Sin asombro, pero con mucha preocupación recibo el recurso de amparo interpuesto por personas afines al Grupo Nación, en donde exponen situaciones que poca o ninguna relación tienen con coartar la libertad de prensa de este medio de comunicación, y más bien pareciera que, escudados en ese equivocado discurso, exigen -sin ningún reparo- que el Estado les debe permitir operar de la manera que ellos quieran, aun cuando esto sea contrario a la ley y en detrimento del bienestar público. Señalan los recurrentes que ha puesto entredicho la capacidad financiera de Grupo Nación, por el correcto proceder de una grupo de funcionarios de la CCSS de plantear una consulta ante la SUGEVAL (Oficio GP-1193-2022/GF-575-06-2022), dada la preocupación que les generó los estados financieros reportados por Grupo Nación, y por movimientos de bienes inmuebles a un fideicomiso constituido por esta compañía, que posiblemente repercutirán negativamente en la capacidad de Grupo Nación, frente al pago de bonos comprados por la CCSS, y que esto, eventualmente, puede afectar groseramente el Fondo de Seguro de Invalidez Vejez y Muerte y el Fondo de Retiro de Empleados de la CCSS. El pago que deben realizar es de 5.950 millones de colones. La preocupación de los funcionarios de la CCSS es absolutamente válida y justificada: al cierre del primer trimestre del 2022, Grupo Nación visualiza una pérdida neta de 350 millones de colones, casi un 35% superior a la perdida reflejada en marzo de 2021. Por otra parte, es muy preocupante que el mayor activo que posee Grupo Nación, es decir, la propiedad en Llorente de Tibás esté siendo traspasada a un fideicomiso, junto con otras propiedades que este grupo ha estado adquiriendo, aun cuando vienen reportando perdidas desde hace varios años atrás. Magistradas y magistrados, ¿Es una amenaza a la libertad de prensa preocuparse y plantear consultas por el destino de los fondos de miles de costarricense invertidos en estos bonos? Grupo Nación, como cualquier otro emisor de deuda que participa en el mercado nacional de valores, está en la obligación de aportar información veraz que respalde su salud financiera, y no escudarse en su supuesta actividad central como "medio de comunicación", para alegar ataques a la libertad de prensa cuando se le exija ajustarse a la legalidad. Hoy, pese a que la CCSS dirigió una misiva al Grupo Nación desde el 20 de julio de 2022, con las mismas consultas que se plantearon ante la SUGEVAI„ no hay respuesta alguna (ver prueba documental). El alegato de los recurrentes respecto al levantamiento temporal del permiso sanitario de funcionamiento de Parque Viva, encuentra el mismo discurso, es decir, a Grupo Nación no se le puede exigir, como a cualquier otro comercio costarricense, ajustarse a los parámetros de la ley, porque inmediatamente, a su parecer, se convierte en un ataque a la libertad de prensa. De forma extraña, alega Grupo Nación que la denuncia de Parque Viva fue atendida con rapidez y celeridad por parte de las autoridades sanitarias, situación que es plausible y correcta. Estamos hablando de la vida de miles de personas, esto no puede demorarse, no puede esperar más tiempo, debe resolverse con la mayor rapidez y disposición posible; no tiene ningún tipo de fundamento venir a criticar que el gobierno actúo con la debida diligencia para proteger a la ciudadanía, se ejecutaron las acciones de la forma correcta, y es precisamente lo que la población espera, un gobierno que responda ágilmente, no con dilaciones, ni trabas. ¿Como es posible, magistradas y magistrados, que Grupo Nación venga a decir que cifran todas sus esperanzas económicas en lo que pueda generar la actividad económica de Parque Viva para poder pagarle a sus empleados, y que clausurar temporalmente ese lugar para la celebración de eventos masivos por incumplir con las condiciones mínimas de salubridad, es un ataque directo a la libertad de prensa? Eso solo demuestra que la salud financiera de la Nación no es como la quieren hacer ver, y que dependen de este lugar para subsistir financieramente. Respecto al caso en concreto de Parque Viva, vecinos de la Guácima de Alajuela plantearon ante el Ministerio de Salud una denuncia anónima, donde explican lo que han sufrido por años con este lugar, y las consecuencias que podrían ocurrir en caso de que no se tomen las medidas necesarias de manera urgente. Claro ejemplo de lo denunciado se evidenció en la nota publicada por el medio de comunicación CRhoy.com el 22 de junio de 2017 donde una vecina de La Guácima de Alajuela denunció que "Hay que estar peleando para que no nos parqueen al frente. A veces, mandan a alguien para que acomode carros, pero cuando el desorden es demasiado, desaparecen (...) Todo mundo se encierra. La gente (vecinos) no sale cuando hay concierto. Las calles tienen que hacerlas más anchas, el martes (Concierto de Ed Sheran, 6 de junio) fue tremendo". Ante esa situación, el principal temor es que una de esas noches de concierto se presente una emergencia que amerite la salida rápida de algún vecino. "¡Se muere la persona! Si se cortó, se escurrió (...) Esto se bloquea por todo lado. No solo aquí, también en Ciruelas y en el sector conocido como El Bajo (...) Es que hay semanas hasta con 3 conciertos. (Ver legajo de prueba anexo como prueba documental) Otro ejemplo de la situación que viven los vecinos de Parque Viva ocurrió el 9 de julio de 2017, de acuerdo con una nota publicada por el medio de comunicación Am Prensa el 09 de julio de 2017, donde se denunció que, durante un concierto llevado a cabo la tarde de ese día en el Parque Viva, se reportaba un fuerte congestionamiento vial en los alrededores del recinto, pero lo más grave ocurrió cuando se recibió una alerta de una amenaza de un atentado terrorista que propició la detención de una persona. (Ver legajo de prueba anexo como prueba documental) Una vez recibida la denuncia anónima, el Ministerio de Salud convocó a sesión al Comité Asesor Técnico en Concentraciones Masivas para analizar el caso. En dicha sesión, participaron funcionarios además del Ministerio de Salud, del Ministerio de Obras Públicas y Transporte, de la Cruz Rojas Costarricense, de la Dirección de la Policía de Tránsito, de la Comisión Nacional de Emergencia y del Benemérito Cuerpo de Bomberos. Este comité, actuando dentro de los parámetros permitidos, y analizando el informe DVT-DGlT-2022-339 (ver prueba documental) de la Dirección General de Ingeniería de Tránsito (previamente solicitado por el Ministerio de Salud), donde se concluye que al momento que se realizan concentraciones masivas en el Parque Viva, la vía que da acceso no tiene la capacidad suficiente para el manejo del tránsito generado, por tanto, esta comisión acordó proponerle a las autoridades sanitarias una orden de cierre para eventos masivos y solicitar un plan remedial para las condiciones denunciadas. Recibida la recomendación del comité especializado, la Dirección de Área Rectora de salud de Alajuela 2, emitió la orden sanitaria MS-DRRSCN-DARSA2-OS-0368-2022 (ver prueba documental), donde suspendió de manera temporal el permiso sanitario de funcionamiento para eventos de carácter masivo hasta tanto el ente recurrido no presentara un plan remedial que abarcara la solución a la problemática con los accesos. Hoy, Grupo Nación no ha presentado el plan remedial. Cabe recordar que, las autoridades han exigido a otros grupos comerciales, la construcción de accesos de ingreso a centros comerciales de gran envergadura, cuando se proyecta que la entrada en operación de estos recintos representará un aumento en el flujo vehicular de la zona en que fueron construidos; ejemplos de esto son los casos de EPA en Desamparados y City Mall en Alajuela, quienes realizaron cuantiosas inversiones para ajustarse a los requerimientos de entrada y salida de vehículos. Además, se cuenta con el criterio de la Dirección Regional de la Fuerza Pública de Alajuela, mediante oficio MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-08272022 (ver prueba documental), donde, señalan que la zona de la Guácima de Alajuela está catalogada como sensible ya que convergen diferentes acciones delictivas y que la afectación que genera aglomeraciones de vehículos y personas en las afueras de Parque Viva, reduce la movilidad policial y produce un incremento en las llamadas de vecinos al 911, debido a incidentes de alteración al orden público. Fuerza Pública hace referencia a un caso en concreto ocurrido durante un concierto en Parque Viva el 07 de mayo de 2022, donde en una emergencia médica, los cuerpos de socorro requirieron del auxilio policial para poder trasladar a la paciente ya que la cantidad de vehículos y personas en la zona impedían el movimiento de la ambulancia con la rapidez que se precisaba, por tal razón fue necesaria la intervención de doce efectivos policiales abriendo camino a pie entre los vehículos durante 40 minutos. Concluyen que la afectación al servicio policial durante los eventos masivos en Parque viva es evidente, notoria, frecuente y repetitiva, en virtud del impacto de la incidencia delictiva y la afectación en los tiempos de respuesta de las autoridades de emergencia. El Benemérito Cuerpo de Bomberos emitió su criterio mediante oficio CBCR-0271502022-0PB-00741 (ver prueba documental), donde concluyen que las comunidades de Rincón Chiquito, Rincón Herrera, Guácima centro, al igual que las instalaciones de Parque Viva, se ven afectadas debido a que el tiempo de respuesta de las unidades de Bomberos aumenta de forma considerable debido a las condiciones de las vías circundantes al reciento (sic), aunado a los bloqueos que se generarían en las carreteras durante los eventos masivos, y esto imposibilitaría el acceso a las comunidades durante emergencias, situación que pone en peligro las vidas y las propiedades. Ante la incredulidad que generó el hecho que el gobierno local le otorgara permisos de funcionarios a Parque Viva, aún con toda la evidencia de que sus condiciones de operación son perjudiciales para las comunidades circunvecinas, el Instituto Nacional de Vivienda y Urbanismo le solicitó a la Municipalidad de Alajuela el expediente del proyecto, donde se hallaron situaciones muy preocupantes que fueron expuestas en el oficio PE-243-07-2022 (ver prueba documental), a saber: 1) Los permisos municipales de uso de suelo para el campo ferial, anfiteatro, hotel y servicio de comidas, no respetan el plan regulador vigente. 2) La finca donde encuentra el Parque Viva, se ubica en una zona verde, y no es una subzona residencia de mediana densidad, tal y como se indicó en la constancia de uso de suelo, que fue emitida por la Municipalidad de Alajuela y base para la emisión de los permisos de construcción. 3) La viabilidad ambiental otorgada, fue dada para mejoras en lo que fue el Autódromo La Guácima; en ningún momento se desprende del trámite ante Setena, que la actividad a desarrollar fuera para un campo ferial, lo que evidencia que los permisos fueron gestionados de forma separada, con la intención de obviar requerimientos mínimos que debieron ser pedidos. 4) No hay registro de presentación ante el MOPT ni la Municipalidad de Alajuela, de ningún estudio de impacto vial, que mida el impacto de flujo vehicular asociado a las actividades que se desarrolla en Parque Viva. 5) El proyecto no contó con autorización del Benemérito Cuerpo de Bomberos al momento de ser aprobado. 6) NO se solicitó ninguna mejora a la vialidad cantonar (sic) que da acceso al Parque Viva, en ninguna etapa. Obviado con ello el gobierno local, lo estipulado en el artículo 70 de la ley de planificación urbana, que le permite solicitar contribuciones dado el impacto del proyecto Parque Viva, sobre la vialidad pública del cantón (casos Epa Desamparados, City Mall Alajuela). Como se ha afirmado, las actuaciones cuentan con el criterio de varias instituciones públicas especializadas, algunas de ellas beneméritas de la patria, que gozan de total credibilidad en sus actuaciones. No se trata de gestiones antojadizas, como lo quieren hacer ver los recurrentes, se trata de funcionarios y funcionarias responsables que cumplen su deber, con la debida competencia legal para hacerlo y que buscar proteger la vida de los costarricenses. Por lo expuesto, el hecho de proteger la vida de cientos de familias vecinas del Parque Viva, no tiene ninguna relación con atacar, limitar o censurar la libertad de prensa de Grupo Nación. Yo no voy a dormir con la consciencia tranquila si durante el próximo concierto hay una emergencia y muere una niña, un anciano, se pierden casas de gente humilde durante un incendio, simplemente por el beneficio económico de un grupo, que se escuda en la libertad de expresión cada vez que se les solicita ajustarse a la ley. Como aspecto relevante en apoyo de la actuación de las autoridades sanitarias, está el pronunciamiento del propio Colegio de Periodistas de Costa Rica, quienes indicaron que, una vez analizado el tema, arriban a la conclusión que la libertad de prensa en Costa Rica goza de buena salud, y que en ningún momento se está atentando contra este derecho. Al respecto indicó el Colegio de Periodistas en su comunicado oficial: "(...) La situación del Parque Viva debe ser abordada desde el principio de legalidad en que opera la administración pública, para lo cual existe la vía recursiva de impugnación del acto administrativo, que ordena la suspensión del permiso sanitario de funcionamiento y se resuelve con la presentación de un plan remedial, por lo que no guarda relación ni afecta a la libertad de prensa, toda vez que corresponde a una actividad que se ajusta al derecho comercial y al derecho público que nos rige en la relación de los administrados con la Administración Pública, máxime que la Constitución Política en su artículo 50 ordena al Estado garantizar el mayor bienestar a todos los habitantes del país (…)” (ver legajo de prueba documental anexo). El propio Grupo Nación, en una nota publicada el 27 de abril de 2021, acepta que las condiciones de acceso de las instalaciones de Parque Viva no son las mejores. Expresamente indican que "Si bien Parque Viva cuenta con distintas rutas públicas de acceso, las mismas presentan limitaciones para asimilar el fluido movimiento de una gran cantidad de vehículos, como las que se producen cuando han presentado espectáculos a lleno completo en el Anfiteatro Coca-Cola (ver legajo de prueba documental anexo). A esto debemos sumar la nota del medio de comunicación El Guardián titulada "Parque Viva reconoció problemas de caos vial desde el 2017 y esperó hasta el 2021 para buscar solución", donde una funcionaria del Parque Viva acepta que los eventos masivos repercuten de manera negativa en el flujo vehicular propio de la zona, y que en un evento del 6 de junio de 2017, donde se convocaron 18 mil personas, un choque colapsó todo el sector de la Guácima de Alajuela, lo que agravó la salidas de los asistentes al evento. (Ver legajo de prueba documental anexo). La necesidad de sentir persecución por parte de los recurrentes defendiendo los intereses de Grupo Nación llega al punto de asegurar, de acuerdo con el recurso de amparo, que la cancelación del proyecto del tren eléctrico impulsado por el anterior gobierno pasa por el hecho que una ramificación de la ruta pasaba por el sector de Parque Viva, de ahí la decisión que se tomó y que fuera anunciada. Este argumento es absolutamente falso. La decisión de no continuar con el proyecto fue pensada en el beneficio común de la ciudadanía, donde un proyecto mejor pensando y elaborado representaría mayores beneficios para todos. Grupo Nación, como un medio de comunicación serio, debería saber que las decisiones de alta trascendencia de nivel país, no pasan -únicamente- por los colones y beneficios que pueda recibir su empresa, sino que abarca mucho más, al pueblo costarricense, por ejemplo. Donde no ahondan en el alegato los recurrentes es que, de acuerdo con la nota publicada el 20 de agosto de 2020 por el medio de comunicación CRhoy.com, en el ejercicio de su libertad de prensa, el gobierno de turno y el grupo Nación firmaron un convenio que incrementaría el costo del tren eléctrico en casi 150 mil millones de colones, para que la línea férrea pasara por las inmediaciones del Parque Viva. (Ver legajo de prueba documental anexo). Al Grupo Nación siempre se le ha respetado el debido proceso. En primera instancia, se les otorgó la posibilidad de presentar un plan remedial (que no lo han hecho) y, por otra parte, han tenido la posibilidad de recurrir la resolución administrativamente, estando pendiente por resolver el recurso de apelación. No es cierto que la Administración haya clausurado definitivamente el recinto. El diario La Nación sigue operando y seguirá haciéndolo sin ningún tipo de injerencia por parte del Estado, eso no quiere decir que no se les va a exigir ajustarse a derecho cuando sea evidente y manifiesto que están operando de manera ilegítima y en detrimento de los derechos de los costarricense. No existe, en ninguna circunstancia, un ataque indirecto a la libertad de prensa; en ningún momento he ordenado a las autoridades sanitarias actuar de determinada manera, todas las decisiones se han tomado de acuerdo con parámetros técnicos actuando sobre la base de una denuncia presentada por la misma ciudadanía. Como costarricense y funcionario público, tengo la obligación y el derecho de pronunciarme enérgicamente ante situaciones que pongan en peligro la salud pública del pueblo; paradójicamente, es un derecho constitucional que me asiste de manifestar de manera libre mis pensamiento, y lo haré de la forma más vehemente cuando se trate de proteger los derechos de las familias costarricenses, y aún más cuando se trate de las población (sic) más vulnerables; recientemente, la Sala Constitucional se pronunció sobre el derecho de los servidores públicos de expresar sus opiniones, esto mediante el voto 09855-22, indica el citado documento: “(…) no hay que perder de vista que la libertad de expresión, así como la libertad de prensa, son elementos esenciales del sistema democrático, al extremo, que es uno de sus elementos nucleares. Así lo ha reconocido este Tribunal, la Corte Interamericana de Derechos Humanos y el Tribunal Europeo de Derechos Humanos en su amplia jurisprudencia. A partir de lo anterior, y siguiendo los precedentes de esta Sala es necesario concluir que se debe declarar con lugar el recurso de amparo. (...) Así las cosas, tomando en consideración las particularidades del cuadro fáctico de este caso, la apertura del procedimiento administrativo en sí mismo no constituye un medio razonable ni proporcional para exigir una responsabilidad ulterior, tal y como lo prescribe el numeral 29 de la Carta Fundamental y el artículo 73 de la Convención Americana sobre Derechos Humanos, sino, por el contrario, se constituye en un instrumento intimidante para la amparada y, de esa forma, se impide que exprese lo que piensa sobre el desempeño de una alta funcionaria del Poder Judicial, siendo mayores las restricciones a la libertad de expresión que los beneficios de la medida. Aunado a lo anterior, no se logró demostrar fehacientemente el interés público imperioso de abrir dicha investigación, y se constató que las críticas realizadas en el articulo de opinión se enmarcaron en lo que se espera de los habitantes de la República cuando ejercen la libertad de expresión, sea para criticar o exaltar la gestión de un funcionario público. Es importante indicar que los límites entre la potestad disciplinaria y la libertad de expresión de los funcionarios judiciales debe analizarse coso por caso (…)”. Asimismo, en el propio caso de Ríos y otros vs Venezuela, ante de la Corte Interamericana de Derechos Humanos, al que hace referencia los recurrentes y que contradice su propia posición, se menciona que el caso encuentra relación con el informe de alcances y conclusiones No. 119/06 de 26 de octubre de 2006, al indicar que: “(…) la mayoría de los pronunciamientos anexados “(…) aunque pueden tener un contenido fuerte y critico que incluso puede ser valorado como ofensivo, constituyen expresiones legitimas de pensamientos y opiniones sobre las formas particulares que puede tener un medio de comunicación de ejercer el periodismo que se encuentran protegidas y garantizadas bajo el artículo 13 de la Convención Americana y la Comisión no encuentra que constituyan violación alguna de ese instrumento. " En este punto, resulta fundamental traer a colación la Declaratoria de Chapultepec, propiamente el principio noveno, donde bien se señala "que la credibilidad de la prensa está ligada al compromiso con la verdad, a la búsqueda de precisión, imparcialidad y equidad, y a la clara diferenciación entre los mensajes periodísticos y los comerciales. El logro de estos fines la observancia de los valores éticos y profesionales no deben ser impuestos. Son responsabilidad exclusiva de periodistas y medios. En una sociedad libre la opinión pública premia o castiga." Del párrafo anterior resulta inevitable cuestionarse si Grupo Nación está actuando ajustada a este precepto, y si una vez analizados todos los criterios de las entidades especializadas, la credibilidad y compromiso con la verdad no está entredicho. En conclusión, puedo afirmar que no se está ejerciendo ninguna clase de censura, ni directa, ni indirecta contra Grupo Nación; el medio de comunicación continúa operando de manera normal, informando al pueblo costarricense de acuerdo con su línea editorial, y esta garantía nunca será trasgredida. El derecho que los recurrentes alegan como violentado no encuentra sustento en la realidad como se ha demostrado, por lo que el recurso de amparo debe ser declarado sin lugar en todos sus extremos (…)”. Solicita que se declare sin lugar el recurso planteado.
5.- Por escrito aportado a la Sala el 17 de agosto de 2022, el recurrente González Rodicio se refirió al informe rendido por las autoridades recurridas. Alude a la premura con la que se tramitó, el 5 de julio de 2022, la presunta denuncia formulada en contra de Parque Viva, ante diversas instancias y en menos de seis horas (sea, desde presuntamente las 8:00 hrs. y las 13:50 hrs.). Sobre este punto en particular aduce expresamente lo siguiente: “(…) 1 -En la copia del expediente aportado por los recurrentes, folio 2, figura el formulario de denuncia anónima recibido a las 12:41 del 5 de julio en Alajuela. No obstante, si nos dejamos guiar por el Oficio en que la Ministra la traslada a la Dra. Karina Garita Montoya, Directora Regional, la denuncia fue recibida en San José, el mismo 5 de julio. NO podemos saber la hora, porque el documento no tiene sello de recibido en las oficinas centrales del Ministerio, contrario a las normas usuales de recepción y manejo de documentos en la administración pública, pero no pudo ser presentada antes de las 8 am., porque a esa hora abren las oficinas. 2- Entre las 8 am, suponiendo que el denunciante estaba ahí cuando se abrieron las puertas, y las 12:24:14 cuando la señora Ministra solicita criterios técnicos urgentes a los jerarcas del Ministerio de Obras Públicas según el oficio MS-DM-5754-2022 visible a folio 26 de la copia del expediente aportado por los recurridos, hubo tiempo para formular y recibir la denuncia, decidir que era de atención urgente por la señora Ministra en persona, elevarla a su despacho y redactar el oficio enviado al MOPT. No parece haber habido tiempo para estampar un recibido que nos permita saber la hora de presentación de la denuncia para aquilatar la verdadera celeridad de los trámites, que quizá sea mucho mayor. 3- En la copia del expediente aportado por los recurridos, folio 1, figura el oficio MS-DM-5756-2022 firmado electrónicamente el 5 de julio a las 12:38:24 mediante el cual la Ministra traslada el formulario de denuncia a la Dra. Karina Garita Montoya, Directora Regional. Eso ocurre 2 minutos y 36 segundos antes del recibido estampado en el formulario en Alajuela. Lo más extraordinario es que la Dirección Regional Central Norte, que comprende Alajuela y Heredia, está en esta última Ciudad, desde donde sería imposible el traslado físico del documento en un par de minutos. Si el traslado fue electrónico, también se hizo en tiempo récord. En 2 minutos y 36 segundos se recibió el correo electrónico, se leyó el contenido, se despachó a Alajuela donde se imprimió la denuncia y se le puso un recibido físico que habría sido innecesario si la ruta electrónica hubiera quedado documentada. Si la celeridad con que al parecer ahora se tramitan las denuncias anónimas hubiera aconsejado enviar copia del documento a Alajuela mientras se notificaba a la jerarca en Heredia, irrespetando las cadenas de mando, cabe preguntarse por qué en el expediente figura como única copia —por lo que debemos entenderla como Original la que tiene el recibido de Alajuela. 4- En la copia del expediente aportado por los recurridos figura el ya citado Oficio MS-DM-5754-2022 firmado el 5 de julio a las 12:24:14 mediante el cual la Ministra solicita criterios técnicos urgentes a los jerarcas del MOPT, más de 14 minutos antes del traslado de la denuncia anónima a la Dirección Regional, en Heredia, y casi 17 minutos antes de recibida la denuncia en Alajuela. 5- En la copia del expediente aportado por los recurridos, folio 19, figura el acta de inspección firmada a las 13:50 del 5 de julio en Parque Viva. Es decir, entre la recepción de la denuncia en Alajuela y el fin de la inspección en el sitio habrían transcurrido 69 minutos. Aparentemente, los inspectores estaban listos, a la hora de almuerzo, para salir como un relámpago hacia La Guácima instantes después de recibida la denuncia anónima en el centro de Alajuela y ejecutar su tarea a una velocidad extraordinaria, desplazándose por todos los rincones del parque (…)”. Menciona que, en su informe, la Ministra de Salud da a entender que, en virtud de la inspección realizada por autoridades del Área Rectora de Salud de Alajuela 2 el 5 de julio de 2022, se procedió posteriormente a solicitar criterio al MOPT. Sin embargo, señala que ese criterio había sido solicitado casi una hora y media antes de concluida dicha inspección. Agrega que el informe oficial de los inspectores de Alajuela 2 (donde se recomienda trasladar la denuncia al MOPT para que valoren las condiciones denunciadas de su competencia), fue firmado fuera de horas de oficina, el propio 5 de julio de 2022, a las 17:26:59 hrs. (cuando habían pasado más de cinco horas desde que la Ministra de Salud había pedido criterios técnicos urgentes al MOPT). Sobre este último aspecto, señala expresamente lo siguiente: “(…) No sabemos a qué hora fue recibida la denuncia ni cómo llegó al despacho de la Ministra sin pasar el proceso habitual de recepción de documentos Es una hoja que cualquiera pudo haber llenado en cualquier momento, pero desató una actividad extraordinaria. Unas horas de la mañana del 5 de julio bastaron para desplegar todas las actuaciones registradas en los Oficios. ¿Qué trasladó la Ministra al despacho de la Dra. Ramos, en Heredia, si 2 minutos y 36 segundos después se le estaba estampando el recibido a la denuncia en Alajuela? ¿Por qué es esa la única constancia de recibido en el formulario de la denuncia y por qué figura únicamente ese formulario en el expediente? ¿Para qué hizo la Ministra el traslado a Heredia y para qué se envió la denuncia a Alajuela si ya se había consultado al MOPT sobre las vías aledañas a Parque Viva y se sabe que el Ministerio de Salud no tiene jurisdicción sobre esa materia? ¿Cómo llegaron con tanta celeridad los inspectores de Alajuela a Parque Viva? Esta crónica de lo sucedido en menos de seis horas (quizá mucho menos, dependiendo de la hora de presentación de la denuncia) en tres sedes del Ministerio de Salud y las instalaciones de Parque Viva, precede al resto de la frenética actividad que culminó con la suspensión de los permisos sanitarios. No es así como se tramitan las denuncias, especialmente anónimas, en ningún sector de la administración pública. La arbitrariedad, el ensañamiento y la desviación de poder no admiten duda (…)”. De otra parte, indica que, como parte de la costumbre de pedir a las instituciones públicas documentos para justificar a posteriori las arbitrarias actuaciones en este caso, el Instituto Nacional de Vivienda y Urbanismo, semanas después del cierre, emitió un informe de irregularidades presuntamente cometidas hace ocho o nueve años. Menciona que la Municipalidad de Alajuela lo desmintió ese mismo día, pero eso no importó para que el Presidente lo presentara como parte de su informe rendido a la Sala. Sostiene que cada uno de los argumentos señalados en el informe por el INVU carecen de veracidad y, en ese particular, afirma lo siguiente: “(…) 1-Según el INVU, los permisos municipales de uso de suelos irrespetan el plan regulador. Como bien dijo Municipalidad de Alajuela en comunicado oficial del 3 de agosto de 2022, el artículo 60 del Plan Regulador Urbano dispone que si pasados cinco años desde la publicación de dicho plan la Municipalidad no adquiere los terrenos destinados a zonas verdes, éstos adquieren la zonificación cercana que menos afecte al usuario y eso fue lo que sucedió. Los usos de suelo, autorizados Oportunamente, cumplen a cabalidad con el Plan Regulador vigente, Se aportan como Prueba # 1. Como consta en los usos de suelo autorizados por la Municipalidad de Alajuela en junio del año 2013, la zonificación de la propiedad donde se ubica Parque Viva (folio real matrícula 198873-000, partido de Alajuela) era una zona clasificada como residencial de media densidad. 2- Según el INVU, la finca donde está Parque Viva se ubica en una zona verde y no en una sub zona residencial de mediana densidad, como se indicó en la constancia de uso de suelo emitida por la Municipalidad de Alajuela para emitir los permisos de construcción. Falso, según lo acabamos de explicar y probar. La verdad no solo la acreditan los usos de suelo debidamente emitidos, sino también la normativa del Plan Regulador. No existe ningún argumento para poner en duda la validez de los usos de suelo otorgados a Parque Viva. (Se aportan como prueba los usos de suelo aprobados) 3- Según el INVU, la viabilidad ambiental fue otorgada para mejoras en el Autódromo La Guácima. En ningún momento se desprende del trámite ante Setena que la actividad a desarrollar fuera un campo ferial, lo que evidencia la tramitación separada de los permisos para obviar requerimientos mínimos. La afirmación es absolutamente falsa, para comprobarlo, basta la lectura de la resolución que otorga la viabilidad al proyecto. Esa resolución, aportada como Prueba #2, fue emitida por la Secretaria Técnica Nacional Ambiental SETENA, # 3088-2013 de fecha 19 de diciembre del 2013, en el Proyecto entonces conocido como "Mejoras al Autódromo La Guácima". La cláusula 5 del por tanto enumera las obras a realizarse en lo que era el Autódromo La Guácima La minuciosa descripción general del proyecto aprobado es la recogida en la resolución número 3088-2013 de Setena, adjunta como prueba. Esas fueron las obras autorizadas y esas fueron las Obras construidas, Como debería ser obvio, SETENA otorga viabilidad ambiental a las obras, no al nombre comercial presente o futuro. En aquel momento, Grupo Nación no se había decidido por la denominación Parque Viva y para identificar el proyecto utilizó el nombre de la actividad anterior. Mañana, podría decidir llamarlo de cualquier otra forma sin violentar la viabilidad ambiental concedida por Setena hace casi nueve años. El comunicado de la municipalidad dice al respecto "SOBRE LA VIABILIDAD AMBIENTAL, la resolución de aprobación de la viabilidad ambiental revisada por la Municipalidad de Alajuela para la tramitación del permiso de construcción del Proyecto Parque Viva, es correcta y describe las obras de manera general, mismas que coinciden con los planos presentados y debidamente aprobados por las otras instituciones de manera previa y por el Colegio Federado de Ingenieros y Arquitectos, según consta en la plataforma APC, El título del proyecto, es decir, el nombre con el que se conoce el mismo en el expediente, fue el que varió con el tiempo, lo que no afectó la naturaleza de lo analizado, y mucho menos la naturaleza de las obras (nombre de fantasía). No porque la empresa cambiara el nombre del proyecto, cambia la naturaleza de las Obras 4- Según el INVU, no hay registro de presentación ante el MOPT ni la Municipalidad de Alajuela de ningún estudio de impacto vial que mida el impacto del flujo vehicular asociado a las actividades de Parque Viva. Grupo Nación presentó oportunamente un estudio vial, entregado al Ministerio de Obras Públicas y Transportes para su revisión y análisis, Prueba de ello es el Oficio DGIT-ED-5935-2014 del 01 de diciembre del 2014 donde la Dirección General de Ingeniería de Tránsito emite formal aprobación del estudio (Ver prueba). 5- Según el INVU, el proyecto no contó con autorización del Cuerpo de Bomberos al ser aprobado. Falso. Los planos cuentan con la aprobación de las instituciones competentes, a saber el Cuerpo de Bomberos, el Ministerio de Salud y la Municipalidad de Alajuela. La aprobación de marras es visible en la plataforma digital de APV, donde se almacenan todos los documentos relacionados con desarrollos Inmobiliarios cuyos trámites son revisados por el Colegio Federado de Ingenieros y Arqutectos (sic) (Ver prueba). Al respecto, la municipalidad declaró: "La Municipalidad de Alajuela no sustituye en sus labores a otras instituciones las cuales pueden revisar el expediente y realizar las inspecciones respectivas en campo para el cumplimiento de estas Es importante indicar en todo caso que, según se observa en el expediente cada anotación fue subsanada por la institución respectiva lo que genero la aprobación por parte del CFIA. Según el expediente el contrato OC626867, con fecha del 13-11-2013, se determina que "el proyecto se aprueba con las observaciones institucionales subsanadas por el profesional". El involucramiento del Cuerpo de Bomberos en el desarrollo del proyecto queda demostrado con el oficio fechado 16 de junio del 2014 donde se acepta la eliminación de hidrantes y se pide subsanar defectos menores. 6- Según el INVU, no se solicitó ninguna mejora a la vialidad cantonal que da acceso a Parque Viva en ninguna etapa. Obvió con ello el gobierno local lo estipulado en el artículo 70 de la ley de planificación urbana que le permite solicitar contribuciones dado el impacto del proyecto sobre la vialidad del cantón. NO es cierto. Parque Viva desarrolló mejoras en media vía cantonal que corresponden a inversiones para la ampliación de asfaltado, construcción de cordón de caño, aceras, parada de autobuses y bahía para buses, entre Otras (…) El MOPT, mediante oficio DVT-DGlT-ED-2015-4056 acepta la finalización del proyecto de construcción y deja constancia de la recepción de la obras. (…)”. De otra parte, afirma que lo informado por el Presidente respecto al tren no es cierto. Sostiene que dicha autoridad sabe que no hay ningún ramal valorado en 150.000 millones para favorecer a Parque Viva, porque él mismo participó activamente de la estructuración financiera y presentación legislativa del proyecto. Indica que el convenio suscrito entre Grupo Nación e Incofer, se traduce en una carta de intenciones en virtud de la cual Grupo Nación se compromete a promover entre las empresas privadas la rehabilitación de la vía existente, para extender el servicio actual hasta el Coyol, donde laboran más de 32.000 personas en las zonas francas y empresas conexas de los alrededores. Narra que el beneficio para esas empresas y la atracción de inversiones, como lo ha dicho CINDE, es mejorar el acceso a la zona, especialmente para los trabajadores. Igualmente afirma que el beneficio para Parque Viva es también obvio, tanto como para la comunidad de La Guácima y sus alrededores. Aclara, entonces que “(…) Grupo Nación manifiesta su intención de buscar colaboración de las empresas que se podrían beneficiar de la rehabilitación de la línea de tren trazada por don Rafael Yglesias a fines del siglo XIX. Incofer, por su lado, podría extender su servicio sin invertir en la vía y recabaría valiosa información de la demanda del servicio. El convenio no hace referencia alguna a la fantasía incorporada al informe del señor Presidente y la única mención del tren eléctrico es para describirlo como una de las prioridades del gobierno y aclarar, acto seguido, que "en el tanto esos procesos avanzan, el Incofer manifiesta su interés en reaperturar servicios ferroviarios en los trayectos de la vía férrea que paulatinamente puedan irse rehabilitando, y que permitan promover la utilización de los servicios ferroviarios y arrojen importantes datos acerca de la demanda de los servicios ferroviarios (…)” y agrega que “(…) el señor Presidente ni siquiera necesita necesita (sic) ver el convenio para reconocer la falsedad incorporada a su informe. En el Alcance No. 112 a La Gaceta No. 110, 14 de mayo del 2020, página 83, aparece Su firma, como Ministro de Hacienda, en el proyecto de ley de aprobación del crédito del Banco Centroamericano de Integración Económica para financiar parte del tren eléctrico, En la página 9 del Alcance, adjunta a este escrito como prueba, se afirma: "En definitiva, el proyecto de Tren Eléctrico de Pasajeros consiste en una mejora sustancial del servicio de transporte ferroviario que discurre entre San José y la poblaciones de Alajuela, Belén y Paraíso en tres líneas respectivas, junto con la extensión desde Belén a Ciruelas y dos nuevos tramos desde Alajuela a Ciruelas y desde Ciruelas a El Coyol, respectivamente. En la misma página se lee, entre los Objetivos específicos del proyecto: "Diseñar y construir una nueva infraestructura ferroviaria en el GAM en los derechos de vía que actualmente posee el INCOFER..." "Más abajo, dice: "La inversión aproximada del proyecto es de US$1 550.000.000 (…) Como queda demostrado, el señor Presidente siempre ha sabido que el ramal de C150.000 millones nunca existió, que no hay un convenio entre Incofer y Grupo Nación que lo contemple, que el costo total era de USS1.550.000.000 (sin los supuestos C150.000 millones adicionales) y que la obra se desarrollaría sobre los derechos de vía existentes. Todo eso lo apoyó, además, con su firma y solemnes manifestaciones ante los diputados. (…)”. Afirma que el ánimo persecutorio y el propósito de cumplir la amenaza de campaña de destruir las estructuras que sustentan nuestro periodismo, apartándose de la verdad si es necesario, queda confirmado por las manifestaciones del informe relacionadas con el caso del tren que, inicialmente se citó como uno de los elementos de la presión destinada a limitar su libertad de expresión en los términos prohibidos por el artículo 13.3 de la Convención Americana sobre Derechos Humanos. En cuanto a lo manifestado por el Presidente respecto a los bonos comprados por el Estado, señala expresamente lo siguiente: “(…) En otra parte del informe, el señor Presidente expresa: "Señalan los recurrentes que ha puesto entredicho la capacidad financiera de Grupo Nación por el correcto proceder de un grupo de funcionarios de la CCSS de plantear una consulta ante la Sugeval… dada la preocupación que les generó los estados financieros reportados por Grupo Nación, y por movimientos de bienes inmuebles a un fideicomiso constituido por esta compañía. Nunca dijimos semejante cosa, pero ni el proceder de los funcionarios de la Caja fue correcto ni actuaron, sin más, por decisión propia La incorrección del procedimiento queda en evidencia con la respuesta de Sugeval que los manda a contactar directamente al emisor. La participación del Presidente en la gestión está demostrada por la grabación de la conferencia de prensa donde confesó haber sido él, personalmente, quien pidió al presidente ejecutivo de la Caja formular las preguntas a Grupo Nación mediante la Sugeval. El Presidente parece haberse dado cuenta del carácter inusitado de esa llamada y añadió que el funcionario respondió que ya lo estaban haciendo. Lo que sí dijimos los recurrentes es que esas actuaciones solo sirvieron para montar una conferencia de prensa donde, sin esperar la respuesta a las preguntas, el Presidente dio a conocer la gestión y cuestionó la solvencia de Grupo Nación con el evidente propósito de cumplir sus amenazas de campaña de castigar nuestro periodismo destruyendo las estructuras que lo posibilitan, Según dijo, con evidente intención de tocar la emotividad, las preguntas fueron formuladas en defensa de la pensión de "la abuelita". (Ver video en soporte de prueba electrónica). También dijimos que ninguna autoridad financiera ha expresado las mismas dudas, Grupo Nación mantiene la clasificación “A”, otorgada por la calificadora Fitch, y los activos de la empresa duplican sus pasivos. Los estados financieros son públicos, porque Grupo Nación está inscrito en bolsa, y en ellos consta la reserva de los recursos necesarios para cancelar el próximo vencimiento, luego de haber pagado puntualmente los dos anteriores y sus intereses. Como queda claro, dijimos, "el espectáculo no tuvo otro fin que perjudicar al Grupo Nación, poniendo en duda sus finanzas, para coartar nuestra libertad de expresión porque "la práctica habitual de inversionistas institucionales" es consultar directamente al emisor y valerse de la información publicada por mandato de ley" "Magistradas y magistrados, ¿Es una amenaza a la libertad de prensa preocuparse y plantear consultas por el destino de los fondos de miles de costarricenses invertidos en estos bonos?", pregunta el señor Presidente. Evidentemente no, pero cuando el mandatario que juró destruir las estructuras de nuestro periodismo monta una conferencia de prensa para publicitar, desde su alta tribuna, una consulta planteada a su solicitud mediante el procedimiento errado, que además no había tenido respuesta, lo cual no le impidió sembrar duda sobre las finanzas de la empresa y decir que todo es para defender la pensión de la abuelita, luego de calificar de "diplomático" al presidente de la Caja por afirmar que el emisor siempre ha pagado puntualmente, la respuesta es otra. Y cuando todas esas circunstancias se suman al cierre del Parque Viva dos días después, además de lo dicho sobre el tren y la posterior denegatoria sumarísima del remedio que Grupo Nación tiene planteado para el tránsito en la zona (…) no puede caber duda del cumplimiento de la amenaza anunciada desde la campaña. Vale señalar que al día siguiente de la conferencia sobre los bonos, el director ejecutivo de Grupo Nación, Pedro Abreu, dio amplias explicaciones públicas y mencionó el papel de Parque Viva en el flujo de la empresa. un día después, el gobierno cerró precipitadamente Parque Viva (…)”. Agrega que es una falacia el supuesto objetivo de La Nación de pretender estar por encima de la ley, según los términos señalados por el Presidente. Afirma que esto nunca fue alegado y, tanto Grupo Nación como ellos como individuos, se encuentran sometidos a las leyes. Indica que no pretenden que se realice una excepción odiosa o antidemocrática. Señala que, en este caso, se dio una desviación de poder para limitar indirectamente la libertad de expresión, cumpliéndose así con la amenaza girada en campaña, a la cual, aclara, el informe presidencial no hizo referencia en ningún momento. Agrega, respecto a la falacia de los alegatos sobre el cumplimiento del deber de proteger intereses sociales con el cierre de Parque Viva que “(…) NO es que los recurrentes pretextamos la libertad de expresión para eximir a Grupo Nación de cumplir la ley, es que el señor Presidente y la señora Ministra de Salud pretextan el cumplimiento del deber para materializar el propósito de silenciarnos expresado en la campaña electoral y debidamente documentado. Esa es, precisamente, la definición de desviación de poder. Como es evidente a partir de su arbitrariedad, precipitación, ensañamiento, carácter discriminatorio y empleo propagandístico, las medidas adoptadas no persiguen la satisfacción de intereses públicos, sino la de intereses espurios consistentes en represaliar a un medio de información, amenazarlo e intimidarlo para que no ejerza libremente su derecho a informar. Este el verdadero fin que tienen los actos administrativos adoptados. Nada tienen que ver con defender la pensión de la abuelita, impedir el ramal de 150.000 millones de colones del 'trencito", o mejorar el acceso de cuerpos de socorro a una zona donde el colapso vial se produce todos los días, como en tantos otros lugares, al menos dos veces al día, con concierto o sin él, según testimonio de los residentes y experiencia de cualquiera que haya transitado por el sitio (…)”. Igualmente, se refiere a la falacia del plan remedial. Indica al respecto que, tanto el señor Presidente como la señora Ministra de Salud, insisten en sus informes en el carácter temporal de la suspensión de permiso sanitario de funcionamiento de Parque Viva y la exigencia de un plan remedial "que abarcara la solución a la problemática con los accesos" y añaden que Grupo Nación no lo ha presentado. Sostiene que la temeridad del argumento resulta obvia cuando se constata que los informes de inspección no encuentran problema con los accesos al parque (que son cuatro, no dos como dice el informe de la señora Ministra), ni con las instalaciones. El problema son las calles fuera del parque y ya se hizo referencia sobre la permisividad del Estado frente al desarrollo urbanístico de la zona, sin proveer la infraestructura necesaria. Argumenta que buena parte de ese desarrollo se produjo después de la instalación de Parque Viva y décadas después del Autódromo La Guácima donde se celebraban, con todos los permisos, actividades masivas, incluso mayores. Afirma que no le corresponde a Grupo Nación construir la infraestructura necesaria para adecuar las vías al desarrollo actual y futuro, pero tiene planteado un plan para hacerlo por su cuenta. La iniciativa tiene las cartas de no objeción necesarias y está pendiente de aprobación por las instancias que el mandatario ha criticado en otros casos por lentitud. Reitera que, pese a lo anterior, el mandatario, en conferencia de prensa del 13 de julio, sin ningún estudio y contra los criterios ya externados por los expertos, anunció su oposición a la idea con la absurda noción de que colapsaría la Ruta 27 "arriesgando todo el Occidente, Grecia, Naranjo, Atenas, San Carlos, todo Guanacaste y todo Puntarenas." Señala expresamente que “(…) Así las cosas, el problema es externo a Parque Viva, pero la solución que plantea Grupo Nación es, de pronto, inaceptable y el único plan remedial es adentro de las instalaciones, donde el Ministerio de Salud no encontró ningún problema, pero solo así puede exigir un plan remedial que haga inviable la operación del parque mediante un drástica (sic) reducción del aforo. Ese es el verdadero objetivo. La posición es tan irracional, que el señor Presidente sostiene una distinta en su informe, "Cabe recordar que, las autoridades han exigido a otros grupos comerciales, la construcción de accesos de ingreso a centros comerciales de gran envergadura, cuando se proyecta que la entrada en operación de estos recintos representará un aumento en el flujo vehicular de la zona en que fueron construidos, ejemplos de esto son los casos de EPA en Desamparados y City Mall en Alajuela, quienes realizaron cuantiosas inversiones para ajustarse a los requerimientos de entrada y salida de vehículos", dice el informe. ¡Estupendo! Obviemos señalar que los ejemplos son de establecimientos a los que se les exigieron las obras de acceso para permitir la construcción. Ese no es el caso de Parque Viva, construido hace más de ocho años con todos los permisos necesarios. Obviemos, también, que la misma exigencia no se le hizo a los establecimientos y proyectos habitacionales que llegaron a La Guácima después. Grupo Nación, lejos de situarse por encima de la ley, pretende el mismo trato, si bien extemporáneo y discriminatorio en relación con otros establecimientos de la zona. Quiere la oportunidad de realizar "cuantiosas inversiones para ajustarse a los requerimientos de entrada y salida de vehículos", pero el Presidente lo considera, al mismo tiempo, necesario en el informe a la Sala e imposible en el podio de sus conferencias de prensa. Las contradicciones son tan evidentes que el señor Presidente presenta como prueba una noticia de un medio afín a su administración con el título "Parque Viva reconoció problemas de caos vial desde el 2017 y esperó hasta el 2021 para buscar solución". La solución a la cual se refiere la publicación es la construcción del moderno acceso a cuatro carriles que el señor Presidente declara imposible en conferencia de prensa y, al mismo tiempo, exige, según él, para aplicar la ley igual que se hizo con EPA en Desamparados y City Mall en Alajuela. No obstante su declarada oposición al acceso, cita una noticia que reprocha a Grupo Nación haber esperado cuatro años para resolver el problema de infraestructura pública. La noticia es imprecisa en lo relativo a fechas. Como se constata en el texto, La Nación informó sobre el acceso el 27 de Abril del 2021. Eso no significa que esperara hasta el 2021 para procurar una solución. Para esa fecha, los diseños ya estaban listos y la compra de terrenos se había iniciado a inicios del 2020. El "master plan" diseñado con ayuda de asesores estadounidenses, se hizo en el 2019, pero no hay motivo para detenerse en la falsedad de la espera hasta el 2021 "para buscar solución". Si lo damos por cierto, tenemos que Grupo Nación planteó un "plan remedial" no solo para Parque Viva sino para la comunidad entera, un año antes de la suspensión de los permisos de funcionamiento. ¿Qué espera el gobierno para la supuesta aplicación de la ley como se hizo "con EPA en Desamparados y City Mall en Alajuela"? "¿Qué espera para actuar con la misma urgencia aplicada a "Evolution Free Zone"? En ese caso, el presidente afirmó, en conferencia de prensa: "Voy a contar una anécdota. una de las empresas más importantes del mundo, literalmente: quiere construir en Costa Rica 80,000 metros cuadrados de planta para contratar a 5.000 costarricenses en la zona occidental, en puestos de altísimo valor agregado y salarios. ¡24 meses pegados para ver si les dejaban hacer una salida de la ruta 1 hacia esa planta enorme!" (Ver noticia titulada "Los mandos medios a cada rato se atraviesan", La Nación, 4 de junio 2022. Ya para el 18 de junio, La Nación titulaba: "Zona franca en Grecia iniciará obras después de 24 meses varada por rechazo de acceso a ruta 1". Luego de severas críticas públicas a la Comisión de Carreteras de Acceso Restringido y de su intervención por el Ministro de Obras Públicas y Transportes, el problema se resolvió. La zona franca atraerá 5,000 personas diarias en su primera etapa, pero el plan es crear 18.000 empleos. Ese es, por día, el número de personas que excepcionalmente asiste, un par de veces al año, a un concierto en Parque Viva. La noticia citada por el señor Presidente como prueba solo demuestra que Grupo Nación está dispuesto a resolver por su cuenta un problema de la comunidad que el Estado no ha querido solucionar, que la empresa ha sido transparente en su valoración de la vía pública circundante y que el "plan remedial" está planteado desde el 2021. Pero el verdadero propósito del "plan remedial" exigido por el gobierno, como dijimos en el recurso, es "remediar" el periodismo crítico mediante una desviación de poder para ejercer presión sobre la empresa, consecuente con la amenaza de campaña, y no enfrentar el problema de los embotellamientos (…)”. Reitera que son un grupo de profesionales a quienes se les pretenden limitar la libertad de expresión mediante acciones arbitrarias contra las “estructuras” que sustentan su libre ejercicio del periodismo, tal y como lo prometió el mandatario. Señala que se trata de un ataque indirecto, el cual prohíbe el artículo 13.3 de la Convención y la jurisprudencia de la Corte Interamericana. Afirma que nunca se ha dicho que el pago de sus salarios depende de Parque Viva, como se afirmó en el comunicado de prensa de la Presidencia. Menciona que, para constatar todo lo dicho, basta leer el recurso, pero conviene señalar la insistencia en la supuesta demostración de que "dependen de este lugar para subsistir financieramente". Aduce que la infundada obsesión con las finanzas de la empresa se extiende hasta la interpretación de lo que no han dicho. Indica que “(…) si los deseos transparentados por el pasaje resultaran ciertos, el cierre de Parque Viva pondría fin al molesto periodismo que hacemos los recurrentes y que motivó la amenaza proferida en campaña (…)”. Agrega que, como si se tratara de una autoridad incontestable, el Presidente citó al presidente del Colegio de Periodistas para rebatir que estemos ante un abuso contra la libertad de expresión. Señala que lo único que demuestra este apartado del informe es que el presidente del referido colegio, al cual no están afiliados gran cantidad de periodistas y nunca ha condenado los conocidos ataques del señor Presidente a la prensa "canalla", tampoco quiere contradecirlo en esta materia o ignora las disposiciones de la Convención Americana y la jurisprudencia de la corte hemisférica Afirma que se debe tomar en cuenta que seis expresidentes del ciado colegio se han manifestado con posiciones contrarias a lo dicho por el actual presidente de esa corporación. En resumen, señala expresamente que “(…) El informe rendido a la sala por el señor Presidente carece de fundamentos fácticos; se basa en una serie de informes que, lejos de haber servido como base legítima para el cierre del Parque Viva, se utilizaron con posterioridad para justificarlo; distorsiona con frivolidad incompatible con los estrados judiciales una serie de hechos, y, por tanto, en ningún momento justifica la acción ante la que nos hemos amparado los recurrentes. Lo anterior demuestra sin asomo de duda razonable que estamos, simple y llanamente, ante un uso ilegitimo de las potestades administrativas del Estado para vulnerar el ejercicio de un derecho fundamental, como es la libertad de expresión Esto, a la vez, constituye una vulneración de normas elementales de la convivencia democrática (…)”.
6.- Por resolución de las 12:55 hrs. de 1° de septiembre de 2022, el Magistrado Instructor de este asunto le solicitó a la Ministra de Salud aportar ante la Sala una copia física y legible de la documentación enviada junto con el informe, a saber, 164 folios relacionados con la denuncia formulada en contra de Parque Viva y la orden sanitaria finalmente girada.
7.- El 5 de septiembre de 2022, la Ministra recurrida cumplió lo requerido mediante resolución de 1° de septiembre de 2022.
8.- Por escrito aportado a la Sala el 13 de octubre de 2022, Joselyn María Chacón Madrigal, en su condición de Ministra de Salud, señala expresamente lo siguiente: “(…) ADICIÓN A LAS CONCLUSIONES: Solicito se tenga por demostrado que las autoridades del Área Rectora de Salud de Alajuela 2, en atención a denuncia realizada en fecha 05 de julio del 2022, al ser las 13:50 horas del 05 de julio de 2022, llevaron a cabo una inspección físico-sanitaría al inmueble de cita “Parque Viva”, ubicado en La Guácima de Alajuela, incluyendo la valoración correspondiente a sus vías de acceso, desprendiéndose del informe N°MS-DRRSCN-DARSA2-1641-2022 en lo que interesa, que se hicieran traslado de la denuncia al Ministerio de Obras Públicas y Transportes, para que estos valoraran las condiciones denunciadas, por ser competencia de esa dependencia (calles en mal estado, un solo carril por sentido vial, dificultad de acceso de cuerpos de emergencias por vía pública, entre otros). Teniendo como efecto lógico la elaboración del oficio N°MS-DM-5754-2022, por parte de este Despacho Ministerial y con carácter de urgencia, se solicitó al Sr. Luis Esteban Amador Jiménez, en su condición de Ministro de Obras Públicas y Transportes, y a la señora Laura Ulloa Albertazzi, Viceministra de Transportes y Seguridad Vial, criterio técnico en relación con las vías de acceso y colindantes al recinto comercial privado, denominado “Parque Viva”, con el fin de dilucidar aspectos estructurales y de seguridad humana, específicamente en cuanto a los aspectos de capacidad que tienen sus vías de acceso, entre otras. Como resultado de lo anterior mediante memorial N°DVTSV-2022-0341 de fecha 06 de julio del 2022, la Licda. Laura Ulloa Albertazzi, Viceministra de Obras Públicas y Transportes, remite el oficio N°DVT-DGIT-2022-339, suscrito por el Ing. Junior Araya Villalobos, funcionario de la Dirección General de Ingeniería de Tránsito, el cual emite criterio indicando en lo que interesa, para la atención de este asunto, lo siguiente: “…la calle Rincón Chiquito es una calle urbana de dos carriles -un carril por sentido de circulación-, donde ese tipo de vía podría alcanzar una capacidad máxima alrededor de los 1.200 vehículos por hora por sentido y, de acuerdo con las condiciones de la vía, un estudio detallado podría arrojar una capacidad menor a la mencionada, siendo que se puede asegurar que en el momento en que se realizan los eventos de concentración masiva, la vía de acceso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado. Refiere que, bajo un escenario conservador, sin considerar los estacionamientos periféricos al parque, ni la utilización de la pista de carreras, se tendría una generación de 4.900 vehículos por hora, lo cual representa más del doble de lo que la vía podría soportar…” No está de más señalar que el Comité Asesor Técnico de Concentraciones Masivas, mediante Acta N°28643-S-MOPT-SP del 07 de Julio de 2022, indica a esta representación Ministerial, lo que sigue: “…se acuerda proponer a las autoridades correspondientes una Orden Sanitaria de Cierre para eventos masivos, del establecimiento denominado Parque Viva, y las medidas que correspondan con otras autoridades pertinentes. Debe solicitarse un plan remedial para las condiciones denunciadas, el cual debe ser puesto en conocimiento de este Comité Asesor técnico de Concentraciones Masivas…” Siendo así, ante observaciones y recomendaciones de especialistas en la materia, en fecha 08 de julio de 2022, según se mencionó ampliamente en Informe N°MS-DM-AU-3985-2022, las autoridades del Área Rectora de Salud de Alajuela 2, giraron la orden sanitaria N°MS-DRRSCN-DARSA2-OS-0368-2022, todo bajo el principio precautorio y en atención a los oficios: MS-DM-55814-2022, mediante el que se remite el Informe Técnico DVT-DGIT-2022-339, emitido por la Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes, el oficio MS-DM-5838-2022 mediante el que se remite el Acta N°28643-SMOPT-SP del Comité Asesor Técnico en Concentraciones Masivas, donde se ordenó, en lo pertinente, lo que sigue: “…la suspensión temporal del Permiso Sanitario de Funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 (parque temático, autódromo, anfiteatro, eventos deportivos, culturales, ferias y exposiciones varias) hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los Criterios técnicos emitidos por el Benemérito Cuerpo de Bomberos de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud… Así mismo, su representada deberá presentar un plan remedial que abarque la solución a la problemática de los accesos y el consecuente riesgo a la Seguridad y Salud Publica ante la realización de Actividades de Concentración Masiva, y la generación de una eventual emergencia en dichas actividades…” Adicional a esto es preciso recordar que existió informe N°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Jim Batres Rodríguez, Sub-Gerente operativo de la Cruz Roja Costarricense; informe N°CRC-GG-OF-012-2022 del 12 de Julio de 2022, suscrito por el señor José David Ruiz Piedra, Gerente General de la Asociación Cruz Roja Costarricense; Informe técnico N°CBCR-027150-2022-OPOB-00741 del 10 de Julio de 2022, suscrito por el señor Alexander Araya Mico, de Operaciones de Bomberos; Informe N°911-DI-2022-2202 del 11 de julio 2022, suscrito por la Señora María Elena Amuy Jiménez del sistema de Emergencia 9-1-1, donde la Cruz Roja Costarricense, donde en síntesis se afirma que: “…las vías públicas de la comunidad de La Guácima y zonas aledañas resultan insuficientes para el rápido acceso de unidades de emergencia, situación que se puede agravar ante eventos de concentración masiva, los cuales pueden verse afectados por el alto congestionamiento vial y que es ocasionado por la gran cantidad de vehículos que se ubican en los costados de la vía, generando atrasos de hasta 30 minutos para su llegada, donde atienden accidentes de tránsito, incendios estructurales y casos médicos, donde en todos los casos está en riesgo la vida de las personas, por lo que se requiere de un acceso rápido y oportuno de las unidades de rescate especializadas…” explicado con detalle mediante informe MS-DM-AU-3985-2022. Detalles importantes como los informes también suministrados por parte del 9-1-1 donde efectivamente existen un sin número de denuncias que son ingresadas al sistema, en mayor número cuando se están llevando a cabo en el lugar eventos de concentración masiva, así como por vehículos mal estacionados, aglomeración de personas, embotellamiento de vehículos, riñas por no poder salir, colisiones, quejas por escándalos ocasionados por actividades propias del “Parque Viva”. Por parte de esta representación Ministerial se dio atención a todos y cada uno de los recursos presentados contra la Orden Sanitaria aquí denunciada, siempre atendiendo en tiempo y dentro del principio de legalidad exigido, no dejando duda que ante el mandato Constitucional y los miramientos y recomendaciones de las Instituciones involucradas, debiendo actuar de manera inmediata esta representación Ministerial en aplicación al marco normativo que la regula, todo en apego a la Misión y Visión de mejorar la calidad de vida y el desarrollo social de la población. ADICIÓN A LA PETITORIA: A la luz de los hechos manifestados y la prueba existente y presentada mediante el Informe N°MS-DM-AU-3985-2022 y el presente, respetuosamente solicito a la honorable Sala Constitucional, DECLARAR SIN LUGAR el presente recurso de amparo, pues resulta evidente de lo informado, que la suscrita en acatamiento con el mandato Constitucional y la aplicación del principio precautorio, no puede ni debe obviar las recomendaciones técnicas existentes y las denuncias presentadas ante este Ministerio, es por ello que al no violar ninguno de los derechos constitucionales que tienen los actores, y se actúa acorde a nuestra legislación, solicito de manera respetuosa se EXIMA DE TODA RESPONSABILIDAD A LA SUSCRITA MINISTRA DE SALUD, COMO AL MINISTERIO DE SALUD Y SE DECLARE SIN LUGAR EL PRESENTE RECURSO DE AMPARO (…)”.
9.- En la substanciación del proceso se han observado las prescripciones de ley.
Redacta el Magistrado Araya García; y,
CONSIDERANDO:
I.- OBJETO DEL RECURSO. El recurrente, en su condición de Director del Diario La Nación y otros periodistas de ese medio, acusan que el pasado 8 de julio de 2022 –a modo de materializar las amenazas giradas por el Presidente de la República públicamente semanas atrás en contra de dicho diario–, el Ministerio de Salud ordenó el cierre de Parque Viva (adquirido por el Grupo Nación S.A. para diversificar las fuentes de ingreso de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet), a través de un acto arbitrario y carente de todo sustento, lo cual, a su vez, representa una violación indirecta a la libertad de expresión y, por ende, contraviene lo dispuesto en el ordinal 29 constitucional y en el artículo 13.3 de la Convención Americana sobre Derechos Humanos.
II.- HECHOS PROBADOS. De relevancia para dirimir el presente recurso de amparo, se tienen por acreditados los siguientes:
A. HECHOS RELACIONADOS CON LA ORDEN SANITARIA GIRADA A PARQUE VIVA:
B. OTROS HECHOS DE INTERÉS:
III.- HECHOS NO PROBADOS. De relevancia para dirimir el presente recurso de amparo, se tienen por indemostrados los siguientes:
IV.- SOBRE LA LIBERTAD DE EXPRESIÓN. La libertad de expresión es uno de los pilares sobre los cuales está fundado el Estado de Derecho y comprende, tanto la garantía fundamental y universal de manifestar los pensamientos o las opiniones propias, como conocer los de otros. En otros términos, refiere a la libertad de buscar, recibir y difundir informaciones e ideas, ya sea oralmente o por escrito. Por esto se dice que la libertad de expresión se caracteriza por ser un derecho con una doble dimensión: una dimensión individual, consistente en el derecho de cada persona a buscar información y expresar los propios pensamientos, ideas e informaciones; y una dimensión colectiva o social, consistente en el derecho de la sociedad a procurar y recibir cualquier información, a conocer los pensamientos, ideas e informaciones ajenos y a estar bien informada. Sobre esta doble dimensión de la libertad bajo estudio, la Corte Interamericana de Derechos Humanos (en adelante Corte IDH), en el caso Herrera Ulloa vs. el Estado de Costa Rica (sentencia de 2 de julio de 2004), sostuvo lo siguiente:
“(…) 109. Al respecto, la Corte ha indicado que la primera dimensión de la libertad de expresión “no se agota en el reconocimiento teórico del derecho a hablar o escribir, sino que comprende además, inseparablemente, el derecho a utilizar cualquier medio apropiado para difundir el pensamiento y hacerlo llegar al mayor número de destinatarios”. En este sentido, la expresión y la difusión de pensamientos e ideas son indivisibles, de modo que una restricción de las posibilidades de divulgación representa directamente, y en la misma medida, un límite al derecho de expresarse libremente.
110. Con respecto a la segunda dimensión del derecho a la libertad de expresión esto es, la social, es menester señalar que la libertad de expresión es un medio para el intercambio de ideas e informaciones entre las personas; comprende su derecho a tratar de comunicar a otras sus puntos de vista, pero implica también el derecho de todos a conocer opiniones, relatos y noticias vertidas por terceros. Para el ciudadano común tiene tanta importancia el conocimiento de la opinión ajena o de la información de que disponen otros como el derecho a difundir la propia.
111. Este Tribunal ha afirmado que ambas dimensiones poseen igual importancia y deben ser garantizadas plenamente en forma simultánea para dar efectividad total al derecho a la libertad de expresión en los términos previstos por el artículo 13 de la Convención (…)”.
Por su parte, la Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos (Marco jurídico interamericano sobre el derecho a la libertad de expresión, diciembre 2009), se refirió a este derecho conforme los siguientes términos:
“(…) se trata de uno de los derechos individuales que de manera más clara refleja la virtud que acompaña –y caracteriza– a los seres humanos: la virtud única y preciosa de pensar al mundo desde nuestra propia perspectiva y de comunicarnos con los otros para construir a través de un proceso deliberativo, no solo el modelo de vida que cada uno tiene derecho a adoptar, sino el modelo de sociedad en el cual queremos vivir. Todo el potencial creativo en el arte, en la ciencia, en la tecnología, en la política, en fin, toda nuestra capacidad creadora individual y colectiva, depende, fundamentalmente, de que se respete y promueva el derecho a la libertad de expresión en todas sus dimensiones. Se trata entonces de un derecho individual sin el cual se estaría negando la primera y más importante de nuestras libertades: el derecho a pensar por cuenta propia y a compartir con otros nuestro pensamiento (…)”.
Nuestra Constitución Política garantiza la libertad de expresión y pensamiento en los artículos 28 y 29, los cuales señalan lo siguiente:
“ARTÍCULO 28.- Nadie puede ser inquietado ni perseguido por la manifestación de sus opiniones ni por acto alguno que no infrinja la ley.
Las acciones privadas que no dañen la moral o el orden públicos, o que no perjudiquen a tercero, están fuera de la acción de la ley.
No se podrá, sin embargo, hacer en forma alguna propaganda política por clérigos o seglares invocando motivos de religión o valiéndose, como medio, de creencias religiosas”.
“ARTÍCULO 29.- Todos pueden comunicar sus pensamientos de palabra o por escrito, y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca”.
En el ámbito internacional, la libertad de expresión ha sido consagrada en diversos instrumentos. En lo que respecta al sistema interamericano, el Pacto Internacional de Derechos Civiles y Políticos dispone en su artículo 19 lo siguiente:
“1. Nadie podrá ser molestado a causa de sus opiniones.
2. Toda persona tiene derecho a la libertad de expresión; este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
3. El ejercicio del derecho previsto en el párrafo 2 de este artículo entraña deberes y responsabilidades especiales. Por consiguiente, puede estar sujeto a ciertas restricciones que deberán, sin embargo, estar expresamente fijadas por la ley y ser necesarias para:
La Declaración Universal de Derechos Humanos en su ordinal 19 señala también:
“Todo individuo tiene derecho a la libertad de opinión y de expresión; este derecho incluye el de no ser molestado a causa de sus opiniones, el de investigar y recibir informaciones y opiniones, y el de difundirlas, sin limitación de fronteras, por cualquier medio de expresión”.
Por su parte, la Convención Americana sobre Derechos Humanos, en su artículo 13, consigna lo siguiente:
“1. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
2. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar:
3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.
4. Los espectáculos públicos pueden ser sometidos por la ley a censura previa con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2.
5. Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional”.
En el artículo IV de la Declaración Americana de los Derechos y Deberes del Hombre, se señala lo siguiente:
“Toda persona tiene derecho a la libertad de investigación, de opinión y de expresión y de difusión del pensamiento por cualquier medio”.
Asimismo, instrumentos internacionales de soft law han resguardado esta libertad. Así, la Declaración de Chapultepec (adoptada por la conferencia hemisférica sobre libertad de expresión celebrada en México, D.F. el 11 de marzo de 1994), en su primer principio refiere que:
“1. No hay personas ni sociedades libres sin libertad de expresión y de prensa. El ejercicio de ésta no es una concesión de las autoridades; es un derecho inalienable del pueblo”.
Por su parte, la Declaración de Principios sobre Libertad de Expresión (aprobada por la Comisión Interamericana de Derechos Humanos en octubre de 2000, en el 108 período ordinario), dispone lo siguiente:
“1. La libertad de expresión, en todas sus formas y manifestaciones, es un derecho fundamental e inalienable, inherente a todas las personas. Es, además, un requisito indispensable para la existencia misma de una sociedad democrática”.
En otro contexto, dentro del ordenamiento jurídico europeo, se destaca la Convención Europea sobre Derechos Humanos, que en su ordinal 10 precisa la titularidad universal de este derecho, conforme los siguientes términos:
“Libertad de expresión 1. Toda persona tiene derecho a la libertad de expresión. Este derecho comprende la libertad de opinión y la libertad de recibir o de comunicar informaciones o ideas sin que pueda haber injerencia de autoridades públicas y sin consideración de fronteras. El presente artículo no impide que los Estados sometan a las empresas de radiodifusión, de cinematografía o de televisión a un régimen de autorización previa.
2. El ejercicio de estas libertades, que entrañan deberes y responsabilidades, podrá ser sometido a ciertas formalidades, condiciones, restricciones o sanciones, previstas por la ley, que constituyan medidas necesarias, en una sociedad democrática, para la seguridad nacional, la integridad territorial o la seguridad pública, la defensa del orden y la prevención del delito, la protección de la salud o de la moral, la protección de la reputación o de los derechos ajenos, para impedir la divulgación de informaciones confidenciales o para garantizar la autoridad y la imparcialidad del poder judicial”.
Igualmente, la Carta de los Derechos Fundamentales de la Unión Europea, en su ordinal 11, cita lo siguiente:
“Artículo 11 Libertad de expresión y de información 1. Toda persona tiene derecho a la libertad de expresión. Este derecho comprende la libertad de opinión y la libertad de recibir o de comunicar informaciones o ideas sin que pueda haber injerencia de autoridades pœblicas y sin consideración de fronteras.
2. Se respetan la libertad de los medios de comunicación y su pluralismo”.
El derecho a la libertad de expresión ha sido ampliamente desarrollado en la jurisprudencia constitucional costarricense. Así, en la Sentencia No. 8196-2000 de las 15:08 hrs. de 13 de septiembre de 2000, el Tribunal Constitucional hizo referencia a las distintas formas en que se puede manifestar la libertad de expresión, conforme los siguientes términos:
“(…) IV.- De la Libertad de Expresión. La doctrina caracteriza a la libertad de expresión como una libertad presupuesto del ejercicio de otras libertades, que opera como legitimadora del funcionamiento del sistema democrático y de la eficacia de sus instituciones y que jurídicamente adopta pluralidad de formas. La vinculación más clara se da con la libertad de pensamiento, que es la condición previa e indispensable para la existencia de la libertad de expresión. En ejercicio de ambas libertades, el individuo puede escoger o elaborar las respuestas que pretende dar a todas aquellas cuestiones que le plantea la conducción de su vida en sociedad, de conformar a estas respuestas sus actos y, comunicar a los demás aquello que considera verdadero, sin censura previa. El ámbito de acción de esas libertades es muy amplio, pues comprende las manifestaciones de los individuos sobre política, religión, ética, técnica, ciencia, arte, economía, etc. La libertad de expresión, entonces, implica la posibilidad de que el sujeto transmita sus pensamientos (ideas, voliciones, sentimientos), y comprende la libertad de creación artística o literaria, la libertad de palabra, la libre expresión cinematográfica y también las manifestaciones vertidas por medio de la prensa escrita, la radio y la televisión, en tanto son medios de difusión de ideas. Así también, de la libertad de expresión se infiere el derecho de dar y recibir información y el derecho a comunicar con propósito diverso ya sea económico, político, recreativo, profesional, etc., sin que se impongan medidas restrictivas que resulten irrazonables. La libertad de expresión no sólo protege al individuo aislado, sino las relaciones entre los miembros de la sociedad y es por ello que tiene una gran trascendencia, ya que contribuye a la formación de la opinión pública. Es a su vez presupuesto de la libertad de prensa y de la libertad de información, pues de la libertad de expresión derivaron en sucesión histórica la libertad de prensa (o de escritos periódicos dirigidos al público en general) y la libertad de información, que es como hoy día se denomina a la libertad de expresión concretada en los medios de comunicación social. La libertad de información entonces, comprende la prensa escrita, oral, audiovisual y por su naturaleza, se encuentra relacionada con el derecho de crónica, de crítica, a la industria o comercio de la prensa y al fenómeno de la publicidad. Este aspecto ha adquirido mucha importancia en las últimas décadas, pues debido al alto costo de instalación y mantenimiento de los medios de comunicación colectiva, cuando son propiedad privada sólo pueden subsistir por el uso intensivo de la publicidad. Asimismo, existe el fenómeno del derecho social a la información, que reside precisamente en la comunidad y en cada uno de sus miembros, y que les da la posibilidad de ajustar su conducta a las razones y sentimientos por esa información sugeridos, para la toma de decisiones y a la vez cumple una función de integración, ya que unifica una multitud de opiniones particulares en una gran corriente de opinión, estimulando así la integración social (…)”. (El destacado no forma parte del original).
Asimismo, en ese mismo voto, la Sala Constitucional se pronunció sobre la prohibición de la censura previa, así como a los límites a los que está sometida la libertad bajo estudio:
“(…) V.- Una de las principales garantías que protegen la libertad de expresión es la prohibición de censura previa, ocurriendo así, que cualquier control debe darse a posteriori. Como censura previa entiende esta Sala aquel control, examen o permiso a que se somete una publicación, texto u opinión, con anterioridad a su comunicación al público, mediante el cual se pretende realizar un control preventivo de las manifestaciones hechas por un medio de comunicación colectiva, ya bien sea radiofónico, televisivo o impreso. Este concepto no sólo está plasmado en nuestra Constitución Política en el artículo 29, sino que también se incorporó en el Pacto de San José, cuyo artículo 13 inciso 2, dispone que el ejercicio de la libertad de expresión no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por ley y ser necesarias para asegurar ya sea el respeto a los derechos o a la reputación de los demás, o la protección de la seguridad nacional, el orden público o la salud o la moral pública. El artículo 29 de la Constitución Política consagra lo que parte de la doctrina califica como libertad de prensa, mientras que otra señala como libertad de información, y dispone:
"Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca." La Sala se refirió a este tema en la sentencia No. 1292-90 de las horas del de mil novecientos noventa y dijo:
"La libertad de expresión contenida en el artículo 29 de nuestra Constitución, permite la comunicación de pensamientos de palabra o por escrito y su publicación sin previa censura, garantía que refuerza el artículo 28 del mismo cuerpo normativo al prohibir la persecución por el ejercicio de esa libertad. No obstante, como todo derecho, esa libertad no es absoluta, y tiene su límite, de tal forma que el abuso que se haga de ella hará incurrir en responsabilidad a su autor, según la legislación que rige la materia." (…)
Ahora bien, a pesar de la gran libertad de que goza el individuo para formar opiniones basado en criterios personales y a su vez comunicarlas con toda amplitud, no debe pensarse que el ejercicio de estas libertades no tiene límite alguno, pues la libertad de expresión, al igual que el resto de las libertades públicas no es irrestricta: sus límites vienen dados por el mismo Orden Constitucional, y así lo consideró esta Sala en la sentencia N° 3173-93, al indicar que “II.- Los derechos fundamentales de cada persona, deben coexistir con todos y cada uno de los derechos fundamentales de los demás; por lo que en aras de la convivencia se hace necesario muchas veces un recorte en el ejercicio de esos derechos y libertades, aunque sea únicamente en la medida precisa y necesaria para que las otras personas los disfruten en iguales condiciones. Sin embargo, el principio de la coexistencia de las libertades públicas -el derecho de terceros- no es la única fuente justa para imponer limitaciones a éstas; los conceptos "moral", concebida como el conjunto de principios y de creencias fundamentales vigentes en la sociedad, cuya violación ofende gravemente a la generalidad de sus miembros-, y "orden público", también actúan como factores justificantes de las limitaciones de los derechos fundamentales. VI- No escapa a esta Sala la dificultad de precisar de modo unívoco el concepto de orden público, ni que este concepto puede ser utilizado, tanto para afirmar los derechos de la persona frente al poder público, como para justificar limitaciones en nombre de los intereses colectivos a los derechos. No se trata únicamente del mantenimiento del orden material en las calles, sino también del mantenimiento de cierto orden jurídico y moral, de manera que está constituido por un mínimo de condiciones para una vida social, conveniente y adecuada. Constituyen su fundamento la seguridad de las personas, de los bienes, la salubridad y la tranquilidad.” Asimismo, en la sentencia N° 3550-92 de las dieciséis horas de veinticuatro de noviembre de mil novecientos noventa y dos, este Tribunal desarrolló el tema de los límites legítimos a las libertades públicas y se refirió al principio de reserva de ley enfatizando que " solamente mediante ley formal, emanada del Poder Legislativo por el procedimiento previsto en la Constitución para la emisión de las leyes, es posible regular y, en su caso restringir los derechos y libertades fundamentales -todo, por supuesto, en la medida en que la naturaleza y régimen de éstos lo permita, y dentro de las limitaciones constitucionales aplicables (…)”. El destacado no forma parte del original).
Asimismo, más recientemente, en el Voto No. 9512-2020 de las 13:02 hrs. de 22 de mayo de 2022, este Tribunal dispuso lo siguiente:
“(…) V.- SOBRE LA LIBERTAD DE EXPRESIÓN Y LOS LÍMITES IMPONIBLES.- Este Tribunal ha entendido la libertad de expresión e información tal y como se dispuso en la sentencia No. 8109-98 de las 14:21 horas del 13 de noviembre de 1998, en la que se indicó lo siguiente: “...IV.- El Derecho de Información es aquel que permite a todas las personas recibir información suficientemente amplia sobre determinados hechos y sobre las corrientes de pensamiento y a partir de ellos escoger y formarse sus propias opiniones. Ello se logra a partir de dos vías diferentes: mediante la exposición objetiva de los hechos y por el pluralismo de las corrientes ideológicas. Asimismo, la Libertad de Expresión y de Pensamiento constituye un derecho fundamental que le permite al individuo dentro de un amplio ámbito de libertad, formular criterios personales de lo que éste considere adecuado o no, para responder a determinadas situaciones; permitiendo a la vez, poder comunicar sin censura previa, el resultado de su planteamiento ideológico. Este derecho tiene una gran trascendencia, ya que contribuye a la formación de la opinión pública, mediante los aportes intelectuales del individuo que ejerce opiniones o conceptos ya establecidos, o bien criticándolos. El ámbito de libertad es muy amplio, pues en él se comprenden todas las manifestaciones que realizan los individuos sobre política, religión, ética, técnica, ciencia, arte, economía, etc, por lo que de lo anterior se desprende que el ejercicio de la Libertad de Expresión y la Libertad de Pensamiento excluye la censura previa, ocurriendo que el control existente se da a posteriori y sobre los excesos sujetos al abuso de tales libertades, excluyéndose de tal prohibición los considerados espectáculos públicos.” Aunado a ello, en la misma sentencia se señaló que: “... La libertad de expresión forma parte de la libertad de información y en un Estado de Derecho, implica una ausencia de control por parte de los poderes públicos, y de órganos administrativos al momento de ejercitar ese derecho, lo que quiere decir que no es necesaria autorización alguna para hacer publicaciones, y que no se puede ejercer la censura previa, salvo que este de por medio la salud, la seguridad nacional, la moral y las buenas costumbres, como es el caso de los espectáculos públicos. El ejercicio de la libertad de expresión no puede ser ilimitado, ya que de ser así, los medios de comunicación ó cualquier sujeto de derecho, se podría prestar para propagar falsedades, difamar o promover cualquier tipo de desordenes y escándalos. Es por ello que la libertad de información trae implícito un límite, que funciona como una especie de autocontrol para el ciudadano que ejercita ese derecho, en el sentido de que si comete un abuso será responsable de él, en los casos y del modo en que la ley lo establezca. De allí que existan, en nuestro ordenamiento, figuras penales como la injuria, la calumnia o la difamación, que pueden ser la consecuencia de un abuso en el ejercicio del derecho de información. (…)
La Corte Interamericana de Derechos Humanos en el caso de Mauricio Herrera Ulloa contra el Estado de Costa Rica, en su sentencia del 2 de julio de 2004, sobre la libertad de expresión, indicó que la libertad de expresión es un medio para el intercambio de ideas e informaciones entre las personas; comprende su derecho a tratar de comunicar a otras sus puntos de vista, pero implica también el derecho de todos a conocer opiniones, relatos y noticias vertidas por terceros. Para el ciudadano común tiene tanta importancia el conocimiento de la opinión ajena o de la información de que disponen otros, como el derecho a difundir la propia. (…)
Ahora bien, la libertad de pensamiento y de expresión en una sociedad democrática, es un tema que como ya se ha mencionado supra, ha sido desarrollado en la Convención Americana, específicamente, en su artículo 13.2, que prevé la posibilidad de establecer restricciones a la libertad de expresión.
La jurisprudencia de la Corte Interamericana de Derechos Humanos ha señalado que, a través de la aplicación de responsabilidades ulteriores por el ejercicio abusivo del derecho de libertad de pensamiento y de expresión, no se debe de modo alguno limitar, más allá de lo estrictamente necesario, el alcance pleno de dichos derechos.
Se ha mencionado que la legalidad de las restricciones a la libertad de expresión fundadas sobre el artículo 13.2 de la Convención Americana, dependerá de que estén orientadas a satisfacer un interés público imperativo, por lo que se debe escoger aquella que restrinja en menor escala el derecho protegido.
Además, para que deban justificarse, es necesaria su ponderación sobre la necesidad social del pleno goce del derecho y no limitar el derecho tutelado más allá, de lo estrictamente necesario. Es decir, que la restricción debe ser proporcionada al interés que la justifica y ajustarse estrechamente al logro de ese objetivo, interfiriendo en la menor medida posible en el efectivo ejercicio del derecho a la libertad de expresión e información (ver en este sentido la Opinión Consultiva OC-5/85). (…)”. (El destacado no forma parte del original).
Por su parte, la Corte IDH en el caso Moya Chacón y otros vs. Costa Rica (sentencia de 23 de mayo de 2022), indicó lo siguiente:
“(…) b.3 Restricciones permitidas a la libertad de expresión y la aplicación de responsabilidades ulteriores en casos que haya afectación de la honra y de la dignidad en asuntos de interés público 71. El Tribunal recuerda que, con carácter general, el derecho a la libertad de expresión no puede estar sujeto a censura previa sino, en todo caso, a responsabilidades ulteriores en casos muy excepcionales y bajo el cumplimiento de una serie de estrictos requisitos. Así, el artículo 13.2 de la Convención Americana establece que las responsabilidades ulteriores por el ejercicio de la libertad de expresión, deben cumplir con los siguientes requisitos de forma concurrente: (i) estar previamente fijadas por ley, en sentido formal y material; (ii) responder a un objetivo permitido por la Convención Americana y (iii) ser necesarias en una sociedad democrática (para lo cual deben cumplir con los requisitos de idoneidad, necesidad y proporcionalidad).
72. Respecto a la estricta legalidad, la Corte ha establecido que las restricciones deben estar previamente fijadas en la ley como medio para asegurar que las mismas no queden al arbitrio del poder público. Para esto, la tipificación de la conducta debe ser clara y precisa, más aún si se trata de condenas del orden penal y no del orden civil. Sobre los fines permitidos o legítimos, los mismos están indicados en el referido artículo 13.2 y son (a) el respeto a los derechos o a la reputación de los demás, o (b) la protección de la seguridad nacional, el orden público o la salud o la moral públicas. Asimismo, las restricciones a la libertad de expresión deben ser idóneas, esto es, efectivamente conducentes para alcanzar la finalidad legítimamente permitida. En lo que respecta al análisis de necesidad, el Tribunal ha sostenido que, para que una restricción a la libre expresión sea compatible con la Convención Americana, aquella debe ser necesaria en una sociedad democrática, entendiendo por “necesaria” la existencia de una necesidad social imperiosa que justifique la restricción. En este sentido, la Corte deberá examinar las alternativas existentes para alcanzar el fin legítimo perseguido y precisar la mayor o menor lesividad de aquéllas. Finalmente, en relación con la proporcionalidad de la medida, la Corte ha entendido que las restricciones impuestas sobre el derecho a la libertad de expresión deben ser proporcionales al interés que las justifican y ajustarse estrechamente al logro de ese objetivo, interfiriendo en la menor medida posible en el efectivo goce del derecho. En ese sentido, no es suficiente que tenga una finalidad legítima, sino que la medida en cuestión debe respetar la proporcionalidad al momento de afectar la libertad de expresión. En otras palabras, “en este último paso del análisis se considera si la restricción resulta estrictamente proporcional, de tal forma que el sacrificio inherente a aquella no resulte exagerado o desmedido frente a las ventajas que se obtienen mediante tal limitación”. El Tribunal recuerda que estas restricciones tienen carácter excepcional y no deben limitar, más allá de lo estrictamente necesario, el pleno ejercicio de la libertad de expresión y convertirse en un mecanismo directo o indirecto de censura previa.
73. En este sentido, la Corte ha establecido que se pueden imponer tales responsabilidades ulteriores en tanto se pudiera haber afectado el derecho a la honra y la reputación. Así, el artículo 11 de la Convención establece, en efecto, que toda persona tiene derecho a la protección de su honra y al reconocimiento de su dignidad. La Corte ha señalado que el derecho a la honra “reconoce que toda persona tiene derecho al respeto de esta, prohíbe todo ataque ilegal contra la honra o reputación e impone a los Estados el deber de brindar la protección de la ley contra tales ataques”. En términos generales, este Tribunal ha indicado que “el derecho a la honra se relaciona con la estima y valía propia, mientras que la reputación se refiere a la opinión que otros tienen de una persona”. En este sentido, este Tribunal ha sostenido que, “tanto la libertad de expresión como el derecho a la honra, derechos ambos protegidos por la Convención, revisten suma importancia, por lo cual es necesario garantizar ambos derechos, de forma que coexistan de manera armoniosa”. El ejercicio de cada derecho fundamental tiene que hacerse con respeto y salvaguarda de los demás derechos fundamentales. Por ende, la Corte ha señalado que “la solución del conflicto que se presenta entre ambos derechos requiere de una ponderación entre los mismos, para lo cual deberá examinarse cada caso, conforme a sus características y circunstancias, a fin de apreciar la existencia e intensidad de los elementos en que se sustenta dicho juicio”.
74. El Tribunal recuerda a este respecto que, para determinar la convencionalidad de una restricción a la libertad de expresión cuando este colisione con el derecho a la honra, es de vital importancia analizar si las declaraciones efectuadas poseen interés público, toda vez que en estos casos el juzgador debe evaluar con especial cautela la necesidad de limitar la libertad de expresión. En su jurisprudencia, la Corte ha considerado de interés público aquellas opiniones o informaciones sobre asuntos en los cuales la sociedad tiene un legítimo interés de mantenerse informada, de conocer lo que incide sobre el funcionamiento del Estado, o afecta derechos o intereses generales o le acarrea consecuencias importantes. Determinar lo anterior tiene consecuencias en el análisis de la convencionalidad de la restricción al derecho a la libertad de expresión, toda vez que las expresiones que versan sobre cuestiones de interés público -como, por ejemplo, las concernientes a la idoneidad de una persona para el desempeño de un cargo público o a los actos realizados por funcionarios públicos en el desempeño de sus labores- gozan de mayor protección, de manera tal que se propicie el debate democrático.
75. Así, la Corte ha señalado que, en una sociedad democrática, aquellas personas que influyen en cuestiones de interés público están más expuestas al escrutinio y la crítica del público. Este diferente umbral de protección se explica porque sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público y, por tanto, se han expuesto voluntariamente a este escrutinio más exigente. Esto no significa, de modo alguno, que el honor de las personas participantes en asuntos de interés público no deba ser jurídicamente protegido, sino que éste debe serlo de manera acorde con los principios del pluralismo democrático.
76. Por otro lado, en relación con el carácter necesario y el riguroso análisis de proporcionalidad que debe regir entre la limitación al derecho a la libertad de expresión y la protección del derecho a la honra, se deberá buscar aquella intervención que, siendo la más idónea para restablecer la reputación dañada, contenga, además, un grado mínimo de afectación en el ámbito de la libertad de expresión. A este respecto, en el marco de la libertad de información, el Tribunal considera que existe un deber del periodista de constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos que divulga. Ahora bien, esto no significa una exigencia estricta de veracidad, por lo menos en lo que hace referencia a cuestiones de interés público, reconociendo como descargo el que la publicación se haga de buena fe o justificadamente y siempre de conformidad con unos estándares mínimos de ética y profesionalidad en la búsqueda de la verdad. Asimismo, el Tribunal advierte que, para que exista el periodismo de investigación en una sociedad democrática, es necesario dejar a los periodistas “espacio para el error”, toda vez que sin ese margen de error no puede existir un periodismo independiente ni la posibilidad, por tanto, del necesario escrutinio democrático que dimana de este.
77. Adicionalmente, la Corte también considera que nadie podrá ser sometido a responsabilidades ulteriores por la difusión de información relacionada con un asunto público y que tenga como base material que es accesible al público o que proviene de fuentes oficiales.
78. Por último, también se debe destacar la necesidad de que, en caso de estimarse adecuado otorgar una reparación a la persona agraviada en su honra, la finalidad de esta no debe ser la de castigar al emisor de la información, sino la de restaurar a la persona afectada. A este respecto, los Estados deben ejercer la máxima cautela al imponer reparaciones, de tal manera que no disuadan a la prensa de participar en la discusión de asuntos de legítimo interés público (…)”.
Aunado a lo anterior cabe destacar que la libertad de expresión, conforme lo dispone el artículo 13.3 de la Convención Americana sobre Derechos Humanos, no puede ser restringida o coartada a través del uso de medidas o vías indirectas. Sin embargo, este aspecto en particular, será desarrollado más adelante.
V.- EN CUANTO A LA LIBERTAD DE PRENSA COMO MANIFESTACIÓN DEL DERECHO A LA LIBERTAD DE EXPRESIÓN. La libertad de prensa se fundamenta en la libertad de expresión y, al mismo tiempo, es uno de sus vehículos naturales. Es una de las principales y más importantes manifestaciones de la libertad de expresión. La ya citada Declaración de Chapultepec ha sido contundente en el resguardo que merece particularmente la libertad de prensa, por lo que, en su primer principio dispone que “1. No hay personas ni sociedades libres sin libertad de expresión y de prensa. El ejercicio de ésta no es una concesión de las autoridades; es un derecho inalienable del pueblo”.
Se trata de un derecho fundamental que defiende que cualquier persona pueda, de una parte, acceder a información y, de otra, difundir esta a través de cualquier medio de expresión, sea medios impresos (publicaciones periodísticas, revistas, folletos, etc.), radio, televisión e, incluso, más modernamente, haciendo uso del internet y de las plataformas digitales, entre otros. Particularmente, esta Sala ha definido este derecho como aquel que tienen los administrados “(…) de buscar y difundir las informaciones y las ideas a un número indeterminado de personas sobre hechos que por su naturaleza son de interés de la generalidad por considerarse noticiosos (...)” (Sentencias Nos. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006 y 8396-2018 de las 12:40 hrs. de 25 de mayo de 2018).
En virtud de lo anterior, esta libertad permite a las personas la posibilidad de organizarse y crear medios de comunicación independientes del poder gubernamental, en los cuales tienen el derecho de expresarse libremente, sin censura. Todo esto, además, sin temor a las represalias del Estado o de otras entidades o individuos. La finalidad de este este derecho, es garantizar a la población recibir y difundir una información que no está manipulada ni, tampoco, al servicio de una persona, entidad o interés particular.
Desde sus primeros pronunciamientos, la Corte IDH, al resolver la opinión consultiva No. OC-5/85 sobre la colegiatura obligatoria de periodistas mediante sentencia de 13 de noviembre de 1985, aludió a esta libertad desde el ejercicio periodístico e indicó que:
“(…) 72. (...) La profesión de periodista -lo que hacen los periodistas- implica precisamente el buscar, recibir y difundir información. El ejercicio del periodismo, por tanto, requiere que una persona se involucre en actividades que están definidas o encerradas en la libertad de expresión garantizada en la Convención (...)
74. (...) El ejercicio del periodismo profesional no puede ser diferenciado de la libertad de expresión, por el contrario ambas cosas están evidentemente imbricadas, pues el periodista profesional no es ni puede ser, otra cosa que una persona que ha decidido ejercer la libertad de expresión de modo continuo, estable y remunerado (...)”.
Asimismo, en el caso Herrera Ulloa vs. Costa Rica (sentencia de 2 de julio de 2004), la Corte IDH sostuvo, sobre el rol de los medios de comunicación y el periodismo en relación con la libertad de expresión, lo siguiente:
“(…) 117. Los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. Los referidos medios, como instrumentos esenciales de la libertad de pensamiento y de expresión, deben ejercer con responsabilidad la función social que desarrollan.
118. Dentro de este contexto, el periodismo es la manifestación primaria y principal de esta libertad y, por esa razón, no puede concebirse meramente como la prestación de un servicio al público a través de la aplicación de los conocimientos o la capacitación adquiridos en la universidad. Al contrario, los periodistas, en razón de la actividad que ejercen, se dedican profesionalmente a la comunicación social. El ejercicio del periodismo, por tanto, requiere que una persona se involucre responsablemente en actividades que están definidas o encerradas en la libertad de expresión garantizada en la Convención.
119. En este sentido, la Corte ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca. (…)”.(El destacado no forma parte del original).
Más recientemente, en el caso Moya Chacón y otros vs. Costa Rica (sentencia de 23 de mayo de 2022), la Corte IDH reiteró parte de lo anteriormente citado y sostuvo, sobre este mismo tema, lo siguiente:
“(…) b.2 Importancia del rol del periodista en una sociedad democrática 66. La Corte ha destacado que el ejercicio profesional del periodismo “no puede ser diferenciado de la libertad de expresión, por el contrario, ambas cosas están evidentemente imbricadas, pues el periodista profesional no es, ni puede ser, otra cosa que una persona que ha decidido ejercer la libertad de expresión de modo continuo, estable y remunerado”. El Tribunal ha afirmado que los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. En efecto, la Corte ha caracterizado los medios de comunicación social como verdaderos instrumentos de la libertad de expresión y, además, ha señalado que “[s]on los medios de comunicación social los que sirven para materializar el ejercicio de la libertad de expresión, de tal modo que sus condiciones de funcionamiento deben adecuarse a los requerimientos de esa libertad. Para ello es indispensable, inter alia, la pluralidad de medios, la prohibición de todo monopolio respecto de ellos, cualquiera sea la forma que pretenda adoptar, y la garantía de protección a la libertad e independencia de los periodistas”.
67. El Tribunal recuerda que, para que la prensa pueda desarrollar su rol de control periodístico, debe no solo ser libre de impartir informaciones e ideas de interés público, sino que también debe ser libre para reunir, recolectar y evaluar esas informaciones e ideas. En su informe de 2012 al Consejo de Derechos Humanos de las Naciones Unidas, el Relator especial sobre la promoción y protección del derecho a la libertad de opinión y expresión de las Naciones Unidas se refirió a que las personas que desarrollan una actividad periodística “observan, describen, documentan y analizan los acontecimientos y documentan y analizan declaraciones, políticas y cualquier propuesta que pueda afectar a la sociedad, con el propósito de sistematizar esa información y reunir hechos y análisis para informar a los sectores de la sociedad o a esta en su conjunto”. Lo anterior implica que cualquier medida que interfiera con las actividades periodísticas de personas que están cumpliendo con su función obstruirá inevitablemente con el derecho a la libertad de expresión en sus dimensiones individual y colectiva.
68. Adicionalmente, en el marco de la libertad de información, esta Corte considera que existe un deber del periodista de constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos que divulga. Es decir, resulta válido reclamar equidad y diligencia en la confrontación de las fuentes y la búsqueda de información. Esto implica el derecho de las personas a no recibir una versión manipulada de los hechos. En consecuencia, los periodistas tienen el deber de tomar alguna distancia crítica respecto a sus fuentes y contrastarlas con otros datos relevantes. Por su lado, el Tribunal Europeo de Derechos Humanos ha señalado que la libertad de expresión no garantiza una protección ilimitada a los periodistas, inclusive en asuntos de interés público. En efecto, dicho Tribunal ha indicado que, aun cuando están amparados bajo la protección de la libertad de expresión, los periodistas deben ejercer sus labores obedeciendo a los principios de un “periodismo responsable” y ético, lo cual resulta de particular relevancia en una sociedad contemporánea donde los medios no sólo informan sino también pueden sugerir, a través de la manera cómo presentan la información, la forma en que dicha información debe ser entendida.
69. Además, dada la importancia de la libertad de expresión en una sociedad democrática y la elevada responsabilidad que ello entraña para quienes ejercen profesionalmente labores de comunicación social, el Estado no sólo debe minimizar las restricciones a la circulación de la información sino también equilibrar, en la mayor medida de lo posible, la participación de las distintas informaciones en el debate público, impulsando el pluralismo informativo. Por último, la Corte ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca.
70. En el marco de esta protección que deben otorgar los Estados, resulta fundamental la protección de fuentes periodísticas, piedra angular de la libertad de prensa y, en general, de una sociedad democrática, toda vez que permiten a las sociedades beneficiarse del periodismo de investigación con el fin de reforzar la buena gobernanza y el Estado de Derecho. La confidencialidad de las fuentes periodísticas es, por lo tanto, esencial para el trabajo de los periodistas y para el rol que cumplen de informar a la sociedad sobre asuntos de interés público (…)”. (El destacado no forma parte del original).
Así las cosas, la libertad de prensa en relación con la libertad de expresión, hacen referencia al derecho de toda persona, y de los medios de comunicación en particular, a través de sus periodistas, de investigar e informar, sin limitaciones irrazonables o coacciones.
La Corte Constitucional Colombiana, ha hecho alusión también a esta libertad destacando tres de sus más importantes características. Particularmente, en la Sentencia No. C-135/21 de 13 de mayo de 2021, sostuvo que la prensa cumple un rol educador, es un mecanismo que contribuye a la construcción del diálogo social pacífico y, a su vez, es un guardián de la democracia. Además, explicó expresamente lo siguiente sobre estas características:
“(…) 57.1. Rol de educador. Los medios de comunicación y la prensa actúan como difusores del conocimiento. Esto permite que el público en general pueda acceder a información sobre hechos, conocimiento científico, las leyes que los regulan e información pública en sentido amplio, que de otro modo no podrían conocer. Es una fuente que centraliza y luego difunde el conocimiento, lo que permite que la ciudadanía se eduque y la democracia se fortalezca.
57.2. Mecanismo de contribución al diálogo social. El acceso al conocimiento que la prensa y los medios masivos de comunicación permiten, junto con el análisis investigativo adoptado por la misma, llevan a un mayor diálogo y debate pacífico de la ciudadanía en torno a los asuntos de interés público.
57.3. Guardián de la democracia. La prensa y los medios masivos de comunicación han sido denominados “el cuarto poder” o el “guardián de la democracia”, en alusión a la función que ejercen de control a la Administración Pública, y su designación como instrumento de rendición de cuentas a aquellos que detentan el poder (…)”.
Este órgano constitucional igualmente se ha pronunciado sobre esta libertad. Así, en el Voto No. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006 señaló:
“(…) La libertad de prensa engloba de manera genérica todos los tipos de impresos, impresión, edición, circulación de periódicos, folletos, revistas y publicaciones de toda clase. Es por su naturaleza vehículo natural de la libertad de expresión de los ciudadanos. Se traduce en el derecho para los administrados de buscar y difundir las informaciones y las ideas a un número indeterminado de personas sobre hechos que por su naturaleza son de interés de la generalidad por considerarse noticiosos. Por su naturaleza, está sujeta a las mismas limitaciones que la libertad de expresión. Tiene como funciones en la democracia: informar (hechos, acontecimientos noticiosos), integrar la opinión (estimulando la integración social) y controlar el poder político, en cuanto es permanente guardián de la honestidad y correcto manejo de los asuntos públicos. Dado su vínculo simbiótico con la ideología democrática, un sin fin de instrumentos internacionales y prácticamente todas las Constituciones del mundo libre, desde la Declaración Francesa de 1789 (art.11) la han reconocido.
Nuestra Constitución Política por su parte, la tutela por medio de diversas normas: “Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en las condiciones y modos que establezca la ley” (artículo 29) “Nadie puede ser inquietado ni perseguido por la manifestación de sus opiniones ni por acto alguno que no infrinja la ley. Las acciones privadas que no dañen la moral o el orden público o que no perjudiquen a tercero, están fuera de la acción de la ley. No se podrá, sin embargo, hacer en forma alguna propaganda política por clérigos o seglares invocando motivos de religión o valiéndose, como medio, de creencias religiosas” (artículo 28). Otras normas constitucionales relacionada con este derecho son: “Se garantiza la libertad de petición, en forma individual o colectiva, ante cualquier funcionario público o entidad oficial, y el derecho a obtener pronta resolución (artículo 27). “Se garantiza el libre acceso a los departamentos administrativos con propósitos de información sobre asuntos de interés público. Quedan a salvo los secretos de Estado” (artículo 30).
La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca; la no censurabilidad de los contenidos, si bien no se da en forma previa, encuentra algunas limitaciones, sin embargo, éstas deben ser tales que la libertad siga teniendo sentido o no sea vaciada de su contenido, básicamente, como toda libertad, debe ejercerse con responsabilidad, en fin para perseguir fines legítimos dentro del sistema (…)”.
Asimismo, en el Voto No. 10961-2020 de las 10:05 hrs. de 16 de junio de 2020, esta jurisdicción hizo referencia a la libertad de prensa y a su relación intrínseca con la libertad de información, señalando lo siguiente:
“(…) IV.- Por su parte, en cuanto a la libertad de información y de prensa existe también un profuso desarrollo que refiere este derecho como un derecho preferente, que no sólo es un derecho fundamental, sino que funge como garantía esencial del funcionamiento del sistema democrático. Como referencia pueden citarse las sentencias 2004-08229 y 2007-017324 que lo definen como:
"(...) El Derecho a la Información, que guarda una estrecha relación con la Libertad de Expresión y el Derecho de Prensa, consiste en la facultad de buscar, recibir y difundir información e ideas de toda índole, y puede ejercitarse mediante la palabra impresa, las emisiones de radio y de televisión. Sobre este particular, en sentencia número 2001–09250 de las 10:22 horas del 14 de setiembre de 2001, la Sala dijo lo siguiente:
“...la libertad de información es un medio de formación de opinión pública en asuntos de interés general. Este valor preferente alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa, entendida en su más amplia acepción. Esto, sin embargo, no significa que la misma libertad pueda ser entendida de manera absoluta, sino más bien debe de analizarse cada caso concreto para ponderar si la información se ha llevado a cabo dentro del ámbito protegido constitucionalmente, o por el contrario si ha transgredido ese ámbito, afectando el derecho al honor, a la intimidad o a la imagen, entre otros derechos también constitucionalmente protegidos.” En efecto, la doctrina sobre el tema señala que la Libertad de Prensa ampara la posibilidad de publicar noticias con veracidad, buenos motivos y fines justificables. No obstante, si bien la misión de la prensa en una sociedad abierta y democrática es informar a la opinión pública en forma objetiva y veraz, esto no debe entenderse como una exigencia de carácter absoluto, pues, en la práctica, claramente existen dificultades de todo tipo que harían totalmente irracional el exigirle semejante logro a los medios de comunicación. Por esta razón, se ha aceptado que éstos solamente están obligados a buscar leal y honradamente la verdad, en la forma más imparcial que les sea posible. En otras palabras, el deber de veracidad únicamente les impone la obligación de procurar razonablemente la verdad, y no la de realizar ese cometido en forma absoluta. Por consiguiente, el deber de veracidad entraña una obligación de medios, no de resultados (…)
El orden democrático exige, la defensa de la libertad de expresión, como instrumento básico e indispensable para la formación de la opinión pública. Y esa defensa, lleva a la posibilidad de expresar el pensamiento usando los medios que elija el emisor y también en la facultad de difundirlo a través de ellos. (…) el valor de esta defensa, alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa. En ese sentido, se entiende que si bien, el derecho a la expresión, contemplado en el artículo 13 de la Convención Americana, no tiene carácter absoluto, los límites para su ejercicio y controles de su adecuado desempeño no deben de modo alguno limitar su ejercicio, más allá de lo estrictamente necesario, al punto que puedan convertirse en un mecanismo directo o indirecto que afecten la libertad de expresión, información y prensa y constituyan una violación al derecho (…)”. (El destacado no forma parte del original).
Igualmente, en la Sentencia No. 9512-2020 de las 13:02 hrs. de 22 de mayo de 2022, este Tribunal Constitucional dispuso lo siguiente:
“(…) es claro que el ejercicio de las libertades de expresión e información adquiere características distintivas, cuando se realiza a través de un medio de comunicación, características que variarán dependiendo de cada tipo de medio. Estas variaciones repercuten, a su vez, sobre el alcance de los derechos que se ejercen, su contenido, y las posibles limitaciones de las que eventualmente son susceptibles. Es claro que, el objeto jurídico de la protección de la libertad de expresión, en el marco de la libertad de prensa, es la posibilidad de obtener información, como insumo necesario para informarse y poder informar a una colectividad. Es decir que, en stricto senso, la libertad de expresión protege la transmisión de todo tipo de pensamientos, opiniones, ideas e informaciones personales de quien se expresa, mientras que la libertad de información permite a las personas recibir y poseer información sobre hechos, eventos, acontecimientos, personas, grupos y en general situaciones, en aras de que el receptor se entere de lo que está ocurriendo. La libertad de información abarca actividades como la búsqueda de información e investigación, a través de fuentes, donde puede hallarse, procesarse y transmitirse a través de un medio determinado. Por eso, el derecho a informar ocupa un lugar especial dentro del ordenamiento constitucional costarricense, particularmente cuando su ejercicio se apareja con el de la libertad de prensa, es decir, cuando se ejerce a través de los medios de comunicación. Los diferentes tribunales internacionales de derechos humanos, han reconocido que los medios de comunicación ostentan una función social importante, en la construcción y sostenibilidad de los sistemas democráticos, por lo que en numerosas oportunidades se ha reconocido que los medios de comunicación colectiva, como personas jurídicas, pueden ser titulares de derechos fundamentales, según su naturaleza particular; en consecuencia, es claro que la libertad de expresión sí cobija a los medios de comunicación en tanto personas jurídicas, así como a quienes se expresan, a través de ellos. Es igualmente pertinente destacar, en este ámbito, la relación entre la libertad de expresión del medio de comunicación como “persona jurídica”, y la libertad de expresión de las personas naturales que forman parte de la estructura organizacional de tales personas jurídicas, por ejemplo, los editores, redactores, reporteros y otros periodistas o comunicadores sociales, que contribuyen a la transmisión de expresiones de terceros, a la vez que ejercen su propia libertad de expresión. La relación existente entre ambas libertades, y a su vez entre dichas libertades y la libertad de expresión de quien efectivamente está comunicando un mensaje a través de tales medios o personas, ha de dilucidarse en cada caso concreto con especial atención a los distintos intereses en juego, para llegar a una solución que logre el máximo nivel de armonización concreta entre todos ellos, y a su vez con los intereses del receptor y, en especial, del público en general. La difusión masiva que alcanzan las informaciones transmitidas a través de los medios y su poder de penetración, el impacto profundo que pueden tener sobre las personas en general, garantiza el desarrollo democrático de un estado constitucional y a su vez, propicia el fortalecimiento de la libertad de expresión.
En este sentido, la Corte Interamericana de Derechos Humanos ha indicado que es fundamental que los periodistas que laboran en los medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos quienes mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad y el debate público se fortalezca, pues los medios de comunicación social juegan un rol esencial como vehículos para el ejercicio de la dimensión social de la libertad de expresión en una sociedad democrática, razón por la cual, es indispensable que recojan las más diversas informaciones y opiniones (Caso Ivcher Bronstein vs Panamá- Corte I.D.H.-).
A su vez, la Corte Europea de Derechos Humanos, al interpretar el artículo 10 de la Convención Europea, concluyó que "necesarias", sin ser sinónimo de "indispensables", implica la" existencia de una ‘necesidad social imperiosa’ y que para que una restricción sea "necesaria" no es suficiente demostrar que sea "útil", "razonable" u "oportuna" (21). Este concepto de “necesidad social imperiosa” fue hecho suyo por la Corte en su opinión consultiva OC-5/85, La Colegiación Obligatoria de Periodistas (artículos 13 y 29 de la Convención Americana sobre Derechos Humanos). (…)
Ha destacarse que es a través de los medios de comunicación, que la libertad de expresión contribuye a la consolidación de la sociedad democrática. Por lo tanto, las condiciones de su uso, deben conformarse con los requisitos de esta libertad, lo que significa que debe garantizarse la libertad e independencia de los periodistas y los medios de comunicaciones (opinión consultiva OC-5/85 Corte IDH, La Colegiación Obligatoria de Periodistas).
De acuerdo con la jurisprudencia de la Corte Interamericana, la libertad de expresión no está completa en el reconocimiento teórico del derecho a hablar o escribir, sino cuando también incluye, en forma inseparable, el derecho a usar todo medio adecuado para divulgar información y garantizar que llegue a la audiencia más amplia posible (…) (Caso Ivcher Bronstein vs Panamá- Corte I.D.H.-). No obstante, como cualquier otro derecho humano, la libertad de expresión no es un derecho absoluto, y puede estar sujeta a limitaciones por parte de cualquiera autoridad estatal o eventualmente de particulares, previamente adoptadas por el legislador bajo estrictas condiciones. (…)”. (El destacado no forma parte del original).
VI.- TOCANTE A LA LIBERTAD DE EXPRESIÓN (Y DE PRENSA) COMO GARANTES DEL SISTEMA DEMOCRÁTICO. La libertad de expresión y, concomitantemente, el ejercicio de la libertad de prensa, devienen en pilares fundamentales sobre los que se erige una sociedad democrática. Resulta prácticamente incuestionable la intrínseca relación que existe entre tales libertades y la democracia; de ahí que, esta última se debilita y erosiona arbitrariamente cuando dichas libertades no se pueden ejercer plenamente ni, tampoco, se respetan y garantizan en los ordenamientos jurídicos.
La Carta Democrática Interamericana (aprobada por los Estados Miembros de la OEA durante una sesión extraordinaria de la Asamblea General que se llevó a cabo el 11 de septiembre de 2001 en Lima, Perú), sobre este particular, dispone en su artículo 4 que: “Son componentes fundamentales del ejercicio de la democracia la transparencia de las actividades gubernamentales, la probidad, la responsabilidad de los gobiernos en la gestión pública, el respeto por los derechos sociales y la libertad de expresión y de prensa”. Además, hay que recordar que la ya dictada Declaración de Principios sobre Libertad de Expresión establece en su primer principio que la libertad de expresión es “(…) un requisito indispensable para la existencia misma de una sociedad democrática”.
La libertad de prensa (o lo que algunos denominan una prensa libre), como manifestación de la libertad de expresión, constituye un elemento esencial para fiscalizar –sin represiones–, las actuaciones de los terceros, sean de índole privada o funcionarios públicos, principalmente de los que ocupan altos cargos o aspiran a este, permitiendo así, consecuentemente, la rendición de cuentas, combatir la corrupción, la transparencia en el manejo de fondos públicos, entre otros muchos aspectos que resultan fundamentales para mantener vigente un sistema democrático. Parte de ese deber, reside en el investigar a las personas en el poder, principalmente al gobierno, formulando los cuestionamientos difíciles e intentar así revelarle a la ciudadanía lo que realmente está sucediendo, como medio, a su vez, para que tomen las decisiones correctas, principalmente, a la hora de votar y, también posteriormente, cuando se está en ejercicio del poder. Tal y como lo ha manifestado la llamada Unión por las Libertades Civiles de Europa (organización no gubernamental que promueve las libertades civiles para todas las personas en la Unión Europea) “(…) Una prensa libre ayuda en cada paso de este proceso. Proporciona información a los votantes antes de votar; fomenta el diálogo y el debate para enriquecer la comprensión de esta información; y luego informa a la ciudadanía sobre la labor del gobierno y si realmente están llevando a cabo sus promesas. En democracia, la ciudadanía delega el poder de decisión en sus cargos electos, y la prensa es una forma de controlarlos (…)”. En esencia, es factible afirmar, entonces, que la libertad de prensa resulta fundamental en los sistemas democráticos, pues permite a los ciudadanos formarse opiniones y criterios en relación con la realidad en que viven. Por este motivo, lamentablemente los medios de comunicación independientes son precisamente uno de los objetivos principales de los sistemas políticos antidemocráticos o, al menos, de aquellos que quieren perfilarse y van encaminados hacia ello.
Esta Sala Constitucional se ha manifestado específicamente sobre la libertad de expresión y su función como garante de la democracia. Así, en el emblemático Voto No. 5977-2006 de las 15:16 hrs. de 3 de mayo de 2006, señaló lo siguiente:
“(…) VIII.- La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle contenido a varios principios del Estado constitucional, como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos. Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa. Como lo ha señalado el propio Tribunal Constitucional español, quedarían vaciados de contenido real otros derechos que la Constitución consagra, reducidas a formas huecas las instituciones representativas y absolutamente falseado el principio de legitimidad democrática... que es la base de toda nuestra ordenación jurídico-política (Sentencia 6/1981), si no existieran unas libertades capaces de permitir ese intercambio, que… presupone el derecho de los ciudadanos a contar con una amplia y adecuada información respecto de los hechos, que les permita formar sus convicciones y participar en la discusión relativa a los asuntos públicos (Sentencia 159/1986) (…)”. (El destacado no forma parte del original).
Aunado a ello, respecto estrictamente a los medios de comunicación y su responsabilidad a la hora de informar y contribuir así con los procesos democráticos, en ese mismo voto se sostuvo lo siguiente:
“(…) XI .- La responsabilidad social de los medios de comunicación como detentadores de poder frente al ciudadano. La lucha por la defensa de los derechos fundamentales de los habitantes, tradicionalmente surge contra el poder político, no obstante, posteriormente evoluciona para proteger a la persona de otros sujetos particulares que tienen una relación de poder con respecto al ciudadano, en aquellos casos que lesionen algún derecho fundamental. Hay que tener claro que en las democracias, los medios de comunicación no tienen un papel simplemente pasivo en el tema de la libertad de expresión; no se limitan a ser víctimas de los atentados contra tan importante libertad. Tienen por el contrario una gran responsabilidad y poder al ser los vehículos naturales para que las libertades comunicativas (expresión, imprenta, información, etcétera) sean una realidad, que puedan servir al desarrollo de los procesos democráticos formando una ciudadanía bien informada, que conozca sus derechos y sus obligaciones, que tenga las herramientas necesarias para poder elegir bien a sus gobernantes. La responsabilidad social de los medios y el lugar de la libertad de expresión en el desarrollo democrático es lo que justifica que el estatuto jurídico de los medios y de los profesionales que en ellos trabajan sea distinto al del resto de las personas. Pero ese estatus, como se indicó no es invocable frente a fines ilegítimos, que incluyen el atentar contra libertades fundamentales de mala fe o con negligencia evidente. A tenor de estas razones y fundamentos, es que cabe concluir que el Estado, y concretamente el legislador, tiene derecho y el deber de proteger a los individuos, frente al uso ilegítimo de este derecho, el cual, mal utilizado, es tan dañino para la democracia como la censura misma, no sólo porque su ejercicio de mala fe, puede lesionar el honor de la persona afectada, sino el de la sociedad entera de recibir información adecuada capaz de ayudarla a conformar la opinión pública en forma transparente. El peligro que representa un mal uso de este derecho para la democracia es tan grave como su no ejercicio, y ese mal uso no está determinado sólo por la negligencia evidente o mala fe que afecte otras libertades, sino también frente a otros factores, como la posibilidad que la falta de un pluralismo mediático afecte la capacidad de la prensa de generar una opinión pública libre e informada. Naturalmente que la exigencia de ese pluralismo, no se reduce a una vertiente puramente cuantitativa, sino que también conlleva algún factor cualitativo que se concreta en la "presencia de diversidad de opiniones y de fuentes de información”. Sin duda alguna que por su rol en la democracia, su posibilidad de difusión, los medios de comunicación están en una relación de poder con respecto al ciudadano y a la sociedad, y aunque su existencia es fundamental para fines legítimos y esenciales de la democracia, tienen el potencial, como cualquier poder, de desviarse ocasionalmente, frente a actuaciones individuales, en cuyo caso el Estado tiene la obligación de establecer las previsiones necesarias para la protección del sistema y del individuo. Evidentemente que como se indicó, la protección del Estado no puede darse como lo ha señalado la Corte de Derechos Humanos, con el derecho a censurar previamente las informaciones, lo cual será a todas luces inconstitucional (art. 28), sino que se refiere a su control a posteriori, en el caso que haya existido intención de infligir daño o actuado con pleno conocimiento de que se estaban difundiendo noticias falsas o se condujo con manifiesta negligencia en la búsqueda de la verdad o falsedad de las mismas y con ella resultó afectado el honor y reputación de alguna persona. La Sala comparte la opinión de la Corte Interamericana de Derechos Humanos (opinión consultiva 5/85) en el sentido de que:
33. ...No sería lícito invocar el derecho de la sociedad a estar informada verazmente para fundamentar un régimen de censura previa supuestamente destinado a eliminar las informaciones que serían falsas a criterio del censor. Como tampoco sería admisible que, sobre la base del derecho a difundir informaciones e ideas, se constituyeran monopolios públicos o privados sobre los medios de comunicación para intentar moldear la opinión pública según un solo punto de vista.
De igual forma reconoce la jurisprudencia sentada en el caso New York Times vs. Sullivan de 1964 en la que se señala que la protección que la Constitución ofrece a la libertad de expresión no depende de la verdad, popularidad o utilidad social de las ideas y creencias manifestadas, y reconoce que un cierto grado de abuso es inseparable del uso adecuado de esa libertad, a partir de la cual el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos. Los enunciados erróneos son inevitables en un debate libre, y deben ser protegidos para dejar a la libertad de expresión aire para que pueda respirar y sobrevivir. Las normas deben impedir que un funcionario público pueda demandar a un medio de comunicación o a un particular por daños causados por una difamación falsa relativa a su comportamiento oficial, a menos que se pruebe con claridad convincente que la expresión se hizo con malicia real, es decir, con conocimiento de que era falsa o con indiferente desconsideración de si era o no falsa. Esta salvedad que se hace es indispensable frente a la obligación del Estado de proteger la reputación y honra de las personas y más aún, dentro de la obligación que tiene de velar porque el mal uso o desvío de esta libertad no se utilice para violar fines igualmente esenciales del sistema democrático, entre los que se incluye el sistema de derechos fundamentales. Es reconocida en doctrina la interdependencia que existe entre los derechos fundamentales y su valor sistémico, en ese sentido, la protección de una libertad en demérito de otras por falta de una visión hermenéutica tiene un efecto negativo sobre todo el sistema de libertad (ver sentencia 2771-03 de esta Sala)". (…)”. (El destacado no forma parte del original).
Asimismo, en la Sentencia No. 15220-2016 de las 16:00 hrs de 18 de octubre de 2016, este órgano constitucional señaló muy atinadamente lo siguiente:
“(…) La libertad de expresión es un pilar fundamental del Estado democrático, ya que permite la circulación de ideas e información –aun aquellas de oposición al gobierno de turno-, la formación de la opinión pública, la transparencia, la fiscalización y denuncia de las acciones del gobierno, entre otras. No en vano señala Bobbio que la democracia es el ejercicio de poder en público (…) tratándose de funcionarios públicos, y en particular aquellos de alta jerarquía, el umbral de la libertad de expresión y el deber de tolerancia a la crítica aumentan. Esto es así porque un elemento fundamental del sistema democrático, que lo distingue de las dictaduras, consiste en la amplia libertad de que gozan tanto la ciudadanía en general como la prensa en particular, con respecto de exteriorizar sus críticas y cuestionar la idoneidad (técnica o moral) de los funcionarios públicos y sus decisiones, sin temor a censura ni represalias, lo que evidentemente no obsta que la persona que se sienta afectada, acuda al derecho de rectificación o a otras vías judiciales ordinarias en defensa de su imagen y buen nombre. En el caso concreto de los funcionarios públicos, se encuentran más expuestos al escrutinio público, toda vez que el ejercicio de sus funciones trasciende el ámbito privado y, por su impacto en el desarrollo y acontecer político y nacional, se incorpora a la esfera pública, esto es tiene consecuencias de interés para la ciudadanía en general. Asimismo, el control ciudadano sobre la Administración Pública y el deber de rendición de cuentas de los funcionarios públicos (artículo 11 de la Constitución Política), solo pueden darse en un sistema democrático de amplia libertad de expresión e información. Esa es la relevancia de la dimensión social del derecho de información, íntimamente ligado al de expresión. En tal sentido, precisamente, la Corte Interamericana de Derechos Humanos se expresó en el caso Tristán Donoso:
“115. Por último, respecto del derecho a la honra, la Corte recuerda que las expresiones concernientes a la idoneidad de una persona para el desempeño de un cargo público o a los actos realizados por funcionarios públicos en el desempeño de sus labores gozan de mayor protección, de manera tal que se propicie el debate democrático. La Corte ha señalado que en una sociedad democrática los funcionarios públicos están más expuestos al escrutinio y la crítica del público. Este diferente umbral de protección se explica porque se han expuesto voluntariamente a un escrutinio más exigente. Sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público. Este umbral no se asienta en la calidad del sujeto, sino en el interés público de las actividades que realiza (…)
122. Como ya se ha indicado, el derecho internacional establece que el umbral de protección al honor de un funcionario público debe permitir el más amplio control ciudadano sobre el ejercicio de sus funciones (supra párr. 115). Esta protección al honor de manera diferenciada se explica porque el funcionario público se expone voluntariamente al escrutinio de la sociedad, lo que lo lleva a un mayor riesgo de sufrir afectaciones a su honor, así como también por la posibilidad, asociada a su condición, de tener una mayor influencia social y facilidad de acceso a los medios de comunicación para dar explicaciones o responder sobre hechos que los involucren.” De igual forma, en el caso Ricardo Canese, la Corte indicó:“ 97. El control democrático, por parte de la sociedad a través de la opinión pública, fomenta la transparencia de las actividades estatales y promueve la responsabilidad de los funcionarios sobre su gestión pública, razón por la cual debe existir un mayor margen de tolerancia frente a afirmaciones y apreciaciones vertidas en el curso de los debates políticos o sobre cuestiones de interés público.
98. El Tribunal ha establecido que es lógico y apropiado que las expresiones concernientes a funcionarios públicos o a otras personas que ejercen funciones de una naturaleza pública deben gozar, en los términos del artículo 13.2 de la Convención, de un margen de apertura a un debate amplio respecto de asuntos de interés público, el cual es esencial para el funcionamiento de un sistema verdaderamente democrático. (…)”. (El destacado no forma parte del original).
A mayor abundamiento, esta Sala, en la Sentencia No. 12926-2017 de las 09:30 hrs. de 18 de agosto de 2017, indicó, sobre tema en particular, que:
"(…) la libertad de prensa es un pilar fundamental del Estado democrático al punto de que no puede existir el segundo sin la garantía efectiva a favor de todos los habitantes de la República del ejercicio del derecho de buscar, recibir y difundir información e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección, sin que dicho derecho pueda ser sometido a la previa censura (...)”.
La Corte Interamericana de Derechos Humanos ha hecho también alusión a la estrecha relación que existe entre democracia y libertad de expresión, y ha referido que se trata de un elemento fundamental sobre el cual se basa la existencia de una sociedad democrática. En ese particular, en la opinión consultiva No. OC-5/85 sobre la colegiatura obligatoria de periodistas (sentencia de 13 de noviembre de 1985), dispuso que es conditio sine qua non para que quienes deseen influir sobre la colectividad puedan desarrollarse plenamente, razón por la cual afirma que una sociedad que no está bien informada no es plenamente libre. Es decir, que dentro de los sistemas democráticos el ejercicio de la libertad de expresión permite el desarrollo y proyección del ser humano, contribuye al funcionamiento de la democracia y es un medio o instrumento para el ejercicio de los otros derechos humanos. Por su parte, en el caso Herrera Ulloa vs. Costa Rica, la Corte sostuvo lo siguiente:
“(…) 113. En iguales términos a los indicados por la Corte Interamericana, la Corte Europea de Derechos Humanos se ha manifestado sobre la importancia que reviste en la sociedad democrática la libertad de expresión, al señalar que “(…) la libertad de expresión constituye uno de los pilares esenciales de una sociedad democrática y una condición fundamental para su progreso y para el desarrollo personal de cada individuo. Dicha libertad no sólo debe garantizarse en lo que respecta a la difusión de información o ideas que son recibidas favorablemente o consideradas como inofensivas o indiferentes, sino también en lo que toca a las que ofenden, resultan ingratas o perturban al Estado o a cualquier sector de la población. Tales son las demandas del pluralismo, la tolerancia y el espíritu de apertura, sin las cuales no existe una sociedad democrática. (…) Esto significa que (…) toda formalidad, condición, restricción o sanción impuesta en la materia debe ser proporcionada al fin legítimo que se persigue (…)”. (Es destacado no forma parte del original).
De igual manera, en esta última ocasión, la Corte IDH señaló que la Comisión Africana de Derechos Humanos y de los Pueblos y el Comité de Derechos Humanos también se han pronunciado en ese mismo sentido; de ahí que haya concluido que existe una coincidencia en los diferentes sistemas regionales de protección a los derechos humanos y en el universal, en cuanto al papel esencial que juega la libertad de expresión en la consolidación y dinámica de una sociedad democrática. Además, indicó expresamente que:
“(…) 116. (…) Sin una efectiva libertad de expresión, materializada en todos sus términos, la democracia se desvanece, el pluralismo y la tolerancia empiezan a quebrantarse, los mecanismos de control y denuncia ciudadana se empiezan a tornar inoperantes y, en definitiva, se empieza a crear el campo fértil para que sistemas autoritarios se arraiguen en la sociedad (…)”.
En el caso Ivcher Bronstein vs. Perú (sentencia de 6 de febrero de 2001), la Corte IDH mencionó que, a su vez, la Corte Europea ha puesto énfasis en que el artículo 10.2 de la Convención Europea, referente a la libertad de expresión, deja un margen muy reducido a cualquier restricción del debate político o del debate sobre cuestiones de interés público y explicó que, según dicho Tribunal: “(…) 155. (…) los límites de críticas aceptables son más amplios con respecto al gobierno que en relación a un ciudadano privado o inclusive a un político. En un sistema democrático las acciones u omisiones del gobierno deben estar sujetas a exámenes rigurosos, no sólo por las autoridades legislativas y judiciales, sino también por la opinión pública (…)”.
Asimismo, en la sentencia Moya Chacón y otro vs. Costa Rica (sentencia de 23 de mayo de 2022), la Corte IDH confirmó lo anteriormente citado, de la siguiente manera:
“(…) b.1 Importancia de la libertad de expresión en una sociedad democrática (…)
63. (…) la Corte ha establecido que la libertad de expresión, particularmente en asuntos de interés público, “es una piedra angular en la existencia misma de una sociedad democrática”63. La Corte Interamericana, en su Opinión Consultiva OC-5/85, hizo referencia a la estrecha relación existente entre democracia y libertad de expresión, al establecer que este derecho es indispensable para la formación de la opinión pública, así como también es conditio sine qua non para que los partidos políticos, los sindicatos, las sociedades científicas y culturales, y en general, quienes deseen influir sobre la colectividad puedan desarrollarse plenamente, y para que, en suma, la comunidad esté suficientemente informada a la hora de ejercer sus opciones. Y es que el control democrático por parte de la sociedad a través de la opinión pública fomenta la transparencia de las actividades estatales y promueve la responsabilidad de los funcionarios sobre su gestión pública, razón por la cual debe existir un margen reducido a cualquier restricción del debate político o del debate sobre cuestiones de interés público.
64. El Tribunal recuerda que, en una sociedad democrática, los derechos y libertades inherentes a la persona, sus garantías y el Estado de Derecho constituyen una tríada, cada uno de cuyos componentes se define, completa y adquiere sentido en función de los otros. En ese sentido, el Tribunal advierte que los artículos 3 y 4 de la Carta Democrática Interamericana resaltan la importancia de la libertad de expresión en una sociedad democrática, al establecer que “[s]on elementos esenciales de la democracia representativa, entre otros, el respeto a los derechos humanos y las libertades fundamentales; el acceso al poder y su ejercicio con sujeción al Estado de Derecho; la celebración de elecciones periódicas, libres, justas y basadas en el sufragio universal y secreto como expresión de la soberanía del pueblo; el régimen plural de partidos y organizaciones políticas; y la separación e independencia de los poderes públicos”. Asimismo, indica que “[s]on componentes fundamentales del ejercicio de la democracia la transparencia de las actividades gubernamentales, la probidad, la responsabilidad de los gobiernos en la gestión pública, el respeto por los derechos sociales y la libertad de expresión y de prensa”.
65. Así, sin una efectiva garantía de la libertad de expresión se debilita el sistema democrático y sufren quebranto el pluralismo y la tolerancia; los mecanismos de control y denuncia ciudadana pueden volverse inoperantes y, en definitiva, se crea un campo fértil para que arraiguen sistemas autoritarios. En consecuencia, una sociedad que no está bien informada no es plenamente libre (…)”.
Por su parte, la Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos (Marco jurídico interamericano sobre el derecho a la libertad de expresión, diciembre 2009), señaló lo siguiente:
“(…) la CIDH y la Corte Interamericana han subrayado en su jurisprudencia que la importancia de la libertad de expresión dentro del catálogo de los derechos humanos se deriva también de su relación estructural con la democracia. Esta relación, que ha sido calificada por los órganos del sistema interamericano de derechos humanos como “estrecha”, “indisoluble”, “esencial” y “fundamental”, entre otras, explica gran parte de los desarrollos interpretativos que se han otorgado a la libertad de expresión por parte de la CIDH y la Corte Interamericana en sus distintas decisiones sobre el particular. Es tan importante el vínculo entre la libertad de expresión y la democracia que, según ha explicado la CIDH, el objetivo mismo del artículo 13 de la Convención Americana es el de fortalecer el funcionamiento de sistemas democráticos pluralistas y deliberativos mediante la protección y el fomento de la libre circulación de información, ideas y expresiones de toda índole (…) si el ejercicio del derecho a la libertad de expresión no solo tiende a la realización personal de quien se expresa, sino a la consolidación de sociedades verdaderamente democráticas, el Estado tiene la obligación de generar las condiciones para que el debate público no solo satisfaga las legítimas necesidades de todos como consumidores de determinada información (de entretenimiento, por ejemplo), sino como ciudadanos. Es decir, tienen que existir condiciones suficientes para que pueda producirse una deliberación pública, plural y abierta, sobre los asuntos que nos conciernen a todos en tanto ciudadanos de un determinado Estado (…)”. (El destacado no forma parte del original).
También, dicha Relatoría expuso lo siguiente:
“(…) en una sociedad democrática, la prensa tiene derecho a informar libremente y criticar al gobierno, y el pueblo tiene derecho a ser informado sobre distintas visiones de lo que ocurre en la comunidad (…)”.
En la misma línea de pensamiento, la Corte Europea de Derechos Humanos, en el caso Lingens vs. Austria (sentencia de 8 de julio de 1986), resaltó que "(…) la libertad de prensa proporciona a la opinión pública uno de los mejores medios para conocer y juzgar las ideas y actitudes de los dirigentes políticos. En términos más generales, la libertad de las controversias políticas pertenece al corazón mismo del concepto de sociedad democrática (…)”.
Asimismo, la Corte Constitucional Colombiana, ha hecho referencia al tema bajo estudio en varias oportunidades. Así, en la Sentencia No. T-256/13 30 de abril de 2013, sostuvo que: “(…) el derecho a la libertad de expresión, es un principio del ejercicio de la democracia pues es en el marco de un estado democrático donde la participación de la ciudadanía adquiere especial relevancia, y en desarrollo de ella, se garantiza la libertad de expresar las distintas opiniones y de manifestar los pensamientos minoritarios sin miedo a ser reprimido por poderes estatales (…)” y explicó que:
“(…) Por ello, los pronunciamientos de la Comisión Interamericana y la jurisprudencia de la Corte Interamericana de Derechos Humanos han resaltado que la libertad de expresión cumple una triple función en el sistema democrático: a) asegura el derecho individual de toda persona a pensar por cuenta propia y a compartir con otros el pensamiento y la opinión personal, b) tiene una relación estrecha, indisoluble, esencial, fundamental y estructural con la democracia, y en esa medida, el objetivo mismo del artículo 13 de la Convención Americana es el de fortalecer el funcionamiento de sistemas democráticos, pluralistas y deliberativos, mediante la protección y fomento de la libre circulación de ideas y opiniones, y c) finalmente, es una herramienta clave para el ejercicio de los demás derechos fundamentales, toda vez que “se trata de un mecanismo esencial para el ejercicio del derecho a la participación, a la libertad religiosa, a la educación, a la identidad étnica o cultural y, por supuesto, a la igualdad no sólo entendida como el derecho a la no discriminación, sino como el derecho al goce de ciertos derechos sociales básicos (…)”.
Igualmente, este órgano constitucional agregó que:
“(…) Esta Corporación desde muy temprano en su jurisprudencia reconoció el valor de este derecho en el marco de una democracia con las siguientes palabras: “Aunque la libertad de expresar y difundir el propio pensamiento y opiniones es un derecho de toda persona, no es sólo un derecho individual, sino también garantía de una institución política fundamental: "la opinión pública libre". Una opinión pública libre está indisolublemente ligada con el pluralismo político, que es un valor fundamental y un requisito de funcionamiento del estado democrático. Sin una comunicación pública libre quedarían vaciados de contenido real otros derechos que la Constitución consagra, reducidos a formas hueras las institucionales representativas y participativas y absolutamente falseado el principio de la legitimidad democrática (…)”. (El destacado no forma parte del original).
En la Sentencia No. T-543 de 2017 de 25 de agosto de 2017, la Corte Constitucional Colombiana señaló que la libertad de expresión cumple las siguientes funciones en una sociedad democrática: “(…) (i) permite buscar la verdad y desarrollar el conocimiento; (ii) hace posible el principio de autogobierno; (iii) promueve la autonomía personal; (iv) previene abusos de poder; y (v) es una “válvula de escape” que estimula la confrontación pacífica de las decisiones estatales o sociales que no se compartan (…)”. Por su parte, en la Sentencia No. C-135/21 de 13 de mayo de 2021, dicha Corte mencionó que algunos de los aportes del derecho fundamental a la libertad de expresión al funcionamiento democrático, son los siguientes: “(…) i) permite buscar la verdad y desarrollar el conocimiento; ii) crea un espacio de sano diálogo y protesta para la ciudadanía, que consolida sociedades pluralistas y deliberativas; iii) permite establecer mecanismos de control y rendición de cuentas ante los gobernantes; iv) promueve el autogobierno ciudadano; y v) contribuye a mejores elecciones populares (…)”.
También, en la Sentencia No. T-145/19 de 2 de abril de 2019, la Corte Colombiana sostuvo que la libertad de expresión “(…) es un pilar del Estado Social de Derecho y un principio fundamental de los regímenes democráticos, donde se respeta la dignidad humana y se valora la participación de la ciudadanía y de todos los sectores, lo que permite consolidar sociedades pluralistas y deliberativas (…)”. Asimismo, en esta última ocasión, dicho órgano señaló que “(…) El fundamento principal del amparo jurídico de la libertad de expresión encuentra sustento en la dignidad humana, en la autonomía de la persona y en su carácter instrumental para el ejercicio de múltiples derechos, y en las distintas funciones que cumple en los sistemas democráticos (…)”.
VII.- SOBRE LA PROHIBICIÓN DE IMPONER RESTRICCIONES POR VÍAS INDIRECTAS A LA LIBERTAD DE EXPRESIÓN (Y A LA LIBERTAD DE PRENSA). La libertad de expresión y, por ende, la libertad de prensa, no son considerados derechos irrestrictos y absolutos, sino que –tal y como se analizó supra–, se encuentran sujetos a ciertos límites o controles ulteriores. Al respecto, el ordinal 29 de nuestra Carta Política estatuye que las personas serán responsables de los abusos que cometan en el ejercicio del derecho a la libertad de expresión y, por su parte, el artículo 13.2 de la Convención Americana sobre Derechos Humanos dispone que el referido derecho está sujeto a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar el respeto a los derechos o la reputación de los demás o proteger la seguridad nacional, el orden público, la salud o la moral pública.
Sin embargo, igualmente, estas limitaciones, ha dicho este Tribunal Constitucional, gozan de carácter excepcional y no pueden restringir tales derechos más allá de lo estrictamente necesario, vaciándolos de contenido y convirtiéndose así en un mecanismo directo o indirecto de censura, el cual no tiene cabida en nuestro medio. Estas libertades, en consecuencia, no pueden ser objeto de restricciones ilegítimas directas (como sería, por ejemplo, la censura previa, el asesinato de periodistas en virtud del ejercicio de sus funciones, etc.) ni, tampoco, de restricciones de índole indirecto (también llamada soft censorship, censura sutil, velada). Estas últimas medidas –de índole indirecto–, se caracterizan por ser menos evidentes, pero que igualmente tienen como propósito reducir o coartar arbitrariamente la libertad de expresión. Se podrían considerar formas más sutiles en que las autoridades públicas o particulares buscan restringir final y efectivamente la libertad de expresión. Los autores García Ramírez y Gonza las definen muy acertadamente como aquellas “(…) acciones u omisiones que traen consigo la inhibición del sujeto, como consecuencia de la intimidación, la obstrucción de canales de expresión o la “siembra” de obstáculos que impiden o limitan severamente el ejercicio de aquella libertad (…)” (GARCÍA RAMÍREZ (Sergio) y GONZA (Alejandra). La libertad de expresión de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, primera edición, 2007, p. 42). Por su parte, la Relatoría para la Libertad de Expresión explica que “(…) Estas medidas (…) no han sido diseñadas estrictamente para restringir la libertad de expresión. En efecto, éstas per se no configuran una violación de este derecho. No obstante ello, sus efectos generan un impacto adverso en la libre circulación de ideas que con frecuencia es poco investigado y, por ende, más difícil de descubrir (…)” (Informe Anual de la Relatoría para la Libertad de Expresión, 2004).
Como ejemplos de este tipo de restricciones indirectas o censura velada se puede citar, entre otros muchos, el uso de diversos medios para intimidar y, de este modo, evitar una publicación, los controles de papel para periódicos o de frecuencias radioeléctricas, la restricción a la libertad de circulación, la concesión o supresión de publicidad estatal, las limitaciones de ingresos económicos a medios de comunicación, la imposición de altas e injustificadas cargas tributarias. Sobre este tipo de restricciones indirectas, los citados autores García Ramírez y Gonza explican que estas puede ocurrir cuando“(…) se vulnera un derecho diferente de la libertad de expresión misma, en forma que ésta resulta afectada –por ejemplo, en un caso, la privación de la nacionalidad del sujeto–, se practican investigaciones indebidas o excesivas, se prohíbe el acceso a determinados medios de los que regularmente se ha valido el titular del derecho, se restringe la libertad de circulación, se desconocen los efectos de un contrato o se impide a los titulares de ciertos bienes la disposición de éstos (…)” (GARCÍA RAMÍREZ (Sergio) y GONZA (Alejandra). La libertad de expresión en la jurisprudencia de la Corte Interamericana de Derechos Humanos. México, Corte Interamericana de Derechos Humanos, Comisión de Derechos Humanos del Distrito Federal, primera edición, 2007, p. 42). Por su parte, el Magistrado Rueda Leal, en las razones adicionales consignadas en la Sentencia No. 15220-2016 de las 16:00 hrs. de 18 de octubre de 2016, hizo también referencia a algunas modalidades de este tipo de censura indirecta o velada, enumerando las siguientes: “(…) a) La negativa de acceso a las instituciones y a la información pública como represalia por una cobertura crítica, lo que obliga al medio a acudir a instancias jurisdiccionales. De esta forma, aunque finalmente se obligue a una entidad a entregar determinada información si se demuestra su carácter público, no menos cierto es que la Administración “gana” tiempo, logrando así una divulgación en un “timing” político más favorable. b) La asignación inequitativa de frecuencias de radio y televisión. c) La obstaculización del acceso a recursos elementales para la producción de un medio (como el papel o el servicio telefónico) vía fijación de requerimientos arbitrarios o imposiciones tributarias irrazonables. d) La amenaza de entablar procesos judiciales, condicionada a la divulgación o no de reportajes críticos (…)”.
En cuanto a estas restricciones de índole propiamente indirecto, el artículo 13.3 de la Convención Americana sobre Derechos Humanos, señala expresamente lo siguiente:
“3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”. (El destacado no forma parte del original).
La Declaración de Chapultepec (adoptada por la conferencia hemisférica sobre libertad de expresión celebrada en México, D.F. el 11 de marzo de 1994), estatuye que no debe existir ninguna ley o acto de poder que coarte la libertad de expresión o de prensa, cualquiera sea el medio de comunicación. Asimismo, en el elenco de principios menciona lo siguiente:
“4. El asesinato, el terrorismo, el secuestro, las presiones, la intimidación, la prisión injusta de los periodistas, la destrucción material de los medios de comunicación, la violencia de cualquier tipo y la impunidad de los agresores, coartan severamente la libertad de expresión y de prensa. Estos actos deben ser investigados con prontitud y sancionados con severidad”.
“5. La censura previa, las restricciones a la circulación de los medios o a la divulgación de sus mensajes, la imposición arbitraria de información, la creación de obstáculos al libre flujo informativo y las limitaciones al libre ejercicio y movilización de los periodistas, se oponen directamente a la libertad de prensa”.
“6. Los medios de comunicación y los periodistas no deben ser objeto de discriminaciones o favores en razón de lo que escriban o digan.” “7. Las políticas arancelarias y cambiarias, las licencias para la importación de papel o equipo periodístico, el otorgamiento de frecuencias de radio y televisión y la concesión o supresión de publicidad estatal, no deben aplicarse para premiar o castigar a medios o periodistas”.
“10. Ningún medio de comunicación o periodista debe ser sancionado por difundir la verdad o formular críticas o denuncias contra el poder público”. (El destacado no forma parte del original).
Igualmente, la Declaración de Principios sobre Libertad de Expresión (aprobada por la Comisión Interamericana de Derechos Humanos en octubre de 2000, en el 108 período ordinario), dispone, sobre este mismo tema, lo siguiente:
“5. La censura previa, interferencia o presión directa o indirecta sobre cualquier expresión, opinión o información difundida a través de cualquier medio de comunicación oral, escrito, artístico, visual o electrónico, debe estar prohibida por la ley. Las restricciones en la circulación libre de ideas y opiniones, como así también la imposición arbitraria de información y la creación de obstáculos al libre flujo informativo, violan el derecho a la libertad de expresión”.
“9. El asesinato, secuestro, intimidación, amenaza a los comunicadores sociales, así como la destrucción material de los medios de comunicación, viola los derechos fundamentales de las personas y coarta severamente la libertad de expresión. Es deber de los Estados prevenir e investigar estos hechos, sancionar a sus autores y asegurar a las víctimas una reparación adecuada”.
“13. La utilización del poder del Estado y los recursos de la hacienda pública; la concesión de prebendas arancelarias; la asignación arbitraria y discriminatoria de publicidad oficial y créditos oficiales; el otorgamiento de frecuencias de radio y televisión, entre otros, con el objetivo de presionar y castigar o premiar y privilegiar a los comunicadores sociales y a los medios de comunicación en función de sus líneas informativas, atenta contra la libertad de expresión y deben estar expresamente prohibidos por la ley. Los medios de comunicación social tienen derecho a realizar su labor en forma independiente. Presiones directas o indirectas dirigidas a silenciar la labor informativa de los comunicadores sociales son incompatibles con la libertad de expresión”. (El destacado no forma parte del original).
Como se puede observar con meridiana claridad, existen múltiples formas en que se puede manipular a los medios de forma indirecta. Incluso, la Convención Americana sobre Derechos Humanos es clara al indicar que los ejemplos citados en el ordinal 13.3 no son taxativos, al señalar que este tipo de restricciones indirectas se pueden configurar también “por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”.
Ahora, la Corte Interamericana de Derechos Humanos se ha pronunciando en distintas ocasiones respecto a la censura velada o restricciones propiamente indirectas, condenándolas contundentemente. Así, en la Sentencia Ivcher Bronstein vs. Perú (sentencia de 6 de febrero de 2001), la Corte IDH conoció un caso planteado por Baruch Ivcher Bronstein, ciudadano naturalizado del Perú y accionista mayoritario de la empresa que operaba entonces el canal 2 de la televisión de ese país. Ivcher Bronstein, en esa condición, ejercía control editorial sobre los programas, particularmente, uno llamado Contrapunto (mediante el cual se difundieron varios informes periodísticos sobre torturas, un supuesto asesinato y casos de corrupción cometidos por los Servicios de Inteligencia del Gobierno Peruano) y se demostró que, en virtud de lo anterior, este fue sometido a varios actos intimidatorios que concluyeron con la emisión de un decreto que revocó su ciudadanía peruana. En tal oportunidad, la Corte IDH dispuso que la resolución que dejó sin efecto legal la nacionalidad otorgada a Ivcher Bronstein constituyó precisamente un medio indirecto para restringir su liberad de expresión, así como la de los periodistas que laboraban en dicho programa. En tal ocasión, la Corte IDH vertió los siguientes argumentos de interés:
“(…) 158. De igual manera se ha demostrado que, como consecuencia de la línea editorial asumida por el Canal 2, el señor Ivcher fue objeto de acciones intimidatorias de diverso tipo. Por ejemplo, luego de la emisión de uno de los reportajes mencionados en el párrafo anterior, el Comando Conjunto de las Fuerzas Armadas emitió un comunicado oficial en el que denunciaba al señor Ivcher por llevar a cabo una campaña difamatoria tendiente a desprestigiar a las Fuerzas Armadas (supra párr. 76.k). Además, el mismo día en que el Ejército emitió dicho comunicado, el Poder Ejecutivo del Perú expidió un decreto supremo que reglamentó la Ley de Nacionalidad, estableciendo la posibilidad de cancelar ésta a los peruanos naturalizados (supra párr. 76.l).
159. Ha sido probado también que días después de que el Canal 2 anunciara la presentación de un reportaje sobre grabaciones ilegales de conversaciones telefónicas sostenidas por candidatos de la oposición, el Director General de la Policía Nacional informó que no se había localizado el expediente en el que se tramitó el título de nacionalidad del señor Ivcher, y que no se había acreditado que éste hubiera renunciado a su nacionalidad israelí, razón por la cual, mediante una “resolución directoral”, se dispuso dejar sin efecto el mencionado título de nacionalidad.
160. Como consecuencia de lo anterior, el 1 de agosto de 1997 el Juez Percy Escobar ordenó que se suspendiera el ejercicio de los derechos del señor Ivcher como accionista mayoritario y Presidente de la Compañía y se revocara su nombramiento como Director de la misma, se convocara judicialmente a una Junta General Extraordinaria de Accionistas para elegir un nuevo Directorio y se prohibiera la transferencia de las acciones de aquél. Además, otorgó la administración provisional de la Empresa a los accionistas minoritarios, hasta que se nombrase un nuevo Directorio, retirando así al señor Ivcher Bronstein del control del Canal 2.
161. La Corte ha constatado que, después de que los accionistas minoritarios de la Compañía asumieron la administración de ésta, se prohibió el ingreso al Canal 2 de periodistas que laboraban en el programa Contrapunto y se modificó la línea informativa de dicho programa (supra párr. 76.v).
162. En el contexto de los hechos señalados, esta Corte observa que la resolución que dejó sin efecto legal el título de nacionalidad del señor Ivcher constituyó un medio indirecto para restringir su libertad de expresión, así como la de los periodistas que laboraban e investigaban para el programa Contrapunto del Canal 2 de la televisión peruana.
163. Al separar al señor Ivcher del control del Canal 2, y excluir a los periodistas del programa Contrapunto, el Estado no sólo restringió el derecho de éstos a circular noticias, ideas y opiniones, sino que afectó también el derecho de todos los peruanos a recibir información, limitando así su libertad para ejercer opciones políticas y desarrollarse plenamente en una sociedad democrática.
164. Por todo lo expuesto, la Corte concluye que el Estado violó el derecho a la libertad de expresión consagrado en el artículo 13.1 y 13.3 de la Convención, en perjuicio de Baruch Ivcher Bronstein (…)”. (El destacado no forma parte del original).
Otro claro ejemplo de este tipo de restricciones indirectas se consigna en el caso Ricardo Canese vs. Paraguay (sentencia de 31 de agosto de 2004). El señor Ricardo Canese, quien era candidato presidencial durante la contienda electoral para las elecciones del Paraguay del año 1993, relacionó a Juan Carlos Wasmosy (también candidato), con acciones ilícitas presuntamente cometidas por este último cuando ejercía como presidente de un consorcio, las cuales, a su vez, fueron publicadas en dos diarios paraguayos. Esto originó que Canese (quien trabajaba en un medio de comunicación), fuera procesado penalmente por la comisión de los delitos de difamación e injuria, siendo condenado en primera instancia en 1994 y en segunda instancia en 1997; oportunidad en la cual, a su vez, se le impuso dos meses de prisión y una multa. Además, como consecuencia de este proceso, Canese fue sometido a una restricción permanente para salir del país (y, también, paralelamente, fue despedido del medio donde laboraba). Estas sentencias, posteriormente, fueron anuladas en diciembre de 2002 por la Sala Penal de la Corte Suprema de Justicia de Paraguay. La Corte IDH, hizo referencia a la importancia de garantizar la libertad de expresión durante una campaña electoral y, luego de analizar el caso bajo estudio, sostuvo que la sanción penal a la cual fue sometida Canese era considerada como un método indirecto de restricción a dicho derecho. Expresamente, en dicha ocasión, se indicó lo siguiente:
“(…) 3) La importancia de la libertad de pensamiento y de expresión en el marco de una campaña electoral.
88. La Corte considera importante resaltar que, en el marco de una campaña electoral, la libertad de pensamiento y de expresión en sus dos dimensiones constituye un bastión fundamental para el debate durante el proceso electoral, debido a que se transforma en una herramienta esencial para la formación de la opinión pública de los electores, fortalece la contienda política entre los distintos candidatos y partidos que participan en los comicios y se transforma en un auténtico instrumento de análisis de las plataformas políticas planteadas por los distintos candidatos, lo cual permite una mayor transparencia y fiscalización de las futuras autoridades y de su gestión. (…)
90. El Tribunal considera indispensable que se proteja y garantice el ejercicio de la libertad de expresión en el debate político que precede a las elecciones de las autoridades estatales que gobernarán un Estado. La formación de la voluntad colectiva mediante el ejercicio del sufragio individual se nutre de las diferentes opciones que presentan los partidos políticos a través de los candidatos que los representan. El debate democrático implica que se permita la circulación libre de ideas e información respecto de los candidatos y sus partidos políticos por parte de los medios de comunicación, de los propios candidatos y de cualquier persona que desee expresar su opinión o brindar información. Es preciso que todos puedan cuestionar e indagar sobre la capacidad e idoneidad de los candidatos, así como disentir y confrontar sus propuestas, ideas y opiniones de manera que los electores puedan formar su criterio para votar. En este sentido, el ejercicio de los derechos políticos y la libertad de pensamiento y de expresión se encuentran íntimamente ligados y se fortalecen entre sí. Al respecto, la Corte Europea ha establecido que:
Las elecciones libres y la libertad de expresión, particularmente la libertad de debate político, forman juntas el cimiento de cualquier sistema democrático (Cfr. Sentencia del caso Mathieu-Mohin y Clerfayt c. Belgica, de 2 de marzo de 1987, Serie A no. 113, p.22, párr. 47, y sentencia del caso Lingens c. Austria de 8 de julio 1986, Serie A no. 103, p. 26, párrs. 41-42). Los dos derechos están interrelacionados y se refuerzan el uno al otro: por ejemplo, como ha indicado la Corte en el pasado, la libertad de expresión es una de las “condiciones” necesarias para “asegurar la libre expresión de opinión del pueblo en la elección del cuerpo legislativo” (ver la sentencia mencionada más arriba del caso Mathieu-Mohin y Clerfayt, p. 24, párr. 54). Por esta razón[,] es particularmente importante que las opiniones y la información de toda clase puedan circular libremente en el período que antecede a las elecciones.
91. La Corte observa que, en sus declaraciones, la presunta víctima hizo referencia a que la empresa CONEMPA, cuyo presidente era el señor Juan Carlos Wasmosy, en ese entonces candidato presidencial, le “pasaba” “dividendos” al ex dictador Stroessner. Ha quedado demostrado, así como también es un hecho público, que dicho consorcio era una de las dos empresas encargadas de ejecutar las obras de construcción de la central hidroeléctrica de Itaipú, una de las mayores represas hidroeléctricas del mundo y la principal obra pública del Paraguay.
92. La Corte estima que no queda duda de que las declaraciones que hiciera el señor Canese en relación con la empresa CONEMPA atañen a asuntos de interés público, pues en el contexto de la época en que las rindió dicha empresa se encargaba de la construcción de la mencionada central hidroeléctrica. Conforme fluye del acervo probatorio del presente caso (supra párr. 69.4), el propio Congreso Nacional, a través de su Comisión Bicameral de Investigación de Ilícitos, se encargó de la investigación sobre corrupción en Itaipú, en la cual se involucraba al señor Juan Carlos Wasmosy y a la referida empresa.
93. La Corte observa que la Sala Penal de la Corte Suprema de Justicia del Paraguay, al emitir la decisión por la cual anuló las sentencias condenatorias dictadas en 1994 y 1997 (supra párr. 69.49), indicó que las declaraciones que el señor Canese rindió en el marco político de una campaña electoral a la Presidencia de la República, “necesariamente importan en una Sociedad Democrática, encaminada a una construcción participativa y pluralista del Poder, una cuestión de interés público”.
94. En el presente caso, al emitir las declaraciones por las que fue querellado y condenado, el señor Canese estaba ejercitando su derecho a la libertad de pensamiento y de expresión en el marco de una contienda electoral, en relación con una figura pública como es un candidato presidencial, sobre asuntos de interés público, al cuestionar la capacidad e idoneidad de un candidato para asumir la Presidencia de la República. Durante la campaña electoral, el señor Canese fue entrevistado sobre la candidatura del señor Wasmosy por periodistas de dos diarios nacionales, en su carácter de candidato presidencial. Al publicar las declaraciones del señor Canese, los diarios “ABC Color” y “Noticias” jugaron un papel esencial como vehículos para el ejercicio de la dimensión social de la libertad de pensamiento y de expresión, pues recogieron y transmitieron a los electores la opinión de uno de los candidatos presidenciales respecto de otro de ellos, lo cual contribuye a que el electorado cuente con mayor información y diferentes criterios previo a la toma de decisiones.
98. El Tribunal ha establecido que es lógico y apropiado que las expresiones concernientes a funcionarios públicos o a otras personas que ejercen funciones de una naturaleza pública deben gozar, en los términos del artículo 13.2 de la Convención, de un margen de apertura a un debate amplio respecto de asuntos de interés público, el cual es esencial para el funcionamiento de un sistema verdaderamente democrático. Este mismo criterio se aplica respecto de las opiniones o declaraciones de interés público que se viertan en relación con una persona que se postula como candidato a la Presidencia de la República, la cual se somete voluntariamente al escrutinio público, así como respecto de asuntos de interés público en los cuales la sociedad tiene un legítimo interés de mantenerse informada, de conocer lo que incide sobre el funcionamiento del Estado, afecta intereses o derechos generales, o le acarrea consecuencias importantes. Como ha quedado establecido, no hay duda de que las declaraciones que hiciera el señor Canese en relación con la empresa CONEMPA atañen a asuntos de interés público (supra párr. 92).
99. En este sentido, la Sala Penal de la Corte Suprema de Justicia del Paraguay, al emitir el 11 de diciembre de 2002 (supra párr. 69.49) la decisión por la cual anuló las sentencias condenatorias dictadas en 1994 y 1997 y absolvió a la presunta víctima de culpa y pena, se refirió al carácter y relevancia de las declaraciones de ésta, al señalar, inter alia, que [l]as afirmaciones del Ing. Canese, -en el marco político de una campaña electoral a la primera magistratura-, necesariamente importan en una Sociedad Democrática, encaminada a una construcción participativa y pluralista del Poder, una cuestión de interés público. Nada más importante y público que la discusión y posterior elección popular del Primer Magistrado de la República.
100. Las anteriores consideraciones no significan, de modo alguno, que el honor de los funcionarios públicos o de las personas públicas no deba ser jurídicamente protegido, sino que éste debe serlo de manera acorde con los principios del pluralismo democrático. Asimismo, la protección de la reputación de particulares que se encuentran inmiscuidos en actividades de interés público también se deberá realizar de conformidad con los principios del pluralismo democrático. (…)
103. Es así que tratándose de funcionarios públicos, de personas que ejercen funciones de una naturaleza pública y de políticos, se debe aplicar un umbral diferente de protección, el cual no se asienta en la calidad del sujeto, sino en el carácter de interés público que conllevan las actividades o actuaciones de una persona determinada. Aquellas personas que influyen en cuestiones de interés público se han expuesto voluntariamente a un escrutinio público más exigente y, consecuentemente, en ese ámbito se ven sometidos a un mayor riesgo de sufrir críticas, ya que sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público. En este sentido, en el marco del debate público, el margen de aceptación y tolerancia a las críticas por parte del propio Estado, de los funcionarios públicos, de los políticos e inclusive de los particulares que desarrollan actividades sometidas al escrutinio público debe ser mucho mayor que el de los particulares. En esta hipótesis se encuentran los directivos de la empresa CONEMPA, consorcio al cual le fue encargada la ejecución de gran parte de las obras de construcción de la central hidroeléctrica de Itaipú 104. Con base en las anteriores consideraciones, corresponde al Tribunal determinar si, en este caso, la aplicación de responsabilidades penales ulteriores respecto del supuesto ejercicio abusivo del derecho a la libertad de pensamiento y de expresión a través de declaraciones relativas a asuntos de interés público, puede considerarse que cumple con el requisito de necesariedad en una sociedad democrática. Al respecto, es preciso recordar que el Derecho Penal es el medio más restrictivo y severo para establecer responsabilidades respecto de una conducta ilícita.
105. El Tribunal estima que en el proceso seguido contra el señor Canese los órganos judiciales debieron tomar en consideración que aquel rindió sus declaraciones en el contexto de una campaña electoral a la Presidencia de la República y respecto de asuntos de interés público, circunstancia en la cual las opiniones y críticas se emiten de una manera más abierta, intensa y dinámica acorde con los principios del pluralismo democrático. En el presente caso, el juzgador debía ponderar el respeto a los derechos o a la reputación de los demás con el valor que tiene en una sociedad democrática el debate abierto sobre temas de interés o preocupación pública.
106. El proceso penal, la consecuente condena impuesta al señor Canese durante más de ocho años y la restricción para salir del país aplicada durante ocho años y casi cuatro meses, hechos que sustentan el presente caso, constituyeron una sanción innecesaria y excesiva por las declaraciones que emitió la presunta víctima en el marco de la campaña electoral, respecto de otro candidato a la Presidencia de la República y sobre asuntos de interés público; así como también limitaron el debate abierto sobre temas de interés o preocupación pública y restringieron el ejercicio de la libertad de pensamiento y de expresión del señor Canese de emitir sus opiniones durante el resto de la campaña electoral. De acuerdo con las circunstancias del presente caso, no existía un interés social imperativo que justificara la sanción penal, pues se limitó desproporcionadamente la libertad de pensamiento y de expresión de la presunta víctima sin tomar en consideración que sus declaraciones se referían a cuestiones de interés público. Lo anterior constituyó una restricción o limitación excesiva en una sociedad democrática al derecho a la libertad de pensamiento y de expresión del señor Ricardo Canese, incompatible con el artículo 13 de la Convención Americana.
107. Asimismo, el Tribunal considera que, en este caso, el proceso penal, la consecuente condena impuesta al señor Canese durante más de ocho años y las restricciones para salir del país durante ocho años y casi cuatro meses constituyeron medios indirectos de restricción a la libertad de pensamiento y de expresión del señor Canese. Al respecto, después de ser condenado penalmente, el señor Canese fue despedido del medio de comunicación en el cual trabajaba y durante un período no publicó sus artículos en ningún otro diario.
108. Por todo lo expuesto, la Corte considera que el Estado violó el derecho a la libertad de pensamiento y de expresión consagrado en el artículo 13 de la Convención Americana, en relación con el artículo 1.1 de dicho tratado, en perjuicio del señor Ricardo Canese, dado que las restricciones al ejercicio de este derecho impuestas a éste durante aproximadamente ocho años excedieron el marco contenido en dicho artículo (…)”.(El destacado no forma parte del original).
Igualmente, de sumo y gran interés resulta el caso Granier y otros (Radio Caracas Televisión) vs. Venezuela (sentencia de 22 de junio de 2015). En este asunto, la Corte IDH tuvo por probada la existencia de un ambiente conflictivo y de tensión en Venezuela, producto del golpe de Estado sufrido, el cual, a su vez, originó una polarización política (radicalización de las posturas de los sectores involucrados) y coadyuvó a que el gobierno acusara a los medios de comunicación privados, entre ellos a RCTV (Radio Caracas Televisión), de ser enemigos del gobierno, golpistas y fascistas. La Corte tuvo por demostrado también que el Estado de Venezuela buscó la forma de silenciar a dicho medio de comunicación (habida cuenta que expresaba ideas diferentes a las políticas de gobierno manteniendo una línea crítica a la Presidencia de Hugo Chávez), a través de la no renovación, en el año 2007, de la concesión de uso del espectro radioeléctrico (la cual poseía desde su fundación en el año 1953), lo cual, evidentemente, coartó a este, de forma indirecta o velada, la posibilidad de continuar funcionando y continuar difundiendo información disidente, en clara violación a la libertad de expresión. En esta sentencia, de forma relevante, la Corte IDH sostuvo que dicha decisión fue precedida por diversas declaraciones públicas emitidas, tanto por el Presidente de la República como por otros funcionarios, quienes generaron un ambiente de intimidación. Particularmente, se indicó que el entonces Presidente Chávez, realizó, entre otras, las siguientes manifestaciones:
“(…) 75. (…) a) la declaración del Presidente Chávez de 9 de junio de 2002 en su Programa “Aló Presidente”, en la que afirmó: “las televisoras y las radios, las emisoras, aún cuando sean privadas sólo hacen uso de una concesión, el Estado es el dueño [...], y el Estado le da permiso a un grupo de empresarios que así lo piden para que operen, para que lancen la imagen por esa tubería, pero el Estado se reserva el permiso. Es como si alguien quisiera utilizar una tubería de aguas para surtir agua a un pueblo que sea del Estado, y el Estado le da el permiso. [...] Suponte tú que […] le demos el permiso para que use la tubería de agua [y] comience a envenenar el agua. […] [Hay que] inmediatamente no sólo quitarle el permiso, meterlo preso. Está envenenando a la gente, eso pasa, igualito es el caso [y] la misma lógica, la misma explicación con un canal de televisión”; b) la declaración del Presidente Chávez de 12 de enero de 2003 en su programa “Aló Presidente”, en la que expresó: “Igual pasa con estos dueños de canales de televisión y los dueños de las emisoras de radio; ellos también tienen una concesión del Estado, pero no les pertenece la señal. La señal le pertenece al Estado. Eso quiero dejarlo bien claro, quiero dejarlo bien claro porque si los dueños de estas televisoras y emisoras de radio continúan en su empeño irracional por desestabilizar nuestro país, por tratar de darle pie a la subversión, porque es subversión, sin duda, […] es subversión en este caso fascista y es alentada por los medios de comunicación, por estos señores que he mencionado y otros más que no voy a mencionar. Así lo adelanto a Venezuela. He ordenado revisar todo el procedimiento jurídico a través de los cuales se les dio la concesión a estos señores. La estamos revisando y si ellos no recuperan la normalidad en la utilización de la concesión, si ellos siguen utilizando la concesión para tratar de quebrar el país, o derrocar el gobierno, pues yo estaría en la obligación de revocarles la concesión que se les ha dado para que operen los canales de televisión”; c) la declaración del Presidente Chávez de 9 de noviembre de 2003 en su programa “Aló Presidente”, a través de la cual manifestó: “no voy a permitir que ustedes lo hagan de nuevo, […] ustedes: Globovisión, Televén, Venevisión y RCTV mañana o pasado mañana [Ministro] Jesse Chacón, le di una orden, usted debe tener un equipo de analistas y de observadores 24 horas al día mirando todos los canales simultáneamente y debemos tener claro, yo lo tengo claro, cual es la raya de la cual ellos no deben pasarse, y ellos deben saber, es la raya de la ley pues. En el momento en que pasen la raya de la ley serán cerrados indefectiblemente para asegurarle la paz a Venezuela, para asegurarle a Venezuela la tranquilidad”, y d) el 9 de mayo de 2004, el Presidente Chávez declaró en su programa “Aló Presidente”: [a]quí los que violan el derecho a la información, el derecho a la libertad de expresión, son los dueños de los medios de comunicación privados, son algunas excepciones, pero sobretodo los grandes canales de televisión Venevisión, Globovisión, RCTV […] los dueños de estos medios de comunicación están comprometidos con el golpismo, el terrorismo y la desestabilización, y yo pudiera decir a estas alturas no me queda ninguna duda, que los dueños de esos medios de comunicación nosotros bien podemos declararlos enemigos del pueblo de Venezuela (…)
80. (…) a) la declaración del Presidente Chávez de 28 de diciembre de 2006, por ocasión de su saludo de fin de año a las Fuerzas Armadas, en la cual expresó: “Hay un señor por ahí de esos representantes de la oligarquía, que quería ser presidente de la oligarquía, y que luego esos Gobiernos adecos-copeyanos le dieron concesiones para tener un canal de televisión y él ahora anda diciendo que esa concesión es eterna, se le acaba en marzo la concesión de televisión, se le acaba en marzo, así que mejor que vaya preparando sus maletas y vaya viendo a ver qué va a hacer a partir de marzo, no habrá nueva concesión para ese canal golpista de televisión que se llamó Radio Caracas Televisión, se acaba la concesión, ya está redactada la medida, así que vayan preparándose, apagando los equipos pues, no se va tolerar aquí ningún medio de comunicación que esté al servicio del golpismo, contra el pueblo, contra la nación, contra la independencia nacional, contra la dignidad de la República, Venezuela se respeta, lo anuncio antes que llegue la fecha para, para que no sigan ellos con su cuentito de que no que son 20 años más, 20 años más yo te aviso chirulí, 20 años más si es bueno, se te acabo, se te acabo (…)
Asimismo, en esta oportunidad y, conforme los siguientes términos, la Corte explicó cómo, en este caso en particular, se dio una violación al artículo 13.3 de la Convención Americana sobre Derechos Humanos:
“(…) 148. Al respecto, la Corte ha señalado anteriormente que los medios de comunicación son verdaderos instrumentos de la libertad de expresión, que sirven para materializar este derecho y que juegan un papel esencial como vehículos para el ejercicio de la dimensión social de esta libertad en una sociedad democrática, razón por la cual es indispensable que recojan las más diversas informaciones y opiniones. En efecto, este Tribunal coincide con la Comisión respecto a que los medios de comunicación son, generalmente, asociaciones de personas que se han reunido para ejercer de manera sostenida su libertad de expresión, por lo que es inusual en la actualidad que un medio de comunicación no esté a nombre de una persona jurídica, toda vez que la producción y distribución del bien informativo requieren de una estructura organizativa y financiera que responda a las exigencias de la demanda informativa. De manera semejante, así como los sindicatos constituyen instrumentos para el ejercicio del derecho de asociación de los trabajadores y los partidos políticos son vehículos para el ejercicio de los derechos políticos de los ciudadanos, los medios de comunicación son mecanismos que sirven al ejercicio del derecho a la libertad de expresión de quienes los utilizan como medio de difusión de sus ideas o informaciones. (…)
151. En consecuencia, la Corte Interamericana considera que las restricciones a la libertad de expresión frecuentemente se materializan a través de acciones estatales o de particulares que afectan, no solo a la persona jurídica que constituye un medio de comunicación, sino también a la pluralidad de personas naturales, tales como sus accionistas o los periodistas que allí trabajan, que realizan actos de comunicación a través de la misma y cuyos derechos también pueden verse vulnerados (…)
152. Al respecto, debe advertirse que hoy en día una parte importante del periodismo se ejerce a través de personas jurídicas y se reitera que es fundamental que los periodistas que laboran en estos medios de comunicación gocen de la protección y de la independencia necesarias para realizar sus funciones a cabalidad, ya que son ellos los que mantienen informada a la sociedad, requisito indispensable para que ésta goce de una plena libertad. En especial, teniendo en cuenta que su actividad es la manifestación primaria de la libertad de expresión del pensamiento y se encuentra garantizada específicamente por la Convención Americana (…)
1.3. Restricciones indirectas – alcances del artículo 13.3 de la Convención 161. En el presente caso se ha argumentado que se estaría frente a una posible restricción indirecta al derecho a la libertad de expresión, razón por la cual la Corte resalta que el artículo 13.3 de la Convención hace referencia expresa a tal situación al señalar que “[n]o se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”. Este Tribunal considera que el alcance del artículo 13.3 de la Convención debe ser el resultado de una lectura conjunta con el artículo 13.1 de la Convención, en el sentido que una interpretación amplia de esta norma permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas.
162. Al respecto, la Corte señala que lo que busca este inciso es ejemplificar formas más sutiles de restricción al derecho a la libertad de expresión por parte de autoridades estatales o particulares. En efecto, este Tribunal ha tenido la oportunidad de declarar en casos anteriores la restricción indirecta producida, por ejemplo, mediante una decisión que dejó “sin efecto legal el título de nacionalidad” del accionista mayoritario de un canal de televisión o por “el proceso penal, la consecuente condena impuesta […] durante más de ocho años y las restricciones para salir del país durante ocho años” en contra de un candidato presidencial.
163 Por otra parte, la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. En este sentido, el artículo 13 de la Declaración de Principios sobre la Libertad de Expresión indica otros ejemplos de medios o vías indirectas (…)
Igualmente, el perito García Belaunde durante la audiencia pública hizo referencia a otras posibles formas de restricción indirecta relacionadas con: i) “la publicidad, [ya que] los Estados son importantes agentes de publicidad y […] dar mucha publicidad o quitarla puede ser importante y, dado el caso, puede haber una especie de asfixia para los medios que básicamente viven de la publicidad”, o ii) “la tributación [cuando se dan] casos [en] que [las] empresas […] han sido cargadas tributariamente” con el fin de generar molestias o enviar mensajes al medio de comunicación.
164. Asimismo, la Corte recuerda que para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, en forma indirecta, la comunicación y la circulación de ideas y opiniones. Además, la Corte reitera que el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también controles particulares que produzcan el mismo resultado. Al respecto, la Corte resalta que la restricción indirecta puede llegar a generar un efecto disuasivo, atemorizador e inhibidor sobre todos los que ejercen el derecho a la libertad de expresión, lo que, a su vez, impide el debate público sobre temas de interés de la sociedad. (…)
170. (…) Este Tribunal estima que, dado que el espacio radioeléctrico es un bien escaso, con un número determinado de frecuencias, esto limita el número de medios que pueden acceder a ellas, por lo que es necesario asegurar que en ese número de medios se halle representada una diversidad de visiones o posturas informativas o de opinión. La Corte resalta que el pluralismo de ideas en los medios no se puede medir a partir de la cantidad de medios de comunicación, sino de que las ideas y la información transmitidas sean efectivamente diversas y estén abordadas desde posturas divergentes sin que exista una única visión o postura. Lo anterior debe tenerse en cuenta en los procesos de otorgamiento, renovación de concesiones o licencias de radiodifusión. En este sentido, el Tribunal considera que los límites o restricciones que se deriven de la normatividad relacionada con la radiodifusión deben tener en cuenta la garantía del pluralismo de medios dada su importancia para el funcionamiento de una sociedad democrática (…)
3. Alegada restricción indirecta a la libertad de expresión establecida en el artículo 13.3 de la Convención Americana (…)
193. Ahora bien, para efectuar un análisis del recuento de declaraciones reseñado anteriormente es imperioso realizar una lectura conjunta de las declaraciones y señalamientos, por cuanto de manera aislada no podrían configurar autónomamente hechos constitutivos de una vulneración a la Convención Americana. Esto debido a que el hecho de que varios funcionarios hayan realizado declaraciones en el mismo sentido durante un mismo lapso, demuestra que no fueron declaraciones aisladas. Teniendo en cuenta lo anterior, la Corte procederá a efectuar una valoración de lo allí expuesto con el fin de determinar si existieron razones o motivos por los cuales se arribó a dicha decisión distintos a la finalidad declarada, por cuanto, como ya lo señaló, tener en cuenta el motivo o propósito es relevante para el análisis jurídico de un caso, en especial si se busca determinar si se configuró una actuación arbitraria o una desviación de poder (supra párr. 189). En primer lugar, la Corte resalta que desde el año 2002 se venía advirtiendo que a los canales de televisión que no modificaran su línea editorial no se les renovaría su concesión (supra párr. 75) y que este tipo de declaraciones se acrecentaron cuando se acercó la fecha del vencimiento de las concesiones (supra párrs. 76 a 78). A partir de 2006, en varias de dichas declaraciones que fueron anteriores a la Comunicación Nº 0424 y la Resolución Nº 002 se anunció que la decisión de no renovar la concesión a RCTV ya se encontraba tomada y no sería revaluada o modificada (supra párr. 79 a 86). Asimismo, vale la pena resaltar que no solamente fueron declaraciones de funcionarios estatales en diversos medios de comunicación, sino que además se hicieron publicaciones en diarios nacionales y hasta la divulgación de un libro con el fin de anunciar y justificar la decisión de no renovar la concesión de RCTV. Por lo anterior, el Tribunal puede concluir, en primer lugar, que la decisión fue tomada con bastante anterioridad a la finalización del término de la concesión y que la orden fue dada a CONATEL y al Ministerio para la Telecomunicación desde el ejecutivo.
194. Respecto a las verdaderas razones que habrían motivado la decisión, en las declaraciones y las publicaciones hechas por distintos miembros del gobierno venezolano estas son: i) la no modificación de la línea editorial por parte de RCTV después del golpe de estado de 2002 a pesar de las advertencias realizadas desde ese año, y ii) las alegadas actuaciones irregulares en las que habría incurrido RCTV y que le habrían acarreado sanciones. Sobre la primera razón esgrimida, la Corte considera imperioso manifestar que no es posible realizar una restricción al derecho a la libertad de expresión con base en la discrepancia política que pueda generar una determinada línea editorial a un gobierno. Como fue señalado anteriormente, el derecho a la libertad de expresión no sólo debe garantizarse en lo que respecta a la difusión de información o ideas que son recibidas favorablemente o consideradas como inofensivas o indiferentes, sino especialmente en lo que toca a las que resultan ingratas para el Estado o cualquier sector de la población (supra párr. 140). Con relación a las alegadas actuaciones irregulares en las que habría incurrido RCTV y que le habrían acarreado sanciones, el Tribunal resalta que resulta contradictorio que se hicieran señalamientos y acusaciones sobre las alegadas sanciones y que en la comunicación Nº 0424 se indicara expresamente que estas no eran la justificación de la decisión. En especial, la Corte resalta que a pesar de la gravedad de los hechos relacionados con el golpe de Estado no se probó ante este Tribunal que a nivel interno se hubieran adoptado procedimientos tendientes a sancionar dichas actuaciones irregulares, de forma que no es posible que se utilizara como argumento para fundamentar la decisión lo sucedido durante el golpe, cuando dichas actuaciones no fueron sancionadas en su momento.
195. En este punto, el Tribunal considera necesario reiterar el precedente establecido en otro caso relacionado con este mismo medio de comunicación, según el cual en una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento. Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado.
196. Asimismo, el Tribunal denota que de las declaraciones aportadas en el presente caso contencioso sólo una habría hecho mención a la finalidad declarada en la Comunicación Nº 0424 y la Resolución Nº 002, es decir, la protección a la pluralidad de medios, mientras que en su mayoría las restantes declaraciones coinciden en invocar las otras declaraciones. Lo anterior, le permite concluir a la Corte, en segundo lugar, que la finalidad declarada no era la real y que sólo se dio con el objetivo de dar una apariencia de legalidad a las decisiones.
4. Conclusión sobre el derecho a la libertad de expresión.
197. La Corte concluye entonces, como lo ha hecho en otros casos, que los hechos del presente caso implicaron una desviación de poder, ya que se hizo uso de una facultad permitida del Estado con el objetivo de alinear editorialmente al medio de comunicación con el gobierno. La anterior afirmación se deriva a partir de las dos conclusiones principales a las cuales puede arribar este Tribunal a partir de lo descrito anteriormente, a saber, que la decisión se encontraba tomada con anterioridad y que se fundaba en las molestias generadas por la línea editorial de RCTV, sumado al contexto sobre el “deterioro a la protección a la libertad de expresión” que fue probado en el presente caso (supra párr. 61).
198. Asimismo, este Tribunal considera necesario resaltar que la desviación de poder aquí declarada tuvo un impacto en el ejercicio de la libertad de expresión, no sólo en los trabajadores y directivos de RCTV, sino además en la dimensión social de dicho derecho (supra párr. 136), es decir, en la ciudadanía que se vio privada de tener acceso a la línea editorial que RCTV representaba. En efecto, la finalidad real buscaba acallar voces críticas al gobierno, las cuales se constituyen junto con el pluralismo, la tolerancia y el espíritu de apertura, en las demandas propias de un debate democrático que, justamente, el derecho a la libertad de expresión busca proteger.
199. Se encuentra probado, en consecuencia, que en el presente caso se configuró una restricción indirecta al ejercicio del derecho a la libertad de expresión producida por la utilización de medios encaminados a impedir la comunicación y circulación de la ideas y opiniones, al decidir el Estado que se reservaría la porción del espectro y, por tanto, impedir la participación en los procedimientos administrativos para la adjudicación de los títulos o la renovación de la concesión a un medio que expresaba voces críticas contra el gobierno, razón por la cual el Tribunal declara la vulneración del artículo 13.1 y 13.3 en relación con el artículo 1.1 de la Convención Americana en perjuicio Marcel Granier, Peter Bottome, Jaime Nestares, Inés Bacalao, Eladio Lárez, Eduardo Sapene, Daniela Bergami, Miguel Ángel Rodríguez, Soraya Castellano, María Arriaga y Larissa Patiño. (…)”. (El destacado no forma parte del original).
Este Tribunal Constitucional, por su parte, también ha tenido la oportunidad de condenar este tipo de actuaciones. En la Sentencia No. 1782-2015 de las 11:36 hrs. de 6 de febrero de 2015, esta jurisdicción constitucional conoció un recurso de amparo formulado por un productor de un programa radial de crítica, opinión y denuncia, donde, a su vez, se estaba denunciando e investigando aparentes actos de corrupción llevados a cabo por un diputado. El recurrente acusó en tal ocasión que el referido diputado envió cartas membretadas y selladas con su firma de la Asamblea Legislativa a las instituciones que pautaban publicidad y que hacían posible la existencia del referido programa, amenazándolas de demandarlas si no retiraban dicha publicidad de manera inmediata, habida cuenta que lo consideraba una campaña de desprestigio en su contra. Luego de analizarse el citado caso, esta Sala, en dicha oportunidad, sostuvo que las notas enviadas por dicho diputado a diversas instituciones públicas con el fin que se retirara la publicidad del programa de radio del recurrente (la cual además, se constituía en el principal soporte financiero que permitía la trasmisión de los programas radiales y, a su vez, el sustento económico de las personas que trabajan en dicho programa), constituía una censura indirecta o velada a la libertad de expresión. Lo anterior, conforme los siguientes términos:
“(…) Ahora bien, en la especie, el recurrido dirigió una misiva a varias instituciones públicas, usando papel con el membrete y el sello de la Asamblea Legislativa, en la cual manifestaba:
“(…) 4.- En mi caso particular, en claro derecho de tutelar mi integridad personal, profesional y moral, fundamentaré la querella contra el productor de ese especio radial y solidariamente contra sus patrocinadores, pues basta con que ustedes monitoreen puntualmente a las 8 pm la frecuencia 800 AM y escuchen, dentro de la misma parrilla de patrocinadores a la que esta institución pertenece como auspiciador del programa en cuestión, junto a la cuña que ustedes pagan con dinero público, otra cuña grabada con la voz del propio señor [Nombre 001] en la que le pregunta a los ciudadanos si le creen a un Diputado mentiroso, investigado por falsificador y estafador, aspirante a graduarse de abogado en forma irregular, denunciado por el TSE por querer sustraer millonarias sumas de dinero mediante el uso de documentos falsos y más señalamientos infundados, aprovechando el productor radial al amparo de sus patrocinadores, para presionar de forma temeraria al Señor Fiscal General a que actúe contra el suscrito, evitando así la impunidad, como si el Jefe del Ministerio Público estuviese encubriendo deliberadamente una serie de delitos cometidos por este servidor.
5.- Por la consideración que se merecen, respetuosamente les prevengo de este asunto y les insto a valorar como una responsable medida cautelar, la posibilidad de sacar del aire la publicidad institucional que pagan en este programa radial, mientras resolvemos en los tribunales la querella que estamos por incoar, con el propósito de no empañar judicialmente ni perjudicar la sana imagen que los costarricenses tienen de esta noble institución, la cual debe ser protegida y no debería verse inmiscuida en asuntos tan deplorables y ajenos al honroso quehacer de ustedes, con lo que mis abogados desestimarían de inmediato a petición del suscrito, la eventual demanda solidaria extensiva contra esta entidad pública. (…)” (Extracto de la nota dirigida a Correos de Costa Rica S.A., aportada por el recurrente; lo destacado no corresponde al original).
La excitativa enviada a las instituciones públicas con el fin de que ellas retiraran la publicidad del programa de radio del amparado, se enmarca dentro de los casos de censura indirecta a la libertad de expresión por varias razones.
Primeramente, la publicidad provee el principal soporte financiero que permite la transmisión de los programas radiales y, a la postre, el sustento económico de las personas que trabajan en dicho programa. Es evidente que si se limita el ingreso económico del programa, también se llega a perjudicarlo o –inclusive- eliminarlo, todo en detrimento tanto de la libertad de expresión como de la de información. La situación descrita resulta incluso más grave cuando se trata medios de comunicación pequeños, como periódicos locales o pequeñas estaciones de radio, cuya estabilidad financiera puede llegar a depender en gran medida de la publicidad estatal. En el caso Tristán Donoso, la Corte Interamericana se pronunció en cuanto a las amenazas económicas a la libertad de expresión:
“129. Finalmente, si bien la sanción penal de días-multa no aparece como excesiva, la condena penal impuesta como forma de responsabilidad ulterior establecida en el presente caso es innecesaria. Adicionalmente, los hechos bajo el examen del Tribunal evidencian que el temor a la sanción civil, ante la pretensión del ex Procurador de una reparación civil sumamente elevada, puede ser a todas luces tan o más intimidante e inhibidor para el ejercicio de la libertad de expresión que una sanción penal, en tanto tiene la potencialidad de comprometer la vida personal y familiar de quien denuncia a un funcionario público, con el resultado evidente y disvalioso de autocensura, tanto para el afectado como para otros potenciales críticos de la actuación de un servidor público”.
En segundo lugar, un diputado de la República no es un ciudadano cualquiera, sino que ostenta un poder político particular debido a su incidencia en la aprobación de proyectos de ley, respecto de los cuales existe cantidad de intereses tanto privados como públicos. Ergo, una recomendación o retiro de publicidad de un programa radial, emitido por un funcionario en una particular posición de poder político y teniendo como leitmotiv su disconformidad con las críticas contra él difundidas por determinado medio de comunicación, constituye una forma velada de intimidación que no solo afecta al programa radial directamente aludido, sino que además envía un mensaje intimidante al resto de medios fomentando un ambiente hostil a las libertades de expresión e información esenciales en un sistema democrático. En el sub iudice, tal amenaza incluso pasó a tener efectos concretos, en la medida que, según la prueba aportada por el accionante, la pauta publicitaria del ICAA, programada para el periodo del 15 de octubre al 15 de noviembre de 2014, fue suspendida mientras se respondía el oficio del recurrido. Si las demás entidades a las que el recurrido dirigió su oficio, hubieran actuado de igual manera, eso hubiera derivado en una grave afectación a la estabilidad financiera del citado programa radial, todo ello teniendo como génesis la inconformidad de un funcionario público con las críticas difundidas en el mismo.
Lo anterior no implica que sea de poca importancia la alegada violación al honor del recurrido y de quienes podrían ser eventualmente responsables por ello. Todo lo contrario, lo reclamado por el recurrido es tan relevante que el ordenamiento jurídico ha establecido vías procesales apropiadas y razonables tanto para defender el honor de la persona afectada (por ejemplo a través de un proceso penal), como para velar por la exactitud de la información divulgada (derecho de rectificación y respuesta).
Ahora bien, las notas aclaratorias enviadas por el accionado en octubre pasado a las instituciones públicas, no afectan el razonamiento de esta Sala. Por un lado, son actuaciones ocurridas con posterioridad a la notificación del curso de este proceso –las notas fueron entregadas a dichas instituciones los días 7 y 8 de octubre de 2014; mientras que la notificación acaeció el 6 de octubre de 2014-. Por el otro, la Sala observa que, si bien se aclaró mediante tales notas que la “…anterior carta enviada al respecto de este asunto, no buscaba imponerles necesariamente la obligación de tener que retirar su publicidad de ese programa…”, también se indicó un apercibimiento a las instituciones motivado nuevamente en las críticas hechas al recurrido:
“5.- No omito señalarles respetuosamente su deber de cuidado, entendido en ejercer un mayor control de los recursos que en materia de propaganda, publicidad o información ustedes disponen pautar en medios de comunicación, manteniendo al menos un monitoreo mínimo que les permita conocer como en el caso del CD que les aporto [el cual contiene una edición del programa “Rompiendo El Silencio”], la calidad de manifestaciones proferidas en los espacios en los que ustedes pautan.” (Extracto de la nota dirigida al Instituto Nacional de Aprendizaje, aportada por el recurrido).
Por último, debe acotarse que los funcionarios públicos sí pueden manifestarse en torno a temas de interés público. Sin embargo, ellos son garantes de los derechos fundamentales, de manera que las expresiones que pronuncien deben evitar tornarse en una forma de censura directa o indirecta. Nuevamente, se cita a la Corte Interamericana de Derechos Humanos:
“139. En una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento. Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado.” (Caso Ríos y otros) En conclusión, la Sala estima el recurrido tiene todo el derecho a defender su honor y reputación por medio de los mecanismos legales que prevé la Constitución y la ley, entre ellos, el derecho de rectificación y respuesta y la querella por los delitos de injurias calumnias y difamación regulada en el Código Penal. En ese sentido, el envío de una nota a los patrocinadores del programa indicando que consideren retirar su patrocinio por el contenido negativo del mismo contra su imagen, constituyó una censura indirecta –en los términos señalados en la jurisprudencia de la Corte Interamericana supra citada-, al programa radial “Rompiendo El Silencio”. En la valoración que se hace tiene un peso específico el hecho de que el recurrido ostenta una posición de poder político por su cargo de Diputado de la República, y que efectivamente su misiva causó un efecto negativo más allá de un simple reclamo, al haberse acreditado en autos que produjo efectos sobre uno de los patrocinadores, quien suspendió temporalmente la publicidad (ICAA). Consecuentemente, se declara con lugar dicho extremo (…)”. (El destacado no forma parte del original).
El año siguiente, sea, durante el 2016, la Sala Constitucional conoció otro recurso de amparo donde se hizo alusión a una forma distinta e indirecta de atentar contra la libertad de expresión, el cual, a su vez, fue resuelto mediante el Voto No. 15220-2016 de las 16:00 hrs. de 18 de octubre de 2016. En esta ocasión, el recurrente, en su condición de director de un período de circulación nacional, alegó que, en virtud de una serie de noticias publicadas respecto a varias actuaciones irregulares llevadas a cabo por una entidad bancaria, los directivos de esta última decidieron manipular, presionar y tratar de callar al medio de comunicación a través de la reducción paulatina de la pauta publicitaria en las páginas del diario. Una vez analizadas y estudiadas las argumentaciones vertidas por ambas partes, así como la prueba aportada, este órgano constitucional tuvo por acreditado que el citado medio de comunicación fue efectivamente objeto de una censura velada o indirecta por parte de un funcionario público “(…) como reacción a su línea editorial, con el único propósito de "motivar" un cambio, es decir, manipular al medio para acercarlo a sus propósitos, ya fuera conseguir una cita con uno de los dueños del medio, o un mayor espacio sobre la versión del Banco frente a los cuestionamientos hechos. Todo lo cual sin duda, resulta lesivo del artículo 13.1 de la Convención Americana sobre Derechos Humanos y 28 y 29 de la Constitución Política (…)”. Además, esta jurisdicción, en aquella ocasión, enfatizó en el hecho que la publicidad se consideraba el soporte financiero fundamental en el esquema de funcionamiento de los medios de comunicación, de manera tal que esta era la que permitía la publicación o difusión de su contenido y, por ende, también el sustento de las personas que trabajan en este. De modo expreso, esta Sala, en la mencionada sentencia, expuso lo siguiente:
“(…) VII.- Conviene profundizar en este tema de la censura previa, a fin de dar solución al caso examinado, siguiendo la línea ya establecida en la sentencia 2015-1782. Al respecto, el inciso tercero del artículo 13 de la Convención Americana señala con claridad:
“ 3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” En este sentido, la censura puede ser directa –por ejemplo, la prohibición directa de cierta publicación- o indirecta (también denominada soft censorship, censura sutil, velada) -por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación-. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería “…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” Valga mencionar el caso Ivcher Bronstein a manera de ejemplo, en el cual la Corte Interamericana estimó que una resolución para dejar sin efecto legal el título de nacionalidad del señor Ivcher Bronstein –entre otros hechos- constituía un medio indirecto de restringir su libertad de expresión. También, dentro del derecho comparado, resulta de interés el fallo "Editorial Río Negro contra Provincia de Neuquén" (5/09/07), en el que la Corte Suprema de Justicia de la Nación (Argentina) dispuso, a raíz de que el Poder Ejecutivo de la Provincia del Neuquén privó temporalmente de publicidad oficial a dicho medio sin demostrar la razonabilidad de tal medida, y además se pronunció en contra de la violación indirecta de la libertad de prensa por medios económicos: "La primera opción para un Estado es dar o no publicidad, y esa decisión permanece dentro del ámbito de la discrecionalidad estatal. Si decide darla, debe hacerlo cumpliendo dos criterios constitucionales: 1) no puede manipular la publicidad, dándola y retirándola a algunos medios en base a criterios discriminatorios; 2) no puede utilizar la publicidad como un modo indirecto de afectar la libertad de expresión. Por ello, tiene a su disposición muchos criterios distributivos, pero cualquiera sea el que utilice deben mantener siempre una pauta mínima general para evitar desnaturalizaciones." VIII.- Ahora bien, es de suma importancia para el caso concreto indicar que la publicidad provee un soporte financiero fundamental en el actual esquema de funcionamiento de los medios de comunicación colectiva, pues permite la publicación o difusión de su contenido y a la postre, el sustento económico de las personas que trabajan en dicho medio. Es evidente que si se limita el ingreso económico de un medio de comunicación (en este caso escrito), también se llega a perjudicarlo o –inclusive- eliminarlo, todo en detrimento tanto de la libertad de expresión como de la de información. (…)
Debe, sin embargo, hacerse una precisión para adaptar lo dicho a las particularidades de este caso. El Gerente del Banco recurrido expone que resultaría incorrecto que la Sala venga a señalar la manera en que debe conducirse un aspecto vital para el negocio comercial que opera el Banco, cual es la publicidad, y en este punto le asiste la razón. La Sala entiende que debe tomarse en cuenta la condición jurídica del Banco Nacional de Costa Rica, dentro del entramado administrativo estatal, pues se trata de una institución con autonomía constitucionalmente reconocida y a la cual se ha encargado de llevar a cabo una actividad incuestionablemente comercial y, además de ello, en régimen de competencia con entidades privadas. En esa dinámica, la publicidad comercial que puedan realizar las empresas estatales responde y debe responder claramente a decisiones y valoraciones técnicas y objetivas y sobre tales aspectos no cabe la injerencia de un órgano de protección de Derechos Fundamentales como esta Sala.- No es allí donde se origina el conflicto constitucional y de Derechos Humanos que aquí se analiza, como lo demuestra la posición general expresada en el informe del año 2012 de Relatoría Especial para la Libertad de Expresión de la Comisión Interamericana de Derechos Humanos titulado “Principios sobre la regulación de la publicidad oficial y libertad de expresión”. En dicho documento se deja bien establecida la necesidad de que las distintas instituciones estatales cuenten con planes técnica y objetivamente diseñados para sus finalidades de comunicación y ello se repite en expediente legislativo de la investigación, donde las Diputadas y Diputados y el propio recurrente dejan afirmado que la particular condición de las empresas públicas debe tenerse en cuenta y respetarse las decisiones técnicas y objetivas sobre publicidad. Al respecto, de manera precisa señala el propio recurrente que:
“el criterio para distribuir la pauta publicitaria debe ser criterios de mercado, deben ser planes de medios diseñados por profesionales en la materia y se debe invertir el dinero que haga falta para cumplir ese plan de medios, de manera que lo que la empresa estatal que compite en el mercado quiere comunicar, sea eficientemente comunicado.” (p. 18-36 del Expediente Legislativo 20066) El problema en este caso surge más bien cuando las empresas públicas se separan de ese cauce para gestionar su pauta publicitaria de acuerdo con finalidades ajenas a razones objetivas y técnicas, e incompatibles con marco constitucional de derechos fundamentales.- Es en ese punto donde la participación de esta Sala adquiere plena justificación y ello es lo que se busca confirmar o descartar a través de este recurso de amparo.
IX- El caso concreto.- El amparado manifiesta que el recurrido ha hecho uso de sus influencias y funciones como Gerente General del Banco Nacional de Costa Rica para intentar presionar al Diario La Nación a modificar publicaciones y reportajes efectuados; afirma que esa presión se concretó en la reducción paulatina de la pauta publicitaria y en su virtual reducción a cero en los últimos meses. De los hechos probados y del considerando sobre análisis de prueba, la Sala tiene por demostradas, tanto la realidad de la reducción de la pauta del Banco Nacional al Periódico la Nación, a partir de la publicación hecha a finales de febrero, y en particular durante los meses de junio y julio, como las razones que motivaron la misma.- En este último sentido, según se indicó supra, son suficientemente claras las declaraciones del propio funcionario recurrido, emitidas ante los diversos órganos que inquieron sobre su actuación.- En todas ellas el funcionario expresó la existencia de una disconformidad con la forma en que el medio de comunicación reportó durante los meses de febrero, marzo, abril y mayo de 2016, sobre temas referentes a la entidad bancaria accionada en relación con el caso de la empresa LATCO; actuaciones de la Junta Directiva del banco, así como la participación del BNCR, en el caso BICSA. Según narra el recurrente y confirma el Gerente recurrido, la insatisfacción alcanzó su cima con este último caso, al entenderse que el periódico estaba dejando de lado las respuestas del Banco y omitiendo información importante, todo lo cual podría redundar (como efecto ocurrió) en fuertes erogaciones económicas del Banco para mantener niveles mínimos de confianza en su situación. Es por dicho caso y sus supuestas graves consecuencias para el Banco, que el Gerente recurrido dispuso publicar, el 13 de mayo de 2016, un campo pagado en otros dos medios escritos nacionales, a fin de responder a las citadas publicaciones de La Nación y dar a conocer lo que en su criterio era la situación real en torno al caso BICSA. Con esto último la situación derivó para peor, sumando al conflicto, enconados editoriales del medio de comunicación y respuestas del Banco en el mismo tono. Es en este punto que el Gerente decidió “tener una conversación” con los personeros del medio de comunicación, a raíz de lo cual, dispuso, concomitantemente y mientras tanto, una pausa que denominó "impasse" en la pauta publicitaria al periódico la Nación; esa pausa concluye, (según sus propias palabras) luego de que es atendido por el Director del medio de comunicación. Estos hechos narrados se repiten con consistencia tanto en el escrito del recurrente como en todas las versiones que brindó el propio recurrido ante la Junta Directiva del Banco, ante la Comisión Legislativa que investigó el caso y ante la Sala en el informe rendido y sobre todo consta claramente en el audio aportado por el recurrente.- Dicho lo anterior, la valoración de tales hechos, frente al marco constitucional de la libertad de expresión y el derecho a la información, por parte de este Tribunal no puede ser positiva para el recurrido. Resulta constitucionalmente reprochable que el Gerente General de un Banco púbico, es decir, un funcionario público, haya emitido una orden de retiro de una pauta publicitaria a un determinado diario escrito, sin un fundamento objetivo y técnico válido, sino en razón de su disconformidad, con la forma en que se elaboraban las noticias y reportajes emitidos respecto de las actividades y situación de la entidad bancaria que representa. El Tribunal entiende que lo anterior constituye una censura indirecta, una forma clara de intentar influir en los contenidos informativos del medio de comunicación, y además envía un mensaje intimidante al resto de medios que fomenta un ambiente hostíl a las libertades de expresión e información esenciales en un sistema democrático. Lo anterior, en tanto proviene de un servidor público, resulta totalmente inadmisible frente al necesario respeto y apego a lo que una Diputada apropiadamente definió como “la lógica democrática” a cuya realización deben contribuir las instancias, incluyendo por supuesto las empresas públicas.- (p. 383 del Expendiente Legislativo 20.066) Ella impone la plasmación más amplia posible de la libertad de expresión y el derecho a la información, sin que esto signifique la renuncia a emplear los medios jurídicamente establecidos para combatir las noticias u opiniones que puedan afectar injustamente la labor de las instituciones.
X.- En efecto, si a juicio del recurrido, el medio de comunicación debía darle el debido derecho de respuesta en los momentos en que solicitó reunirse con los representantes de la empresa en razón de la relevancia de lo publicado, podía y puede presentar las acciones judiciales que considere pertinentes, con el fin de que se determine la eventual afectación de su honor, o de perjuicio a la entidad bancaria que representa y la posible responsabilidad de aquellos que hayan excedido los límites de la libertad de expresión. Además, tenía la opción recogida en el ordenamiento jurídico de acudir al proceso de rectificación o respuesta, en favor de las personas que se vean afectadas por informaciones inexactas o agraviantes emitidas en su perjuicio (artículos 14 de la Convención Americana y 66 y siguientes de la Ley de la Jurisdicción Constitucional). No obstante, el recurrido optó primero por la publicación de notas aclaratorias en campos pagados a otros medios de comunicación escrito y no lo hizo así con el Diario La Nación. Con ello dejó de lado el mecanismo formal de rectificación y respuesta ante el Diario La Nación, o algún otro medio de prensa del Grupo Nación, y lo hizo de manera absolutamente deliberada, según lo expresa ante la Comisión que “…(…) alguno de Ustedes, conversaba de que porqué no acudía a la vía judicial. ¿Voy a ir a poner un recurso a la Sala Cuarta para decirles que me den un derecho de respuesta? Estuviéramos en el proceso de admisión todavía.” (p. 383 Expediente Legislativo 20.066). Se trata de desafortunadas consideraciones, no solo porque no responden a la verdadera realidad del proceso de rectificación y respuesta, -el cual contrario a lo que afirma, tiene un proceso de admisión muy expedito-, sino porque con ellas se pretende además justificar la realización de vías de hecho o actos de presión por encima de las vías del derecho, para lograr una modificación en contenido de los reportajes del periódico.- Sobre este tema, cabe recalcar, tal y como se mencionó, que tales intentos de censura, directa o indirecta, no encuentran cabida en nuestro medio, ni en el estado constitucional de derecho.
XI.- Conclusión.-Así las cosas, esta Sala comprueba un acto de censura indirecta ejecutado por un servidor estatal, con el fin de limitar la libertad de información que debe disfrutar el medio de comunicación amparado, mediante una disminución de la pauta publicitaria, sin razones técnicas u objetivas y más bien con la clara intención de incidir en el contenido informativo del medio de prensa en relación con sus reportajes referentes al Banco Nacional de Costa Rica y sus subsidiarias.
En el caso se comprueba lo que claramente la doctrina ha denominado censura indirecta, una forma de acoso ilegítimo de un medio de comunicación de parte de un ente público, que no sólo lesiona la libertad de expresión según se dijo líneas atrás, sino el derecho de los ciudadanos de contar con mecanismos de información veraz en la democracia. Es una forma perversa y antidemocrática de utilizar el poder del Estado para dirigir la opinión, según un sistema de “premio o castigo“, a quienes ejercen la libertad de prensa y libre expresión garantizada constitucional y convencionalmente. Sobre este tema la Comisión de Derechos Humanos y la doctrina más autorizada han sido enfáticas en señalar que “no se puede restringir el derecho de expresión tampoco por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”.
Los mecanismos de censura directa o “indirecta” están claramente prohibidos por el artículo 13.3 de la Convención Americana fueron objeto de atención por parte de distintos órganos del sistema interamericano. Interpretando el artículo 13.3 citado, la Declaración de Principios sobre Libertad de Expresión aprobada por la Comisión Interamericana de Derechos Humanos (en adelante, “CIDH”), establece en su principio 5 que “[l]a censura previa, interferencia o presión directa o indirecta sobre cualquier expresión, opinión o información difundida a través de cualquier medio de comunicación oral, escrito, artístico, visual o electrónico, debe estar prohibida por la ley. Las restricciones en la circulación libre de ideas y opiniones, como así también la imposición arbitraria de información y la creación de obstáculos al libre flujo informativo, violan el derecho a la libertad de expresión”. Y en su principio 13 indica que “la utilización del poder del Estado y los recursos de la hacienda pública; la concesión de prebendas arancelarias; la asignación arbitraria y discriminatoria de publicidad oficial y créditos oficiales; el otorgamiento de frecuencias de radio y televisión, entre otros, con el objetivo de presionar y castigar, o premiar y privilegiar a los comunicadores sociales y a los medios de comunicación en función de sus líneas informativas, atentan contra la libertad de expresión y deben estar expresamente prohibidos por la ley”.
Por su parte la Corte Interamericana ha señalado que “todo acto del poder público que implique una restricción al derecho de buscar, recibir y difundir informaciones e ideas, en mayor medida o por medios distintos de los autorizados por la misma Convención, son ilegítimos.
Es reconocido ampliamente en la doctrina, que la censura indirecta normalmente se ocultan detrás de acciones aparentemente legítimas que, sin embargo, son adelantadas con el propósito de condicionar el ejercicio de la libertad de expresión de los individuos. Cuando eso sucede, se configura una violación del artículo 13.3 de la Convención. Como lo ha sostenido la Corte Interamericana de Derechos Humanos (en adelante, la “Corte Interamericana” o “Corte”), resulta violatorio de la libertad de expresión”. (Corte I.D.H. La Colegiación obligatoria de periodistas (Arts. 13 y 29 Convención Americana sobre Derechos Humanos). Opinión Consultiva OC-5/85 del 13 de noviembre de 1985, Serie A No. 5, párr. 55.)
Estos mecanismos de restricción fueron también objeto de análisis por parte de la Relatoría Especial para la Libertad de Expresión de la CIDH, que en su Informe Anual 2003 llamó la atención sobre estas “obstrucciones oscuras, impuestas silenciosamente [que] no dan lugar a investigaciones ni merecen una censura generalizada”. La cuestión también fue abordada por esta oficina en sus Informes de 2008 y 2009.
La jurisprudencia de la Corte Interamericana por su parte, ha condenado en distintas ocasiones la adopción de medidas estatales que constituyen medios indirectos de restricción de la libertad de expresión. Así, por ejemplo, ha condenado la exigencia de la colegiatura obligatoria de periodistas, el uso arbitrario de las facultades de regulación del Estado cuando éste ha sido utilizado para iniciar acciones intimidatorias contra las directivas de un medio de comunicación, o para revocar la nacionalidad del director de un medio como consecuencia de la línea editorial de los programas que transmite (Caso Ivcher Bronstein vs Perú).
Los relatores para la libertad de expresión de la ONU, la OEA y la OSCE también han abordado el tema de las restricciones indirectas a la libertad de expresión por parte de las autoridades. Por ejemplo, en su Declaración Conjunta de 2002 afirmaron que, “los gobiernos y los órganos públicos nunca deben abusar de su custodia de las finanzas públicas para tratar de influir en el contenido de la información de los medios de prensa; el anuncio de publicidad debe basarse en razones de mercado”.
El uso arbitrario de la publicidad oficial fue uno de los primeros mecanismos de censura indirecta abordados por el sistema interamericano. En efecto, la Relatoría Especial para la Libertad de Expresión en su Informe Anual 2003 dedicó un capítulo especial a estudiar el fenómeno y concluyó que “la obstrucción indirecta a través de la publicidad estatal actúa como un fuerte disuasivo de la libertad de expresión” (CIDH Informe Anual OEA/Ser. L/VI.118. Doc 70, diciembre 2003). Según indicó en ese momento la Relatoría Especial: “este tema merece especial atención en las Américas, donde la concentración de los medios de comunicación ha fomentado, históricamente, el abuso de poder por parte de los gobernantes en la La (sic) distribución arbitraria de publicidad oficial, como otros mecanismos de censura indirecta, opera sobre distintos tipos de necesidades que los medios de comunicación tienen para funcionar e intereses que pueden afectarlos. Es una forma de presión que actúa como premio o castigo que tiene por objeto condicionar la línea editorial de un medio según la voluntad de quien ejerce la presión. Según se dijo, los mecanismos de censura indirecta suelen esconderse detrás del aparente ejercicio legítimo de facultades estatales, muchas de las cuales se ejercen por los funcionarios en forma discrecional. En el caso de la distribución de la publicidad oficial, se configura un caso de censura indirecta cuando la misma es realizada con fines discriminatorios de acuerdo a la posición editorial del medio incluido o excluido en ese reparto y con el objeto de condicionar su posición editorial o línea informativa.
Para determinar cuando hubo o no violación a la libertad de expresión con motivo del ejercicio de esas facultades, es necesario analizar el contexto. Eso es precisamente lo que ha quedado demostrado en este amparo, que el retiro de la publicidad durante el primer semestre del año 2016, pero en particular de los meses posteriores a las publicaciones de finales de febrero, se dio en un contexto de confrontación con el medio, donde se logra comprobar que la estrategia no obedeció a criterios objetivos, sino que se dio, en palabras del propio gerente, con el fin de “motivar” al diario a cambiar su línea editorial y enfoque noticioso, en vez de utilizar los mecanismos legales, existentes como el derecho de rectificación y respuesta si se estimaba que se trataba de informaciones inexactas o agraviantes.
En los casos Baruch Ivcher Bronstein Vs. Perú. Sentencia de 6 de febrero de 2001. Serie C No. 74, párr. 154. En sentido similar, conf. Corte I.D.H, “Caso Perozo y otros Vs. Venezuela”. Sentencia de 28 de enero de 2009. Serie C No. 195, la Corte Interamericana, ha sostenido que “[al] evaluar una supuesta restricción o limitación a la libertad de expresión, el Tribunal no debe sujetarse únicamente al estudio del acto en cuestión, sino que debe igualmente examinar dicho acto a la luz de los hechos del caso en su totalidad, incluyendo las circunstancias y el contexto en los que éstos se presentaron”. Siguiendo el mismo razonamiento, sostuvo que “la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar 'cualesquiera otros medios' o vías indirectas derivados de nuevas tecnologías (…). Para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones”(OC-5/85 y caso Ríos y otros contra Venezuela). por su parte, la Relatoría para la libertad de expresión ha venido denunciando que este tipo de censuras indirectas se dan con frecuencia y ello se debe a la ausencia de normas legales que regulen la distribución de la pauta publicitaria y reduzcan la discrecionalidad de los funcionarios públicos. En el mismo sentido, fue señalada por la Corte Suprema de Justicia de Argentina en el caso Editorial Río Negro S.A. c. Provincia de Neuquén, en el cual el tribunal indicó que la Provincia de Neuquén había violado la libertad de expresión de un diario al eliminar la publicidad oficial que allí tenía contratada como consecuencia de una cobertura crítica. La Corte Suprema señaló que la Provincia de Neuquén debería establecer un marco legal adecuado que limite la discrecionalidad de los funcionarios públicos e impida ese tipo de arbitrariedades.
Asimismo, la Corte Suprema de Chile resolvió un reclamo presentado por la Revista Punto Final contra la distribución de publicidad oficial realizada por algunos ministerios. Allí, el tribunal consideró que el orden jurídico chileno otorga a los funcionarios “un amplio margen de discrecionalidad” y recomendó que la inversión de publicidad estatal se haga “bajo criterios transparentes y no discriminatorios”( caso 9148/09). También se han dado casos en países como Estados Unidos (El Día Vs. Rossello, la Corte Federal de Apelaciones del Primer Circuito), en el que se estableció que el retiro de publicidad oficial por parte de la administración del gobernador de Puerto Rico, Pedro Rossello al diario El Día, como consecuencia de críticas que el periódico había hecho al gobernador, constituía una clara violación del derecho a la libertad de expresión garantizado por la Primera Enmienda a la Constitución de los Estados Unidos. En ese sentido, la Corte de Apelaciones entendió que “usar fondos del gobierno para castigar el discurso político de miembros de la prensa y buscar coaccionar [a los medios de comunicación para que emitan] expresiones favorables al gobierno es contrario a la Primera Enmienda”. Además, la Corte entendió que “el derecho claramente establecido prohíbe al gobierno condicionar la revocación de beneficios [en este caso, la publicidad del Estado] sobre una base que infringe intereses constitucionalmente protegidos (Corte de Apelaciones del Primer Circuito, Puerto Rico, caso El Día vs. Rossello, decisión del 25 de enero de 1999, 165 F.3d 106, pág. 110).
Queda claro de lo expuesto y de los informes de la Relatoría de Libertad de Expresión que el Estado tiene derecho a establecer y modificar su pauta publicitaria, pero que debe hacerlo por medio de criterios objetivos y transparentes, establecidos en forma planificada que aseguren que no se utiliza el poder del Estado o sus fondos, para discriminar, manipular o censurar directa o indirectamente la libertad de expresión y de prensa garantizados convencional y constituiconalmente (sic). Por las razones expuestas, se declara con lugar el recurso en contra del Banco Nacional de Costa Rica, con los efectos que se dirán en la parte dispositiva (…)”. (El destacado no forma parte del original).
En la Sentencia No. 8396-2018 de las 12:40 hrs., de 25 de mayo de 2018, esta Sala expuso:
“(…) I.- Objeto del recurso. La parte recurrente relata que se realizó la entrevista denominada ‘1.a violencia doméstica contra el hombre" en el programa “Café Nacional1' de la empresa pública Radio Nacional de Costa Rica. Acusa que, en reacción a este programa, el Director de Radio Nacional publicó un artículo titulado “Amarga vergüenza", donde advirtió que censuraría de previo el tema de la agresión hacia los hombres e impediría que se volviere a hablar de eso en Radio Nacional. Asimismo, reclama que la entrevista fue borrada por completo del portal de Internet de SINART y de la página de Facebook, lo que vulnera el derecho a la libertad de expresión y pensamiento. Por último, alega que la autoridad recurrida ha realizado actos de represalia en contra del tutelado [Nombre 006], ya que lo separaron del programa “Café Nacional” y su plaza se trasladó al Departamento de Prensa, a pesar de que él pertenece al Departamento de Producción de Radio Nacional. (…)
V.- Sobre el caso concreto. En el sub examine, la parte accionante reclama que se ha visto afectada por la censura practicada por la empresa pública SINART, toda vez que los recurridos manifestaron que se impedirían programas radiales como el efectuado por ellos y, además, se borró dicho programa de la página de Internet y de Facebook. Como parte de la alegada censura, el tutelado Castro fue separado del programa “Café Nacional’' y trasladado al Departamento de Prensa.
Al respecto, la Sala pudo tener por probado que el 13 de setiembre de 2016 se recibió en el programa radiofónico “Café Nacional" de Radio Nacional a la presidenta de la Fundación Instituto de Apoyo al Hombre y al director administrativo de la Fundación Instituto de Apoyo al Hombre. El programa, producido por los tutelados [Nombre 005] y [Nombre 006], fue transmitido en la frecuencia de radio 101.5 FM y por medio de la página oficial de Radio Nacional en la red social Facebook. Asimismo, se corroboró que el Director de Radio Nacional publicó el documento titulado "Amarga vergüenza" en su página personal de Facebook el 14 de setiembre de 2016. En él expresó:
“Ayer martes 13 de setiembre en Radio Nacional de Costa Rica se trató de manera muy lamentable el tema de la violencia intrafamiliar, enfocándolo en la violencia que sufren los hombres en sus hogares. La editorializacion (sic) del espacio no dejó lugar a dudas sobre la posición personal de las personas invitadas y de quienes condujeron (sic) el espacio. En el mismo se justificó de manera increíble (sic) los femicidios, se puso a un mismo nivel la violencia que sufren las mujeres a la que sufren los hombres. se pidió el cierre del lNAMU y se habló de hacer este tipo de programas una vez cada 15 días. cosa que por supuesto no va a suceder. Yo. como Director de Radio Nacional de Costa Rica, no fui consultado para que este tema fuera tratado, quienes me conocen saben que jamás hubiera permitido que esta entrevista saliera al aire. Pero eso no me exime de responsabilidad. Durante mi gestión me he dado cuenta que hay una gran falta de formación a lo interno de la institución en relación con los Derechos Humanos y su tratamiento en medios de comunicación, y lastimosamente los talleres que desde ayer estamos planeando con instituciones como el INAMU', la Defensorio de los Habitantes, el Frente por los Derechos Igualitarios y la asociación ACCEDER, se darán como reacción al daño causado a la sociedad, con la salida al aire de esa entrevista. Es mi culpa no haber actuado con anticipación, no haber dejado clara la visión sobre Derechos Humanos que tenemos en la actual gestión del SINART. y no me queda más que dar mi más sincera disculpa y prometerles, sobretodo (sic) a las mujeres que sistemáticamente sufren violencia por el hecho de ser mujeres, que una situación como esta no volverá a pasar. En los medios de servicio público tenemos una gran responsabilidad. Cada vez que uno de nosotros, trabajadores y trabajadoras de la radio y la tv pública, abrimos micrófonos o nos paramos frente a una cámara, no respondemos a una opinión personal basada en nuestras creencias, principios y valores, sino que habíamos desde una institucionalidad que se rige por principios superiores, políticas públicas y tratados internacionales. No se trata si estoy de acuerdo o no, no se trata de qué pienso yo. Tenemos LA RESPONSABILIDAD, así con mayúsculas, de informarnos y formamos sobre los temas pilares de la construcción social de nuestra actualidad y que ni por acción ni omisión, discursos anti derechos humanos o fomentadores del odio tengan espacio en los medios públicos. Estamos gestionando lo pertinente para que el próximo lunes a las 9 de la mañana especialistas en derechos igualitarios y violencia de género nos acompañen en la emisora y puedan explicarle a nuestra audiencia por qué todo lo que se dijo el pasado martes está equivocado en el enfoque y podamos construir más bien espacios permanentes de promoción de derechos humanos."(E\subrayado es agregado).
Ese mismo día y en la página de Facebook de Radio Nacional, el SINART publicó su postura oficial respecto de lo acontecido:
"En relación con la entrevista realizada ayer martes 13 de septiembre en el programa Café Nacional. referida a diferentes formas de violencia intrafamiliar, la Dirección de Radio Nacional y Dirección General del SINART aclaran: Las expresiones de las personas invitadas y conductoras de dicho espacio que justificaron erróneamente la situación de violencia que sufren miles de mujeres en nuestro país y cuestionaron la pertinencia del Instituto Nacional de las Mujeres. INAMU. no responden de ninguna manera a la posición de estas Direcciones. Reconocemos que el tema de la violencia intrafamiliar debe abordarse desde diversos enfoques, pero nunca desconociendo que la raíz de ese problema se encuentra justamente en una estructura patriarcal machista. y que son por mucho las mujeres y las niñas las principales víctimas de las conductas violentas, sin que esto signifique que desconozcamos que algunos hombres también sufren de violencia y que existen vados en el sistema o mala gestión que les afecte. El SINART reconoce la necesidad de existencia del Instituto Nacional de las Mujeres y respaldamos su pertinencia en la construcción de una sociedad igualitaria y justa, y en la búsqueda de erradicación de todas las formas de discriminación y violencia que sufren las mujeres. Ofrecemos nuestra más sincera disculpa a las audiencias de Radio Nacional, a las personas que con justa razón han reclamado por el enfoque de la entrevista, y nos comprometemos a rectificar aportando en el tratamiento adecuado del tema con información oportuna y veraz desde los micrófonos v pantallas del SINART en su misión de servicio público. Estamos gestionando lo pertinente para que el próximo lunes en el mismo espacio, especialistas en derechos igualitarios y violencia de género nos acompañen en la emisora para referirse al tema desde un enfoque de Derechos Humanos. Como Estado, y más aún como medio de servicio público, tenemos la obligación de hacer cumplir las Convenciones Internacionales en contra de toda forma de discriminación y violencia contra las mujeres, que nuestro país ha suscrito y se ha comprometido a cumplir, como la Convención de Belem do Rara y la CEDA W." (El subrayado es agregado).
Atinente al sub lite, la Sala tuvo por probado que la entrevista a los tutelados fue eliminada de la línea de tiempo del Facebook de la emisora y también del portal web del SINART.
Es claro que la censura a la libertad de expresión se puede dar de manera abierta, particularmente si se trata de una dictadura o una democracia debilitada. Sin embargo, máxime cuando se actúa en el marco de un régimen democrático, es frecuente que la censura se manifieste más bien de forma sutil y velada, verbigracia, afectando los insumos o recursos que permiten su ejercicio, por medio de la emisión de lineamientos restrictivos, efectuando presiones indirectas, etc. Esta característica de la censura velada -que es muy peligrosa, precisamente, por ser subrepticia o disimulada- obliga a los Tribunales a recurrir a la denominada prueba indiciaría a fin de determinar el acto de censura.
En aplicación de lo anterior al sub lite, la Sala advierte suficientes elementos para concluir que las declaraciones de los amparados fueron censurados y, con ello, se lesionaron sus derechos fundamentales. Tal conclusión se desprende de las manifestaciones expresas del Director de Radio Nacional al señalar, que la repetición de entrevistas como la de los tutelados por supuesto no va a suceder", y que él jamás hubiera permitido que esta entrevista saliera al aire... ", pero “...una situación como esta no volverá a pasar...”. La Sala observa que la parte recurrida advierte con absoluta claridad la censura que existirá ante futuras entrevistas como la cuestionada y el arrepentimiento por no haber censurado la efectuada. Para este Tribunal, no existe duda de que las expresiones transcritas constituyen una censura, especialmente por provenir del director del medio que sirvió para la transmisión de la entrevista de marras.
Más sutil es decir que se debe dejar “... clara la visión sobre Derechos Humanos que tenemos en la actual gestión del SINART... “y que “...todo lo que se dijo el pasado martes está equivocado en el enfoque... Igualmente subrepticio fue el comunicado oficial de SINART: “Ofrecemos nuestra más sincera disculpa a las audiencias de Radio Nacional, a las personas que con justa razón han reclamado por el enfoque de la entrevista. y nos comprometemos a rectificar aportando en el tratamiento adecuado del tema con información oportuna y veraz desde los micrófonos y pantallas del SINART en su misión de servicio público." En estas citas se observa que el SINART pretende imponer su “visión” de Derechos Humanos o “rectificar” la actuación de los tutelados “ con información oportuna y veraz asumiendo que las opiniones de los amparados son lo opuesto: inoportunas y falsas.
Finalmente, quedó acreditado que la grabación de la entrevista fue eliminada de la línea de tiempo del Facebook de la emisora y del portal web del SINART. La Sala considera que, con este hecho, la amenaza de censura se concretó en una censura plena, toda vez que se impidió tanto la libertad de expresión de los amparados como el derecho de terceros de informarse y tener acceso a la entrevista.
Es necesario reiterar que los límites a la libertad de expresión deben estar claramente establecidos en la ley, según establece la Convención Americana sobre Derechos Humanos:
“Articulo 13. Libertad de Pensamiento y de Expresión Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar: el respeto a los derechos o a la reputación de los demás, o la protección de la seguridad nacional, el orden público o la salud o la moral públicas. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones. Los espectáculos públicos pueden ser sometidos por la ley a censura previa con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2. Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional (El subrayado es agregado).
Según se mencionó en las aclaraciones previas, el contenido del mensaje puede tener un vínculo con las limitaciones a la libertad de expresión. Así, este será de relevancia únicamente cuando esté prohibido por ley y constituya "...propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional." Empero, esta situación no se presenta en el sub examine. Además, si los accionados consideran que el accionar de los tutelados se enmarca en uno de estos supuestos o de aquellos contemplados en el inciso 2 de esa norma, lo procedente seria acudir a las instancias jurisdiccionales a Un de reclamar la responsabilidad ulterior de los sujetos (por aplicación de una ley, como establece la Convención), y no pretender remediar la situación por la vía de la censura previa.
Por otro lado, la Sala recuerda que la labor del SINART, en su condición de empresa pública creada por ley, tiene el deber legal de respetar el pluralismo político, religioso, social y cultural así como de permitir la libre expresión de las opiniones, como de modo explícito se encuentra estatuido en los incisos b) y c) del numeral 4 de la Ley Orgánica del SINART:
“Artículo 4°-Principios. La actividad del SINART, S. A., como sistema de comunicación, se inspirará en los siguientes principios: (...)
La separación entre las informaciones y las opiniones, así como la identificación de quienes sustentan estas últimas y su libre expresión. El respeto al pluralismo político, religioso, social y cultural." Por eso, salvo que se trate de una excepción legal o convencional expresa, el SINART debe respetar la discusión de todas las opiniones, incluidas aquellas que la dirección del medio que esté de tuno, considere impopulares, minoritarias, cuestionables, etc. Aparte del tema tratado en la entrevista objeto de este amparo, obsérvese que existen innumerables materias que generan opiniones y respuestas contrastantes, apasionadas y terreas, unas con indignación o repudio, otras más bien con apoyo y admiración, como por ejemplo respecto del uso de drogas para efectos medicinales, el aborto, los derechos de la comunidad LGTB, la secularización del Estado, la política salarial del sector público, los sistema de pensiones, el establecimiento de planes fiscales, etc. Reiterando la jurisprudencia transcrita, “..La libertad de expresión no depende de la verdad popularidad o utilidad social de las ideas y creencias manifestadas, y reconoce que un cierto grado de abuso es inseparable del uso adecuado de esa libertad, a partir de la cual el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos.
En abono a lo anterior, se aclara que la entrevista de los tutelados tampoco puede ser censurada por el abordaje periodístico o la conducción desarrollada, toda vez que ninguno de esos puntos constituye motivo legal para limitar la libertad de expresión.
La Sala no duda en reiterar que la responsabilidad por el ejercicio de la libertad de expresión es ulterior y debe estar prevista en una ley. De esta manera, si alguna persona se considerare afectada por las manifestaciones vertidas en la entrevista objeto de este recurso, ya sea por los moderadores o por los entrevistados, podría hacer valer sus derechos ante los tribunales ordinarios de justicia. Empero, es absolutamente improcedente que la Administración se aleje del principio de legalidad y pretenda limitar el ejercicio de la libertad de expresión pro la vía de la censura, como acaeció en el sub examine.
VI.- Un segundo punto relacionado con la censura es el traslado del tutelado Castro al equipo de Contrapunto. En el expediente quedó acreditado que él fue trasladado a dicha instancia, tal como le fue comunicado mediante oficio PE-DG- 052-2017 del 24 de febrero de 2017 y que existe una notoria proximidad temporal con los demás hechos narrados en el punto anterior. Además, se puso en evidencia la abierta disputa entre la Administración y el tutelado Castro, quien comunicó su disconformidad con las actuaciones de los recurridos mediante un correo del 20 de setiembre de 2016, donde manifestó:
Saludos Pablo. Permítame discrepar con respecto a lo que dice ya que yo en lo particular considero que: CENSURA: es que nuestro director Randall Vega afirmeen su Facebook: "quienes me conocen saben que jamás hubiera permitido que esta entrevista saliera al aire" (...) CENSURA: es que el Director de Radio Nacional nos hubiera "sugerido'' que espaciáramos las invitaciones a la abogada Alexandra Loria por su pensamiento con respecto a temas como el abono y las uniones de la población sexualmente diversa aunque dichos tópicos no eran abordados por ella en nuestro programa." Así, existen suficientes indicios sobre la censura existente y el distanciamiento entre la Administración y el tutelado. Al respecto, si bien la parte accionada afirmó que se trataba de una reorganización completa del recurso", lo cierto es que omitió adjuntar elementos probatorios que permitieran a la Sala llegar a la misma conclusión. La prueba que allegó se refería a las funciones reasignadas (que se encontraban dentro del perfil de un periodista) y a la constancia del salario del amparado.
La Sala reitera que, en materia de control de constitucionalidad, una vez que ab initio se establecen indicios claros de censura, recae en la contraparte una carga probatoria que debe llevar a concluir que las acciones no eran de tal naturaleza, máxime cuando la recurrida se encuentra en mejores posibilidades de aportar prueba a la causa (carga dinámica de la prueba), toda vez que la Administración dispone de caudales de información y recursos públicos para descartar alguna discriminación o violación a un derecho fundamental; pese a lo cual, en el sub examine, la recurrida no logra desacreditar con prueba fehaciente el agravio de los recurrentes. De esta manera, tomando en consideración lo dispuesto en los ya citados incisos b) y c) del numeral 4 de la Ley Orgánica del SINART, que de forma expresa obligan a esa empresa pública a respetar el pluralismo político, religioso, social y cultural así como a permitir la libre expresión de las opiniones , resulta claro que en la especie se ha dado una forma de censura velada a través de la reubicación de un periodista en un puesto que viene a limitar o eliminar su influencia en el contenido transmitido, todo ello luego o con motivo de las referidas manifestaciones en el ejercicio de su quehacer periodístico.
Lo anterior resulta aún más relevante, puesto que por la vía de la censura velada se ejerce una especie de intimidación o amedrentamiento subrepticio al resto del personal periodístico de la empresa pública SINART. De este modo, la libertad de prensa de aquel se ve amenazada ante la posibilidad de ser víctima de represalias derivadas del ejercicio del periodismo en libertad, cuando se formulen opiniones que no comparta la dirección del medio según el gobierno de tumo; ambiente que propicia el flagelo de la autocensura en detrimento de los periodistas, merced a que su estabilidad laboral podría compelerles a evitar represalias. Ello viene a afectar igualmente al destinatario final de los servicios de periodismo, el público, quien por esa vía ve menguada su capacidad de formarse criterio propio de manera fundada a través del estar a la escucha de una diversidad de contenidos informativo y puntos de vista.
VIL- En virtud de lo expuesto, se declara con lugar el recurso, con los efectos que se dirán. Visto que los actos lesivos son imputables solo al SINART, la condenatoria abarca únicamente a dicha instancia. (…)
Por tanto:
Se declara con lugar el recurso únicamente contra el SINART. Se ordena a Mario Alberto Al taro Rodríguez, en su condición de Presidente Ejecutivo del Sistema Nacional de Radio y Televisión S.A., o a quien en su lugar ocupe ese cargo, abstenerse de incurrir nuevamente en los hechos que dieron fundamento a la estimatoria de este recurso de amparo. Además, a dicho recurrido se le ordena que dentro del plazo de VEINTICUATRO HORAS, contado a partir de la notificación de esta sentencia, coloque la entrevista del 13 de setiembre de 2016 del programa "Café Nacional" de Radio Nacional de Costa Rica, objeto de este recurso, así como la entrevista del 19 de setiembre de 2016 (la hecha al INAMU y a ACCEDER), en la página de Facebook del SINART, donde quedará fijada en el muro durante al menos un mes, y en la página principal del sitio de Internet del mismo, donde deberá estar visible en la portada o "landing page" por el mismo plazo. Por otro lado, se le ordena reinstalar de inmediato al tutelado Castro en el puesto que ocupaba al momento de los hechos, en caso de que dicho tutelado manifestare su voluntad en tal sentido; para lo anterior, se le ordena al recurrido comunicar de inmediato al amparado Castro lo resuelto por la Sala. Los Magistrados Cruz Castro y Castillo Víquez dan razones diferentes. El Magistrado Cruz Castro pone nota. Lo anterior se dicta con el apercibimiento de que podría incurrir en el delito tipificado en el artículo 71 de la Ley de la Jurisdicción Constitucional, el cual dispone que se impondrá prisión de tres meses a dos años, o de veinte a sesenta días multa, a quien recibiere una orden que deba cumplir o hacer cumplir, dictada en un recurso de amparo y no la cumpliere o no la hiciere cumplir, siempre que el delito no esté más gravemente penado. Se condena al Sistema Nacional de Radio y Televisión S.A. al pago de las costas, daños y perjuicios causados con los hechos que sirven de base a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. Notifíquese de forma personal a Mario Alberto Al faro Rodríguez, en su condición de Presidente Ejecutivo del Sistema Nacional de Radio y Televisión S.A., o a quien en su lugar ocupe ese cargo. El Magistrado Hernández Gutiérrez salva el voto y declara parcialmente con lugar el recurso. (…). (El destacado no forma parte del original).
Por su parte, en el Voto No. 10961-2020 de las 10:05 hrs. de 16 de junio de 2020, este Tribunal señaló lo siguiente:
“(…) I.- Objeto del recurso.- La parte recurrente acude en tutela el derecho a la libertad de prensa, pues considera que la entidad recurrida dictó una resolución que restringe de manera ilícita la libertad de información y de prensa, del medio periodístico amparado, al ordenarle retirar de sus bases de datos, la imagen utilizada en una noticia de interés público. (…)
V.- Estima la Sala que cuando se produce una colisión entre estos derechos como en el presente caso (imagen y libertad de prensa), partiendo del carácter institucional del derecho a la información, y siempre que la utilización de la imagen que complementa la noticia sea veraz y no afecte la dignidad de la persona titular de ese derecho, debe decantarse por darle un valor preferencial al derecho a la libertad de prensa. En el mismo sentido podemos encontrar precedentes en la jurisprudencia española (STC 165/1988 y STC 59/1989) en los que el Tribunal Constitucional español, en diversos casos ha ponderado a favor la libertad de información ante el conflicto con otros derechos fundamentales, utilizando como argumento central, el carácter institucional del derecho a la información. En el mismo sentido, el Tribunal Supremo Español, frente a la ponderación de éstos dos derechos ha señalado:
“La técnica de ponderación exige valorar el peso abstracto de los respectivos derechos fundamentales que entran en colisión, y desde este punto de vista, la ponderación debe respetar la posición prevalente que ostentan tanto el derecho a la libertad de expresión como el derecho a la libertad de información por resultar esenciales como garantía para la formación de una opinión pública libre, indispensable para el pluralismo político que exige el principio democrático. Además, ese juicio de ponderación en abstracto debe atender a que el ejercicio de la libertad de expresión, según su propia naturaleza, comprende la crítica de la conducta de otro, aun cuando sea desabrida y pueda molestar, inquietar o disgustar a aquel contra quien se dirige pues así lo requieren el pluralismo, la tolerancia y el espíritu de apertura, sin los cuales no existe sociedad democrática". Sentencia Tribunal Supremo 16 de febrero 2016.
En la misma línea de pensamiento, la Corte Europea de Derechos Humanos resaltó la importancia que "la libertad de prensa proporciona a la opinión pública uno de los mejores medios para conocer y juzgar las ideas y actitudes de los dirigentes políticos. En términos más generales, la libertad de las controversias políticas pertenece al corazón mismo del concepto de sociedad democrática" (caso "Lingens vs. Austria", sentencia del 8 de julio de 1986, serie A N° 103, párr. 42).
En efecto, partiendo del contexto jurisprudencial expuesto y de los argumentos externados en los precedentes de cita, esta Sala analiza las consideraciones de del caso y concluye que, lleva razón la parte recurrente en su reclamo. El orden democrático exige, la defensa de la libertad de expresión, como instrumento básico e indispensable para la formación de la opinión pública. Y esa defensa, lleva a la posibilidad de expresar el pensamiento usando los medios que elija el emisor y también en la facultad de difundirlo a través de ellos. Tal y como se indicó en el precedente de cita, el valor de esta defensa, alcanza su máximo nivel cuando la libertad es ejercitada por los profesionales de la información a través del vehículo institucionalizado de formación de la opinión pública, que es la prensa. En ese sentido, se entiende que si bien, el derecho a la expresión, contemplado en el artículo 13 de la Convención Americana, no tiene carácter absoluto, los límites para su ejercicio y controles de su adecuado desempeño no deben de modo alguno limitar su ejercicio, más allá de lo estrictamente necesario, al punto que puedan convertirse en un mecanismo directo o indirecto que afecten la libertad de expresión, información y prensa y constituyan una violación al derecho. Ahora, en el caso bajo estudio, esta Sala considera que la publicación emitida por el periódico Diario Extra el 24 de junio del año 2015, donde se utilizó la imagen del señor Calderón, el medio informativo se limitó a difundir información relacionada con un hecho noticioso de interés para la colectividad, por tratarse de la posible comisión de un delito, por ello la posibilidad de usar la imagen de una persona para referirse a un acontecimiento, está sustentada en su relevancia para el público, sin que el consentimiento del uso de su imagen en ese contexto, sea necesario. La fotografía que se utiliza es parte de un documento público, no una imagen obtenida en un contexto íntimo, familiar o privado, y se utiliza como accesoria a la noticia, como parte de su complemento. En el caso de la noticia en análisis, la fotografía utilizada es parte de la contextualización de una noticia que, además es veraz (hecho no disputado) y funge como su complemento accesorio, como se indicó, sin que se utilice la imagen en una forma que afecte la dignidad de su titular, de tal forma que en esos términos funciona como un límite válido a las excepciones que admite el derecho a la imagen. Hoy en día, no se concibe un medio de comunicación sin imágenes, de solo texto, sin ilustraciones, de tal forma que el análisis de la Prohab, a juicio de este Tribunal, parte de un escenario de descontextualización de la utilización de la imagen en cuestión, es decir, como si ésta no fuera parte de un hecho noticioso de interés público que en ese momento se comunica. Señala la recurrida que la noticia se pudo comunicar igual sin utilizar la imagen aludida, lo cual es una forma ilegítima de interferir con la libertad de prensa; es equivalente a decirle a un medio, qué y cómo comunicar o difundir, lo cual es una flagrante violación al contenido esencial de la libertad de prensa. Su efecto sería anulatorio del denominado Fotoperiodismo y generaría una forma de autocensura de los medios de comunicación, que tendrían que estarse autolimitando de ilustrar sus informaciones como parte del contenido de la noticia, mediante el uso de imágenes de personas, para evitar las demandas ante una oficina del Estado, -que en este contexto- pretende operar como un especie de censor o editor de qué y cómo se puede publicar, generando un efecto reflejo de autocensura permanente, como se indicó, a todas luces, lesiva del derecho a la libertad de prensa, que incluye desde luego, la libertad de escoger el contenido de lo que se publica. Siguiendo la línea ya establecida en la sentencia 2015-1782, de conformidad con el artículo 13 de la Convención Americana:“3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.” En este sentido, la censura de la libertad de prensa puede ser directa –por ejemplo, la prohibición directa de cierta publicación- o indirecta (también denominada soft censorship, censura sutil, velada) -por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación-. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería “…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.”( 2015-1782) Considera la Sala que el ejercicio de las competencias de la Prohab para fines de la Ley de Protección de la Persona frente al Tratamiento de sus datos personales, no puede ser utilizada como un censor del ejercicio legítimo de la libertad de prensa, porque ello sería, una censura indirecta, en control del Estado, de un derecho toral, esencial, para el sostenimiento del régimen democrático.
En ese sentido, estima la Sala que si el uso de la imagen (fotografía de la página del pasaporte) como en este caso, se da dentro de un contexto de un hecho noticioso de interés público, insertada en un documento público, relacionado directamente con el contenido de la noticia, -puesto que se trata de un tema migratorio fronterizo-, cuya utilización, además, no denigra ni afecta la imagen de su titular, no es válido, separar o descontextualizar esa imagen de su noticia, ni mucho menos pretender eliminarla, porque forma parte integral de ésta. Lo anterior implicaría una censura de la noticia en sí, -lesiva del artículo 13 de la Convención Americana sobre Derechos Humanos-. En el caso Kimel vs Argentina (FJ 54 y ss) la Corte IDH declaró que las restricciones a la Libertad de Expresión "(...) tienen carácter excepcional y no deben limitar, más allá de lo estrictamente necesario, el pleno ejercicio de lo libertad de expresión y convertirse en un mecanismo directo o indirecto de censura previa (...)'; que "deben formularse en forma expresa, precisa, taxativa y previa; y que “el marco legal debe brindar seguridad jurídica al ciudadano, límites que claramente se violaron en este caso, al pretender limitar el contenido de una información veraz de interés público.
Partiendo de ese razonamiento, es que se estima que en el caso concreto, la decisión del ente recurrido, de ordenar a la parte recurrente eliminar de su base de datos, la fotografía del pasaporte del denunciante, contenida en la noticia de repetida cita, resulta ser una acción que afecta el desempeño periodístico, informativo y noticioso y con ello el contenido esencial de la libertad de prensa del medio de comunicación amparado. En consecuencia, se concluye que la orden dictada por la Agencia Protectora de Datos al declarar CON LUGAR la denuncia presentada por Marco Tulio Calderón Quesada contra diario Extra, y donde le ordena al Diario Extra, que proceda a eliminar de su base de datos, la fotografía del pasaporte del denunciante, contenida en la noticia de repetida cita, resulta violatoria a la libertad de información del medio recurrente, por lo que procede acoger el amparo en estudio, como así se dispone. (…)” (El destacado no forma parte del original).
Esta jurisdicción, en el Voto No. 16167-2020 de las 09:20 hrs. de 28 de agosto de 2020, señaló:
“(…) I.- OBJETO DEL RECURSO. El recurrente estima vulnerados sus derechos fundamentales, toda vez que, ante la pandemia de la covid-19, el gobierno ha dictado medidas que limitan la libertad de tránsito y de comercio. Además, sostiene que las autoridades recurridas vulneran la libertad de prensa, debido a sus actuaciones respecto al Diario Extra, toda vez que el MTSS canceló la suscripción de tal medio y el ICAA ordenó a sus funcionarios no hablar con periodistas del periódico en mención. (…)
IV.- SOBRE EL CASO CONCRETO. En el sub examine, el amparado reclama que el Ministerio de Trabajo y Seguridad Social vulnera los derechos fundamentales, dado que se canceló la suscripción del Diario Extra. Al respecto, en el informe rendido bajo juramento por la Ministra de Trabajo y Seguridad Social se indicó, respecto a la cancelación por parte del MTSS de la suscripción mantenida con el Diario Extra, que: “(…) esa decisión obedeció a que producto del Estado de Emergencia Sanitaria que enfrenta el país, que nos ha causado afectación económica no solo a nivel nacional sino también mundial, el Poder Ejecutivo gestionó días atrás, recorte en el gasto público. Siendo que ese recorte presupuestario, nos obligó cómo Institución a liberar costos en algunas partidas específicas, cuidando desde luego, no afectar el servicio que como Cartera brindamos a la ciudadanía. Siendo entonces, que en virtud de ese recorte presupuestario que realizamos, fue que se adoptó la decisión de eliminar la suscripción que la Institución mantenía con algunos diarios de circulación nacional, tales como: Diario Extra, La Nación, El Financiero y La República. Pues el monto para el pago de las suscripciones invocadas, se acreditaba desde la misma partida con la que se compraban suministros de papel y cartón y ello representaba casi el 50% del presupuesto para esos efectos. Y siendo que a raíz de la pandemia producida por el virus COVID 19, debemos tener disponibles toallas de papel para los lavatorios que tenemos instalados para el lavado de manos de personas funcionarias y usuarias de este Ministerio; fue que se prioriza la compra de suministros citados, con la consecuencia de eliminar las suscripciones mencionadas” (la negrita no es del original).
Así, el Tribunal verifica que, el 14 de julio de 2020, un funcionario del MTSS remitió el oficio DGAF-OF-383-2020 a la representante legal de la Sociedad Periodística Extra Limitada, en el que manifestó: “De la manera más atenta y en marco de la contratación 2019CD-000045-0007000001; bajo la modalidad según demanda para la adquisición ejemplares del periódico La Extra, se informa que en atención a instrucciones superiores y en cumplimiento de las nuevas directrices emitidas por el Gobierno de la República de Costa Rica, que insta hacer recortes presupuestarios mandatorios a efecto de orientarse a la atención de la pandemia COVID-19 nos vemos en la necesidad de solicitar formalmente, la cancelación indefinida de entrega de dicho periódico a partir del día 16 de julio de 2020”. En igual sentido, se observan los oficios DGAD-OF-376-2020 dirigido al representante legal de Properiodicos Limitada y DGAD-OF-382-2020 remitido al representante legal de Grupo Nación GN S.A., mediante los cuales se informó sobre la cancelación de la suscripción que mantenía el MTSS con los periódicos La República, así como La Nación y El Financiero, respectivamente.
De este modo, contrario a lo alegado por el tutelado, este Tribunal estima que la actuación del Ministerio de Trabajo y Seguridad Social no conculca los derechos fundamentales. Nótese que, en el sub iudice, el MTSS canceló la suscripción no solo del Diario Extra, sino de otros medios de comunicación como La República, La Nación y El Financiero. Además, no se verifica que tal decisión haya sido arbitraria, sino que la misma obedece a un recorte presupuestario derivado de la pandemia de la covid-19. Al respecto, cabe reiterar que en el informe rendido bajo juramento por la ministra de Trabajo y Seguridad Social se consignó que “(…) el monto para el pago de las suscripciones invocadas, se acreditaba desde la misma partida con la que se compraban suministros de papel y cartón y ello representaba casi el 50% del presupuesto para esos efectos. Y siendo que a raíz de la pandemia producida por el virus COVID 19, debemos tener disponibles toallas de papel para los lavatorios que tenemos instalados para el lavado de manos de personas funcionarias y usuarias de este Ministerio; fue que se prioriza la compra de suministros citados, con la consecuencia de eliminar las suscripciones mencionadas”. Ergo, dadas las condiciones provocadas por la referida pandemia, tal institución priorizó la compra de toallas de papel, lo que conllevó que se prescindiera de las suscripciones referidas. Por consiguiente, al no haberse verificado la vulneración a los derechos fundamentales, lo procedente es declarar sin lugar el recurso en cuanto a tal extremo.
V.- Por otra parte, en cuanto al reclamo formulado por el recurrente respecto al accionar del ICAA, el Tribunal observa que el 29 de junio de 2020 se emitió la “MINUTA GG-2020-02784”, relativa a una reunión efectuada entre funcionarios del ICAA y representantes del sindicato SITRAA, documento que carece de firmas y en el que se consigna: “Objetivo: Temas variaos SITRAA Lugar: Virtual Fecha:29-06-20 Hora de inicio: 11:00am Hora final: 12:40pm (…) 1. Campaña de refuerzo labor de AyA, acción, SITRAA- AyA. cuadrillas operativas, lema héroes de la higiene. Mario Rodríguez explica la propuesta, desde SITRAA se ha realizado una campaña de comunicación para levantar la imagen del AyA. No están de acuerdo con la campaña y gastos que tiene programado el AyA. Lema: “Héroes de la Higiene”, quieren iniciar con una campaña con este lema y realizarlo con apoyo de los trabajadores operativos en todo el país. Yamileth Astorga le consulta a Mario cuál es el objetivo de la Contratación de Publicidad del AyA, al parecer no lo tiene claro, por ende ella le realiza una explicación detallada, el objetivo es la conectividad de las viviendas a las redes de alcantarillado de AyA. Aclara que la campaña no es para levantar la imagen de AyA, sino para estimular a la población a que se conecte a las redes de alcantarillado. Hace un llamado a no alimentar a los Diarios Extra y CRHoy, ya que el objetivo de éstos es la privatización. Mario comenta que ellos no dan información a la prensa, más bien indica que la prensa les solicita a ellos aclaraciones de cosas que ellos no conocen. Aclara que SITRAA lleva a la prensa las cosas que no reciben respuesta por parte de la Administración. Maritza Alvarado realiza comentarios sobre la campaña, indica que la propuesta de SITRAA le parece bien se puede hacer con recursos propios, recomienda que exista unidad para levantar la imagen de AyA, señala algunas labores que se han desarrollado desde la Dirección de Comunicación Institucional. Se debe reforzar la base interna antes de proyectarnos a lo externo. Marianela de SITRAA comenta que sería bueno que doña Yamileth lea detenidamente los comunicados que salen en prensa, para que se de (sic) cuenta que el SITRAA no está perjudicando la imagen, sino mas (sic) bien defienden la institucionalidad del AyA, por su importancia en la gestión del recurso hídrico. Yamileth indica que los medios solo publican cosas que debilitan la imagen de AyA, solicita hacer una alianza con los sindicatos para levantar la imagen de la Institución (…)” (el énfasis fue suplido).
Al respecto, la Presidenta Ejecutiva del ICAA indica en el informe rendido bajo juramento ante este Tribunal Constitucional que: “En atención a la formalidad establecida a nivel institucional, se levantó un borrador de minuta de la reunión, con número GG-2020-02784, el cual está asociado al número de oficio, dicho borrador no lleva ninguna firma o rúbrica de los participantes y se aclara en este acto, que a pesar de que estaban convocados los funcionarios de la lista contenida en el borrador de la minuta, los señores Annette Henchoz Castro y Alejando Calderón Acuña, no se presentaron a la reunión que había sido convocada de manera virtual, sin embargo; se realizó de forma presencial. El borrador de minuta fue levantado por el funcionario Andrey Vila Abarca, quien consigna en el formato que se acostumbra a estas reuniones, la agenda y una sucinta referencia de los temas abordados. La minuta posteriormente fue comunicada y compartida vía correo electrónico por el SDI con el Memorando GG-2020-02784, suscrito por el funcionario Andrey Vila Abarca de la Gerencia General, quien tiene bajo su responsabilidad dar seguimiento a los temas y acuerdos de las reuniones con los diferentes sindicatos constituidos en el AYA. Del documento denominado “minuta” se desprende claramente que en ningún momento la suscrita manifestó el hecho que se recurre, por lo que es claro que el recurrente descontextualiza una frase de una minuta, de una reunión sostenida entre la Administración Superior y el Sindicato SITRAA, donde se analiza una campaña motivacional interna al personal del AyA, especialmente, dirigida a los trabajadores que están en primera línea de atención de la pandemia. En ese contexto y en el ánimo de unir esfuerzos hice un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso me referí puntualmente cuando indiqué “no alimentar los medios” como lo cita la minuta. Reitero, que ni de la minuta ni de ningún otro documento se desprende jamás que se haya “ordenado no hablar con Diario Extra”, ignoro en qué se basa el recurrente para realizar esa temeraria interpretación a la libertad de expresión. De hecho, todas las consultas de prensa realizadas por Diario Extra han sido atendidas en tiempo y forma; de mayo a la fecha, se han recibido y dado respuesta a 9 solicitudes de información planteadas por correo. Diario Extra y Extra TV 42, durante este año han publicado al menos 183 notas relacionadas a la institución” (la negrita fue suplida).
La Sala también observa que, el 21 de julio de 2020, la presidenta ejecutiva del ICAA dirigió el oficio PRE-2020-01101 a la gerente general de Diario Extra, en el que manifestó: “En ejercicio del derecho de respuesta consagrado en los artículos 29 de la Constitución Política y 14 de la Convención Americana de Derechos Humanos, así como el 66 en adelante de la Ley de Jurisdicción Constitucional, en mi calidad de Presidenta Ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados, solicito el debido espacio para rectificar la nota publicada por Diario Extra el día 21 de julio del 2020 titulada “Presidenta AyA ordena no hablar con DIARIO EXTRA”. Agradezco la publicación del siguiente texto: AyA jamás ha ordenado no hablar con Diario Extra Con respecto a la nota publicada en Diario Extra el 21 de julio del 2020, titulada “Presidenta AyA ordena no hablar con Diario Extra”, como Presidenta Ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados (AyA) califico de absolutamente falso que se haya “ordenado” a algún funcionario o funcionaria no hablar con el Diario Extra. El periodista descontextualiza una frase de una minuta, de una reunión sostenida entre la Administración Superior y el Sindicato SITRAA, donde se analiza una campaña motivacional interna al personal del AyA, especialmente, dirigida a los trabajadores que están en primera línea de atención de la pandemia. En ese contexto y en el ánimo de unir esfuerzos hago un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso se refiere puntualmente con “no alimentar los medios..” como lo cita la minuta. Ni de la minuta ni de ninguna parte se desprende jamás que se haya “ordenado no hablar con Diario Extra”, ignoro en qué se basa el periodista para realizar esa temeraria interpretación a la libertad de expresión. De hecho, todas las consultas de prensa realizadas por Diario Extra han sido atendidas en tiempo y forma; de mayo a la fecha, se han recibido y dado respuesta a 9 solicitudes de información planteadas por correo. Diario Extra y Extra TV 42, durante este año han publicado al menos 183 notas relacionadas a la institución. En el AyA somos respetuosos del derecho a la información y la libertad de expresión, nunca estaríamos de acuerdo en lesionar esos derechos. Durante este año a Diario Extra hemos enviado dos derechos de respuesta, uno con respecto a una publicación del día 15 de enero que jamás se publicó, y otro que si fue publicado en la edición del 27 de junio. Somos conscientes del papel vital que juega la prensa para nuestra democracia. Estamos claros de lo importante que es para el país el fortalecimiento de los medios de comunicación, ya que como nación no nos podemos permitir la interrupción de las operaciones de un medio de comunicación, eso sería contrario al interés público de estar informados, máxime en medio de una pandemia, que exige información veraz y oportuna a diario. Hemos confiado y confiamos en el Grupo Extra para realizar nuestras campañas informativas y de rendición de cuentas a la población y seguiremos en la medida de nuestras posibilidades haciéndolo. Jamás podríamos permitir que se nos acuse de asestarle golpe alguno a la libertad de expresión” (el resaltado fue suplido).
Así las cosas, se estima procedente traer a colación lo preceptuado en la sentencia n.° 2014-011694 de las 9:05 horas del 18 de julio de 2014 dictada por este Tribunal Constitucional, en la que se dispuso:
“III.- SOBRE LA LIBERTAD DE EXPRESIÓN Y RELACION ESTATUTARIA. Los funcionarios o servidores públicos, por la circunstancia de estar sometidos a una relación estatutaria, no pueden ver diezmada o limitada su libertad de expresión y opinión y, en general, ninguno de los derechos fundamentales de los que son titulares por intrínseca dignidad humana. Las organizaciones administrativas no son compartimentos estancos o separados del conglomerado social y la existencia de una carrera administrativa o de una relación estatutaria no justifican el despojo transitorio o las limitaciones de los derechos fundamentales de los funcionarios públicos de los cuales gozan en todas las facetas de su vida. Ciertamente, la libertad de expresión en el ámbito de una relación funcionarial o estatutaria puede sufrir leves modulaciones por razón de la relación de jerarquía inherente a la organización administrativa, la confianza que debe mediar entre el superior y el inferior, los deberes de lealtad de ambos con los fines institucionales y de reserva respecto de las materias que han sido declaradas secreto de Estado por una ley. Sobre el particular, conviene agregar que tal matización ha de ser proporcionada y razonable, y que ni siquiera un interés público podría limitar o restringir los derechos fundamentales de un funcionario público por la vinculación más fuerte, la eficacia directa e inmediata y la superioridad jerárquica de éstos. Los conceptos de buena fe y lealtad no pueden enervar la libertad de expresión de un funcionario público cuando a través de su ejercicio no se causa una lesión antijurídica al ente u órgano público al cual pertenece y representa o a terceros. Los jerarcas o superiores jerárquicos de un ente u órgano público, por sus especiales y acusadas responsabilidades y exposición al público, deben estar sujetos y tolerar la crítica no dañina o antijurídica tanto de los usuarios de los servicios públicos, administrados en general como de los propios funcionarios. Lo anterior es, también, predicable respecto de las formas e instrumentos de gestión o administración de un ente u órgano público. La crítica de los usuarios, administrados en general y de los funcionarios públicos sobre el desempeño individual de algún servidor e institucional del ente u órgano público constituye una poderosa herramienta para el control y fiscalización de la gestión pública y, desde luego, para obtener mayores niveles de rendimiento resultados-, rendición de cuentas y transparencia administrativa. Ningún funcionario público puede ser inquietado, perseguido, recriminado o sancionado por expresar sus opiniones, ideas, pensamientos o juicios de valor acerca de la gestión del ente público o las actuaciones de otro funcionario público.
IV.- SOBRE EL CONTENIDO DEL ARTÍCULO 13 DE LA CONVENCIÓN AMERICANA SOBRE DERECHOS HUMANOS El artículo 13 recoge lo siguiente:
Artículo 13. Libertad de Pensamiento y Expresión 1. Toda persona tiene derecho a la libertad de pensamiento y expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
En el citado numeral se pretende maximizar las posibilidades de participar en el debate público especialmente cuando además de proteger la expresión de ideas, reconoce el derecho colectivo a ser debidamente informado y el derecho a réplica. No obstante, como todo derecho, no es absoluto, sino que admite restricciones para armonizar su ejercicio con los derechos de los demás, la seguridad de todos y las exigencias del bien común en una sociedad democrática (art.32 de la Convención). Pero estas limitaciones no pueden ser más que lo establecido en el mismo numeral o bien las Constituciones Políticas (art.30 de la Convención). Este derecho no puede estar sujeto a previa censura sino a responsabilidades posteriores. La Constitución Política en su artículo 29 recoge ese postulado al establecer que: “Todos pueden comunicar sus pensamientos de palabra o por escrito y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejrcicio de este derecho, en los casos y del modo que la ley establezca”. La libertad de expresión en este sentido no puede ser sometido a un control a priori. El Estado a tráves (sic) de cualquiera de sus órganos está impedido constitucional y convencionalmente, con las excepciones de protección de otros derechos que dispone el mismo artículo 13 y 27. 1 de la Convención, a realizar censura previa. Ya la Comisión Interamericana Sobre Derechos Humanos ha señalado reiteradamente el doble aspecto de la libertad de expresión: el derecho de toda persona de difundir ideas e informaciones; y el aspecto colectivo, constituido por el derecho de toda la sociedad de recibir tales ideas e informaciones. Y al darse mediante la censura previa la violación del derecho de expresión, se lesiona una gama de derechos, como el que tiene toda la colectividad de recibir información veraz. Así la Corte Interamericana, Opinión Consultiva OC-5/85 ha dicho, que: "...cuando se restringe ilegalmente la libertad de expresión de un individuo, no sólo es el derecho de ese individuo el que está siendo violado, sino también el derecho de todos a "recibir" informaciones e ideas.
V.- SOBRE EL CASO CONCRETO. En el caso bajo estudio, la institución recurrida dispuso mediante la circular número 211-2014, fechada 10 de marzo de 2014, del Director de Relaciones Públicas del Ministerio de Obras Públicas y Transportes, dirigida a directores y jefes de Departamentos del Mopt, que se coordine con la Dirección de Relaciones Públicas cuando los medios de comunicación los contacten directamente, para una oportuna atención a los medios y se traduzca en oportunidades de divulgación institucional; asimismo, se defina conjuntamente el tema a consulta a tratar. El recurrente considera que dicha disposición es contraria al derecho de expresión de los trabajadores del Mopt, porque lo que pretende la Dirección de Relaciones Públicas es ejercer una censura previa sobre las manifestaciones o expresiones que hagan los funcionarios públicos. El Director recurrido dice que se trata de una puesta en conocimiento de los funcionarios cuando la prensa los enlaza sin haber coordinado con Relaciones Públicas; se trata de darles a los funcionarios un manejo idóneo del tema para responder a los medios de información y no ejercer una censura previa como dice el accionante. Pero lo cierto, es que el hecho de que los funcionarios del Ministerio de Obras Públicas y Transportes tengan que adecuar sus manifestaciones, según las reglas de la Dirección de Relaciones Públicas de este ministerio, cada vez que estén de frente a los medios de comunicación colectiva, es una injerencia, a manera de censura previa, que amenaza o no les permite expresar libremente su opinión en temas propios de su quehacer institucional, lo que afecta directamente a la colectividad que recibe una información filtrada o con alguna censura. No puede admitirse que la Circular 211-2014 de la Dirección de Relaciones Públicas – se ubique en uno de los presupuestos contemplados por nuestra Constitución o por los instrumentos internacionales que la complementan (gracias al efecto integrador del artículo 48 según la enmienda de 1989), para legitimar una restricción a la libertad de expresión. Por estas razones el recurso debe estimarse con las consecuencias de ley.” (el énfasis fue suplido).
Además, a los efectos de resolver este amparo resulta oportuno citar lo dispuesto en la sentencia n.° 2015-01782 de las 11:36 horas del 6 de febrero de 2015: (…)
Este Tribunal considera que los precedentes transcritos resultan aplicables al sub lite, toda vez que no encuentra motivos para variar los criterios vertidos ni razones para valorar de manera distinta la situación planteada.
De este modo, en el sub iudice, la Sala estima que se ha producido una lesión de relevancia constitucional. Nótese que si bien la minuta aludida carece de firmas, no menos cierto es que la presidenta ejecutiva del ICAA no desmintió su contenido, sino que se limitó a alegar que se descontextualizó la frase “Hace un llamado a no alimentar a los Diarios Extra y CRHoy, ya que el objetivo de éstos es la privatización”, toda vez que lo que pretendió externar fue “un llamado a las agrupaciones sindicales para que si hay situaciones que les preocupen a lo interno de la institución presenten sus denuncias a la Administración Superior para que sean atendidas, antes de acudir a los medios de comunicación. A eso se refiere puntualmente con “no alimentar los medios”. En cuanto al punto, el Tribunal estima que en el sub examine existen indicios suficientes de que la presidenta ejecutiva del ICAA dijo la frase antes transcrita, lo cual, a todas luces, constituye una afectación a los derechos constitucionales a la libertad de pensamiento y expresión, de prensa y a la igualdad, todo esto en relación con los principios constitucionales democrático, de rendición de cuentas y de transparencia en la gestión pública, en virtud de que se trata de una especie de censura velada, dado que el resultado práctico de tal llamado es evitar que los medios de comunicación perjudicados tuviesen acceso a información pública.
En efecto, contrario a lo sostenido por la autoridad recurrida, con la frase en cuestión se exhortó a funcionarios del Instituto Costarricense de Acueductos y Alcantarillados, a que se abstuvieren de remitir información de relevancia pública a ciertos medios de comunicación. En primer término, tal actuación implica una seria amenaza a la libertad de pensamiento y expresión de tales servidores, dado que la iniciativa proviene, ni más ni menos, de la propia presidenta ejecutiva de la institución en mención, a partir de lo cual el “llamado a no alimentar a medios” reviste una particular gravedad merced al rango jerárquico de quien lo externó. En segundo término, se vulnera la libertad de prensa y el derecho a la igualdad, toda vez que se incita a que dos medios de comunicación en particular, CR-Hoy y Diario Extra, no reciban información por parte de los funcionarios del ICAA, al tiempo que de manera absolutamente injustificada coloca a los afectados en una clara situación de desventaja frente al resto de medios. En adición, la situación expuesta lesiona a la población en general, dado que “el llamado a no alimentar a medios” le impide al público acceder a información concerniente a la prestación de servicios públicos esenciales, lo cual es inaceptable en una sociedad que se rige por los principios democrático, de rendición de cuentas, y de transparencia en la gestión pública.
En virtud de lo expuesto, lo procedente es declarar con lugar el recurso, en los términos consignados en la parte dispositiva de esta sentencia. (…)
Por tanto: Se declara parcialmente con lugar el recurso solo en cuanto al Instituto Costarricense de Acueductos y Alcantarillados por violación a los derechos constitucionales a la libertad de pensamiento y expresión, de prensa y a la igualdad, todo esto en relación con los principios constitucionales de rendición de cuentas, democrático y de transparencia en la gestión pública. Se ordena a Yamileth Astorga Espeleta, en su condición de presidenta ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados, o a quien en su lugar ocupa ese cargo, abstenerse de incurrir nuevamente en los hechos que dieron fundamento a la estimatoria de este recurso de amparo. Se advierte a la autoridad recurrida que de no acatar tal orden, incurrirá en el delito de desobediencia y, que de conformidad con el artículo 71 de la Ley de la Jurisdicción Constitucional, se le impondrá prisión de tres meses a dos años, o de veinte a sesenta días multa, a quienes recibieren una orden que deban cumplir o hacer cumplir, dictada en un recurso de amparo y no la cumplieren o no la hicieren cumplir, siempre que el delito no esté más gravemente penado. Se condena al Instituto Costarricense de Acueductos y Alcantarillados al pago de las costas, daños y perjuicios causados, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. En todo lo demás, se declara sin lugar el recurso. Notifíquese. (…)”.
De forma más reciente, este órgano constitucional, en la Sentencia No. 23107-2022 de las 09:30 hrs. de 4 de octubre de 2022, dispuso lo siguiente:
“(…) VI.- Caso concreto. En el sub lite, la recurrente alega como primer agravio, que en su condición de periodista, ejerce la dirección del programa de análisis, opinión y autocrítica llamado "Hablando Claro", que se transmite desde el 1° de febrero de 2007, por Radio Columbia y considera que en esa condición las autoridades recurridas lesionaron sus derechos fundamentales, específicamente, los derechos a la libre expresión y libertad de prensa, dado que entre el 8 y el 9 de julio pasado, recibió llamadas de cinco personas funcionarias públicas, que se desempeñan en puestos de jerarquía dentro del Gobierno de la República o en las oficinas de comunicación de ministerios e instituciones descentralizadas, quienes le manifestaron, en condición de fuentes periodísticas confidenciales, que se encontraban alarmadas por un comunicado que la entonces Ministra de Comunicación, Patricia Navarro Molina, les remitió por WhatsApp, a todos los Ministros y Presidentes Ejecutivos del Gobierno. Aduce que, según le relataron sus fuentes, en la referida comunicación, la Ministra instruía a todos los jerarcas a suspender, con carácter de urgencia, todo tipo de publicidad estatal a los medios "Amelia Rueda, La Nación, CRHoy y Canal 7". Asimismo, que en ese comunicado se les instaba "con carácter de urgencia a no participar en entrevistas en Hablando Claro y Amelia Rueda".
Al respecto, del informe rendido por las autoridades recurridas, -que se tiene por dado bajo fe de juramento con las consecuencias, incluso penales, previstas en el artículo 44 de la Ley que rige esta Jurisdicción- y la prueba aportada para la resolución del asunto, esta Sala no pudo tener por demostrado que se haya girado la orden o directriz que cuestiona la recurrente. Si bien, puede considerarse que, sobre este punto en particular, los informes recibidos resultan escuetos o lacónicos, lo cierto es que sí expresan claramente que no se giró una orden o indicación en ese sentido. La Sala aprecia que tales informes se enfocan en las competencias y potestades del Ministerio de Comunicación y en aspectos procesales de la presentación de este recurso, pero al negar la existencia de la orden, directriz o indicación referida por la amparada, en este caso en particular se carece de toda posibilidad de tener por demostrada su existencia, siendo así que lo procedente es declarar sin lugar el recurso en cuanto a este extremo.
VII.- Sin embargo, por la trascendencia del tema y la gravedad que podría implicar girar desde el poder público alguna orden en los términos reclamados en este proceso, resulta menester recordar a las autoridades del Ministerio de Comunicación y del Ministerio de la Presidencia, que tal y como se expresó en el quinto considerando de esta sentencia, la libertad de expresión e información conlleva una doble dimensión, que se refleja no sólo en la posibilidad de los periodistas de informar sobre los temas de relevancia para la opinión pública, sino también el derecho que tienen los habitantes del país de enterarse de dicha información, por lo que los órganos y entes públicos se encuentran en el deber de adoptar las medidas correspondientes para que pueda informarse a los y las habitantes de la República sobre las acciones y acontecimientos que se producen o desarrollan en el territorio nacional y que son de interés para la colectividad. Máxime que los temas y decisiones que se toman y tratan desde el gobierno central y toda institución, órgano y ente administrativo, tienen una trascendencia y relevancia para el buen funcionamiento del país y el ejercicio de los derechos reconocidos a la población en general y a sus integrantes dentro de sus propios ámbitos de actuación, por lo que, todos estos temas deben ser tratados con absoluta publicidad y transparencia, sin posibilidad alguna de impedirle a la ciudadanía, a la opinión pública y a cualesquier medio de comunicación colectiva, tener conocimiento de estos. Ergo, las prácticas que obstaculizan el acceso a la información, como lo es el impedir informar sobre determinados eventos o decisiones, rehusarse a brindar entrevistas a diversos medios de comunicación, no invitarlos a formar parte de conferencias o ruedas de prensa, limitarles la publicidad, impedir el acceso a insumos necesarios para la divulgación, entre otras variables relacionadas con la censura directa o indirecta, no pueden ni deben ser avaladas por un Tribunal Constitucional, por la elemental razón de que su acceso y entrega oportuna tiene que hacerse a través de un proceso fácil, expedito y sin complicaciones, que garantice a la población y, en general a la opinión pública, el derecho a la información y a la libertad de expresión.
Dicho lo anterior, se les reitera a las autoridades recurridas que “el gobierno y los tribunales deben permitir que se desarrolle un debate "desinhibido, robusto y abierto", lo que puede incluir expresiones cáusticas, vehementes y a veces ataques severos desagradables hacia el gobierno y los funcionarios públicos” (Cfr. sentencia No. 2006-5977 de las 15:16 horas de 3 de mayo de 2006). En otras palabras, deben tener presente los recurridos que, en el ejercicio de cargos públicos como los que ostentan, y en la era actual, en donde por el avance tecnológico se tiene mayor facilidad de cobertura y acceso a hechos noticiosos, es normal que alguna de las discusiones que se generen al calor de la prensa, pueden resultarles infortunadas y desagradables; no obstante, en un país democrático como Costa Rica, ese ejercicio de la libertad de expresión y la libertad de prensa es lo que nos caracteriza como un Estado Social de Derecho y un pueblo libre. Por tales razones, en aras de garantizar la libertad de prensa y de libre expresión que tienen tanto los periodistas o medios de comunicación colectiva, como la población de manera general, es que las autoridades recurridas deben velar porque cualquier directriz, orden, acto o instrucción que se gire desde el gobierno central se apegue siempre a la protección de estas libertades y de cualquier derecho fundamental de los que se goza en un país democrático como el nuestro, en los términos que han sido expuestos en esta sentencia (…)”.
Como se ha podido observar, resulta claro que el uso o aplicación por parte de las autoridades estatales o de particulares de las restricciones indirectas aludidas en este considerando, atenta grave y flagrantemente contra la libertad de expresión y la libertad de prensa. De ahí, la importancia del resguardo y protección que les provee nuestra Constitución Política y la Convención Americana sobre Derechos Humanos, entre otros instrumentos; de ahí también la responsabilidad que recae en esta Sala Constitucional de velar porque esto así se cumpla.
VIII.- CONGLOMERADOS O ESTRUCTURAS FINANCIERAS CREADAS PARA FINANCIAR O DIVERSIFICAR LAS FUENTES DE INGRESOS DE LOS MEDIOS DE COMUNICACIÓN Y, CONSECUENTEMENTE, PERMITIR EL EJERCICIO DE LA LIBERTAD DE PRENSA. Los medios de comunicación tradicionales, principalmente los medios impresos, han sufrido en los últimos años un fuerte declive económico con la llegada del internet, la caída de la inversión publicitaria y su migración a las grandes plataformas digitales como lo son Google y Facebook y el consecuente cambio en los hábitos de consumo de la información. Todo esto, sumado, ha generado que el usuario prefiera mayormente acceder a la información vía digital (sea, a través del uso de los teléfonos inteligentes, tabletas electrónicas, computadoras, etc.) y no mediante la compra del periódico impreso o bien, accediendo a otras plataformas (radio o televisión), tal y como regular y tradicionalmente lo venía haciendo.
En virtud de lo anterior, los medios de comunicación se han visto en la necesidad de innovar y buscar nuevos formatos, propuestas o mecanismos para buscar nuevos ingresos (y audiencia) que permitan, a su vez, financiar el periodismo y al medio como tal, sobre todo al periodismo de investigación que resulta costoso. En otros términos, se han debido implementar nuevas estrategias comerciales o poner en funcionamiento modelos mixtos con el fin de “rentabilizar a los medios de comunicación”, tal y como así ha sido llamado por algunos. Tanto es así que muchos medios de comunicación, hoy en día, no generan el dinero con su actividad principal o tradicional, sino con otras que le permiten subsistir. A modo de ejemplo, los medios de comunicación modernamente han recurrido, entre otras, a las siguientes fórmulas o estrategias: a) algunos medios impresos han creado su propia plataforma digital y han instaurado los modelos por suscripción o lo que se ha llamado “pagar por ver”; fórmula a la que han recurrido con éxito grandes medios como The New York Times o The Guardian. b) Se ha recurrido a la creación de contenidos de mayor calidad y exclusividad (sobre temas específicos y de interés para ciertos sectores), que hacen atractiva la búsqueda y el acceso a estos. c) Se ha hecho uso de los podcast (serie de episodios sobre diversos temas grabados en audios y transmitidos online al que ha recurrido por ejemplo el medio The New York Times a través de su programa The Daily). d) Se ha promovido la organización de eventos, foros o congresos sobre determinados temas de la mano de expertos y personalidades, para lo cual, a su vez, se cobra por participar o por ingresar (los medios Texas Tribune o The Economist se han caracterizado por organizar eventos de este tipo). e) Se recurre también a la venta de piezas a terceros (los grandes medios, aprovechándose de la enorme experiencia y el soporte estructural con el que cuentan, cubren cierta información especializada, la procesan y la venden a otros, incluso a su propia competencia). f) Se ha hecho uso del llamado Brand licenser, que permite a los medios de comunicación licenciar su marca para que terceras empresas la utilicen en sus productos o servicios (v.gr. National Geographic vende productos relacionados con viajes y aventura, libros y hasta ha instalado tiendas relacionadas con su línea de cobertura).
Igualmente, cabe destacar que, como parte de esas fórmulas a las que han tenido que apelar los medios de comunicación para diversificar sus fuentes de ingreso y sostenerse financieramente, se ha recurrido también a la adquisición o a la adhesión con otras empresas cuyas actividades principales se encuentran relacionadas o no directamente con el periodismo (conformándose así lo que se ha denominado holdings o grupos de interés económicos). Este tipo de fenómeno en particular se ha manifestado en otras latitudes y también a nivel nacional.
Así, a modo de ejemplo, se tiene el caso del diario The Boston Globe y otros medios (propiedad, a su vez, del periódico estadounidense The New York Times), los cuales fueron adquiridos en el 2013 por John Henry, dueño del equipo de beisbol Red Sox y del equipo de futbol Liverpool FC, con el propósito de afrontar las cuantiosas pérdidas económicas sufridas por el primero, originadas por la migración de lectores y de la publicidad hacia el internet. Igualmente, se tiene que Warren Buffet, a través de su holding Berkshire Hathaway (sociedad dueña total o parcial de las acciones de varios grupos empresariales de textiles, seguros, automóviles, bebidas, etc.) en el año 2012, compró sesenta y tres periódicos del Grupo Media General del sureste de Estados Unidos, los cuales sufrían también una baja rentabilidad. Entre los diarios adquiridos por Buffett figuran el Richmond Times de Virginia, el Winston-Salem Journal de Carolina del Norte y el Morning News of Florence de Carolina del Sur.
Asimismo, se cuenta con el caso de Jeff Bezos (fundador y dueño de Amazon, gigante compañía de comercio electrónico), quien en el año 2013 compró The Washington Post, con el fin de lograr su supervivencia, luego que este medio de comunicación sufriera igualmente los embates de la irrupción de nuevas tecnologías, el descenso de las audiencias y de los ingresos por publicidad. Nótese que, en este caso en particular, pese a que el medio de comunicación –según lo ha anunciado, entre otros, el medio español El País–, no se integrará o adherirá propiamente a Amazon, su adquisición forma parte de esa misma estrategia comercial tendente a ayudar a que el mismo pueda mantenerse funcionando(https://elpais.com/sociedad/2013/08/05/actualidad/1375736883_735938.html).
En Costa Rica, el uso de este tipo de mecanismos o fórmulas se ejemplifican a través de Grupo Nación S.A. (corporación de la cual forma parte el Periódico La Nación), el que dispuso comprar las instalaciones de lo que solía ser el Autódromo La Guácima y las convirtió en el centro de eventos llamado Parque Viva, como medio para diversificar las fuentes de ingresos de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet.
Es entendible que dentro de la coyuntura actual donde los medios de comunicación escritos requieren apoyo financiero ante la pérdida de alguna de sus fuentes tradicionales de ingresos, se creen o establezcan –al amparo del ordenamiento jurídico–, otro tipo de empresas o sociedades que les brinden recursos y sostenibilidad económica o financiera para mantener a los primeros. El caso del Grupo Nación S.A., y la adquisición del hoy llamado Parque Viva arriba referido, representa un claro ejemplo de lo dicho.
Este tipo de estructuras financieras, al igual que el resto de ejemplos supra citados, se convierten en una fuente de ingresos o recursos que coadyuva o hacen posible que la labor periodística pueda ser ejercida, habida cuenta que los ingresos que las primeras generan permiten sufragar o sopesar muchos de los gastos que demanda un medio de comunicación. Por ende, es una realidad que, si este tipo de mecanismos o propuestas se ven afectadas de forma ilegítima o arbitraria, se perjudica, a su vez, el ejercicio del periodismo; en esencia, la libertad de prensa, como manifestación de la libertad de expresión.
Ahora bien, la afectación refleja (indirecta o velada) que pueda concretarse a la libertad de prensa, merced de las medidas adoptadas en contra de dichas estructuras de financiamiento, es un aspecto que ha de ser ponderado en cada caso concreto, siendo claro que no todo acto o conducta administrativa que imponga un gravamen o establezca un contenido de efecto negativo en torno a esas entidades, supone una lesión refleja como la que se ha indicado. En efecto, cabe advertir que como toda persona administrada, estas estructuras se encuentran afectas y sujetas a las normas jurídicas que regulan, precisan y delimitan el ejercicio de sus respectivas actividades económicas. En ese sentido, su funcionamiento debe satisfacer y cumplir con las regulaciones propias de su actividad, lo que incluye, contar con las respectivas habilitaciones administrativas para el despliegue de la materia comercial. De ahí que deben contar con los respectivos títulos que permitan comprobar el cumplimiento de las normas urbanísticas, edilicias (dentro de estas, las atinentes a la Ley No. 7600), sanitarias, seguridad, así como las licencias y patentes comerciales que son debidos en cada caso. Adicionalmente, cumplir con la normativa fiscal atinente. De igual manera, en el curso de su actividad, como toda persona, se encuentran sujetas a la fiscalización y control del ejercicio de la actividad, a fin de verificar que mantienen el nivel de cumplimiento en virtud del cual, les fue habilitada la actividad comercial. En esa dinámica, la desatención de las condiciones de ejercicio que imponen esas regulaciones sectoriales, bien podrían llevar a la imposición de medidas administrativas de restricción o de sanción. Lo anterior, siempre que el ejercicio concreto de esa manifestación del poder de policía administrativa, pueda estimarse legítimo, a partir de la acreditación debida y oportuna de los presupuestos de incumplimiento que darían cabida a cada consecuencia jurídica, y que esa decisión se encuentre acorde al mérito de los antecedentes del caso y al Ordenamiento Jurídico aplicable (relación entre los elementos materiales objetivos motivo-contenido) y que sea congruente con el interés público tutelado. En esos supuestos, en que la función administrativa se establece como el ejercicio legítimo de potestades administrativas que procuran el resguardo del interés público, no podría postularse una suerte de infracción refleja a la libertad de prensa, sino, en la consecuencia lícita y previsible de la desatención de normas de orden público a las que se encuentra expuesta toda persona administrada. Por contraste, cuando esas medidas no encuentren respaldo en los diversos presupuestos de hecho o de derecho que, en cada supuesto, el plexo normativo define como antecedente necesario (presupuesto condicionante) para adoptar determinada decisión sancionatoria o de contenido negativo, o bien, cuando el contenido del acto adoptado a partir de la verificación de aquellas condiciones, sea desbordado, desproporcional, irrazonable en relación con esos antecedentes, antagónico con el interés público o en general, contrario a legalidad (en sentido amplio), se estaría frente a un comportamiento administrativo que puede implicar una desviación de poder (art. 113 LGAP) y supone, como se ha indicado, una lesión indirecta o refleja a la libertad de prensa. Se trata de un cuidadoso análisis de las particularidades de cada caso, como parámetro de una valoración neutral, equitativa y objetiva entre libertades y derechos fundamentales en un esquema de un Estado de Derecho y el ejercicio de las potestades administrativas que tienen, por principio y finalidad, la tutela y satisfacción del interés público. Ergo, no todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen, como tampoco, puede entenderse como legítima, sin más, toda función administrativa de control respecto de aquellas. De esa manera, en casos como el presente, en que se aduce una violación indirecta a la libertad de expresión y de prensa, producto de actividades de control de la Administración Sanitaria, corresponde a esta instancia jurisdiccional, ponderar los matices particulares, para definir si se trata de un ejercicio debido o indebido, como condición sine qua non de un juicio de valor en torno a la existencia o no del deber de tolerar válidamente esas imposiciones administrativas.
IX.- CASO CONCRETO. El estudio de este asunto se encuentra estructurado, para una mejor comprensión, en los siguientes cuatro apartados, a saber: a) aclaraciones previas; b) cierre de Parque Viva a través de una actuación arbitraria, infundada y desproporcionada; c) cierre de Parque Viva y vulneración indirecta a la libertad de expresión y d) aclaraciones finales de interés.
A. ACLARACIONES PREVIAS. En este proceso de amparo se discute medularmente lo tocante a la orden sanitaria de cierre girada en contra de Parque Viva el 8 de julio de 2022, así como los efectos que esta generó o trajo consigo en el medio de comunicación Diario La Nación, particularmente, en cuanto a la libertad de expresión.
Al respecto, es importante aclarar primeramente que este Tribunal Constitucional ha sido del criterio que no le corresponde, por tratarse de un tema de mera legalidad, pronunciarse en relación a los aspectos técnicos (requisitos) que se le exigen cumplir a un determinado local comercial, a la luz de lo dispuesto en el ordenamiento jurídico, a efecto que les sea otorgado un permiso sanitario y entrar así en funcionamiento. También, esta Sala ha dicho que escapa del ámbito de su competencia entrar a valorar y cuestionar los criterios técnicos emitidos para dejar sin efecto eventualmente ese permiso, a través, por ejemplo, del giro de una orden sanitaria.
No obstante, es importante señalar que la anterior postura no obsta para que este órgano constitucional pueda llevar a cabo un análisis de una orden sanitaria y de las circunstancias en que esta fue emitida, desde una perspectiva constitucional, a la luz de aspectos que esta jurisdicción tradicionalmente sí ha abordado, analizado y garantizado desde su creación, tal y como se verá en los apartados siguientes. En ese particular, cabe destacar que esta Sala ha sostenido también que las órdenes sanitarias dictadas por las autoridades del Ministerio de Salud pueden ser revisables ante esta jurisdicción, en casos excepcionales, determinados de forma concreta por su ineludible directa relación con las libertades o derechos fundamentales esenciales en el sostenimiento del sistema democrático. Así, en Sentencia No. 21103-2022 de las 09:20 hrs. de 9 de septiembre de 2022, esta jurisdicción indicó:
“(…) este Tribunal en reiterada jurisprudencia ha señalado que, bajo tesis de principio y salvo determinadas excepciones particulares, determinadas de manera concreta por su ineludible directa relación con libertades o derechos fundamentales esenciales para el sostenimiento del sistema democrático, las órdenes sanitarias dictadas por las autoridades del Ministerio de Salud no son cuestionables en esta jurisdicción. (…)”. (El destacado no forma parte del original).
Cabe destacar que mediante el Voto No. 1515-2021 de las 10:00 hrs. de 26 de enero de 2021, este Tribunal dispuso anular una medida sanitaria girada por el Ministerio de Salud en contra de un recurrente en detrimento de su derecho a la libertad de expresión, al estimarse que dicho acto administrativo carecía de fundamentos técnicos. En esta ocasión, esta Sala dispuso expresamente lo siguiente:
“(…) III.- OBJETO DEL RECURSO. Los recurrentes alegan que el amparado, en ejercicio de su derecho constitucional a la libertad de expresión, ha creado un movimiento en las redes sociales sirviéndose de su perfil público https://www.facebook.com/rolandoarayamonge y su programa radial "Cubaces Tiernos", que se transmite por radio en la frecuencia 89.1 FM y, de forma simultánea, en la plataforma de Facebook Live denominada "streaming", haciendo referencia a la supuesta eficacia del dióxido de cloro (clorito de sodio), para combatir covid-19. Sin embargo, el Ministerio de Salud emitió una orden sanitaria en su contra, por considerar que incita a la población a consumir una sustancia que no ha sido autorizada y, por el contrario, está contraindicada. (…)
V.- Sobre el caso concreto. En su jurisprudencia, este Tribunal no ha escatimado en posicionar la libertad de expresión como un elemento clave del sistema democrático:
“VIII.- La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle contenido a varios principios del Estado constitucional, como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos. Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa. Como lo ha señalado el propio Tribunal Constitucional español, quedarían vaciados de contenido real otros derechos que la Constitución consagra, reducidas a formas huecas las instituciones representativas y absolutamente falseado el principio de legitimidad democrática... que es la base de toda nuestra ordenación jurídico-política (Sentencia 6/1981), si no existieran unas libertades capaces de permitir ese intercambio, que… presupone el derecho de los ciudadanos a contar con una amplia y adecuada información respecto de los hechos, que les permita formar sus convicciones y participar en la discusión relativa a los asuntos públicos (Sentencia 159/1986). (…)
Al igual que los demás derechos fundamentales, la libertad de expresión también está sujeta a limitaciones, como serían aquellas derivadas de la protección de la salud pública, entre otras.
La pregunta que la partes buscan dilucidar en este proceso se refiere a la posibilidad de que el Ministerio de Salud limite la libertad de expresión del amparado Araya. Para contestar tal pregunta, sin embargo, es necesario analizar las manifestaciones de las partes y la orden sanitaria en sí, toda vez que ella fue el medio utilizado para limitar los derechos del tutelado.
Como primer punto, la Sala nota una discrepancia entre lo manifestado por la autoridad recurrida en este proceso y la prueba material. En efecto, el informe señala que la orden sanitaria indica:
“En videos publicado en sus páginas de Facebook: https://www.facebook.com/arayamonge y https://www.facebook.com/rolandoarayamonge, en diferentes fechas. se refiere a la eficacia del producto clorito de sodio e insta a sus seguidores a que lo ingieran ya que elimina los virus y muchas otras cosas. Además, afirma que el producto es inocuo. Trasfiero parte de lo que manifiesta en su video: “…descubrimiento o hallazgo que hicieron algunas personas en torno a la eficacia de un producto llamado clorito de sodio, bueno particularmente el producto activo dióxido de cloro que según resultados que han obtenido, elimina toda clase de gérmenes, probado científicamente porque lo usan en superficies, se usa generalmente para limpieza y purificación de agua…” “ … Resulta que si una persona se toma un poquito de eso, unas gotitas de eso, pues le quita los virus, las bacterias y muchas cosas de estas…” “…pero no estamos pidiendo que lo usen y lo acepten, lo que me parece decente, lógico, aceptable, razonable, para una crisis como la que está viviendo el mundo, es que lo prueben, si nada le pasa a las personas, hay una inocuidad total…” Se le informa: (…)” (El subrayado es agregado).
Empero, la orden sanitaria que fue aportada carece de tales transcripciones, pues textualmente reza en lo conducente:
“En videos publicado en sus páginas de Facebook: https://www.facebook.com/arayamonge y https://www.facebook.com/rolandoarayamonge, en diferentes fechas. se refiere a la eficacia del producto clorito de sodio e insta a sus seguidores a que lo ingieran ya que elimina los virus y muchas otras cosas. Además, afirma que el producto es inocuo y en otras publicaciones compartidas se afirma que el clorito de sodio o dióxido de cloro en organismos, reacciona contra gérmenes patógenos, oxida inmediatamente a los virus a las bacterias, hongos, parásitos y sirve inclusive para cáncer, diabetes y otras enfermedades.
Se le informa: (…)” Este Tribunal observa una clara incongruencia entre ambos textos con respecto a un punto medular para el proceso: cuáles son las expresiones achacadas al tutelado.
Como era debido, la Magistrada Instructora previno a las partes que aportaran los videos relacionados con el sub iudice (resolución de las 16:27 horas del 18 de setiembre de 2020). No obstante, tal prevención fue incumplida por la parte accionada. Al respecto, esta última indicó:
“…En atención a la solicitud de aportar las publicaciones eliminadas por parte del Equipo Legal de Facebook ante el caso del Sr. Rolando Araya Monge, se le indica que debido a que este contenido fue subido a únicamente a sus páginas personales y el Equipo Legal de Facebook procedió a analizarlas y posteriormente eliminarlas, no se cuenta con el detalle de las mismas. Lo que sí se aporta es el oficio MS-DRPIS-UNC-2056-2020 dirigido al Departamento Legal de Facebook, donde se indican los url's de los enlaces de las publicaciones que hacían mención al dióxido de cloro, en este se tomaba como referencia la alerta sanitaria denominada Productos que contienen Clorito de Sodio o Dióxido de Cloro, la Ley General de Salud en sus artículos 107, 111 y 112; y el reglamento para la autorización y control sanitario de la publicidad de productos de interés sanitario N° 36868-S. En este documento se observa lo publicado en dichas páginas de Facebook respaldado por el url de cada publicación, sin embargo, debido a la eliminación por parte del equipo legal de esta empresa no se cuenta con el detalle de las mismas más que lo que en el documento se indica…” Ahora bien, las consecuencias de tal incumplimiento son distintas para la parte recurrente y la recurrida, debido al principio de carga dinámica de la prueba y a la posición procesal de cada una de ellas.
En sede constitucional, dado que la parte recurrente ha acreditado una limitación a los derechos del tutelado (por escrito del 10 de agosto de 2020 cumplió la prevención de la Sala y aportó copia de la orden sanitaria), la carga dinámica de la prueba obliga a la autoridad accionada a justificar tal restricción. En el sub lite, la justificación del accionar de la Administración y la orden administrativa dictada está en los supuestos videos del procedimiento administrativo, por lo que la recurrida debió resguardarlos y aportarlos.
Justamente, desde el punto de vista procesal, la obligación citada recae en la Administración, dado que ella tiene el deber de recabar y asegurar en el expediente administrativo la prueba que sirve de fundamento a sus decisiones en los procedimientos, de manera que el afectado pueda acudir al expediente administrativo seguido en su contra y conocer a cabalidad las circunstancias del caso, requisito sine qua non para el efectivo ejercicio de su derecho constitucional a la defensa.
Empero, los videos que sirvieron de base a la orden sanitaria dictada, objeto de este asunto, no se encuentran en el expediente administrativo, lo que solo le resulta imputable a la Administración. Tal situación impide que el amparado pueda cuestionar cuáles expresiones pudieron generar la reacción estatal y así defenderse. Ahora bien, como cualquier carga procesal, la parte que incumpla con ella en el sub examine, el Estado debe afrontar las consecuencias procesales de su omisión.
La Sala explica a la autoridad recurrida que, cuando se le reprocha a una persona el uso inadecuado de la libertad de expresión y se le imponen limitaciones a tal derecho, de modo inexorable debe existir certeza en cuanto a las razones de tales medidas excepcionales, que solo se pueden imponer en el marco de los casos permitidos por el orden constitucional y el convencional. Se reitera que la libertad de expresión resulta esencial para el sostenimiento de la democracia y, por ende, configura un aspecto cardinal de nuestro sistema político, por lo que toda restricción a ella no solo debe tener un adecuado fundamento jurídico-positivo, sea en la normativa interna o en el marco del derecho internacional de los derechos humanos, sino que, además, la autoridad competente se encuentra obligada a acreditar plenamente el sustento fáctico sobre el cual se basa.
Por el carácter sumario del proceso de amparo, tampoco podría la Sala asumir una posición inquisitoria e investigar cuáles videos pudieron eventualmente servir de fundamento al accionar estatal, en especial porque tal actividad tendría la finalidad de suplir las omisiones de las autoridades estatales, lo que roza con la naturaleza de Tribunal que defiende al individuo frente al Estado.
Finalmente, la Sala advierte que lo anterior no habría obstado para una valoración distinta, si se hubiese comprobado que las manifestaciones del amparado ponían en riesgo la salud de las personas y la actuación de la Administración se hubiese basado en un razonamiento jurídico positivo preciso y bien fundado. La Sala reafirma que el Ministerio accionado puede y debe salvaguardar la salud pública. (…)
POR TANTO: Se declara con lugar el recurso y, en consecuencia, se anula la orden sanitaria No. MS-DRPIS-UNC-2001-2020 del 30 de julio de 2020, dictada por el Ministerio de Salud. (…)”. (El destacado no forma parte del original).
Así las cosas, se evidencia que la línea de esta Sala es brindar tutela cuando una orden sanitaria violenta otras libertades públicas que se encuentren directamente relacionadas con el sostenimiento del sistema democrático, como lo es, por ejemplo, la libertad de expresión.
A partir de lo anterior, es de suma relevancia tomar en consideración que en este amparo nos encontramos ante una situación absolutamente excepcional, ya que se encuentra de por medio uno de los derechos fundamentales de mayor importancia y trascendencia para el pueblo de Costa Rica y su preciado sistema democrático, como lo es la libertad de expresión. De ahí; la plena justificación para que este Tribunal Constitucional conozca por el fondo este asunto vía amparo, y se pronuncie respecto a los hechos acusados.
B. CIERRE DE PARQUE VIVA A TRAVÉS DE UNA ACTUACIÓN ARBITRARIA, INFUNDADA Y DESPROPORCIONADA. El Director del Diario La Nación, Armando González Rodicio, junto con otros periodistas de ese medio de comunicación, acudieron a este Tribunal y formularon el presente amparo en contra del Presidente de la República, así como de la Ministra de Salud, por habérsele girado a Parque Viva (sitio propiedad de Grupo Nación S.A. al cual pertenece también el referido periódico), una orden sanitaria de cierre total de sus actividades en virtud de existir presuntos problemas relacionados con los accesos viales a dicho sitio. Concretamente, argumentan que dicha orden se ejecutó, de manera arbitraria, pese a que aún no se contaban con criterios técnicos de la Cruz Roja y del Cuerpo de Bomberos respecto a la capacidad de la vía de acceso al establecimiento, los cuales fueron aportados y comunicados días después y resultan cuestionables. Además, señalan que se les exigió presentar un plan remedial que abarque la solución a la problemática de los accesos al parque, pese a que los inspectores del Ministerio recurrido, durante la inspección realizada, no encontraron problema alguno con estos y pese a que las autoridades del MOPT emitieron un informe exclusivamente sobre las vías públicas ubicadas afuera de dicho sitio. Mencionan que, tanto el Alcalde de Alajuela como líderes comunales, han coincidido en que los congestionamientos viales no se pueden atribuir solamente a las actividades realizadas en Parque Viva, habida cuenta que se debe tomar en cuenta concomitantemente el rápido desarrollo habitacional y comercial que se ha producido en la misma zona, sea, La Guácima de Alajuela. Indican que fue el Estado el que creó el problema con su anuencia a la expansión urbanística de la zona, sin proveer la infraestructura pública necesaria. Sostienen que Parque Viva, al momento del cierre, contaba con todos los permisos exigidos en su momento (entre estos, el estudio de planificación vial aprobado en el año 2014), y que, incluso, recientemente, se afirmó que las instalaciones son idóneas para llevar a cabo las actividades que se organizan. Agregan que existe un proyecto vial para remediar el problema (construcción de un acceso a la Ruta Nacional No. 27 de cuatro carriles), para el cual se tramitaron la mayoría de los permisos; empero, a la fecha, no ha sido finalmente aprobado por el MOPT e, incluso, el Presidente de la República lo ha descalificado públicamente, refiriéndose a su intención de no permitirlo, pese a que este sería financiado por Grupo Nación. Señalan que como no se logró hallar una deficiencia en el Parque Viva, se decidió que los defectos se encontraban en la vía pública, donde no corresponde a los particulares, sino al Estado, proveer el remedio. Cuestionan que el problema no es Parque Viva, sino la infraestructura pública que poco ha avanzado en estos años para adaptarse a la densidad habitacional desarrollada después de su puesta en funcionamiento. Afirman que todo lo anterior les imposibilita, además, ejercer un adecuado derecho a la defensa. En virtud de lo anterior, solicitan que se acoja este recurso de amparo, y se anule la suspensión temporal del permiso sanitario de funcionamiento del Parque Viva, así como los actos administrativos que la sustentan.
En su descargo, la Ministra de Salud hizo referencia en su informe a la denuncia planteada el 5 de julio de 2022 en contra del funcionamiento de Parque Viva y al trámite realizado con ocasión de esta. Grosso modo, señaló que, en virtud de esa denuncia se realizó una inspección por parte de las autoridades del Área Rectora de Salud de Alajuela 2, en la cual concluyeron que dicho establecimiento cumple con condiciones físico-sanitarias y estructurales a lo interno de estas, por lo que se recomendó trasladar la denuncia al MOPT para que este realizara una valoración de la situación (estado de calles, dificultad de acceso, etc.). Afirma la Ministra que, “así las cosas”, por oficio No. MS-DM-5754-2022, solicitó a las autoridades del MOPT criterio técnico respecto a las calles de acceso al recinto comercial. Menciona dicha autoridad que este último informe fue entregado por las autoridades del MOPT y que en este se indicó que correspondía a la Municipalidad de Alajuela otorgar los permisos de acceso y que la vía de ingreso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado. Asimismo, la Ministra señala que, posteriormente, el Comité Asesor Técnico de Concentraciones Masivas acordó proponer el giro de una orden sanitaria de cierre a Parque Viva para eventos masivos, así como solicitarse un plan remedial. Indica dicha autoridad que, efectivamente, el 8 de julio de 2022, se le notificó al representante de Parque Viva la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022, en la cual se indicó que, en virtud de lo señalado por el MOPT y el citado Comité de Concentraciones Masivas, se ordenaba la suspensión temporal del permiso sanitario de funcionamiento hasta contarse con criterios técnicos requeridos al Cuerpo de Bomberos y a la Cruz Roja respecto a la capacidad de la vía de acceso al establecimiento por las unidades de primera respuesta, los cuales estaban siendo gestionados por el Ministerio de Salud. También, señala que se les solicitó presentar un plan remedial que solvente el problema de accesos al parque. Afirma la Ministra que, posteriormente, fueron emitidos informes técnicos por parte del Cuerpo de Bomberos, de la Cruz Roja y del Sistema de Emergencias 9-1-1, de los cuales se desprende lo siguiente: Que deben existir medidas preventivas para reducir los riesgos como planes de emergencia que definan rutas de acceso suficiente con la amplitud necesaria que permita una respuesta eficaz en caso de una emergencia. Que las vías públicas de la comunidad de La Guácima resultan insuficientes para el rápido acceso de unidades de emergencia, lo cual se puede agravar ante eventos de concentración masiva. Que se requiere un acceso rápido y oportuno de las unidades de rescate especializadas, lo cual se dificulta por la longitud de las unidades extintoras. Adicionalmente, la Ministra de Salud señala que, según lo informado por el Sistema de Emergencias 9-1-1, cuando hay eventos de concentración masiva ingresa un número mayor de denuncias (por vehículos mal estacionados, embotellamientos, riñas por no poder salir, colisiones, etc.. Afirma que, en consecuencia, sí existe una situación de riesgo potencial en el lugar, por falta de un acceso seguro y fluido al sitio y que el acto administrativo en cuestión lo que busca es evitar poner en riesgo la salud, la seguridad y la vida de los que asisten a los eventos, así como la de aquellos que viven en los alrededores de Parque Viva, quienes, a su vez, requieren un acceso fluido a sus comunidades y, de ser necesario, un adecuado acceso de los medios de socorro. Por esto, afirma que es indispensable presentar el plan remedial solicitado “el cual debe abarcar en su contenido la solución a la problemática de acceso en las comunidades de La Guácima de Alajuela, ante la realización de actividades de concentración masiva”. Agrega la Ministra que los actos administrativos fueron recurridos y desestimados en respeto al derecho a la defensa y que la medida de suspensión temporal de actividades se mantendrá hasta que se presente, se apruebe e implemente un plan remedial que garantice que las actividades de concentración masiva de personas en Parque Viva no conlleve el colapso de las vías de acceso, no genere molestias a las comunidades vecinas y permita el ingreso de vehículos y personal de primera respuesta de forma pronta y segura. Menciona también que si existen otras actividades que no colapsan las vías, los representantes legales del establecimiento deben indicar en el plan remedial solicitado cuáles son estas, así como la cantidad de personas por actividad, a efecto que no superen lo señalado en el criterio técnico emitido por el MOPT. Sostiene la Ministra de Salud que lo actuado se ha llevado a cabo para proteger y preservar el medio ambiente, la salud y la vida de las personas, por lo que no es posible alegar la existencia de derechos adquiridos o situaciones jurídicas consolidadas. Además, afirma que su actuación se encuentra ajustada a derecho y no puede brindar un trato diferenciado o privilegiado al medio de comunicación, tal y como se pretende. Finalmente, indica que en este caso se ha aplicado el principio precautorio en materia sanitaria y que la denuncia se atendió y resolvió apegados a lo dispuesto en el ordinal 41 constitucional.
Por su parte, el Presidente de la República, sobre este tema particular, señaló en el informe rendido a esta jurisdicción constitucional que la denuncia planteada en contra de Parque Viva se atendió con la mayor rapidez y disposición posible en aras de proteger a la ciudadanía. Expone que vecinos de La Guácima de Alajuela plantearon ante el Ministerio de Salud una denuncia anónima donde explicaron lo que han sufrido por años con este lugar y las consecuencias que podrían ocurrir en caso que no se tomen las medidas necesarias de forma urgente. Refiere a algunas noticias publicadas sobre el particular, mediante las cuales se refleja el malestar de algunos vecinos con el funcionamiento de dicho establecimiento. Afirma que, una vez recibida la denuncia, el Ministerio de Salud convocó a sesión al Comité Asesor Técnico en Concentraciones Masivas para analizar el caso y este, luego de examinar, a su vez, el informe técnico rendido por la Dirección General de Ingeniería de Tránsito (donde se concluye que cuando se realizan las concentraciones masivas en el Parque Viva, la vía que da acceso no tiene capacidad suficiente para el manejo del tránsito generado), acordó proponerle a las autoridades sanitarias una orden de cierre para eventos masivos y solicitar concomitantemente un plan remedial para las condiciones denunciadas. Por ende, siguiendo dicha recomendación, menciona que el Área Rectora de Salud de Alajuela 2 emitió la orden sanitaria en cuestión, mediante la cual se suspendió de forma temporal el permiso sanitario de funcionamiento para eventos de carácter masivo hasta que se aporte el referido plan remedial, el cual no ha sido presentado. Apunta que las autoridades han exigido a otros grupos comerciales la construcción de accesos de ingreso a centros comerciales de gran envergadura cuando se proyecta que la entrada en operación de estos recintos representará un aumento en el flujo vehicular de la zona en que fueron construidos, tal es el ejemplo de EPA en Desamparados o de City Mall en Alajuela, los que realizaron cuantiosas inversiones para ajustarse a los requerimientos de entrada y salida de vehículos. Agrega el mandatario que se cuenta con el criterio de la Dirección Regional de la Fuerza Pública de Alajuela, donde se señala que La Guácima está catalogada como sensible ya que convergen diferentes acciones delictivas y que las aglomeraciones de vehículos y de personas en las afueras de Parque Viva, reduce la movilidad policial y produce un incremento en las llamadas de vecinos al 911, debido a incidentes de alteración al orden público. Expone que la Fuerza Pública hizo alusión a un incidente ocurrido el 7 de mayo de 2022, donde se debió brindar asistencia a los cuerpos de socorro para trasladar a un paciente, ya que la cantidad de personas impedía el movimiento de la ambulancia con rapidez. Agrega que el Cuerpo de Bomberos, por su parte, sostuvo que las comunidades aledañas a Parque Viva, al igual que el mismo sitio, se ven afectadas, ya que el tiempo de respuesta de las unidades de bomberos aumenta de forma considerable debido a las condiciones de las vías circundantes al recinto. También, aduce que ante la incredulidad que generó el hecho que el gobierno local le otorgara permisos de funcionamiento a Parque Viva, el Instituto Nacional de Vivienda y Urbanismo solicitó a la Municipalidad de Alajuela el expediente del proyecto. Afirma que producto del análisis realizado a dicho expediente se hallaron una serie de situaciones muy preocupantes relacionadas con el permiso de uso de suelo y la viabilidad ambiental otorgada. Igualmente, indica que se demostró la falta de presentación de un estudio de impacto vial (que midiera el impacto de flujo vehicular asociado a las actividades que se desarrollan en Parque Viva), la falta de autorización del Cuerpo de Bomberos, así como que no se exigió o solicitó alguna mejora a la vialidad cantonal que da acceso al parque. Sostiene que no se trata de gestiones antojadizas, sino de acciones tendentes a proteger la vida de los costarricenses. Menciona que el propio Colegio de Periodistas de Costa Rica sostuvo que la situación del Parque Viva debe ser abordada desde el principio de legalidad, para lo cual existe la vía recursiva de impugnación del acto administrativo que ordenó la suspensión del permiso sanitario de funcionamiento, lo cual, además, se resuelve con la presentación de un plan remedial. Refiere que en nota publicada el 27 de abril de 2021, el Grupo Nación aceptó que las condiciones de acceso a las instalaciones del Parque Viva no son las mejores. Sostiene que al Grupo Nación se le otorgó la posibilidad de presentar un plan remedial y, también, ha tenido la posibilidad de recurrir la resolución administrativa. Menciona que no es cierto que la Administración haya clausurado definitivamente el recinto. Afirma que el diario La Nación sigue operando, pero esto no significa que no se les vaya a exigir ajustarse a derecho cuando sea evidente y manifiesto que lo hacen de forma ilegítima y en detrimento de los derechos de los costarricenses. Además, sostiene que todas las decisiones se han tomado de acuerdo con parámetros técnicos, conforme una denuncia presentada por la misma ciudadanía.
Ahora, una vez señalados los argumentos expuestos por ambas partes (recurrentes y autoridades recurridas del Ministerio de Salud y Presidencia de la República), conviene hacer un repaso general por los hechos que se tienen por acreditados en este proceso de amparo, respecto a este reclamo en particular.
Así, conviene destacar primeramente que se tiene por acreditado que Grupo Nación (del cual forma parte el Diario La Nación y, que es precisamente el medio para el cual trabajan los recurrentes), adquirió las instalaciones donde operaba anteriormente el llamado Autódromo La Guácima y creó Parque Viva.
Consta también que el Parque Viva obtuvo los permisos requeridos, por lo que en el año 2015 le fue otorgado el respectivo permiso sanitario de funcionamiento. Ese mismo año, dicho establecimiento fue entonces reinaugurado por el Grupo Nación. Como parte del cumplimiento de estos requisitos, se tiene por demostrado que por oficio No. DGIT-ED-5935-2014 de 1° de septiembre de 2014, una ingeniera de la Unidad de Permisos y el Jefe del Departamento de Estudios y Diseños, ambos de la Dirección General de Ingeniería de Tránsito del MOPT, señalaron lo siguiente:
“(…) SOBRE EL ESTUDIO DE IMPACTO VIAL Una vez realizada la revisión del estudio de impacto vial presentado (para las condiciones de funcionamiento típico del Centro de Eventos La Guácima), esta Unidad indica que desde el punto de vista funcional no tiene objeción alguna con el proyecto. Lo anterior se debe a que esta Unidad comprobó que con la implementación de las medidas de mitigación planteadas a partir del análisis de capacidad realizado, los niveles de servicio (NDS) y longitudes de cola logran mantenerse en niveles adecuados. La aprobación del presente EIV tiene vigencia durante un año si las condiciones del tránsito y la vialidad aledaña no cambian significativamente y el proyecto es construido antes de finalizado este periodo, en caso contrario esta Dirección General se reserva el derecho de solicitar la actualización del estudio. Además, se le recuerda que la autorización corresponde exclusivamente para el proyecto presentado, por lo que cualquier modificación en tamaño, uso o de cualquier otra índole debe ser analizada por la Dirección General de Ingeniería de Tránsito para evaluar las nuevas condiciones, de lo contrario esta autorización pierde su validez (…)”.
Asimismo, se tiene que, por oficio No DVT-DGIT-ED-2015-4056 de 8 de octubre de 2015, ingenieros de la Unidad de Permisos de la Dirección General de Ingeniería de Transito del MOPT, indicaron lo siguiente:
“(…) Se les comunica que, se les recibe las ampliaciones y la señalización en la intersección # 3 con la Ruta Nacional N° 124 para el Proyecto: Centro de Eventos La Guácima. ubicada en el Distrito N° 05: la Guácima, Cantón NB 01: Alajuela, Provincia N° 02: Alajuela, en la propiedad inscrita ante el Catastro Nacional con el numero SJ-1244439- 2007, cuyo permiso fue tramitado por este Departamento bajo el expediente ED-AC-13-0081, según el diseño que consta en las láminas 01/10, 02/10, 03/10, 04/10, 05/10. 06/10, 07/10, 08/10, 09/10, 10/10 firmadas por el profesional responsable, la ingeniera Natalia Marín Villalobos, IC-16371. Lo anterior debido a que en inspección se constató la realización por parte del interesado de la respectiva señalización vertical y horizontal a satisfacción, acorde con las directrices del Departamento de Señalización Vial de esta Dirección General, y de conformidad con el Manual Centroamericano de Dispositivos Uniformes para el Control del Tránsito, (SIECA). Con base en lo anterior, esta Unidad Técnica no tiene objeción alguna, desde el punto de vista funcional y de señalización (no incluye calidad de la demarcación horizontal y vertical), en el uso del acceso en referencia (…)”.
También, consta que las autoridades del Ministerio de Salud renovaron al Parque Viva el permiso sanitario de funcionamiento No. MS-DRRSCN-DARSA2-RPSF-0177-2019 con vigencia hasta febrero de 2024.
Esta Sala tiene igualmente por demostrado que el 16 de diciembre de 2021, por oficio No. MS-DRRSCN-DARSA2-4070-2021, el Director del Área Rectora de Salud Alajuela 2 del Ministerio de Salud otorgó al Parque Viva visto bueno a los aforos declarados para las instalaciones de anfiteatro, salones y graderías del autódromo. En ese particular, se permitieron 18203 ocupantes en el anfiteatro, 12450 ocupantes en salones y 2901 ocupantes en graderías. Aunado a ello, consta que por oficio No. MS-DRRSCN-DARSA2-0163-2022 de 20 de enero del año en curso, esas mismas autoridades dispusieron la ampliación del aforo de graderías de Parque Viva a 8841 ocupantes.
Se tiene también por acreditado que a una hora no precisa del día 5 de julio de 2022, se presentó ante el Despacho de la Ministra de Salud una denuncia anónima en contra del funcionamiento del Parque Viva, a la cual se le asignó el número 243-2022. En tal oportunidad, el denunciante completó, en el machote o formulario establecido para presentar dicha gestión, los siguientes aspectos relacionados con el motivo de su denuncia “2.1. Denuncias por asuntos relacionados con condiciones estructurales de edificios: a) Problemas estructurales (estado de paredes, techos, pisos, entre otros) (…) c) Incumplimiento de plan de emergencias para prevención y protección contra incendios (…) f) Condiciones de seguridad e higiene”. Adicionalmente, el denunciante expuso expresamente su inconformidad respecto al acceso al Parque Viva y los problemas que se suscitan en las calles que conllevan a este sitio cuando se realizan conciertos masivos. Concretamente, manifestó:
“(…) Este recinto es comúnmente utilizado para llevar a cabo conciertos masivos, donde se reúne una gran cantidad de personas. El problema con este lugar son sus puntos de acceso y la poca capacidad que tiene las carreteras, que son de una comunidad rural para recibir una enorme cantidad de vehículos al mismo tiempo. Todas las calles que dan al Parque Viva, son calzadas de un carril por sentido, muy angostas, sin bahías para autobuses, ni condiciones para alto tránsito. Cada vez que hay un concierto, las calles de la comunidad colapsan absolutamente, al punto que las personas tardan horas en desplazarse en distancias cortas o salir del parqueo del lugar. La situación es sumamente grave, pues durante una eventual emergencia, podría verse comprometida la respuesta de los cuerpos de socorro. Y es que estamos hablando de situaciones tan riesgosas como incendios, terremotos, caídas de estructuras, tiroteos, entre otros eventos trágicos que podrían ocurrir en eventos masivos. Las calles de la Guácima de Alajuela no pueden soportar la afluencia masiva de vehículos, pues sus vecinos también podrían ver menoscabados sus derechos por este tipo de eventos, ya que, ante emergencias en sus hogares o comunidades, la respuesta de las autoridades de auxilio tardaría muchísimo más que lo normal, por las enormes presas que genera este lugar. En vista de lo anterior, y ante la gravedad de los hechos denunciados se solicita la clausura definitiva del lugar, hasta tanto no encuentren una solución a la problemática. La solicitud se realiza en aras de proteger la salud pública y el interés común. PARQUE VIVA NO REUNE (sic) LAS CONDICIONES PARA ALBERGAR EVENTOS DE CONVOCATORIA MASIVA. Cierro indicando que es responsabilidad del Estado, de conformidad con el artículo 50 de la Constitución Política, velar porque se tutelen los derechos de los habitantes de la República y otorgarles el mayor grado de bienestar. Como prueba adjunto 8 fotografías de los únicos 2 accesos de lugar, que demuestran las condiciones de las calles circundantes. Además, adjunto 2 notas de medios de comunicación donde se expone la problemática con las presas provocadas por los eventos masivos (…)”. (El destacado no forma parte del original).
Consta que por oficio No. MS-DM-5754-2022, rubricado digitalmente a las 12:24:14 hrs. de 5 de julio de 2022, la Ministra de Salud, con carácter de urgencia, solicitó al Ministro de Obras Públicas y Transportes y a la Viceministra de Transportes y Seguridad Vial, criterio técnico en relación con las calles de acceso al recinto comercial privado, denominado Parque Viva. En tal ocasión, se indicó expresamente lo siguiente: “(…) El criterio técnico se requiere para dilucidar aspectos estructurales y de seguridad humana. Por ello, deben considerarse los aspectos de capacidad que tienen las carreteras en el escenario de la enorme cantidad de vehículos y personas que al mismo tiempo asisten a los eventos masivos de dicho lugar, en relación con aspectos de eventuales emergencias, respuestas de acceso de cuerpos de socorro, riesgos por situaciones de conflictos, etc. (…)”. Se determinó también que, dicha Ministra, mediante oficio No. MS-DM-5756-2022, rubricado digitalmente el 5 de julio de 2022 a las 12:38:24 hrs, trasladó dicha denuncia para su atención a la Directora de la Dirección Regional de Rectoría de la Salud Central Norte de ese mismo Ministerio (oficina ubicada en Heredia). Además, –según el respectivo sello físico–, consta que la mencionada denuncia fue recibida en el Área Rectora de Salud de Alajuela 2 a las 12:41 hrs. de ese mismo día 5 de julio.
Se tiene por acreditado que al ser las 13:50 hrs. de 5 de julio de 2022, autoridades del Área Rectora de Salud de Alajuela 2 llevaron a cabo una inspección físico sanitaria en el Parque Viva, producto de la cual se elaboró el informe No. MS-DRRSCN-DARSA2-1641-2022 de fecha 5 de julio de 2022, donde se consignó lo siguiente:
“(…) Según consta en el acta de inspección ocular MS-DRRSCN-DARSA2-IT-1639-2022 el día 05 de julio del 2022 al ser las 13:50 horas se realizó la visita específica en sitio para valorar lo expuesto por la parte denunciante. Respecto a la problemática denunciada, en cuanto al apartado de problemas estructurales, a lo interno de las instalaciones del recinto durante el recorrido realizado no se constataron problemas estructurales visuales relacionados con aspectos físico-sanitario, el estado de las paredes, pisos, servicios sanitarios y demás espacios de convivencia humana no presentaba problemas observables. En el apartado de incumplimiento del plan de emergencia, en sitio se evidenció la presencia de cuatro planes de emergencias, correspondientes a la propia sectorización que la empresa implementa para sus instalaciones, teniendo un plan específico para el Centro de Eventos, El anfiteatro Coca Cola, el Circuito de Competencias y las Áreas Comunes, en sitio se corroboró que las señalizaciones respectivas se encontraban instaladas, se evidenció la presencia del equipo de combate contra incendios y de los respectivos implementos (comida, botiquín, férulas, entre otros). Con respecto a las condiciones de seguridad e higiene, durante el recorrido no se evidencia presencia de riesgos o condiciones inseguras que puedan afectar la integridad de los colaboradores de la empresa.
En cuanto a lo señalado por el denunciante sobre el problema vial, cabe resaltar que éste no es competencia del Ministerio de Salud, sin embargo, se realizó el análisis de los puntos de acceso y salida de las instalaciones, como se muestra en el anexo 1, las instalaciones cuentan con cuatro puntos de acceso para ingreso y salida de vehículos y se cuenta con una capacidad de 940 automóviles en el parqueo cercano al acceso 2, además de contar con espacio para 3000 vehículos en el sector del circuito de competición que se encuentra cerca del acceso 3 y 4 del Parque Viva, además de esto se muestra que los cuatro accesos se encuentran interconectados a lo largo de las instalaciones (se realizó un recorrido para comprobar esto), lo cual favorece la salida de los vehículos. 3. CONCLUSIÓN. Por lo expuesto, se puede concluir que las instalaciones de Parque Viva cumplen con condiciones físico-sanitarias y estructurales adecuadas a lo interno de estas, se procederá a trasladar los planes de emergencia al Encargado Regional de Salud Ocupacional para su valoración y revisión a profundidad, además se recomienda realizar el traslado de la denuncia al Ministerio de Obras Públicas y Transporte para que estos valoren las condiciones denunciadas que son competencia de esta dependencia (calles en mal estado, un solo carril por sentido vial, dificultad de acceso de cuerpos de emergencias por vía pública, entre otros) (…)”. (El destacado no forma parte del original).
Este Tribunal tiene por demostrado que, en virtud de la gestión planteada el 5 de julio de 2022 a 12:24:14 hrs. por la Ministra de Salud, la Viceministra de Obras Públicas y Transportes le remitió a esta última el oficio No. DVTSV-2022-0341 de fecha 6 de julio del 2022, mediante el cual se solicitó dejar sin efecto el oficio No. DVT-DGIT-2022-DVT-DGIT-2022-334 enviado por correo electrónico el día anterior en la tarde (sea, el 5 de julio de 2022), con el objetivo de incluir más información al análisis del acceso al Parque Viva. Asimismo, en dicha ocasión, se adjuntó el oficio No. DVT-DGIT-2022-339, suscrito ese mismo 6 de julio de 2022 por el Director General de Ingeniería de Tránsito, donde se indicó expresamente lo siguiente:
“(…) 1. El Parque Viva es un recinto que abrió sus puertas en el 2015 y se utiliza para realizar diversos tipos de eventos, como por ejemplo: eventos deportivos de motores, congresos, ferias, así como eventos de concentración masiva como conciertos y festivales. 2. De acuerdo a la información brindada en la página Web del Parque Viva, la capacidad del recinto es de hasta 20.000 mil personas. Además, cuenta con 4.900 espacios para estacionamiento privado, que se puede ampliar hasta en 6.000 espacios utilizando la pista de carreras. 3. En la actualidad, la Dirección General de Ingeniería de Tránsito no tiene ninguna solicitud relacionada con el acceso existente del Parque Viva. Tampoco ha realizado ningún estudio funcional en las vías con el escenario de un evento masivo como los que se realizan en el lugar. 4. El Parque Viva de (sic) localiza frente a una ruta cantonal denominada Calle Rincón Chiquito. Al ser una ruta cantonal, le corresponde a la Municipalidad de Alajuela el otorgamiento de los permisos de acceso (…) 5. La Calle Rincón Chiquito es una calle urbana de dos carriles, un carril por sentido de circulación. Este tipo de vías podría alcanzar una capacidad máxima alrededor de los 1.200 vehículos por hora por sentido. De acuerdo a las condiciones de la vía, un estudio detallado podría arrojar una capacidad menor a la mencionada. De acuerdo a los datos antes indicados, se puede asegurar que en el momento en que se realizan eventos de concentración masiva, la vía que da acceso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado. Bajo un escenario conservador, sin considerar estacionamientos periféricos al parque ni la utilización de la pista de carreras, tendríamos una generación de 4.900 vehículos por hora, lo cual representa más del doble de lo que la vía podría soportar (…)”. (El destacado no forma parte del original).
Consta que en virtud de todo lo anterior, el Comité Asesor Técnico de Concentraciones Masivas celebró una sesión extraordinaria el 7 de julio de 2022 a las 14:30 hrs. con la presencia de la Ministra de Salud en calidad de coordinadora, del Ministro de Obras Públicas y Transportes, de funcionarios de la Cruz Roja Costarricense, de la Dirección de la Policía de Tránsito, de la Comisión Nacional de Emergencias, del Cuerpo de Bomberos, del Sistema de Emergencias 9-1-1 y de Gestión de Riesgo del Ministerio de Salud. En el acta de dicha sesión No. 28643-S-MOPT-SP, se consignó lo siguiente:
“(…) Con base en las competencias que establece el artículo 4° del decreto ejecutivo 28643 se procede a conocer el caso. El señor Keylor Castro Chacón del Ministerio de Salud, a petición de la señora Ministra, lee el documento del Área Rectora de Salud Alajuela número MS-DRRSCN-DARSA2-1641-2022 y que se relaciona con el oficio MS-DM-5756-2022 de la Ministra de Salud. El señor Luis Amador interviene. Pone en perspectiva la situación de las calles de acceso. El señor Keylor Castro lee el informe DVT-DGIT-2022-339 (dirigido a la Ministra de Salud con la nota DVTS-2022-0341). La señora Ministra interviene. Don Alexander Araya del Cuerpo de Bomberos interviene y apunta las dificultades que tiene el cuerpo de bomberos para ingresar, por el tipo de unidades de emergencias que se tienen, las cuales miden 11 metros de largo y 3 metros de ancho, por lo que se nos dificulta el paso en las condiciones de tener vehículos a ambos lados. Tiene que ampliarse las vías de acceso o que exista otro acceso donde haya espacio para el tránsito y acceso de unidades de emergencia. El señor Luis Amador interviene. Señala lo inadecuado del uso del suelo. Debe ser ampliada la ruta para garantizar un flujo adecuado en los eventos y en las emergencias durante los eventos. Debe mejorarse esa ruta cantonal terciaria. Hay riesgo para la vida humana. Interviene don Jorge Rovira de la Comisión Nacional de Emergencias. Hay un permiso de funcionamiento vigente. Hay que tener cautela y ver la realidad del País. Interviene don Keylor Castro Chacón. Hay otros lugares con situaciones similares. Interviene la señora Ministra de Salud, haciendo una réplica de lo manifestado por don Keylor. Interviene don Felipe Venegas. El recinto ha presentado problemas desde que era el autódromo la Guácima. Solo tiene una calle de acceso y eso presenta un problema porque hay que pasar por zonas residenciales. Aún no hay un reglamento de eventos masivos. En este caso Parque Viva no es adecuado para eventos masivos. Johnny Hidalgo González, Interviene he (sic) indica que desde el 01 de enero del 2022, hay 18 reportes en lo que va del año de problemas de tránsito, más de 30 colisiones, 4 reportes de vehículos mal estacionados, 5 riñas, 3 incidentes de eventos contra el orden, entre otros reportes. Interviene don Jim Batres. Manifiesta preocupación por la cantidad de ambulancias que atienen cada evento, donde a veces no supera una sola unidad.
ACUERDO: Vistos los oficios mencionados, y la recomendación del Ministerio de Obras Públicas y Transportes sobre tomar un curso de acción a raíz de la situación presentada con relación a la capacidad de la vía de acceso del recinto denominado Parque Viva, se acuerda proponer a las autoridades correspondientes una orden sanitaria de cierre para eventos masivos del establecimiento denominado Parque Viva, y las medidas que correspondan con otras autoridades pertinentes. Debe solicitarse un plan remedial para las condiciones denunciadas, el cual de ser puesto en conocimiento de este Comité Asesor Técnico de Concentraciones Masivas (…)”. (El destacado no forma parte del original).
Las autoridades del Ministerio de Salud, del MOPT, del Cuerpo de Bomberos, de la Comisión Nacional de Emergencias y de la Cruz Roja Costarricense, a través de sus representantes ante dicho Comité, votaron a favor de dicha propuesta.
Consta también que, con fundamento en lo anterior, las autoridades del Área Rectora de Salud Alajuela 2 del Ministerio de Salud, el 8 de julio de 2022 emitieron la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 (rubricada electrónicamente a las 12:37:21 hrs.), mediante la cual se dispuso el cierre de Parque Viva, conforme los siguientes términos:
“(…) En atención a denuncia anónima N° 243-2022, traslada (sic) mediante oficio MS-DM-5756-2022 desde el Despacho de la Ministra de Salud, por aparentes problemas estructurales, incumplimientos del plan de emergencia y condiciones de seguridad e higiene en el Parque Viva, y según consta en el acta de inspección ocular MS-DRRSCN-DARSA2-1639-2022 del día 05 de julio del 2022 al ser las 13:50 horas se realizó la respectiva visita en el sitio para valorar lo señalado en la denuncia. Así mismo, en concordancia con el principio precautorio y en atención a los oficios: MS-DM5814-2022, mediante el que se remite el Informe Técnico DVT-DGIT-2022-339 emitido por la Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes, el oficio MS-DM-5838-2022 mediante el que se remite el Acta N°28643-SMOPT-SP del Comité Asesor Técnico en Concentraciones Masivas, se ordena mediante el siguiente acto administrativo la suspensión temporal del Permiso Sanitario de Funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 (parque temático, autódromo, anfiteatro, eventos deportivos, culturales, ferias y exposiciones varias) hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los Criterios técnicos emitidos por el Benemérito Cuerpo de Bomberos de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud. Así mismo, su representada deberá presentar un plan remedial que abarque la solución a la problemática de los accesos y el consecuente riesgo a la Seguridad y Salud Publica ante la realización de Actividades de Concentración Masiva, y la generación de una eventual emergencia en dichas actividades (…)”. (El destacado no forma parte del original).
Adicionalmente, se tiene por demostrado que en dicho acto administrativo se hizo referencia a las consecuencias de no cumplir lo ordenado y se indicó que contra este procedía la interposición de los recursos de revocatoria con apelación en subsidio dentro de los cinco días hábiles posteriores a su notificación. Esta orden sanitaria fue notificada al representante de Parque Viva el día 8 de julio de 2022 a las 12:40 hrs. (vía correo electrónico), indicándose que se adjuntaban “anexos de importancia”. Además, la notificación personal se llevó a cabo ese mismo día a las 14:15 hrs..
Ahora, se tiene por acreditado en autos que el mismo 8 de julio de 2022, la Ministra de Salud, por oficio No. MS-DM-5870-2022 firmado digitalmente a las 17:05:24 hrs, solicitó al Director del Cuerpo de Bomberos y a la Presidenta de la Cruz Roja Costarricense “(…) informes detallados y amplios, desde sus respectivos campos de competencias, con relación a la situación de Parque Viva en La Guácima de Alajuela, en el marco de la realización de eventos masivos y las situaciones de riesgo para la salud y la vida humana. Lo anterior como complemento al tema tratado en la reunión del Comité Asesor Técnico en Concentraciones Masivas del pasado jueves 7 de julio de 2022. Lo anterior a la mayor brevedad posible (…)”.
Consta que, en atención a la anterior solicitud, se presentaron ante el Ministerio recurrido los siguientes informes técnicos:
“(…) Con relación a la situación del Parque Viva, ubicado en La Guácima de Alajuela, en el marco de la realización de eventos masivos y situaciones de riesgo para la salud y la vida Humana, indicó (sic): Las unidades extintoras del Benemérito Cuerpo de Bomberos de Costa Rica, tienen una longitud aproximada de 11 metros y un ancho de 3 metros; esto hace que se requiera de suficiente espacio para poder maniobrar, ya sea cerca de la escena de incendio o durante la trayectoria hacia el lugar de la emergencia. La medida de ancho de la calle que se utiliza de forma normal para llegar a Parque Viva en la mayoría de su trayectoria mide aproximadamente seis metros, como se puede observar en esta fotografía, un autobús y un vehículo liviano, no pueden transitar de forma normal, para transitar, uno de ellos dos debe detenerse y dar paso (…) Igualmente existen tramos donde las medidas se reducen casi a cuatro metros, es decir una unidad de Bomberos requiere de todo el espacio para poder transitar, tomando como referencia las siguientes fotografías (…) Debido al ancho de la calle, existen tramos donde no se puede realizar las maniobras de adelantamiento (…) Debido a las situaciones planteadas anteriormente, como consecuencia, existen varias comunidades como Rincón Chiquito, Rincón Herrera, Guácima centro, al igual que las propias instalaciones del Parque Viva, se podrían ver afectadas debido a que el tiempo de respuesta de las unidades de Bomberos aumenta de forma considerable, además, cuando se dan bloqueos en las carreteras, se imposibilita el acceso a las comunidades, situación que pone en riesgo las vidas y las propiedades (…)”.
“(…) Como institución de primera respuesta se cuenta con amplia experiencia en la atención de eventos masivos en diferentes eventos y lugares, la Cruz Roja Costarricense ha tenido que atender pacientes en función de las actividades realizadas en el mismo, esto obedece a la cantidad de personas que asisten a las diferentes actividades que dependiendo del mismo, pueden ser varios miles de personas. (…) En el caso de los eventos que se desarrollan en el Parque Viva, es necesario aclarar que la Cruz Roja Costarricense no cubre tales actividades, sino que las empresas organizadoras del evento, contratan empresas privadas de ambulancias que brindan este tipo de servicios, siendo necesario indicar que en el país existen cerca de 70 empresas privadas que brindan servicio prehospitalario de traslado de pacientes, en consecuencia se aclara los videos de varias ambulancias que circulan en redes sociales, ligadas a la atención de casos de emergencia en Parque Viva no son de Cruz Roja. Así las cosas, nuestra recomendación en este Comité Asesor Técnico ha sido históricamente manifestar la importancia de que se genere una regulación para el tema de eventos masivos, sabemos que el Ministerio de Salud tiene el Reglamento General para Autorizaciones y Permisos Sanitarios de Funcionamiento Otorgados por el Ministerio de Salud y que el Ministerio de Seguridad Pública cuenta con el Manual de Tramitación para la Aprobación de los Planes de Seguridad los Eventos Temporales con Asistencia Masiva de Personas. Sin embargo, hace unos 6 años se sugirió trabajar con el Algoritmo de Maurer que lo trabajan en Alemania. En términos generales, según la experiencia de la Cruz Roja Costarricense, cualquier lugar en el que se realizan eventos masivos debe tener una entrada y una salida para todos los vehículos que asisten a los eventos, y que permitan una adecuada circulación para los vehículos de emergencia, tanto para atender incidentes en el lugar del evento, como en zonas circundantes, así como vías que permitan la evacuación masiva de los participantes en caso de activarse alguna amenaza y contar con un Plan de Emergencias actualizado, que contemple una adecuada proporción de ambulancias en función de la cantidad de asistencias al evento (…)”.
“(…) En el caso específico objeto de la presente consulta, se conoce que las vías públicas de la comunidad de La Guácima de Alajuela y zonas aledañas son insuficientes para el rápido acceso de nuestras unidades de emergencia en la atención ordinaria de incidentes, que se puede agravar cuando se realizan eventos masivos, puesto que hemos conocido de situaciones en las cuales el simple desperfecto mecánico de un vehículo particular atrasa sustancialmente el ingreso de nuestras ambulancias. Históricamente los tiempos de respuesta para atender emergencias por parte de las diferentes instituciones se han visto afectados por la congestión vial en diversos puntos del territorio nacional, situación que sucede también en La Guácima de Alajuela, experimentando un incremento en el tiempo de traslado de los vehículos de emergencia de forma variable, generándose atrasos que van desde 10 minutos hasta los 30 minutos. En algunos casos específicos, el tiempo de llegada o salida de nuestros vehículos se ha extendido hasta más tiempo, ocasionado por la cantidad de vehículos que se ubican en los costados de las vías públicas aledañas al sitio del evento, e incluso por personas que transitan en las vías públicas, lo cual hace que se tenga que circular con mayor cautela. Para el caso concreto la estructura operativa de la Benemérita Cruz Roja Costarricense ha trabajado en tres escenarios que se atienden para un análisis de la situación que le permite a las autoridades tomar las decisiones según sus competencias. 1. Accidentes de tránsito: en la atención de un accidente de tránsito dependiendo de la gravedad del mismo, se hace necesario la llegada de diferentes recursos, ambulancias, camiones de rescate, e incluso la presencia del Cuerpo de Bomberos de Costa Rica. Cabe destacar que se pueden presentar casos en lo que los pacientes se encuentran prensados consecuencia del incidente, requiriéndose que a la escena se sume el equipo de rescate especializado según las necesidades. En cualquiera de los casos los pacientes requieren ser atendidos de forma inmediata, ya que en algunos casos la vida puede estar en riesgo inminente. 2. Incendios estructurales: en la atención de incendios estructurales generalmente responde el Cuerpo de Bomberos para extinguir el fuego y la Cruz Roja Costarricense acude a la escena para la atención de pacientes, por lo que dependiendo del tamaño del incidente, la cantidad de recurso que se hace presente se podría ver afectado por la dificultad de acceso a las instalaciones en riesgo y la evacuación de pacientes. 3. Casos médicos: Dependiendo de la gravedad del caso, se requiere que el paciente reciba atención de forma expedita dado que el retraso en los tiempos de respuesta genera un impacto negativo en el pronóstico de la persona, afectando potencialmente la vida. Por ejemplo, en el caso de un paro cardiorespiratorio se requiere acceso al paciente idealmente en menos de 10 minutos. Por otro lado, dependiendo de las circunstancias, existe la posibilidad de que la Unidad de Soporte Avanzado de Vida (USAV), en sitio, requiera del apoyo de una Unidad de Soporte Avanzado de Vida (USAV), dado que esta segunda ambulancia cuenta con personal de mayor nivel de capacitación, más equipamiento y por ende, mayor nivel resolutivo, ofreciéndole así una mejor oportunidad a la salud del paciente. Caba destacar que al haber dos unidades o más en el lugar del siniestro se requerirá un espacio amplio y seguro para que los socorristas puedan brindar su atención (…)”.
También, consta que se aportaron ante la Ministra de Salud otros informes relacionados con este mismo tema, sea, los siguientes:
El informe técnico No. 911-DI-2022-2202 de 11 de julio de 2022, a través del cual la Directora del Sistema de Emergencias 9-1-1 se refirió a eventos acaecidos en zonas circundantes al Parque Viva durante unas fechas específicas, sea, 7, 14 y 21 de mayo y 17 y 18 de junio de 2022 (v. gr. situaciones relacionadas con problemas de tránsito, vehículos mal estacionados, riñas de personas, una persona inconsciente y otra extraviada, etc.).
Y también, el oficio No. DM-2022-3121 de 11 de julio de 2022, a través del cual el Ministro de Obras Públicas y Transportes señaló lo siguiente:
“(…) En relación con la situación que se ha presentado con el cierre temporal sujeto a acciones remediales del Parque Viva, el Ministerio de Obras Públicas y Transportes emite el siguiente criterio considerando que: El Parque Viva contiene múltiples usos de suelo que pueden producir concentración masiva, entendida como eventos temporales que reúnen extraordinariamente a una cantidad de personas bajo condiciones de aglomeración en espacios físicos abiertos y/o cerrados, que por sus características de sitio suponen un escenario de riesgo o de amenaza que obligan a medidas preventivas de control de uso del espacio. El Parque Viva tiene 9000 m2 de nave industrial, lo cual tiene una atracción estimada de 6593 vehículos basado en referencia de 3 eventos similares en Reino Unido (…) El Parque Viva tiene una capacidad de 20.000 personas y usando una tasa de ocupación de 3 personas por vehículo (…) nos da 6667 vehículos por hora. Se estima que la calle adyacente tiene capacidad máxima de 800 vehículos por hora para un nivel de servicio E, pues es una vía de 4 m a 6 m de ancho en doble sentido de circulación. SE RECOMIENDA: Una concentración máxima de 2400 personas en evento (sic) masivos de acuerdo a situación actual de accesos y vías aledañas para poder garantizar un flujo adecuado de vehículos de acceso y salida al sitio (…)”.
Ahora, se demostró igualmente que los anteriores cinco informes técnicos (No. CBCR-027150-2022-OPB-00741 del Cuerpo de Bomberos, No. CRC-GG-SO-OF-074-2022 y No. CRC-GG-OF-012-2022 de la Cruz Roja Costarricense, No. 911-DI-2022-2202 del Sistema de Emergencias 9-1-1 y el No. DM-2022-3121 del Ministerio de Obras Públicas y Transportes), fueron puestos en conocimiento del representante legal de Parque Viva hasta el día 15 de julio de 2022, mediante oficio No. MS-DRRSCN-DARSA2-1724-2022. En este último oficio se confirmó también lo dispuesto en la citada orden sanitaria y se consignó expresamente lo siguiente:
“(…) Una vez conocidos y analizados dichos documentos de acuerdo con lo indicado en la orden de cita, queda demostrado que los mismos señalan que existe un evidente problema para la atención de emergencias (accidentes de tránsito, incendios estructurales, casos médicos, entre otros), por parte de las Instancias de Primera Respuesta tanto en las comunidades aledañas, como para los mismos asistentes a los eventos de concentración masiva que se realizan en el Parque Viva, debido a problemas de tránsito y acceso al lugar, por lo tanto, en concordancia con el principio precautorio y en aras de garantizar el cumplimiento de los artículos 21 y 50 de la Constitución Política, el artículo 11, 152, 153 y 154 de la Ley General de la Administración Pública y los artículos 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357 y 364 de la Ley General de Salud, se confirma en todos sus extremos y alcances la Orden Sanitaria MS-DRRSCN-DARSA2-OS-0386-2022 (sic) (…)”.
Asimismo, se ha tenido por demostrado que un día antes de notificarse este último oficio, sea, el 14 de julio de 2022, los representantes del Grupo Nación formularon un recurso de revocatoria y de apelación en subsidio en contra de lo dispuesto en la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 de fecha 8 de julio de 2022. Recursos que, según informó la Ministra de Salud, ya fueron resueltos y desestimados.
Adicionalmente, es importante tomar en cuenta otros hechos que se han tenido por demostrado en este amparo, los cuales guardan relación con los anteriormente expuestos.
Así, nótese que consta en autos que a manos del Presidente de la República llegó el oficio No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 de 10 de julio de 2022, mediante el cual el Subdirector Regional de la Dirección de la Fuerza Pública de Alajuela le informó el Viceministro de Seguridad Pública sobre el entorpecimiento que se presenta en la atención de incidentes de carácter policial en el perímetro externo a Parque Viva cuando se realizan actividades en dicho establecimiento. En este oficio se afirmó que las actividades referidas generan enormes embotellamientos, lo cual representa un aumento sustancial en los tiempos de respuesta policial ante las emergencias reportadas vía 911 y que son resorte de la Fuerza Pública. Además, se indicó que las actividades masivas provocan un incremento de los delitos contra la propiedad y se recurre más a la Fuerza Pública por alteración al orden público, riñas, violencia contra mujeres, conducción temeraria, consumo de alcohol y drogas en vía pública, etc.. Por ende, se sostuvo que “(…) la afectación al servicio policial durante los eventos masivos en la zona referida, es evidente, notoria, frecuente y repetitiva; dado que el impacto de incidencia delictiva diversa, que se genera por el conglomerado enorme de visitantes; afecta el normal desenvolvimiento de las actividades de la población de la zona, y las acciones policiales de carácter diaria (…)”. Asimismo, consta que por oficio No. PE-243-07-2022 de 29 de julio de 2022, la Presidenta Ejecutiva del INVU le informó al Presidente Rodrigo Chaves, una serie de aspectos relacionados con el llamado Parque Viva, luego de haberse realizado una revisión del expediente que consta en la Municipalidad de Alajuela. Grosso modo, en dicha ocasión, se indicó que los usos de suelo otorgados no son conformes con el plan regulador aprobado en el 2004; que la viabilidad ambiental fue otorgada solo para mejoras en el autódromo; que no existe registro de la presentación de un estudio de impacto vial al MOPT o al municipio que midiera el impacto del flujo vehicular, pues no fue solicitado y que, tampoco, fue requerida alguna mejora a la viabilidad cantonal que da acceso al complejo. Se demostró también que el Municipio de Alajuela, el 3 de agosto de 2022, a través de su página oficial de Facebook, se pronunció y refutó lo consignado por el INVU. Esto, conforme los siguientes términos:
“(…) CON RELACIÓN A LAS PUBLICACIONES DEL CRITERIO EMITIDO POR EL INVU SOBRE PARQUE VIVA, QUE HAN CIRCULADO EN DIVERSOS MEDIOS DE COMUNICACIÓN EL DÍA DE HOY. Sobre la información que ha circulado en diversos medios de comunicación sobre el proyecto PARQUE VIVA basado en un informe emitido por Instituto de Vivienda y Urbanismo, INVU, como primero de los aspectos, debe indicarse que la Municipalidad de Alajuela no ha sido notificada de dicho informe, de manera que nuestro conocimiento se limita a las publicaciones realizadas por esos medios de comunicación, asimismo, se trata de apreciaciones de dicha institución sin consultas a este municipio. Es de importancia aclarar algunos puntos. 1. USO DE SUELO. La zonificación de la finca 2-198873, no fue modificada, pues según el Plan Regulador Urbano vigente que aplica a la especie, la mencionada finca se encuentra en una zona denominada zona verde, Regulada en el Art 56, Plan Regulador Urbano. Pasa por alto en el análisis el INVU, lo establecido en el artículo 60 del Plan Regulador Urbano, que señala que, si pasados 5 años desde la publicación del Plan Regulador la Municipalidad no adquiere estos terrenos destinados a zonas verdes, estos adquieren la zonificación cercana que menos afecte al usuario, lo que fue aplicado en este caso, tal como y se indicó en los usos de suelo, se trata de zona residencial de media densidad. Por lo tanto, los usos de suelo del proyecto son correctos. 2. SOBRE LA VIABILIDAD AMBIENTAL, la resolución de aprobación de la viabilidad ambiental revisada por la Municipalidad de Alajuela para la tramitación del permiso de construcción del Proyecto Parque Viva, es correcta, y describe las obras de manera general, mismas que coinciden con los planos presentados y debidamente aprobados por las otras instituciones de manera previa y por el Colegio Federado de Ingenieros y Arquitectos, según consta en la plataforma APC. El título del proyecto, es decir, el nombre con el que se conoce el mismo en el expediente, fue el que varió con el tiempo, lo que no efecto la naturaleza de lo analizado, y mucho menos la naturaleza de las obras (nombre de fantasía). No porque la empresa cambiara el nombre del proyecto, cambia la naturaleza de las obras. 3. SOBRE “LA FALTA DE UNIFORMIDAD EN LOS USOS DE SUELO” El análisis se realizó de forma coincidente y consistente en todos los casos, bajo el principio de legalidad y de inderogabilidad singular de las leyes. Lo único que varió desde el año 2014 y en los sucesivos usos de suelo fue la forma en que se presentó la información. Al expediente se adjuntó una minuta de los usos de suelo que puede corroborarse para confirmar lo indicado. 4. IMPACTO VIAL, El Plan regulador urbano de Alajuela en su articulo (sic) 12.7 solicita la presentación de un estudio de impacto vial para LA APROBACION (sic) FINAL del proyecto, no para el otorgamiento de usos de suelo, es decir, aplica para el permiso de construcción. Sobre el tema puede observarse los requisitos que solicita la Municipalidad para este proyecto o cualquiera otro, y con base en la normativa que regula la materia. Para la aprobación del final del permiso (sic) de construcción este gobierno local revisa la Viabilidad ambiental otorgada por SETENA, siendo que dicha entidad en su análisis, siempre verifica el impacto vial de los nuevos proyectos. Según la revisión del expediente de SETENA, esta entidad consideró que con lo presentado en planos fue suficiente, y con ello dieron la respectiva aprobación, por lo que se respeta lo indicado en la Ley 8220 y sus reformas, y su Reglamento, de manera que, en apego al principio de respeto de competencias, se respetó el criterio de SETENA. Además, es importante recordar que el proyecto contó con la debida aprobación del Estudio de Impacto Vial por parte de la Dirección de Ingeniería de Tránsito del MOPT, mediante resolución N° DGIT-ED-5935-2014. 5. ACTAS SOBRE PROCESO CONSTRUCTIVO, Si se otorgó el permiso final, implica la corrección de cualquiera situación que pudo haberse notificado. 6. SOBRE LAS ANOTACIONES DE OTRAS INSTITUCIONES, La Municipalidad de Alajuela no sustituye en sus labores a otras instituciones las cuales pueden revisar el expediente y realizar las inspecciones respectivas en campo para el cumplimiento de estas. Es importante indicar en todo caso que, según se observa en el expediente cada anotación fue subsanada por la institución respectiva lo que genero (sic) la aprobación por parte del CFIA. Según el expediente el contrato OC626867, con fecha del 13-11-2013, se determina que “el proyecto se aprueba con las observaciones institucionales subsanadas por el profesional”. En definitiva, este gobierno local a través de la Actividad Control Constructivo está en la mejor disposición de aclarar cualquier duda que se genere al respecto de este proyecto, ratificamos que todas nuestras actuaciones han sido consecuentes y ajustadas a la normativa que regula la materia (…)”.
Asimismo, es importante tomar en consideración que en este asunto se ha demostrado que Grupo Nación (desde al menos el año 2019, muchos meses previos a que le fuera notificada la orden sanitaria bajo estudio), dio inicio a un proyecto para construir en los próximos años un acceso de cuatro carriles que comunica la Ruta No. 27 con el Parque Viva (o con el proyecto a futuro denominado Ciudad Viva). Este proyecto en el año 2021 y a inicios de 2022, contó preliminarmente con el visto bueno de una serie de instancias gubernamentales. Así, consta que mediante oficio No. DVT-DGIT-ED-2021-1845 de 21 de septiembre de 2021, un ingeniero y el sub jefe del Departamento de Estudios y Diseños de la Dirección General de Ingeniería de Tránsito del Ministerio de Obras Públicas y Transportes, consignaron lo siguiente: “(…) Esta Dirección mantiene su criterio de no objeción con la propuesta realizada desde el punto de vista funcional y de seguridad vial, emitida el 13 de julio del año en curso mediante oficio DVT-DGIT-ED-2021-1347; por lo que razona pertinente la aprobación del anteproyecto en mención (…)”. Por oficio No. GCTT 34-2021-0340 de 28 de septiembre de 2021, el Gerente a.i. de Contratación de Vías y Puentes del Consejo Nacional de Vialidad señaló lo siguiente “(…) En relación al proyecto indicado en la referencia, una vez revisado por los ingenieros de las diferentes áreas técnicas de la Dirección de Diseño de Vías y Puentes, se determina que: Se cumplió con la información solicitada; sin embargo, se aclara que, en la etapa de diseño se deben respetar los radios mínimos de rotondas, radios de giro y ejes geométricos para el vehículo de diseño del proyecto. En virtud de lo anterior indicado, se recomienda aprobar este Anteproyecto (…)”. Por oficio No. CNC-APM-SJC-0608-2021 de 12 de octubre de 2021, la Gerente de Proyecto del Concejo Nacional de Concesiones, entre otros aspectos, dispuso otorgar la “No objeción” al anteproyecto de acceso desde la ruta nacional No. 27 a Ciudad Viva. Mediante oficio No. CCAR-2021-373 de 28 de octubre de 2021 el Secretario de la Comisión de Carreteras de Acceso Restringido del Consejo Nacional de Vialidad indicó que dicha comisión había acordado “(…) aprobar el anteproyecto de conformidad con los informes de las unidades técnicas (…)”. Por oficio No. DVT-DGIT-ED-2022-0088 de 18 de enero de 2022, un ingeniero y el sub jefe del Departamento de Estudios y Diseños de la Dirección General de Ingeniería de Tránsito del Ministerio de Obras Públicas y Transportes, señalaron lo siguiente “(…) Esta Dirección no tiene objeción con la propuesta realizada desde el punto de vista funcional y de seguridad vial, por lo que razona pertinente la aprobación del proyecto en mención (…)”. Este proyecto, según se desprende de los autos, a la fecha no se ha aprobado.
Consta también que, respecto a este proyecto vial, el Presidente, en conferencia de prensa celebrada el 13 de julio de 2022, manifestó lo siguiente:
“(…) ¿Oyeron la mentira descarada que publicó La Nación que tiene desde hace dos años de pedir un acceso a la ruta 27 para arreglar el Parque Viva? Ah no, idiay si metemos un gol metamos cuatro goles más porque es cuatro veces el volumen de área lo que querían conseguir el permiso., ¿No les da vergüenza colapsar la Ruta 27 arriesgando todo el Occidente, Grecia, Naranjo, Atenas, San Carlos, todo Guanacaste y todo Puntarenas? (…)”.
Para efectos de resolver este extremo del recurso, igualmente, es importante tomar en cuenta lo consignado en la noticia publicada el 13 de julio del presente año, titulada “Alcalde de Alajuela: Parque Viva recibió permiso antes de expansión urbanística en la Guácima”, cuyo contenido es el siguiente:
“(…) Humberto Soto, alcalde de Alajuela, aseguró que el congestionamiento vial que se genera en la Guácima, Alajuela, no es causado únicamente por el Parque Viva, sino que se debe también al gran crecimiento habitacional del distrito y a los nuevos condominios que se levantaron en la zona. “Ha habido un crecimiento muy importante en el distrito de la Guácima que, sumado a las actividades a la gran cantidad de personas que ingresan al distrito, pues sí, es evidente que genera un congestionamiento vial. “Estoy abierto a negociar y poner el tema sobre la mesa; que hay que generar soluciones viables para el distrito, no hay que achacarlos a X o Y, ni generalizarlo”, explicó Soto. “Hay que ver la realidad. El parque tiene casi diez años de construido y, en estos diez años, ha habido un cambio sustancial en el desarrollo urbanístico del distrito de La Guácima, es decir, hay más población y más condominios”, agregó. Desde el 2014, se han aprobado 44 condominios en el distrito, por ejemplo. Asimismo, el jerarca municipal dijo que, aunque el ayuntamiento ha invertido en ese distrito casi 1000 millones y pronto se iniciará la construcción de un puente que conduce a la comunidad de San Antonio de Alajuela, eso no es suficiente y necesitan más recursos para todo el cantón. “El municipio ha hecho unas inversiones, pero tal vez no las suficientes. ¿Por qué? Porque como gobierno local tenemos recursos limitados y 14 distritos, con una red de más de 421 kilómetros a nivel cantonal que atender. Para esa red, en un municipio como el de Alajuela, no hay recursos suficientes y hay que atender los 14 distritos del cantón, no sólo uno. Hay que hacer mejoras; de eso como alcalde estoy consciente”, informó Soto. En setiembre del 2014, el Ministerio de Obras Públicas y Transportes (MOPT) aprobó el estudio de planificación vial del Parque Viva y solicitó que se construyeran accesos al sitio desde las distintas rutas que llevan al lugar y se instalara señalización vertical y horizontal, las cuales debían estar listas un año después. En una inspección realizada por el Ministerio en el 2015, se constató que el inmueble había cumplido lo solicitado. Este miércoles, el presidente Rodrigo Chaves, aseguró en conferencia de prensa en Casa Presidencial, que el permiso nunca debió darse y que solicitará el expediente a la Municipalidad de Alajuela, al tiempo que solicitará la intervención de la defensora de los Habitantes, Catalina Crespo. En aquella época, el hoy alcalde era regidor y dijo al respecto: “El permiso se dio por competencia de la administración municipal que era el órgano competente de la aprobación del mismo; en el expediente hay permiso de Salud y de muchas instituciones (…)”. (El destacado no forma parte del original).
En ese mismo orden de consideraciones, consta que en sesión de concejo de distrito ampliada celebrada el 13 de julio de 2022, el regidor y residente de La Guácima de Alajuela, Alonso Castillo, se refirió al problema relacionado con el crecimiento urbanístico en dicha zona. Se demostró que, en tal ocasión, dicho regidor manifestó que, de 2010 a fecha, en la Guácima se han aprobado 48 proyectos urbanísticos “(…) sin contar Parque Viva, sin contar desarrollos comerciales, sin contar Automercado, sin contar centros comerciales (…)”, lo cual, según su criterio, refleja una realidad vehicular que no es acorde con las carreteras diseñadas hace treinta años. Expresamente, dicho regidor, en aquella oportunidad, señaló además lo siguiente:
“(…) Aquí hay presas todos los días, a las siete de la mañana y a las cinco de la tarde, con concierto, o sin concierto. Si aquí pasa un accidente en Guácima centro hoy, colapsa La Guácima porque no hay para dónde coger. Si hoy pasa un accidente o se cae un poste como pasó hace unos meses (…) tenemos que ir a dar la vuelta por San Miguel, con el riesgo de que el carro que tengamos no tenga las condiciones para poder ir a dar esa vuelta (…) Esa es la realidad del distrito, que tiene serias limitaciones viales. Cuando yo llegué al Concejo Municipal de Alajuela, prometí que no iba a votar un solo proyecto urbanísticos más en el Concejo Municipal hasta que se aprobaran las rutas alternas (…) Al día de hoy (…) La municipalidad me dice que no tiene presupuesto para rutas alternas, entonces ¿qué quiere decir esto? La realidad continúa en las mismas condiciones que estamos hoy, con Parque Viva o sin Parque Viva, porque no hay presupuesto, no hay dinero para estas rutas alternas (…) Yo sinceramente me siento muy contento de que haya pasado lo de Parque Viva (…) porque hoy toda la prensa nacional está hablando de un problema que La Guácima tiene todos los días. Porque fue Parque Viva, porque si (…) se hubiera volcado un bus o hubiera pasado lo que sea, a nadie le interesa, el problema sigue. Y por dicha fue Parque Viva, porque Parque Viva tiene la voz para poder decir aquí hay un problema, pero hay problema real, que cuando hay un evento también colapsamos (…)”. (El destacado no forma parte del original).
Finalmente, en lo que al elenco probatorio se refiere, es de relevancia observar lo señalado por la Contraloría General de la República en el denominado Informe de Auditoría Operativa Sobre la Eficacia y la Eficiencia en el Uso de los Recursos de la Red Vial Cantonal en la Municipalidad de Alajuela de fecha 14 de julio de 2022 (informe No. DFOE-LOC-IF-00014-2022). Concretamente, en el aparatado de conclusiones, se señaló lo siguiente:
“(…) 3.1. Se determinó a partir de los indicadores y criterios establecidos, que no es posible garantizar que la gestión del servicio de red vial cantonal a cargo de la Municipalidad de Alajuela sea eficaz en el cumplimiento de sus fines y objetivos relacionados con la movilidad, la seguridad vial y la resiliencia de esta red, y que el uso de los recursos asignados se realice en apego al principio de eficiencia. 3.2. En este sentido, si bien se han realizado intervenciones de conservación vial principalmente en la superficie de ruedo y actividades de seguridad vial, aún persisten importantes limitaciones en la cobertura y mejora de la superficie de ruedo, en la atención de otras estructuras esenciales en la infraestructura vial (puentes y aceras) y en el abordaje de la seguridad vial y la resiliencia de la red vial cantonal, sustentado en elementos técnicos que garanticen razonablemente la eficacia de las acciones municipales en estas materias. 3.3. En cuanto a la eficiencia, se evidenció que la Municipalidad de Alajuela carece de elementos mínimos fundamentales y de sanas prácticas necesarias para implementar una gestión orientada al cumplimiento de este principio; situación que refleja la necesidad de generar una cultura organizacional que considere el uso de datos e indicadores de gestión como un mecanismo indispensable para la mejora de la gestión en aras de satisfacer el interés público. 3.4. Finalmente, para cumplir con los retos que enfrenta nuestro país como el Objetivo del Desarrollo Sostenible n.° 11 (Ciudades y Comunidades Sostenibles) y avanzar en el propósito de no dejar a nadie atrás, se hace necesario ampliar la visión con la que se gestiona la red vial cantonal, de manera que esta gestión tenga una perspectiva integral de las problemáticas y una visión inclusiva y participativa de todas las poblaciones que habitan en el territorio, con especial énfasis en aquellas poblaciones con mayores rezagos y más vulnerables (…)”.
Aunado a lo anterior, es importante señalar que en este asunto no se ha tenido por demostrado que, de previo a entrar en funcionamiento Parque Viva, se les haya exigido a sus representantes construir –fuera del recinto–, accesos de ingreso o bien, presentar un plan que solventara los problemas de índole vial. Tampoco, que le haya sido notificado a los representantes de Parque Viva lo dispuesto en los oficios No. MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 de la Dirección de la Fuerza Pública de Alajuela y No. PE-243-07-2022 suscrito por la Presidencia Ejecutiva del INVU.
Ahora bien, analizados los argumentos expuestos por los promoventes, los informes rendidos bajo juramento por las autoridades recurridas y las pruebas aportadas por ambas partes, esta Sala Constitucional estima que, efectivamente, tal y como se alega, la emisión de la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 de fecha 8 de julio de 2022 (rubricada electrónicamente a las 12:37:21 hrs.), se traduce en un acto administrativo abiertamente arbitrario, carente de fundamento certero, atropellado y absolutamente desproporcionado. A esta conclusión, se arriba, a partir de las siguientes consideraciones de interés:
En ese mismo orden de consideraciones, es importante hacer notar que la clausura de Parque Viva tampoco podría compararse con cierres que se han llevado a cabo recientemente de otros establecimientos que albergan o reúnen grandes cantidades de asistentes (v.gr. el Gimnasio Nacional o el Estadio Ricardo Saprissa). Nótese que si bien esta Sala entiende muy bien la atención que el Ministerio de Salud y otras instituciones competentes en la materia deben mantener y mantienen sobre recintos dispuestos para la realización de actividades que aglutinan una buena cantidad de público, lo cierto es que en esos casos se tienen circunstancias particulares de abordaje y atención que lo distinguen plenamente del caso que ahora se conoce. Esto, en el tanto estos últimos cierres –de índole total o parcial–, se han sustentado en presuntas irregularidades o deficiencias halladas en tales instalaciones o inmuebles propiamente, sea, dentro de cada uno de estos sitios, por motivos relacionados, entre otros, con los sistemas eléctricos, las salidas de emergencia, los sistemas de iluminación, etc., los que, en ningún momento, se mencionan en el caso de Parque Viva.
De otra parte, no debe dejarse pasar por alto la noticia consignada el 10 de julio de 2022 en el Diario La Nación (días luego de cerrado Parque Viva), mediante la cual una vecina de La Guácima afirmó que un funcionario de una institución pública la contactó y le facilitó un machote de carta dirigido a la Ministra de Salud a efecto de pronunciarse a favor del cierre del citado establecimiento, la cual, además, solamente debía ser firmada por su persona. Llama la atención de esta Sala que dicha vecina haya exclamado, al momento de ser entrevistada por la periodista, que, desde su perspectiva, “el Gobierno quiere “desembarrar” lo que ellos “embarraron”, con el cierre del centro de eventos”.
Adicionalmente y, como dato de interés, cabe destacar que el Presidente de la República, en el informe rendido a este Tribunal, sostuvo con propiedad que la denuncia “anónima” formulada el 5 de julio de 2022 en contra de Parque Viva, fue presentada por vecinos de La Guácima de Alajuela, cuando, precisamente, al ser anónima, no tendría por qué ser necesariamente personas de dicho lugar las que formularon la gestión. Nótese que dicha denuncia la pudo haber interpuesto, por ejemplo, algún asistente al centro de eventos que resida en otra parte del país y que se encontrara disconforme con la operación de este sitio o bien, cualquier otra persona.
Ahora, cabe destacar también que los aspectos supra señalados, en estricto sentido, no devienen en una violación a ningún derecho fundamental. Sin embargo, esta jurisdicción consideró importante mencionarlos, a efecto que sean valorados y analizados, de consuno con el resto de consideraciones expuestas en esta sentencia.
Ahora bien, a partir de lo anteriormente señalado, esta Sala considera pertinente analizar la cuestión objeto de este amparo conforme lo dispuesto, a su vez, por los principios de razonabilidad y proporcionalidad. En esencia, examinar si la actuación supra citada –sea, el dictado de la orden sanitaria de cierre de Parque Viva para cualquier tipo de actividad–, supera o no el llamado test de razonabilidad y proporcionalidad, el cual, a tenor de lo dispuesto, entre otros votos, en la Sentencia No. 1276-2013 de las 14:50 hrs. de 29 de enero de 2013, comprende realizar un análisis de los aspectos de legitimidad, idoneidad, necesidad y proporcionalidad en sentido estricto. En este último voto, se explicaron los alcances de tal examen de la siguiente manera: “(…) La legitimidad se refiere a que el objetivo pretendido con el acto o disposición impugnado no debe estar, al menos, legalmente prohibido; la idoneidad indica que la medida estatal cuestionada deber ser (sic) apta para alcanzar efectivamente el objetivo pretendido; la necesidad significa que entre varias medidas igualmente aptas para alcanzar tal objetivo, la autoridad competente debe elegir aquella que afecte lo menos posible la esfera jurídica de la persona; y la proporcionalidad en sentido estricto dispone que aunque una medida sea idónea y necesaria, será irrazonables (sic) si lesiona el contenido esencial de otro derecho fundamental, si lo vacía de contenido (…)” (en similar sentido, se pueden consultar los Votos Nos. 3951-2012 de las 16:31 hrs. de 21 de marzo de 2012 y 27601-2021 de las 12:15 hrs. de 8 de diciembre de 2021). Por su parte, cabe indicar que en la Sentencia No. 3564-2015 de las 09:20 hrs. de 13 de marzo de 2015, este Tribunal aclaró, sobre el particular, que “(…) Este protocolo se aplica por fases, de manera que si el examen de una primera fase es insatisfactorio, resulta innecesario proseguir con el estudio del resto de aspectos, aunque, en algunos casos, para mayor contundencia del fallo se puede ahondar en ello (…)”.
En aplicación de dicho test y, conforme lo señalado líneas arriba, es claro que la medida sanitaria bajo estudio no es legítima, pues, pese a argumentarse para su emisión la protección a la vida e integridad de las personas, lo cierto es que fue dictada, como ya se explicó, de forma atropellada, abiertamente arbitraria y sin fundamento certero alguno, contraviniendo así lo dispuesto en el ordenamiento jurídico. La conducta impugnada alude a presupuestos fácticos y jurídicos que, por un lado, no son atribuibles de manera exclusiva al Parque Viva, tal y como lo pretende enfocar y establecer la orden sanitaria, pero, además, no fueron debidamente acreditados ni sustentados al momento de adoptar ese acto formal. Es decir, el antecedente sobre el cual pretende ampararse esa decisión, parte de una conclusión o juicio de valor que no cuenta con el soporte probatorio de orden técnico, que resulta fundamental e impostergable para sostener ese resultado. Se observa, por tanto, una inexistencia del elemento motivo del acto, en los términos que impone el canon 133 de la LGAP y con ello, por derivación, el contenido adoptado, que impone una consecuencia gravosa, desproporcionada e irrazonable, resulta ilegítimo, al establecer una consecuencia jurídica que no encuentra respaldo en el ordenamiento jurídico. En suma, sobre este punto, el acto cuestionado contraviene la necesaria relación entre los elementos materiales objetivos motivo-contenido, incorporando una deficiencia insalvable, que, en modo alguno, se puede entender superada por la generación ulterior de dictámenes de otras instancias administrativas, que buscaban acreditar aspectos que debieron establecerse como base legítima de la orden sanitaria impugnada. Estado de cosas anterior que, por consiguiente, no permite, tampoco, ser considerada una medida idónea. Asimismo, esta medida no satisface el criterio de necesidad, toda vez que existen alternativas menos lesivas o menos drásticas para alcanzar la finalidad aducida (protección de la vida y la salud de las personas) y que pudieren ser adoptadas en el cumplimiento de las potestades que tiene el Ministerio de Salud para la protección de la salud y de la integridad sin necesidad de afectar el ejercicio de otros derechos fundamentales. No obstante, la parte recurrida, sea, el Ministerio de Salud, escogió imponer –sin que medie justificación válida alguna–, la opción más lesiva al establecimiento Parque Viva, pues le impide tajantemente realizar cualquier tipo de evento de forma indefinida, hasta tanto, según se ha explicado, se presente y se ejecute un plan remedial a un problema que no sólo es causado por las actividades que ahí se organizan, y que, a su vez, al tratarse de calles cantonales, le corresponde atenderlo al municipio de Alajuela. Aunado a ello, cabe destacar que la medida bajo estudio adoptada por la Administración reprueba igualmente el examen de proporcionalidad en sentido estricto, ya que la misma lesiona el contenido esencial de otros derechos fundamentales, vaciándola así de su contenido protector. En este particular, ya se ha demostrado que la medida bajo estudio deviene en arbitraria, carece de motivación o sustento (pues refiere a criterios técnicos que no han sido de recibo para este Tribunal) y atenta, en consecuencia y, de forma flagrante, contra los derechos fundamentales a la defensa y al debido proceso.
Así las cosas, en criterio de este Tribunal Constitucional, los recurridos debieron realizar una adecuada ponderación y adoptar la medida menos gravosa para los derechos fundamentales, propiciando su equilibrio y limitando su afectación al mínimo. Nótese que si bien, cabe destacar, este órgano constitucional, de forma reiterada, ha señalado que la vida, la salud y la integridad de las personas, son bienes jurídicos de suma relevancia, por lo que claramente merecen su protección, no por ello y, en nombre de estos, se pueden atropellar otros derechos fundamentales de forma indistinta, intempestiva y arbitrariamente, a través de una clara desviación de poder que constituye, a su vez, una violación al principio constitucional de seguridad jurídica.
Medidas para resguardar tales esenciales bienes, siempre y obligatoriamente se deben tomar, pero, bajo ningún concepto, pueden emitirse a la ligera, de forma precipitada, atropellada, sin mayor fundamento y atentando gravemente contra otros derechos fundamentales. Mucho menos, dictarse medidas tan drásticas como las analizadas en este asunto, cuando existen otras posibilidades –menos lesivas–, que se pueden adoptar a efecto de resguardar la vida y la salud de las personas.
Ciertamente, es un hecho que en las cercanías de Parque Viva se deben realizar mejoras en la red vial cantonal que permitan el tránsito expedito de vehículos de emergencia; sin embargo, como se ha dicho también, este problema no puede atribuírsele o achacársele en su totalidad a Parque Viva, muchos menos, trasladarle a los representantes de este recinto la responsabilidad de acabar con el mismo a través de la imposición de una medida tan gravosa y extrema como lo es el cierre absoluto de sus instalaciones.
Por estas consideraciones descritas, es que esta Sala estima pertinente acoger este extremo del recurso, con las consecuencias que se dirán en la parte dispositiva de esta sentencia.
C. CIERRE DE PARQUE VIVA Y VIOLACIÓN INDIRECTA A LA LIBERTAD DE EXPRESIÓN. El Director del Periódico La Nación, así como el resto de recurrentes, aducen también a este Tribunal que la orden de cierre de Parque Viva (dispuesta mediante la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022), se traduce en una violación indirecta a la libertad de expresión. En ese particular, explican primeramente que Parque Viva forma parte del Grupo Nación S.A. (del cual es parte también dicho diario) y fue creado como una fuente complementaria de ingresos, menos dependiente de la venta de publicidad en el medio de comunicación. Específicamente, exponen que dicho centro de eventos se puso en funcionamiento para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de entradas o ganancias experimentada por los medios de comunicación en todo el mundo, debido a la migración de publicidad a los gigantes de la internet. Explican los accionantes que el referido diario, realizó una serie de publicaciones de evidente interés público del entonces candidato a la Presidencia de la República, Rodrigo Chaves Robles, relacionadas con sanciones impuestas a este por acoso sexual en el Banco Mundial y con las estructuras paralelas de financiamiento de la campaña política de su partido, entre otros temas. Afirman que se trató de publicaciones periodísticas serias, bien documentadas y pertinentes, de manera tal que el hecho de no difundirlas habría afectado directamente el derecho de los ciudadanos a informarse sobre temas de interés público, así como el principio del votante informado. Refieren también, que, en virtud de lo anterior, el mandatario amenazó públicamente con destruir “las estructuras corruptas de La Nación y de Canal 7”, y ha propinado ataques verbales contra la prensa y periodistas, a quienes ha calificado como “canallas”. Seguidamente, acusan que el mandatario comenzó a materializar la amenaza girada en su contra, a través de la emisión, el día 8 de julio de 2022, de la ya citada y arbitraria orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022, mediante la cual se dispuso el cierre de Parque Viva. Por ende, sostienen que este recinto (creado para diversificar las fuentes de ingresos de la empresa), fue una de las estructuras del periodismo independiente de Grupo Nación que resultó afectada como consecuencia de la amenaza emitida por el actual mandatario. Exponen que con las medidas adoptadas en contra de Parque Viva, no se persigue la satisfacción de intereses públicos, sino la de intereses espurios consistentes en intimidar a un medio de comunicación para que no ejerza libremente su derecho a informar. Apuntan que esos actos no solo afectan económicamente a la empresa dueña de Parque Viva, sino también al medio de información en el que laboran, por ende, se les lesiona su derecho a informar. Afirman que este es el verdadero fin que tienen los actos adoptados. Refieren que la presión ejercida sobre las finanzas de la empresa, pone en riesgo el ejercicio periodístico futuro, e invita a entendimientos que lo comprometen. Acusan que lo anteriormente descrito ha implicado un claro propósito de limitar la libertad de expresión por medios indirectos. Añaden que el 6 de julio de 2022, días antes de emitirse dicha orden, el mandatario públicamente sembró dudas sobre la salud financiera de Grupo Nación, al realizar cuestionamientos relacionados con los bonos emitidos por dicha empresa y que adquirió la CCSS y su operadora de pensiones. Incluso, afirman que, en esa ocasión, insinuó el debilitamiento de la garantía de la deuda por el futuro traspaso de algunos terrenos de la empresa a un fideicomiso para hacer un prometedor desarrollo inmobiliario. Mencionan que el accionar del Presidente Rodrigo Chaves, en dicha ocasión, no tuvo otro fin que perjudicar a Grupo Nación, poniendo en duda sus finanzas, para coartar la libertad de expresión. Concomitantemente, sostienen que el mandatario ha realizado otras manifestaciones públicas en contra del Grupo Nación (con el fin de continuar persiguiéndolo e intimidándolo), como fue el 13 de julio de 2022, cuando sostuvo su oposición al proyecto de construir un acceso de cuatro carriles a la Ruta Nacional No. 27. Además, señalan que el 20 de julio del año en curso, el Presidente citó, entre los motivos para cancelar el plan del tren eléctrico, la existencia de un ramal que pasa por Parque Viva. Argumentan que es más que evidente la amenaza de destruir a las empresas, como represalia por las líneas editoriales de los medios de su propiedad y las actuaciones de sus directores periodísticos. Señalan que se ha vulnerado la libertad de expresión estatuida en el ordinal 29 constitucional y, a su vez, se ha configurado un ataque indirecto a esta, el cual está prohibido en el ordinal 13.3 de la Convención Americana sobre Derechos Humanos. Refieren a lo dispuesto por la Corte Interamericana de Derechos Humanos, entre otros, en el caso Ivcher Bronstein vs, Perú, en el caso Ríos y otros vs. Venezuela, así como en la opinión consultiva No. OC-5/85. Asimismo, en escrito posterior presentado a esta Sala, el Director del Diario La Nación reiteró que se trata de un grupo de profesionales a quienes se les pretende limitar la libertad de expresión mediante acciones arbitrarias contra las estructuras que sustentan el libre ejercicio del periodismo. Aclara que no han hecho referencia a un ataque directo, sino a uno indirecto y que, contrario a lo manifestado por el mandatario, el pago de sus salarios no depende de Parque Viva. Sin embargo, afirma que el cierre de Parque Viva pondría fin al molesto periodismo que hacen “y que motivó la amenaza proferida en campaña”. En virtud de lo expuesto, solicitan que se le ordene al Presidente de la República, abstenerse de ejecutar actos tendentes a lesionar la libertad de expresión.
Por su parte, el Presidente de la República, en descargo a lo acusado, señala que las situaciones referidas por los recurrentes no guardan relación con coartar la libertad de prensa del medio de comunicación. Indica que, más bien, los accionantes, escudados en ese equivocado discurso, exigen sin ningún reparo, que el Estado les debe permitir operar de la manera que ellos quieran, aun cuando esto sea contrario a la ley y en detrimento del bienestar público. Afirma que a Grupo Nación no se le puede exigir, como a cualquier otro comercio costarricense, ajustarse a los parámetros de la ley, porque inmediatamente a su parecer, se convierte en un ataque a la libertad de prensa. Sostiene que no es posible que Grupo Nación diga que cifran sus esperanzas económicas en lo que pueda generar la actividad económica de Parque Viva para poder pagarle a sus empleados y, que, clausurar temporalmente ese lugar para la celebración de eventos masivos por incumplir con las condiciones mínimas de salubridad, es un ataque directo a la libertad de prensa. Señala que eso solamente demuestra que la salud financiera de La Nación no es como quieren hacerlo ver y que dependen de este lugar para subsistir financieramente. Indica que el hecho de proteger la vida de cientos de familias vecinas de Parque Viva no tiene ninguna relación con atacar, limitar o censurar la libertad de prensa de Grupo Nación. Refiere que el Colegio de Periodistas de Costa Rica, luego de analizar el tema, concluyó que la libertad de prensa en nuestro país goza de buena salud y que, en ningún momento, se está atentando contra ese derecho. Agrega que las manifestaciones realizadas respecto a la capacidad financiera de Grupo Nación y las declaraciones realizadas por funcionarios de la CCSS al respecto, resultan válidas y justificadas. Argumenta que, al cierre del primer trimestre del 2022, Grupo Nación visualiza una pérdida neta de 350 millones de colones, casi un 35% superior a la pérdida reflejada en marzo de 2021. Por otra parte, señala como preocupante que el mayor activo que posee Grupo Nación, es decir, la propiedad en Llorente de Tibás, esté siendo traspasada a un fideicomiso junto con otras propiedades que este grupo ha estado adquiriendo, aun cuando vienen reportando pérdidas desde hace varios años atrás. Sostiene que Grupo Nación, como cualquier otro emisor de deuda que participa en el mercado nacional de valores, está en la obligación de aportar información veraz que respalde su salud financiera, y no escudarse en su supuesta actividad central como medio de comunicación para alegar ataques a la libertad de prensa cuando se le exija ajustarse a la legalidad. También, indica que la necesidad de sentir persecución por parte de los recurrentes defendiendo los intereses del Grupo Nación, llega al punto de asegurar que la cancelación del proyecto del tren eléctrico impulsado por el anterior gobierno, pasa por el hecho que una ramificación de la ruta pasaba por Parque Viva. Sin embargo, esa afirmación es falsa y sostiene que la decisión de no continuar con dicho proyecto fue pensada en beneficio de la ciudadanía, donde un proyecto mejor pensado y elaborado representaría mayores beneficios para todos. Refiere que los recurrentes olvidan indicar que, según noticia publicada en el medio de comunicación CRhoy.com, el gobierno de turno y el Grupo Nación firmaron un convenio que incrementaría el costo del tren eléctrico en casi 150 mil millones de colones para que la línea férrea pasara por las inmediaciones de Parque Viva. Menciona que, como costarricense y funcionario público, tiene la obligación y el derecho de pronunciarse enérgicamente ante situaciones que pongan en peligro la salud pública del pueblo. Indica que este es un derecho constitucional que le asiste de manifestar de manera libre sus pensamientos, cosa que hará de la forma más vehemente, cuando se trate de proteger los derechos de las familias costarricenses. Señala que recientemente, la Sala Constitucional, en la Sentencia No. 9855-2022, se pronunció sobre el derecho de los servidores públicos a expresar sus opiniones. Asimismo, refiere a lo dispuesto por la Corte Interamericana de Derechos Humanos en el caso Ríos y otros vs. Venezuela, donde se indicó que, a pesar que los pronunciamientos vertidos hayan tenido un contenido fuerte y crítico que, incluso, puede ser valorado de ofensivo, constituyen expresiones legítimas de pensamiento. Agrega que resulta inevitable cuestionarse si Grupo Nación está actuando ajustado al principio noveno de la Declaración de Chapultepec y si, una vez analizados todos los criterios de las entidades especializadas, la credibilidad y compromiso con la verdad no está en entredicho. Afirma, entonces, que no se está ejerciendo ninguna clase de censura, ni directa o indirecta en contra de Grupo Nación. Señala que el medio de comunicación continúa operando de forma normal, informando al pueblo costarricense de acuerdo con su línea editorial y esta garantía nunca será trasgredida.
Visto lo anterior, tenemos entonces el agravio formulado por los recurrentes, en el sentido que el cierre de Parque Viva (aunado a otras manifestaciones vertidas por el Presidente de la República), representó una materialización a las amenazas giradas por esta autoridad tendente a destruir a Grupo Nación S.A. (del cual, a su vez, forma parte el Diario La Nación) provocando, en consecuencia, un quebranto indirecto a la libertad de expresión, habida cuenta que dicho establecimiento se creó para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de estos experimentada en los últimos años. De otra parte, contamos con la versión del mandatario de la República, quien sostiene que no se ha violentado la libertad de expresión, que el medio de comunicación continúa a la fecha funcionando normalmente y que el dictado de la orden sanitaria en cuestión y el cierre de Parque Viva lo que busca es proteger la vida de cientos de familias vecinas de dicho recinto. Además, el señor Presidente argumenta que cuenta con pleno derecho a manifestar de forma libre lo que piensa, sobre todo cuando se trata de proteger los derechos de las familias costarricenses.
Cabe recordar que, en el apartado anterior de esta sentencia, se indicó que el cierre de Parque Viva llevado a cabo por el Ministerio de Salud el 8 de julio del presente año mediante la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 (emitida el 8 de julio de 2022 y rubricada electrónicamente a las 12:37:21 hrs.)., se realizó, a su vez, mediante un acto administrativo considerado por este Tribunal como arbitrario, carente de sustento y, también, desproporcionado (a esta conclusión, se aclara, arribó esta jurisdicción independientemente de lo que se conozca en este nuevo apartado). Ahora, estima esta Sala que, para determinar si dicha actuación supuso igualmente una restricción o limitación indirecta (censura velada) a la libertad de expresión, esta se debe examinar, de manera concomitante, conforme el resto de acontecimientos acaecidos, incluyendo las circunstancias y el contexto en el cual se presentaron. De este modo, se hará primeramente un repaso por algunos de los principales hechos que han rodeado la emisión concreta de dicha orden sanitaria.
Así, es importante señalar en primer término, que, en este asunto, se ha tenido por demostrado que el Diario La Nación forma parte del Grupo Nación S.A.; corporación última que, a su vez, adquirió hace algunos años Parque Viva, como medio, en este caso en particular, para diversificar las fuentes de ingreso de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet.
Asimismo, consta en autos que, a la luz de la contienda electoral (en específico las votaciones realizadas en nuestro país para elegir Presidente de la República este año 2022), el Diario La Nación realizó una serie de publicaciones en contra del entonces candidato –hoy, Presidente de la República–, Rodrigo Chaves Robles. En particular, se demostró que el día 30 de agosto de 2021, dicho periódico publicó una noticia respecto a las sanciones por acoso sexual impuestas al citado candidato mientras era funcionario del Banco Mundial. Posteriormente, sobre este mismo tema, el diario realizó otras publicaciones los días 31 de agosto de 2021, 4 y 7 de septiembre de 2021, 18 y 19 de octubre de 2021, 4 de febrero de 2022, 8 y 28 de marzo de 2022, 1° y 25 de abril de 2022. Asimismo, consta que una noticia mediante la cual se criticaba la propuesta de Chaves Robles de gobernar mediante referendos, fue publicada por dicho medio el día 13 de febrero de 2022. Por su parte, noticias tocantes a las estructuras paralelas de financiamiento de la campaña política del hoy Presidente, fueron publicadas por el Diario Nación, entre otros, los días 5 de marzo y 29 de marzo de 2022.
Se ha demostrado también que, de forma paralela o concomitante a las anteriores publicaciones periodísticas, Chaves Robles, siendo candidato presidencial, realizó una serie de manifestaciones en contra directamente del Diario La Nación. Así, consta que el 29 de enero de 2022, Chaves Robles pronunció públicamente lo siguiente ante un grupo de seguidores:
“(…) Somos un tsunami y sí, vamos a causar destrucción. Vamos a causar la destrucción de las estructuras corruptas de La Nación y de Canal 7. Óigame Ignacio Santos, óigame el otro (…) René Picado, óigame Armando González. Aquí estamos. Sígannos invisibilizando en lo nuevo, en lo bueno y acusando injuriosamente en lo malo, porque ustedes ya no ponen presidentes en Costa Rica (…)”. (El destacado no forma parte del original).
Igualmente, se acreditó que el 6 de febrero de 2022, el entonces candidato presidencial, al momento de emitir su voto, manifestó expresamente al medio de comunicación AM Prensa lo siguiente:
“(…) Yo no dije que la prensa fuera canalla. En Costa Rica hay prensa canalla (…) porque hay prensa que miente (…) que está al servicio de los grupos poderosos, que han estado dedicados a quitar y poner presidentes y eso se les acabó (…)”. (El destacado no forma parte del original).
Además, ante una consulta planteada al efecto por el periodista, Rodrigo Chaves, en esta última ocasión, aclaró concretamente que se refería a “(…) La Nación, Canal 7, CRhoy (…)” y sostuvo que esto lo decía “(…) transparente y claramente (…)”. (El destacado no forma parte del original).
En esa misma línea (aunque sin mencionar nombres concretos de medios de comunicación), se demostró que el 30 de enero de ese mismo año, en cierre de campaña (correspondiente a la primera ronda electoral), el candidato presidencial Rodrigo Chaves públicamente señaló lo siguiente:
“(…) pasamos de la sociedad más igualitaria de América Latina a una de las más desiguales del mundo (…) para ser más millonarios a (…) quienes controlan a esos medios de desinformación de difamación y de mentira (…) lo dijimos, dijimos que había que limpiar la casa y se asustaron porque al principio ¿a quién le importaba Rodrigo Chaves? a nadie (…) el mismo día que Pilar Cisneros anunció su candidatura empezaron a soltar el veneno, el odio, la mentira y la calumnia, ahí fue donde (…) empezaron a temblar, por eso lo hacen (…) por este tsunami que los va a barrer como la basura de la casa (…) tinta y no sangre, pero que no va a tener menos relevancia histórica (…) porque aquí le estamos diciendo a los mismos de siempre: se les acabó la fiesta se les acabó la fiesta (…)”. (El destacado no forma parte del original).
Aunado a ello, es importante tener presente que en este asunto se ha demostrado también que el hoy Presidente de la República, se ha referido a la prensa, en términos generales, como “la prensa canalla y vendida”. Esto, por ejemplo, quedó de manifiesto en la noticia publicada por el medio de comunicación Columbia en su plataforma digital el día 7 de febrero de 2022; oportunidad en la cual, además, el mandatario indicó que dos o tres medios de este país se iban a ver muy afectados en un gobierno liderado por su persona. En esta noticia, se consignaron las siguientes manifestaciones expresas realizadas por Rodrigo Chaves:
“(…) En Costa Rica, óigame claro y duro, hay prensa canalla comprada y vendida, no toda la prensa es así, aquí hay gente honesta en este país, la enorme mayoría, pero hay gente que no es honesta, lo mismo con la prensa (…) en Costa Rica (…) existen dos o tres medios muy importantes que están al servicio de intereses que se van a ver muy afectados en un gobierno de Rodrigo Chaves y que nos han hecho lo imposible por un fusilamiento y un linchamiento político (…)”. (El destacado no forma parte del original).
Asimismo, el actual Presidente de la República ha comparado públicamente a la prensa de este país con ratas y otras especies de la fauna. En ese particular, consta que el 3 de agosto de 2022, en conferencia de prensa, dicha autoridad, dirigiéndose a la Ministra de Salud, sostuvo:
“(…) La veo afectada con los medios y la entiendo, pero le voy a ser muy franco, yo a esos medios y a los de su especie, porque son una especie (…) la gente habla de la prensa, eso es como hablar de la fauna, hay rinocerontes, hay mapaches, hay ratas, hay aves (…) A la especie de prensa que usted está hablando yo no les creo (…) no se moleste con ellos, déjelos que sigan hundiéndose (…)”. (El destacado no forma parte del original).
Adicionalmente a lo supra citado, conviene tener presente una serie de eventos que han acontecido, relacionados con este mismo tema. En ese particular, debe tenerse presente que el día 6 de julio de 2022, en conferencia de prensa, un periodista del medio El Guardián CR, consultó al ya Presidente de la República su criterio tocante al tema de la Caja Costarricense de Seguro Social y la solicitud que se hizo a la SUGEVAL respecto a los bonos emitidos por Grupo Nación. Al respecto, consta que el mandatario manifestó que efectivamente existe un tema muy serio con bonos que gobiernos anteriores compraron emitidos por La Nación. También indicó que se encuentra preocupado respecto a la capacidad de pago que tendría ese medio (la cual, en su criterio, “parece muy muy leve”), en virtud de algunas acciones contables y de desviación de activos que debilitan la probabilidad que el pueblo de Costa Rica pueda recuperar esos recursos que son sustanciosos. Luego de emitir criterio al respecto Álvaro Ramos, Presidente Ejecutivo de la CCSS, el Presidente de la República señaló expresamente lo siguiente:
“(…) La rentabilidad de la Nación va en caída libre y eso significa que está incurriendo en pérdidas constantes, constantes, constantes. Y entonces uno se pregunta si esa tendencia de pérdidas continúa, yo no sé, tal vez tengan una varita mágica y logren levantar el flujo de caja (…) ¿qué pasa si a la Nación se le ahorca el flujo de caja y no está la propiedad porque está en otra parte? Esa es la pregunta y yo creo que don Álvaro lo expresó en términos técnicos muy bien pero idiay, él tiene la obligación de hacer eso. Y yo le pedí, además, de que ya lo estaba haciendo cuando yo lo llamé para preguntarle, me dice no, ya lo estamos haciendo y está la consulta (…)”.
Se ha demostrado también, que, en virtud de lo ocurrido ese 6 de julio del presente año en conferencia de prensa, el día 7 de julio de 2022, en la sección de política del Diario La Nación, se publicó una nota en la cual, entre otros aspectos, se explicó porqué las argumentaciones vertidas por el mandatario presidencial respecto a la capacidad financiera del Grupo Nación no eran certeras. Aunado a ello, consta que, en esa misma nota, se consignó que el Director Ejecutivo de Grupo Nación señaló que “(…) Parque Viva volvió a tener actividad, a partir de marzo de 2022, después de estar dos años sin eventos producto de la pandemia de coronavirus. Asimismo, recordó que la crisis sanitaria provocó una afectación generalizada en el mundo. Pese a ello, enfatizó, la compañía logró generar flujo de caja (…)”. (El destacado no forma parte del original).
En este punto, hay que recordar que, al día siguiente, sea, el 8 de julio de 2022, el Ministerio de Salud giró la orden sanitaria que dispuso el cierre de Parque Viva para cualquier tipo de actividad.
Aunado a lo anteriormente señalado, cabe reiterar que en este asunto se ha demostrado que el día 13 de julio de 2022, el Presidente de la República, en conferencia de prensa, se manifestó en contra del proyecto vial propuesto por Grupo Nación para atender los problemas de congestionamiento que se generan en la zona de La Guácima, donde está ubicado Parque Viva. Consta que, en tal ocasión, dicha autoridad indicó:
“(…) ¿Oyeron la mentira descarada que publicó La Nación que tiene desde hace dos años de pedir un acceso a la ruta 27 para arreglar el Parque Viva? Ah no, idiay si metemos un gol metamos cuatro goles más porque es cuatro veces el volumen de área lo que querían conseguir el permiso., ¿No les da vergüenza colapsar la Ruta 27 arriesgando todo el Occidente, Grecia, Naranjo, Atenas, San Carlos, todo Guanacaste y todo Puntarenas? (…)”.
Asimismo, se tiene por acreditado que el 20 de julio de 2022, el Presidente, en conferencia de prensa, sostuvo que uno de los motivos para cancelar el plan del tren eléctrico se debe a la existencia de un ramal que pasa por Parque Viva, cuyo costo sería de 150.000 millones de colones. Específicamente, dicha autoridad manifestó:
“(…) Entendemos que el gran área metropolitana necesita una solución al transporte. Cuando uno ve que a este trencito le tenían un ramal de 150.000 millones de colones al Parque Viva, uno todavía se preocupa más. Entonces todo junto nos dice “esto no va” (…)”.
Analizados los eventos supra citados, de forma conjunta, resulta claro para este Tribunal que el señor Rodrigo Chaves Robles, tanto como candidato presidencial como en ejercicio de la presidencia de la República, ha emitido una serie de manifestaciones claras, directas y contundentes en contra del Diario La Nación, mediante las cuales externó su intención de destruir a dicho medio de comunicación, tal y como lo hace un tsunami, según los términos empleados expresamente por este. Esta intención es clara al observarse lo declarado por Chaves Robles públicamente los días 29 de enero y 6 de febrero del año en curso, oportunidades en las que no solo hizo referencia a La Nación, sino también a Canal 7 y al medio CRhoy, a los que, además, tildó como “prensa canalla”. Igualmente, no puede dejarse pasar por desapercibido que el entonces candidato presidencial, el día 30 de enero de 2022, durante el cierre de su campaña, pese a no mencionar nombres en concreto, sí indicó públicamente que barrería a los medios de comunicación “como la basura de la casa”, por el tsunami que él y su partido representan o ejecutarían para acabar con su “fiesta”. De consuno con lo anterior, es importante también hacer notar que el hoy mandatario, en esta misma época, en particular, el día 7 de febrero del presente año, lanzó nuevamente epítetos en contra de la prensa, a la que tildó de canalla y vendida y afirmó, de manera contundente, que dos o tres medios de comunicación se verían muy afectados ante un posible gobierno liderado por su persona. Además, el día 3 de agosto de 2022, Chaves Robles aprovechó su intervención junto con la Ministra de Salud para comparar a la prensa con ratas y otras especies de la fauna.
Aunado a esto, esta jurisdicción observa también que, precisamente, el estado de cosas anterior coincidió con la misma época en que el Diario La Nación publicó varias noticias respecto a Chaves Robles, cuando, para entonces, ostentaba la condición de candidato presidencial (a saber, desde agosto de 2021 hasta, al menos, abril de 2022). Noticias que, como se dijo, no podrían, de modo alguno, ser del agrado del hoy mandatario, mucho menos, en plena campaña electoral, ya que estas, tal y como se dijo, guardaban relación, entre otros, con temas de acoso sexual por las que este había sido sancionado durante su paso como empleado del Banco Mundial o bien, con las estructuras paralelas de financiamiento de su campaña política (noticias sobre las que, además, se aclara, esta jurisdicción no emite criterio ni pronunciamiento alguno respecto a su veracidad o no, pues escapa de su competencia, ni es el objeto de este amparo).
Así las cosas, no cabe la menor duda para este órgano constitucional que el mandatario giró una serie de amenazas en contra de la prensa, en particular, del Diario La Nación, como medio para amedrentarlo e intimidarlo. El hoy Presidente, al sentirse ofendido o agraviado con las divulgaciones realizadas por dicho medio de comunicación (línea editorial), optó, entonces, tal y como se ha demostrado, por atacarlo abierta y públicamente, “claro y duro” como él mismo lo ha dicho. Esto, cabe destacar, tal y como también se ha demostrado, no se llevó a cabo de forma aislada, pues, por el contrario, es evidente que se trata de una serie de manifestaciones (ataques y amenazas directas e indirectas), dirigidas en un mismo sentido y vertidas en una misma época, paralela o concomitantemente a la publicación de las referidas noticias.
Ahora, en este contexto, se puede pensar o sería válido entender que la orden sanitaria emitida en contra de Parque Viva (a través de la cual se dispuso su cierre para cualquier tipo de evento), materializa el cierre del medio de comunicación.
Esto, por cuanto dicho cierre –además de tener las particularidades ya descritas–, perjudica por supuesto las finanzas de Parque Viva y, por ende, del Grupo Nación S.A, pero también, de forma concomitante, genera una afectación al medio de comunicación Diario La Nación. Cabe recordar en este punto, una vez más, que, tanto el Periódico La Nación como el referido parque, forman parte de dicha sociedad o conglomerado financiero (llamado Grupo Nación S.A.), y que, precisamente, este recinto comercial de eventos fue adquirido para diversificar las fuentes de ingreso y compensar la pérdida de ganancias sufridas en virtud de la migración de la publicidad hacia las plataformas digitales; es decir, como mecanismo para coadyuvar o cooperar con el financiamiento o mantenimiento actual de este tipo en particular de medio de prensa, según los términos ampliamente explicados en el considerando VIII de esta sentencia. De modo tal que, si se afecta Parque Viva tal y como ha ocurrido (y este deja de producir ingresos por encontrarse cerrado totalmente, al prohibírsele realizar cualquier tipo de actividad, según así se ordenó), se afecta económicamente también e, ineludiblemente, el Diario La Nación, como parte que es del conglomerado financiero que representa Grupo Nación S.A.. En otras palabras, si se perjudica la fórmula o el mecanismo utilizado por Grupo Nación para generar ingresos y coadyuvar con los gastos que genera Diario La Nación, obviamente, esto repercutirá negativamente en este último medio. En estos mismos términos lo explicó esta Sala en los ya citados Votos Nos. 1782-2015 y 15220-2016, al indicar que, si se limita el ingreso económico de un medio de comunicación, también se llega a perjudicarlo o, inclusive, a eliminarlo. Nótese que si bien los recurrentes han sido claros al indicar que sus salarios, como periodistas, en este momento, no dependen absolutamente del funcionamiento de Parque Viva (tal y como así lo entiende y menciona el mandatario en el informe rendido a este Tribunal), lo cierto es que sí han manifestado que el cierre del recinto genera una afectación de índole económica que perjudica e incide negativamente en el medio de comunicación. Aunado a ello, los accionantes han señalado que Parque Viva forma parte de las estructuras a las que hace referencia el Presidente de la República y que son, precisamente, las que “sustentan su libre ejercicio del periodismo”. Además, han sido claros al indicar que la presión ejercida sobre las finanzas de la empresa con su cierre, “pone en riesgo el ejercicio periodístico futuro e invita a entendimientos que lo comprometen”. En este particular, resulta menester apuntar que, tal y como se demostró en el elenco de hechos probados de esta sentencia, para este tercer cuatrimestre del año 2022 se estaban organizando, al menos, cuatro eventos de relevancia en el Parque Viva, los cuales representan la captación de importantes ingresos para Grupo Nación, de los que, igualmente, se ve beneficiado el medio de comunicación Diario La Nación, según los términos ya explicados. No obstante, tal y como igualmente se acreditó, el Ministerio de Salud, los días 14 y 15 de julio de 2022, denegó a los productores de tales eventos la entrega de las certificaciones de aforos solicitados, en virtud de la orden de cierre girada en contra del referido recinto, provocando con esto, claramente, una significativa afectación económica al Grupo Nación y, por ende, al medio de comunicación.
Cabe indicar, también, sobre este último aspecto, que llama la atención de este Tribunal Constitucional que el cierre de Parque Viva se haya ordenado el día 8 de julio de 2022, tan sólo un día después de que el Diario La Nación publicara una nota mediante la cual se defendió de las manifestaciones relacionadas con sus finanzas externadas el 6 de julio de 2022 por el Presidente de la República, en la cual, a su vez, el Director Ejecutivo de Grupo Nación señaló que el recinto bajo estudio había vuelto a tener actividad en marzo de 2022 y que había logrado generar flujo de caja. Igualmente, no puede perderse de vista que el mandatario, en el informe rendido a esta Sala, concluyó que La Nación sí depende de Parque Viva para subsistir financieramente, lo cual reafirma que el cierre realizado a este sitio le perjudica, y que las secuelas producidas con dicho acto no resultaban ajenas a su conocimiento. En consecuencia, se está ante la emisión de un acto atropellado, arbitrario y desproporcionado que debilita la estabilidad financiera del Diario La Nación.
Ahora, según lo analizado ampliamente en los considerandos VII y VIII de esta sentencia, lo ocurrido con Parque Viva y la afectación que le provoca al medio de prensa, se traduce, a su vez, sin lugar a dudas, en una violación indirecta a la libertad de expresión, sea, en una censura velada. Esto, principalmente, porque las repercusiones negativas a nivel económico que se generan en Diario La Nación podrían conllevar, a modo de ejemplo y ante una crisis financiera, a tomarse la decisión, a corto, mediano o largo plazo, de recortar o prescindir de personal –entre ellos periodistas–, hasta, incluso, proceder con el cierre de sus operaciones de forma definitiva, impidiendo con esto que dicho medio y, por ende, los que en este trabajan, continúen ejerciendo la libertad de prensa, como manifestación de la libertad de expresión. Tal y como la Corte IDH lo dejó manifiesto en el ya citado caso Granier y otros vs. Venezuela, la restricción a la libertad de expresión en este tipo de situaciones no sólo afecta al medio de comunicación (persona jurídica), sino también a las personas naturales (desde accionistas hasta los periodistas que allí laboran). Concomitantemente, es claro que el cierre de Parque Viva, según los términos acá expuestos, se traduce también en una especie de llamada de atención o de advertencia para el medio de comunicación Diario La Nación en virtud de su línea editorial, pretendiéndose con esto su giro a favor del gobierno o, simplemente, producir un efecto disuasivo o atemorizador y, con ello, callar o aplacar por completo las voces de su director y de los periodistas. Un claro e incuestionable aviso girado al Periódico La Nación para que se abstenga de incurrir en los hechos ya descritos, sea, la publicación de noticias que perjudiquen la imagen del mandatario o del gobierno en general. Se castiga, entonces, por lo ya publicado y dado a conocer respecto al mandatario, su partido político y su forma de pretender gobernar, pero, también, se gira una advertencia para que este tipo de noticias no se vuelvan a divulgar a la ciudadanía. Además, es importante hacer notar que este mensaje amenazante que atenta contra la libertad de expresión no sólo se envía al Diario La Nación, sino, también, peligrosamente, al resto de medios de comunicación del país que osen publicar alguna noticia en contra del Presidente y de su gobierno.
Así las cosas, es evidente que el cierre de Parque Viva es un mecanismo indirecto, atropellado e ilegítimo que violenta la libertad de expresión. Estado de cosas anterior que proscribe la propia Convención Americana sobre Derechos Humanos en su numeral 13.3 y que, según también aclara, no solo se puede llevar a cabo a través del “abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información”, sino también, “por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones”. La clausura de Parque Viva, encaja perfectamente en esta última descripción y se convierte así en un ejemplo más, al igual que los citados en el considerando VII de esta sentencia, de cómo se puede violentar indirectamente el derecho fundamental a la libertad de expresión.
Hemos de deparar acá que, pese a que el Presidente de la República sostiene que en el cierre de Parque Viva medió un fin legítimo (como es salvaguardar la vida y la salud de las personas), lo cierto es que no puede dejarse pasar por alto que dicho acto, también (aparte de haber sido dictado de forma arbitraria, carezca de fundamento y resulte desproporcionado según los términos ya descritos), vulnera uno de los derechos fundamentales más relevantes en nuestro Estado Constitucional de Derecho como lo es la libertad de expresión y la libertad de prensa, como manifestación de esta última. El mandatario argumenta que se actuó salvaguardando esos bienes jurídicos haciéndose uso, incluso, de una potestad permitida por el Estado (como lo es el giro de órdenes sanitarias); sin embargo, lo cierto es que, en el fondo, con dicha tesis se perjudica y castiga (de la mano del Ministerio de Salud), al medio de comunicación, configurándose así, a todas luces, una clara y evidente desviación ilegítima del poder. En esencia, se revistió de una aparente legalidad, la afectación a las libertades públicas señaladas.
El cierre de Parque Viva se llevó a cabo con abuso de poder, a través de un mecanismo indirecto (disfrazado de acción legítima), con un propósito claramente distinto al que se señaló, tanto en la orden sanitaria como ante esta Sala Constitucional, y esto, esta última jurisdicción, lo tiene absolutamente claro. Así las cosas, nos encontramos frente a lo que este Tribunal ya ha denominado “(…) una forma perversa y antidemocrática de utilizar el poder del Estado para dirigir la opinión, según un sistema de “premio o castigo“, a quienes ejercen la libertad de prensa y libre expresión garantizada constitucional y convencionalmente (…)” (Voto No. 15220-2016).
Nótese que se hace uso de un discurso absolutamente creíble para terceros (como es la defensa de intereses públicos), para justificar el cierre arbitrario que se hizo de Parque Viva, pero, para, concomitantemente, perjudicar flagrantemente al medio de comunicación Diario La Nación, como represalia por las noticias publicadas en contra del mandatario y su partido político, las cuales, se destaca, no dejaron de ser divulgadas pese a las amenazas giradas por este último. Amenazas que, cabe reiterar, fueron emitidas en varias oportunidades, de forma clara y directa en contra del medio de comunicación Diario La Nación, hasta que finalmente se materializaron o ejecutaron, tal y como así lo hizo en su oportunidad el gobierno venezolano, al arremeter en contra del medio de comunicación Radio Caracas Televisión por difundir noticias en contra de su régimen, y cuya actuación fue condenada por la Corte IDH al sostener, entre otros aspectos de interés, que no es posible restringir arbitrariamente el derecho a la libertad de expresión con fundamento en la discrepancia política que pueda generar al gobierno una determinada línea editorial (caso Granier y otros vs. Venezuela, sentencia de 22 de junio de 2015 a la que se hizo referencia ampliamente en el considerando VII de este voto y cuyo contenido resulta plenamente aplicable a este proceso de amparo).
Adicionalmente, debe tomarse en cuenta que el Presidente también se ha referido a la prensa de forma despectiva (utilizando palabras confrontativas o comparándola con ratas y otras especias de fauna) y que, incluso, hizo públicas amenazas al Grupo Nación a través de otras distintas formas, como lo ha sido cuestionando públicamente el estado de sus finanzas (a propósito de bonos emitidos y comprados por el Estado), arremetiendo contra el proyecto vial propuesto para coadyuvar en el problema de congestionamiento vial que se genera en La Guácima y señalando, como una de las causas para cancelar el plan del tren eléctrico, el hecho de existir un ramal que pasa por Parque Viva. En esencia, llevando a cabo una campaña para desacreditar públicamente al citado medio de prensa haciendo alusión a diversos temas de interés nacional (respecto a los cuales, se aclara también, esta Sala omite pronunciarse, por escapar del ámbito de sus competencias y no ser el meollo de este amparo).
Tocante a estas manifestaciones, el Presidente de la República argumenta que le asiste el derecho constitucional de exteriorizar de manera libre sus pensamientos y, en ese particular, cita la Sentencia No. 9855-2022 dictada por esta jurisdicción constitucional (donde se hizo referencia al derecho de los servidores públicos a manifestar sus opiniones), así como lo dispuesto por la Corte IDH en el caso Ríos y otros vs. Venezuela, donde se indicó que pronunciamientos realizados por altos funcionarios del Estado “(…) aunque pueden tener un contenido fuerte y crítico que incluso puede ser valorado como ofensivo, constituyen expresiones legitimas de pensamientos y opiniones sobre las formas particulares que puede tener un medio de comunicación de ejercer el periodismo que se encuentran protegidas y garantizadas bajo el artículo 13 de la Convención Americana (…)”. No obstante lo anterior, es importante destacar que en ese mismo pronunciamiento al que alude el mandatario, la Corte IDH también dispuso que:
“(…) 139. En una sociedad democrática no sólo es legítimo, sino que en ocasiones constituye un deber de las autoridades estatales, pronunciarse sobre cuestiones de interés público. Sin embargo, al hacerlo están sometidos a ciertas limitaciones en cuanto deben constatar en forma razonable, aunque no necesariamente exhaustiva, los hechos en los que fundamentan sus opiniones, y deberían hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos. Además, deben tener en cuenta que en tanto funcionarios públicos tienen una posición de garante de los derechos fundamentales de las personas y, por tanto, sus declaraciones no pueden desconocer éstos ni constituir formas de injerencia directa o indirecta o presión lesiva en los derechos de quienes pretenden contribuir a la deliberación pública mediante la expresión y difusión de su pensamiento. Este deber de especial cuidado se ve particularmente acentuado en situaciones de mayor conflictividad social, alteraciones del orden público o polarización social o política, precisamente por el conjunto de riesgos que pueden implicar para determinadas personas o grupos en un momento dado (…)”. (sentencia de 28 de enero de 2009) (El destacado no forma parte del original).
Además, debe tomarse en cuenta que si bien, esta Sala, en la citada Sentencia No. 9855-2022 de las 14:17 hrs. de 29 de abril de 2022, hizo referencia al derecho que le asiste a los funcionarios públicos de manifestar sus opiniones, lo cierto es que los hechos analizados en dicha oportunidad y por los cuales se acogió el entonces recurso de amparo formulado, distan muchísimo de las circunstancias estudiadas en este nuevo asunto. Esto, habida cuenta que, en tal ocasión, se conoció el caso de una funcionaria judicial a quien se le inició un procedimiento administrativo en virtud de manifestaciones giradas en contra de una ex alta autoridad de la misma institución para la cual presta servicios. Cosa muy distinta a lo que ocurre en este caso, donde ha sido el propio Presidente de la República –funcionario público de más alto rango en nuestro país, con gran poder e influencia–, quien ha hecho las manifestaciones arriba señaladas y a quien si bien le asiste el derecho a opinar lo que piensa, lo cierto es que esto lo debe llevar a cabo bajo ciertos límites en virtud de su investidura (según así lo explicó la Corte IDH en la sentencia supra descrita) y, además, sin vulnerar otros derechos o en demérito de otras libertades igualmente esenciales, sobre todo, en un Estado Democrático de Derecho.
A propósito de lo anteriormente consignado, cabe recordarle al mandatario presidencial algo muy importante sobre lo cual esta Sala Constitucional deparó y explicó ampliamente en el considerando VI de esta Sentencia, y es el hecho que los funcionarios públicos que ostentan una alta jerarquía, tal y como es su caso, se encuentran obligados a tolerar, con mayor margen o amplitud, las críticas a la cuales son sometidos y están continuamente expuestos precisamente por el cargo que ostentan y en virtud del interés público que envuelve las actuaciones que llevan a cabo. Así fue consignado por este Tribunal en la Sentencia No. 15220-2016 supra citada e, incluso, por la Corte Europea de Derechos Humanos, al referirse a lo dispuesto en el artículo 10.2 de la Convención Europea, tal y como también se consignó líneas arriba. Además, cabe reiterar que la misma Corte Europea de Derechos Humanos (citada por la Corte IDH en el caso Herrera Ulloa vs. Costa Rica), ha sostenido que la libertad de expresión no debe ser garantizada solamente respecto a la difusión de información o ideas que son recibidas favorablemente o se estiman inofensivas, sino también respecto a aquellas que ofenden, resultan ingratas o perturban el Estado. Aunado a esto, es importante también destacar que este derecho a la crítica –por así denominarlo–, del cual gozan, entre otros, los medios de prensa, toma mayor fuerza ante distintas circunstancias, como lo es, por ejemplo, en una contienda electoral, donde los ciudadanos tienen el derecho a conocer quiénes son los candidatos o los postulados a ocupar uno de los más importantes puestos en el país, de hecho, como se dijo, el de más alto rango. Esto, precisamente, fue lo que la Corte IDH explicó amplia y claramente en el también ya citado caso Ricardo Canese vs Paraguay; oportunidad en la cual, cabe recordar, se hizo referencia a la importancia de la libertad de expresión en el marco de una campaña electoral y se sostuvo, entre otros aspectos de sumo interés, lo siguiente:
“(…) 90. (…) El debate democrático implica que se permita la circulación libre de ideas e información respecto de los candidatos y sus partidos políticos por parte de los medios de comunicación, de los propios candidatos y de cualquier persona que desee expresar su opinión o brindar información. Es preciso que todos puedan cuestionar e indagar sobre la capacidad e idoneidad de los candidatos, así como disentir y confrontar sus propuestas, ideas y opiniones de manera que los electores puedan formar su criterio para votar (…) Al respecto, la Corte Europea ha establecido que (…) Por esta razón (…) es particularmente importante que las opiniones y la información de toda clase puedan circular libremente en el período que antecede a las elecciones (…)”.(El destacado no forma parte del original).
También, cabe apuntar que, en dicha ocasión, la Corte IDH señaló claramente que aquellas personas que se postulan a una candidatura para ocupar el puesto a la Presidencia de la República se han expuesto voluntariamente al escrutinio público, por lo que, consecuentemente, corren el riesgo de ser sometidas a mayores críticas, ya que sus actividades salen del dominio de la esfera privada para insertarse en la esfera del debate público.
Debe observarse que en este caso resulta claro que, pese a lo consignado supra, Rodrigo Chaves Robles, desde que las noticias en cuestión fueron divulgadas, se ha dedicado a amenazar públicamente al Diario La Nación e, incluso, a justificar la emisión de actos tan lamentables como lo es el cierre arbitrario del Parque Viva. Todo esto, a pesar que el mandatario, como cualquier otro ciudadano que se sienta agraviado por publicaciones emitidas en su contra, cuenta con una serie de medios o mecanismos que le provee el ordenamiento jurídico y a los que puede recurrir legítimamente de forma ulterior para defender su honor o bien, para velar por la exactitud de la información divulgada (ejerciendo el derecho de rectificación y respuesta estatuido en los ordinales 66 y siguientes de la Ley de la Jurisdicción Constitucional y 14 de la Convención Americana sobre Derechos Humanos). Pese a tener a disposición estos instrumentos, no consta que el mandatario haya hecho uso de los mismos, dirigiendo por el contrario sus manifestaciones en contra del Diario La Nación de la forma arbitraria en que lo hizo y así ha quedado plenamente acreditado.
Bajo este estado de cosas, se observa entonces, que lo consignado en este asunto ha representado un quebranto al Estado Constitucional de Derecho, quien cuenta con una tradición democrática reconocida, incluso, a nivel internacional. Por ende, resulta imperiosa la intervención de este Tribunal Constitucional, sobre todo, si se toma en consideración, como también ya se ha dicho, que los ataques a los medios de comunicación independientes –como es precisamente el caso del Diario La Nación–, suelen ser los primeros objetivos de los sistemas políticos antidemocráticos y autoritarios o, al menos, de aquellos que se encaminan o se dirigen hacia eso. Esto, la historia y lo ocurrido en otras latitudes, así lo demuestran.
Las amenazas giradas por el mandatario de la República contra el Diario La Nación hasta llegar a la afectación del Parque Viva, generando con ello una violación a la libertad de expresión y a la libertad de prensa, ha erosionado y resquebrajado indiscutiblemente nuestra democracia –la que, cabe destacar, con tanto esfuerzo forjaron nuestros antepasados– y, por ello, resulta imprescindible hacer este tipo de señalamiento para evitar que situaciones similares se repitan. Esto, pues hoy fue el Diario La Nación, pero, mañana, puede ser cualquier otro medio de comunicación.
Aunado a lo anterior, es importante destacar que, en este caso, no solo se ha vulnerado el derecho que tiene Diario La Nación de expresarse, de emitir críticas y divulgar, entre otras, noticias relacionadas con el hoy Presidente de la República y la gestión realizada por su persona, antes y después de asumir dicho cargo (como medio, a su vez, para fiscalizar sus actuaciones en una sociedad democrática), sino que, también, se ha quebrantado el derecho que tienen los habitantes, en un Estado Constitucional de Derecho, de recibir este tipo de información; sea, la libertad de expresión vista desde su dimensión social. Si la prensa es callada arbitrariamente, pues entonces los habitantes se ven desprovistos de un importante y valioso mecanismo para conocer qué ocurre, sobre todo respecto a la gestión del gobierno (como mecanismo, a su vez, para ejercer control sobre sus actos y hacerse una opinión al respecto) y esto, sin lugar a dudas, representa igualmente una afrenta al sistema democrático costarricense.
Por todos los argumentos supra señalados, esta Sala estima que, en la especie, se ha producido un claro quebranto a lo dispuesto en el ordinal 29 de nuestra Carta Magna y a lo señalado en el numeral 13.3 de la Convención Americana sobre Derechos Humanos, el cual proscribe expresamente la censura velada o las restricciones indirectas realizadas “por cualquier medio”, al derecho a la libertad de expresión. Por consiguiente, lo que procede es acoger también este extremo del recurso, con las consecuencias que se dirán infra. Esto, no sin antes traer a colación lo que señala la Declaración de Chapultepec y resulta plenamente aplicable en este caso:
“La lucha por la libertad de expresión y de prensa, por cualquier medio, no es tarea de un día; es afán permanente. Se trata de una causa esencial para la democracia y la civilización en nuestro hemisferio. No sólo es baluarte y antídoto contra todo abuso de autoridad: es el aliento cívico de una sociedad. Defenderla día a día es honrar a nuestra historia y dominar nuestro destino”.
D. ACLARACIONES FINALES DE INTERÉS. Finalmente, esta Sala Constitucional estima pertinente, en este punto de la sentencia, dejar claros los siguientes aspectos:
Primero: A través de este voto, esta jurisdicción constitucional no está diciendo que se puede actuar en contra de lo que dicta el ordenamiento jurídico; no se propone o insta a actuar fuera del marco de la ley. Por el contrario, la Sala, lo que señala, es que la ley se debe aplicar correctamente y no de forma intempestiva, atropellada o arbitraria, tal y como se demostró que sucedió en el caso bajo estudio.
Segundo: Lo que se dispone en esta sentencia, no impide que se pueda continuar fiscalizando el ejercicio de emprendimientos comerciales, estén o no relacionados con medios de comunicación. Las potestades de control, supervisión y verificación del cumplimiento de los requisitos y permisos para el funcionamiento de estos establecimientos, se debe seguir haciendo, pero ajustándose al marco jurídico ya establecido, y no de la manera atropellada, arbitraria e intempestiva en que se llevó a cabo recientemente en el caso valorado en este proceso.
Tercero: En el sentido supraexpuesto, para el caso concreto, este Tribunal es consciente que se deben proteger y resguardar la vida, la salud y la integridad de los habitantes de la zona de La Guácima de Alajuela, y de los asistentes a las actividades que se realizan en el establecimiento denominado Parque Viva. Esta jurisdicción, tal y como se dijo líneas arriba, a través de copiosa jurisprudencia, ha procurado siempre salvaguardar estos derechos fundamentales y, esto es absolutamente indiscutible. Ahora, el ejercicio de las potestades públicas de que dispone la administración, se debe llevar a cabo de forma ajustada al bloque de legitimidad, y no de la manera atropellada en que se ha hecho en este caso en particular.
Cuarto: Debe quedar absolutamente claro, que esta sentencia no indica que cualquier actividad comercial ligada a un medio de comunicación queda abstraída de los controles que exige el ordenamiento jurídico. Además, como también se ha explicado, no todo acto o conducta administrativa que imponga un gravamen o establezca un contenido de efecto negativo en torno a las estructuras de financiamiento de los medios de comunicación, supone, en sí misma, una lesión refleja como la que se ha indicado. La lectura íntegra de esta sentencia no establece ni sugiere esa regla de manera alguna. Lo que sí se ha establecido y debe enfatizarse, es que el cierre de un negocio o establecimiento comercial, con el fin de acallar o silenciar a un medio de comunicación,significa en realidad un subterfugio para violar las libertades públicas y los derechos fundamentales, en particular, a la libertad de expresión y de prensa, y con ello, limitar, de manera indebida e indirecta, a estas libertades, las cuales,según lo explicado reiteradamente, son consustanciales con la existencia misma de la democracia; de ahí, la protección que merece ser brindada por este Tribunal Constitucional.
X.- COROLARIO. En mérito de lo expuesto, se impone acoger el presente proceso de amparo, al haberse demostrado que el cierre de Parque Viva se llevó a cabo de forma arbitraria, sin un fundamento objetivo válido, como represalia por la línea editorial que ha sostenido Diario La Nación respecto al hoy Presidente Rodrigo Chaves Robles y con el único objetivo de silenciar las voces de dicho medio, en claro detrimento de la libertad de expresión y la libertad de prensa protegidas constitucional y convencionalmente.
XI.- NOTA DEL MAGISTRADO CRUZ CASTRO. LA TUTELA REFORZADA DE LA LIBERTAD DE EXPRESIÓN EN EL PACTO DE SAN JOSÉ.
Este caso posee gran riqueza en el análisis constitucional y define un escenario inusual en el control del poder político. El Poder Ejecutivo, dentro de un sistema de frenos y contrapesos, requiere la supervisión y revisión judicial. La descripción detallada que se hace en el voto de mayoría concluye que la orden sanitaria MSP-DRRSCN-DARSA2-OS-0368-20022 es un acto administrativo “….abiertamente arbitrario, carente de fundamento certero y absolutamente desproporcionado..”. La sentencia que suscribo, describe hechos e indicios que sustentan tal conclusión. No es un tema menor que la instancia constitucional determine, mediante amparo, que las autoridades del Poder Ejecutivo han incurrido en un acto arbitrario. Se trata de un acto abiertamente arbitrario, incompatible con las reglas que imperan en un Estado de Derecho. El error o el exceso es un riesgo que siempre asume quien adopta decisiones que inciden en los derechos de terceros. A pesar de la gran cantidad de casos que conoce esta Sala por la vía de amparo, merece especial atención el conocimiento de casos como estos en donde, se denota una grave arbitrariedad en un acto vinculado con un tema de salud, pero además, es una violación a la libertad expresión, la cual tiene también un reconocimiento en el derecho internacional de los derechos humanos.
En una democracia, la autoridad política está sometida a una constante revisión de sus decisiones, ese es el equilibrio saludable que asegura el ejercicio razonable del poder presidencial o del parlamentario. Estimo que en este caso la actuación del Poder Ejecutivo configura una desviación poder, al realizar acciones que aparentan legitimidad, pero que carecen de sustento técnico y que lucen desproporcionadas. Desde la doctrina y desde la Ley General de la Administración Pública, la desviación de poder puede definirse como el ejercicio de potestades administrativas para fines distintos de los fijados por el Ordenamiento jurídico. La desviación de poder es “La persecución de un fin distinto del principal, con detrimento de éste...” (art.131.3 LGAP). Es un vicio en el fin del acto administrativo, el uso del poder con fines y por motivos distintos de aquellos por los cuales le fue conferido tal poder. Ante la arbitrariedad, se pone a prueba la salud de la democracia, se ponen a prueba los controles institucionales y judiciales. En ese contradictorio se asegura que no se desborde el ejercicio del poder, así debemos vivir, entre controles y balances, es la dialéctica que evita el autoritarismo. Es la dialéctica de control a la que debe someterse el Poder Ejecutivo, especialmente el Presidente de la República. El ejercicio del poder requiere controles, objeciones y disidencias. No es fácil para quien tiene una delicada responsabilidad política, acertar siempre en las decisiones. En este caso, el camino emprendido resultó inadmisible en un Estado democrático de Derecho, pero subsiste, incólume, el poder que tiene la Administración para emprender otras acciones que permitan tutelar la salud y asegurar la interdicción de la arbitrariedad, protegiendo, además, la libertad de un medio de prensa. En esta materia, el Poder Ejecutivo tiene amplias facultades para abordar los graves problemas de circulación de vehículos en todas las carreteras del país.
En este caso, además de la grosera arbitrariedad del Poder Ejecutivo en el ejercicio de sus potestades, se configura una restricción indirecta de la libertad de expresión y de pensamiento. El derecho requiere sutileza, requiere matices, por eso exige un marco jurídico que capte la impredecible realidad y con mayor brillo, si se trata del control del poder. Por eso el artículo trece, inciso tercero, de la Convención Americana de Derechos Humanos se refiere a los medios o vías indirectas para restringir la libertad de expresión: la definición es amplia, es un abanico inagotable de posibilidades, como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, de enseres y aparatos usados en la difusión de la información “…o por cualquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones..”; es una definición abierta, flexible, que incluye una multiplicidad de acciones abusivas en que el poder formal restringe un derecho tan importante. El derecho y su aplicación, requiere sutilezas, exige una valoración circunstanciada, para captar la realidad, tan rica en giros y enmascaramientos. Si no fuera así, de poco sirve el control jurídico, especialmente si se trata de potenciar la vigencia efectiva de los derechos fundamentales. En este caso, no sólo hay una grosera violación de derechos fundamentales al debido proceso, sino que la acción gubernamental pretende utilizar la orden sanitaria para limitar un medio de prensa. Esto parecía impensable hace treinta años, pero los cambios sociales y económicos, han transformado las estructuras económicas de los medios de prensa privados. No es el mejor escenario para darle más independencia a la prensa, pero esa es la realidad. Muchos medios de comunicación son parte de un conglomerado económico complejo, así se asegura su supervivencia económica y mediática. Esa es la realidad económica de muchos medios de prensa; su vigencia como medio de comunicación se logra mediante estructuras complejas de personas jurídicas en las que impera el poder anónimo del dinero, sin que uno pueda identificar, claramente, a los propietarios de esos medios; son parte de un entramado complejo en que convergen grupos económicos, con sus vasos comunicantes. Mediante esta estructura diversa y compleja, el medio de comunicación se financia gracias a un variado ensamble de empresas que no se dedican, directamente, a la actividad periodística. Todo ha cambiado en los medios de comunicación, es una realidad que no puede ignorarse, asumiendo, con inadmisible simplismo, que el medio de comunicación es sólo su denominación y actividad periodística. Es una transformación similar a la que ha ocurrido en las redes sociales, en las que impera el anonimato y las raíces de su actividad no son visibles para el ciudadano común. Los medios de prensa actuales, son parte de una estructura jurídica compleja, con diversidad de actividades y con vasos comunicantes en relación a la estructura económica a la que pertenece el medio de prensa. Se ha agravado el anonimato, al igual que ha ocurrido con las redes sociales, en las que ni siquiera existe seguridad sobre la identidad de la persona que se presenta como partícipe de un debate público. Este contexto empresarial y económico, descrito en términos muy sencillos, es lo que impregna el caso del cierre del Parque Viva. Las acciones indirectas pueden manifestarse en actos muy concretos y contundentes, como el cierre de una actividad por razones de salud o bien, podría ser, por acciones de la administración tributaria. La norma de la Convención Americana de Derechos Humanos posee una flexibilidad inusual, sin que limite qué puede considerarse acción indirecta, sino que deja que la realidad, tan variada e impredecible, se incluya dentro de una previsión normativa amplia y flexible. Este concepto abierto permitió que se considerara como restricción indirecta a la libertad de expresión, la colegiación obligatoria de los periodistas, según lo determinó la Opinión Consultiva OC-5/85, del 13 de noviembre de 1985, de la Corte Interamericana; se catalogó como una restricción indirecta al ejercicio de la libre expresión el que se exija la colegiación obligatoria del periodismo, en razones de orden público. Esta restricción limita de modo permanente un derecho fundamental, en perjuicio de quienes no cuentan con dicha colegiación. (ver consulta de la CoIDH, 1985: párrafos 48 y 76). Destaco también el Caso Ivcher Bronstein vs. Perú, la CoIDH catalogó como restricción indirecta a la libertad de expresión el uso arbitrario de las facultades regulatorias del Estado cuando son ejercidas para intimidar a un medio de comunicación (ver de la CoIDH, 2001: párrafos 158-163). Los precedentes de la Corte han señalado que también existe una restricción indirecta cuando las declaraciones de funcionarios públicos, pueden calificarse como formas de injerencia directa o indirecta, o presión inadmisible en los derechos de quienes pretenden contribuir a la deliberación pública expresando y difundiendo su pensamiento (ver CoIDH; 2009: párrafo 151); igualmente, se ha considerado como restricción indirecta cuando se exigen acreditaciones de manera desproporcionada o discriminatoria a los medios de prensa para la participación en eventos oficiales (ver CoIDH, 2009: párrafo 375). Todos estos ejemplos demuestran la amplitud de la previsión que contiene el apartado tercero del artículo trece del Pacto de San José. La norma mencionada no impone ninguna restricción, sólo define un concepto abierto que incluye todas las posibles acciones gubernamentales que aplican un procedimiento indirecto, para restringir la libertad de expresión. No hay nada novedoso en lo que señaló esta Corte en la decisión que suscribo, sólo aplicó al caso concreto, una previsión normativa cuya amplitud y flexibilidad permite conocer variadas formas de intervención del poder público sobre la libertad de expresión. Este caso posee dos elementos claves: el acto manifiestamente arbitrario en el cierre del parque Viva y la restricción indirecta a un medio de prensa, según las previsiones de la Convención Americana de Derechos Humanos.
La discusión y valoración de este amparo, me hizo recordar el voto 2016-15220. En esa sentencia admitimos una limitación indirecta de la libertad de expresión, a raíz de la reprochable actuación de los funcionarios del Banco Nacional. En esta decisión consigné una nota, en la que expreso mi visión sobre una variedad de acciones de los poderes fácticos, en los que la competencia de la Sala y las previsiones del Pacto de San José, resultan insuficientes. Hay espacios en los que no impera el Derecho, es el reinado de los poderes salvajes, según la terminología de Ferrajoli. Qué maravilloso sería que el estado social, la independencia del poder judicial, los derechos sociales, tuvieran las garantías que contiene el Pacto de San José para la libertad de expresión. Sólo imagino cómo sería la Justicia social y la democracia, si eso fuera posible. Hay un sesgo de la Convención Americana hacia los derechos individuales, con previsiones demasiado abstractas respecto de los derechos sociales. Empero, las normas del Pacto de San José sobre la libertad de expresión, son sabias y se adaptan a las transformaciones sociológicas y políticas, pero en otras áreas tan sensibles para la democracia y el estado social, impera la anomia y la “conveniencia política”. Creo que la nota que consigné en aquél voto, sobre un tema similar, todavía mantiene vigencia, todavía son pertinentes mis reflexiones sobre las limitaciones y debilidades de la juridicidad en nuestra democracia. Mi condición de juez no me convierte en un testigo de piedra sobre lo que estimo son las injusticias que flotan, muy claramente, en los casos que resolvemos. No me gusta esa indiferencia, no me gusta ese silencio. Los excesos desde el poder formal, requieren control y contrapeso; no tengo duda que también se requiere que los poderes fácticos, puedan ser más visibles ante la ciudadanía, comprendiendo que también ejercen un influjo que escapa a los controles sanos de una democracia plena. Tanto que queda por hacer, en lo electoral, en la participación, en la vigencia del estado social, las garantías laborales, tan venidas a menos en los últimos quince años, tanto que una Convención Colectiva parece un lujo y privilegio de una minoría de trabajadores. Efectivamente, un caso como este, que apasiona y provoca controversia, resulta de menor rango al lado del deterioro de nuestro Estado del bienestar. La frustración de tantos ciudadanos no nos debe llevar a sobredimensionar este litigio, hay otros retos y temas, en que enfrentamos la parálisis, el deterioro y el silencio. El tema del tránsito de vehículos del parque Viva, tiene solución, pero no puedo decir lo mismo de los problemas que enfrenta la democracia y el Estado social en Costa Rica. Son asignaturas pendientes que tiene la sociedad costarricense y que trascienden lo que se discute en este amparo. Agrego, textualmente, la nota que consigné en el voto del Banco Nacional, cuya vigencia, como lo expresé, se mantiene:
“Nota del Magistrado Cruz Castro. La libertad de opinión y sus distorsiones.
El amparo planteado por el Diario La Nación denuncia una grave distorsión que sufrió la libertad de prensa y el acceso a la información. Sin embargo, el acontecimiento que sustenta el amparo suscita una serie de interrogantes sobre el papel de los medios, la amenaza que actúen como poderes fácticos y la grave distorsión para la libertad de información que significa, la concentración de los medios informativos. Muchas acciones que distorsionan el estado de la opinión pública y las reglas de la democracia, no son conocidas en la instancia constitucional. Es el mundo de los poderes salvajes y sus antivalores, que pervierten lo que debe ser una sociedad democrática. Es muy saludable para la democracia, que las actuaciones atribuidas a algunos de los jerarcas de un banco estatal, puedan ser evaluadas a la luz del poder constitucional y de los derechos fundamentales. Empero, existe una amenaza que no puedo desconocer, respecto de las acciones de los poderes fácticos y que distorsionan totalmente las libertades fundamentales que sustentan la democracia.
La tutela y control de la libertad de opinión se concentra en los poderes públicos, pero hay otros actores que están lejos de ser evaluados por las instancias de control constitucional. Escapan a estos controles los poderes fácticos, dentro de los que puede citarse, entre otros, la Iglesia, el Ejército, las instituciones financieras y los medios de comunicación. La influencia de estos poderes les permite alterar los acontecimientos sociales y políticos, influir sobre las decisiones del sistema institucional.
Hasta el momento, el concepto de poderes fácticos se ha utilizado para señalar a aquellos actores o grupos que bajo determinados mecanismos influyen en las decisiones públicas. Sin embargo, es un concepto polémico y no existe unidad sobre su contenido. Incluso hay una divergencia de posturas entre los académicos. Las diferencias no sólo oscilan entre la calidad de la democracia y el papel de estos poderes en ella, sino incluso en los propios grupos que ostentan este poder fáctico. De esta manera, se equiparan los medios de comunicación, los bancos y el crimen organizado, cuando hay una notable diferencia en sus acciones ante el Estado. Pero estas diferencias tan importantes, no impiden admitir que existen una serie de actores muy poderosos que no son visibles y que no se someten a ningún tipo de escrutinio.
La concentración de los medios agrava la distorsión que pueden tener los poderes fácticos sobre la calidad de la democracia y el régimen de opinión pública. En el caso denunciado por el diario la Nación, no hay duda que ha existido una grave distorsión y contaminación del régimen de opinión, pero subsisten otras acciones de diversos actores, especialmente los poderes fácticos, que sin ninguna supervisión o limitación, condicionan el proceso democrático y la determinación de lo que es importante para la democracia. Estos poderes pueden condicionar el ejercicio de la acción política, pueden neutralizarla o manipularla. Todas estas distorsiones que provocan los poderes fácticos, pervierten el régimen de opinión pública.
La instancia constitucional y la tutela de los derechos fundamentales, no alcanza a los poderes fácticos, son actuaciones que trascienden el marco de control y discusión que caracteriza el poder constitucional. Se trata de un poder con incidencia fuera del sistema formal. Tantas acciones en que se pueden realizar al margen de la transparencia, invisible para la vigencia de los derechos fundamentales. Factores reales de poder sin control y visibilidad que pueden colonizar e incidir en el funcionamiento de las instituciones o el estado de opinión en una consulta o en una elección.
El poder económico de los poderes fácticos supera el que tiene una institución pública en la distribución de los recursos públicos para publicidad. Un poder fáctico, si no se autocontiene, puede financiar determinados candidatos o agrupaciones, también puede condicionar la participación de empresas de publicidad o encuestadoras respecto a un candidato que estimen “inconveniente”, provocando que un aspirante a diputado o presidente, pierda durante la contienda electoral, a sus mejores cuadros en la orientación de su campaña de opinión o de imagen. Se trata de acciones que no quedan registradas, son los poderes salvajes actuando sin control, sin transparencia, condicionando el estado de la opinión pública respecto de una elección o una decisión de relevancia política. La mitad del escenario político está en la penumbra, sólo pueden ser sometidos a un saludable escrutinio los actos y decisiones de los órganos y poderes de derecho público.
En octubre de 2010 se presentó el Segundo informe sobre la democracia en América Latina, llevado a cabo por el Programa de las Naciones Unidas para el Desarrollo (PNUD) y en el que participó Dante Caputo. El informe menciona los poderes fácticos que pueden influir en buena lid o en la penumbra, a las instancias oficiales de poder.
En la encuesta incluida en el informe mencionado sobre quién ejerce el poder real en América Latina, los porcentajes de la respuestas fueron los siguientes: grupos económicos, empresarios y el sector financiero, 79.7%; medios de comunicación, 65.2%; iglesias, 43.8%, sindicatos, 31%, poderes ilegales: mafias, narcotráfico, guerrilla, paramilitares, 26%, organizaciones de la sociedad civil, 12.8%; y sector indígena, 3.2%. Sobre los poderes formales las respuestas fueron: Poder Ejecutivo, 36.4%; Poder Legislativo, 12.8%; y Poder Judicial, 8.5%. Esta muestra sobre los diversos poderes no formales, incluye, por supuesto, a los medios de comunicación. Presiones o represalias como las que hemos conocido en este asunto, pueden presentarse en el mundo de los poderes fácticos, incluidos los medios de prensa, sin que se visibilicen o se puedan denunciar. Es oportuno en materia tan delicada, abandonar las visiones ingenuas o reduccionistas.
Esta es una reflexión que planteo a propósito de un caso relevante en el que se realiza una presión impropia contra un medio de prensa, empero en el mundo de los poderes salvajes, como lo denomina Ferrajoli, estas acciones se ejecutan en la penumbra y sin control constitucional. Son acciones contra los principios y las reglas de juego en una democracia, tal como ocurrió en este caso. El corolario saludable de este caso es que respecto de la libertad de opinión y de pensamiento, no pueden existir presiones o manipulaciones impropias. En la historia costarricense, el proceder del Diario La Nación siempre ha sido intachable, realmente ha dado en nuestra historia, lecciones de ética periodística, empero no puedo desconocer que en la opacidad de diversos actores que ejercen el poder fáctico, se ejecutan acciones más graves y reprochables que las que se atribuye a los jerarcas del Banco Nacional. Se trata de una cultura de los poderes desnudos, sin ideario ético, pues sólo interesa lograr una influencia impropia sobre los intereses de la democracia y la voluntad ciudadana.
No hay duda que los actores que ostentan y ejercen, de hecho, un gran poder, que incurren en actividades de presión, distorsión o manipulación, no pueden someter y violentar las reglas de un Estado de derecho. En ese mundo de presiones, condicionamientos, en esa cultura de los poderes salvajes, la instancia constitucional no puede hacer nada, de esta forma las acciones más graves en contra del régimen de opinión y de la democracia, quedan ocultas; se trata de un poder ilegítimo que se mantiene sumergido.
En el tema de la libertad de información y el derecho a la información, surgen amenazas que pueden tener relación con la actuación e incidencia de los poderes fácticos, como es la concentración económica y el control político de los medios de comunicación. Es decir, la acción de los poderes económicos fácticos puede condicionar la actividad de los medios sociales de opinión, es otra perspectiva de este fenómeno de variadas aristas. La concentración de medios provoca otra gravísima distorsión de la libertad de pensamiento y de opinión, enajenando estos valores constitucionales tan relevantes; el acceso a información y la libertad de opinión puede tener en la concentración de medios, una distorsión estructural.
Hay que reconocer que la propiedad de los medios de información es un poder, es una fuente de poder que debe propiciar pluralismo y convivencia democrática, pero se deben someter a reglas que derivan de la esencia del Estado de Derecho, impidiendo que el poder mediático se convierta en un poder absolutista. Se requiere que se someta a la ley, definiendo límites y vínculos para asegurar que la libertad de información y el derecho a la información fluya sin distorsiones. La segunda regla es la separación de poderes, aplicando la vieja regla de Montesquieu, del que no puede exceptuarse el cuarto poder, pues para que lo sea en un régimen democrático, debe responder a garantías que lo independicen del poder político y económico. Esta valoración requiere una profunda y equilibrada reflexión, la independencia de los medios de comunicación exige: independencia de los centros de poder económico y de los partidos políticos. En caso que existieran vínculos, que tales nexos sean tan transparentes como la información pública. Estas reglas y otras que propone L. Ferrajoli fortalecería la función de los medios de comunicación, para que respondan a un estado de opinión que derive del pluralismo y la auténtica participación ciudadana. Ferrajoli, en un artículo publicado en el 2004, titulado: “Libertad de información y propiedad privada: una propuesta no utópica”, propone diversas medidas para que el poder de los medios no se ejerza en la penumbra de los poderes fácticos, sino que responda a estos lineamientos: “….Garantizar la separación entre la administración de la información y la propiedad; instituir autoridades de garantía orientadas a la tutela de la libertad de prensa y de información; impedir toda clase de concentración de la propiedad; excluir los controles patronales o políticos; lograr que todos puedan acceder a los medios; favorecer con financiamientos adecuados a las televisiones no comerciales creando, además, infraestructuras comunes; afirmar el carácter objetivamente “público” de la televisión y ampliar el espacio de la televisión pública son solamente algunas de las reformas posibles para enfrentar el peligro inminente del “gran hermano”…” ( consultar: http://www.nexos.com.mx/ p=11115 ) En la evaluación de la concentración de medios de comunicación, tiene especial relevancia una política que fortalezca la función de la televisión en una sociedad democrática. Tantos atentados contra la libertad de información y de opinión que son imperceptibles, no sólo por la invisibilización cultural, sino por la impunidad de un sistema en los que hay poderes que actúan sin controles y en la opacidad. Queda mucho por hacer en la construcción y fortalecimiento de la democracia y de la dignidad del ciudadano….” XII.- DOCUMENTACIÓN APORTADA AL EXPEDIENTE. Se previene a las partes que de haber aportado algún documento en papel, así como objetos o pruebas contenidas en algún dispositivo adicional de carácter electrónico, informático, magnético, óptico, telemático o producido por nuevas tecnologías, estos deberán ser retirados del despacho en un plazo máximo de 30 días hábiles contados a partir de la notificación de esta sentencia. De lo contrario, será destruido todo aquel material que no sea retirado dentro de este plazo, según lo dispuesto en el "Reglamento sobre Expediente Electrónico ante el Poder Judicial", aprobado por la Corte Plena en sesión número 27-11 del 22 de agosto de 2011, artículo XXVI y publicado en el Boletín Judicial número 19 del 26 de enero de 2012, así como en el acuerdo aprobado por el Consejo Superior del Poder Judicial, en la sesión número 43-12 celebrada el 3 de mayo de 2012, artículo LXXXI.
POR TANTO:
Por mayoría se declara con lugar el recurso en todos sus extremos y, en consecuencia, se anula la orden sanitaria No. MS-DRRSCN-DARSA2-OS-0368-2022 emitida el 8 de julio de 2022, así como lo dispuesto en el oficio No. MS-DRRSCN-DARSA2-1724-2022 de 15 de julio de 2022. Se condena al Estado al pago de las costas, daños y perjuicios causados con los hechos que sirven de fundamento a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. El magistrado Cruz Castro consigna nota. El magistrado Salazar Alvarado consigna razones adicionales y agrega que, al haberse declarado con lugar el recurso de amparo que anula la citada orden sanitaria, las autoridades recurridas deberán, dentro del plazo de dieciocho meses posteriores a la notificación de la presente resolución, llevar a cabo todas aquellas medidas de coordinación que estimen pertinentes y necesarias a efectos de ejecutar el plan remedial al que se ha hecho referencia en este asunto; o, cualquier otro que estimen a bien, con el propósito de brindar una solución integral a la problemática de congestionamiento vial que afecta a los vecinos de La Guácima de Alajuela, en relación con los eventos de concentración masiva de personas y vehículos en el Parque Viva; y que, ante una eventual emergencia, podrían verse comprometidas la salud o la integridad física de las personas. La magistrada Garro Vargas salva parcialmente el voto en el siguiente sentido: lo declara con lugar, por sus propias razones, respecto de la libertad de expresión; y lo declara sin lugar respecto de la anulación de la orden sanitaria y del citado oficio, por cuanto estima que lo relativo a estos no procede ser conocido en esta jurisdicción. Comuníquese y notifíquese.-.
Fernando Castillo V.
Fernando Cruz C. Paul Rueda L.
Luis Fdo. Salazar A. Jorge Araya G.
Anamari Garro V. José Roberto Garita N.
Razones adicionales del magistrado Salazar Alvarado.
Concurro con el voto de mayoría, que declara con lugar el recurso y anula la orden sanitaria que se cita, al haberse demostrado, con toda claridad, que el cierre de Parque Viva fue un acto arbitrario, como represalia por la línea editorial que ha sostenido el Diario La Nación, respecto al Presidente de la República, y con el objetivo de silenciar a dicho medio, en claro detrimento de la libertad de expresión y la libertad de prensa, protegidas constitucional y convencionalmente.
No obstante, en vista de la anulación de la orden sanitaria N° MS-DRRSCN-DARSA2-OS-0368-2022, emitida el 8 de julio de 2022, así como lo dispuesto en el oficio N° MS-DRRSCN-DARSA2-1724-2022 de 15 de julio de 2022, estimo necesario que las autoridades recurridas (en conjunto con la Municipalidad de Alajuela, y cualquier otra institución pública competente), brinden una tutela efectiva a los derechos fundamentales de los vecinos de La Guácima de Alajuela.
Para ello, considero pertinente y oportuno, que este Tribunal Constitucional ordene, dentro del plazo de dieciocho meses posteriores a la notificación de la presente resolución, que se lleven a cabo todas aquellas medidas de coordinación que estimen pertinentes y necesarias a efectos de ejecutar el plan remedial al que reiteradamente se ha hecho referencia en este asunto; o, cualquier otro que estimen a bien, con el propósito de brindar una solución integral a la problemática de congestionamiento vial que afecta a los vecinos de La Guácima de Alajuela, en relación con los eventos de concentración masiva de personas y vehículos en el Parque Viva; y que, ante una eventual emergencia, podrían verse comprometidas la salud o la integridad física de las personas.
En el caso que nos ocupa, debe tenerse presente que esta Sala ha tutelado el derecho de los administrados a disfrutar de un espacio público físico que reúna las condiciones necesarias de accesibilidad, que permitan una adecuada movilidad, y garanticen la integridad física, la salud y la vida de las personas.
En la Sentencia N° 2014-013854 las 9:05 horas del 22 de agosto de 2014, se desarrolló lo que en doctrina se conoce como el “Derecho a la Ciudad”, que comprende lo siguiente:
“(…) En la "Carta Mundial por el Derecho a la Ciudad”, se reconocieron -entre otros- el derecho a la accesibilidad a los servicios de transporte público y al espacio público físico -lo que involucran tanto la movilización de los usuarios de un lugar a otro de la ciudad, y la posibilidad de contar con buenas aceras, zonas peatonales, etc.- y a la inclusión, que como este Tribunal ha sostenido implica la remoción de todas las barreras arquitectónicas que impidan la movilidad por propios medios así como la instalación de las ayudas necesarias para garantizar la accesibilidad de personas con discapacidad, niños, adultos mayores, etc. Por su parte, la "Convención sobre los Derechos de las Personas con Discapacidad", consagra el derecho de todos a ingresar, transitar y permanecer en un lugar, de manera segura, confortable y autónoma (…)”. (Criterio reiterado en la Sentencia N° 2015-04827 de las 9:40 horas del 10 de abril de 2015, y la Sentencia Nº 2016-009051 de las 9:05 horas del 1 de julio de 2016, entre otras resoluciones del Tribunal Constitucional).
En consecuencia, si un grupo de ciudadanos, en su circunscripción territorial, sufren problemas por obstaculización de vías públicas, con afectación de su calidad de vida y bienestar general, esto se enmarca dentro del concepto de intereses y servicios locales del numeral 169, de la Constitución Política, problemas cuyas causas tienen que ser identificadas con precisión y, más aún, las soluciones, a fin de implementarlas a la brevedad posible; para lo cual corresponde a las autoridades recurridas coordinar con las instituciones de nivel nacional con competencia para actuar sobre el problema. En efecto, la Sala ha desarrollado la obligación municipal de coordinar con otras instituciones estatales en aras de atender los intereses y prestar cumplidamente los servicios locales. En la Sentencia N° 1999-5445 de las 14:30 horas del 14 de julio de 1999, se manifestó lo siguiente:
“(...) se refieren a la obligación de coordinación que debe existir entre los gobiernos locales, las instituciones descentralizadas y el Poder Ejecutivo, para llevar a cabo las funciones que le han sido encomendadas, lo que debe ser analizado a partir de la naturaleza misma de la autonomía municipal. Es en virtud de lo dispuesto en el artículo 170 constitucional, que las municipalidades (entes corporativos locales) gozan de autonomía funcional, administrativa y financiera en la administración de los intereses y servicios locales (artículo 169 de la Constitución Política) (...)”.
Por otra parte, en este asunto es de relevancia tener presente el contenido del informe técnico N° CRC-GG-OF-012-2022, del 12 de julio de 2022, suscrito por el Gerente General de la Asociación Cruz Roja Costarricense, mediante el cual se reconocen las dificultades que enfrentan los vehículos de emergencias en las vías públicas de la zona al atender incidentes, situación que se agrava cuando se realizan eventos masivos en el Parque Viva. En dicho documento se le informó a la Ministra de Salud lo siguiente:“(…) En el caso específico objeto de la presente consulta, se conoce que las vías públicas de la comunidad de La Guácima de Alajuela y zonas aledañas son insuficientes para el rápido acceso de nuestras unidades de emergencia en la atención ordinaria de incidentes, que se puede agravar cuando se realizan eventos masivos, puesto que hemos conocido de situaciones en las cuales el simple desperfecto mecánico de un vehículo particular atrasa sustancialmente el ingreso de nuestras ambulancias. Históricamente los tiempos de respuesta para atender emergencias por parte de las diferentes instituciones se han visto afectados por la congestión vial en diversos puntos del territorio nacional, situación que sucede también en La Guácima de Alajuela, experimentando un incremento en el tiempo de traslado de los vehículos de emergencia de forma variable, generándose atrasos que van desde 10 minutos hasta los 30 minutos. En algunos casos específicos, el tiempo de llegada o salida de nuestros vehículos se ha extendido hasta más tiempo, ocasionado por la cantidad de vehículos que se ubican en los costados de las vías públicas aledañas al sitio del evento, e incluso por personas que transitan en las vías públicas, lo cual hace que se tenga que circular con mayor cautela. Para el caso concreto la estructura operativa de la Benemérita Cruz Roja Costarricense ha trabajado en tres escenarios que se atienden para un análisis de la situación que le permite a las autoridades tomar las decisiones según sus competencias. 1. Accidentes de tránsito: en la atención de un accidente de tránsito dependiendo de la gravedad del mismo, se hace necesario la llegada de diferentes recursos, ambulancias, camiones de rescate, e incluso la presencia del Cuerpo de Bomberos de Costa Rica. Cabe destacar que se pueden presentar casos en lo que los pacientes se encuentran prensados consecuencia del incidente, requiriéndose que a la escena se sume el equipo de rescate especializado según las necesidades. En cualquiera de los casos los pacientes requieren ser atendidos de forma inmediata, ya que en algunos casos la vida puede estar en riesgo inminente. 2. Incendios estructurales: en la atención de incendios estructurales generalmente responde el Cuerpo de Bomberos para extinguir el fuego y la Cruz Roja Costarricense acude a la escena para la atención de pacientes, por lo que dependiendo del tamaño del incidente, la cantidad de recurso que se hace presente se podría ver afectado por la dificultad de acceso a las instalaciones en riesgo y la evacuación de pacientes. Casos médicos: Dependiendo de la gravedad del caso, se requiere que el paciente reciba atención de forma expedita dado que el retraso en los tiempos de respuesta genera un impacto negativo en el pronóstico de la persona, afectando potencialmente la vida. Por ejemplo, en el caso de un paro cardiorrespiratorio se requiere acceso al paciente idealmente en menos de 10 minutos. Por otro lado, dependiendo de las circunstancias, existe la posibilidad de que la Unidad de Soporte Avanzado de Vida (USAV), en sitio, requiera del apoyo de una Unidad de Soporte Avanzado de Vida (USAV), dado que esta segunda ambulancia cuenta con personal de mayor nivel de capacitación, más equipamiento y por ende, mayor nivel resolutivo, ofreciéndole así una mejor oportunidad a la salud del paciente. Cabe destacar que al haber dos unidades o más en el lugar del siniestro se requerirá un espacio amplio y seguro para que los socorristas puedan brindar su atención (…)”.
Ante el escenario descrito, y por las razones expuestas, reitero que, con el fin de evitar una omisión a la tutela efectiva de la integridad física, la salud y la vida de los vecinos de La Guácima, así como de cualquier otro ciudadano, estimo necesario implementar el plan remedial de reiterada cita en este asunto; o, cualquier otra medida que las autoridades estimen necesaria, para solventar la problemática de congestionamiento vial que afecta dicha zona, en relación con los eventos de concentración masiva de personas y vehículos en el Parque Viva.
Luis Fdo. Salazar Alvarado RAZONES DIFERENTES Y VOTO SALVADO PARCIAL DE LA MAGISTRADA GARRO VARGAS respecto de la sentencia 2022-25167 (Parque Viva) ÍNDICE Contenido
A. Tipo de proceso B. Partes 1. Recurrentes 2. Recurridos C. Objeto impugnado D. Objeto protegido E. Admisibilidad y legitimación F. Pretensiones G. Marco fáctico
A. Fase de admisibilidad: los presupuestos procesales 1. Aspectos formales del escrito de interposición 2. La competencia del órgano a) El objeto protegido: los derechos fundamentales b) El objeto impugnado: la conducta presuntamente lesiva c) El carácter de la lesión d) La naturaleza del proceso 3. La capacidad y la legitimación de las partes B. Fase de conocimiento: aspectos por considerar y reconsiderar 1. Generalidades 2. Verificación definitiva de algunos presupuestos procesales a) El objeto impugnado: la orden sanitaria y el oficio conexo (1) La orden y el oficio conexo (2) La no idoneidad del amparo: jurisprudencia constitucional (a) Jurisprudencia en tiempos normales (b) Jurisprudencia durante la pandemia (c) El caso de Rolando Araya Monge (3) La idoneidad de la vía contencioso-administrativa (a) Previsión constitucional de control de la Administración (b) Alcance del análisis en la vía ordinaria (c) Ventajas de la vía ordinaria b) Legitimación (1) Marco del problema (2) Sobre el alegato que solo tendrían legitimación ante la Sala (3) Alegatos de los recurrentes sobre la causa de la legitimación (4) Consideraciones de la sentencia sobre la dependencia (5) Los estados financieros y la dependencia aludida
A. Introducción B. Posibilidad de conocer de la lesión invocada C. Inexistencia de la violación del artículo 13.3 de la CADH 1. Brevísimo análisis exegético del artículo 13.3 de la CADH 2. Consecuencia sustantiva de la no acreditación de la dependencia 3. Inexistencia de la violación, aunque hubiese legitimación a) Sobre la afectación a la libertad de expresión b) Sobre la arbitrariedad de los actos (1) Si los actos no son arbitrarios: consecuencias (2) Si los actos son arbitrarios: consecuencias D. Consideraciones sobre la jurisprudencia invocada en el expediente 1. La jurisprudencia de la Corte IDH 2. La jurisprudencia de la Sala Constitucional E. Reflexiones adicionales sobre la inexistencia de la violación F. Motivos para acoger el recurso respecto de la libertad de expresión 1. Marco normativo y jurisprudencial 2. Marco fáctico 3. Consideraciones sobre las manifestaciones 4. Conclusión
A. El dilema: “ordinariar” el amparo o respetar su carácter sumario 1. Sobre los aspectos probatorios 2. Sobre las partes allegadas al proceso B. Las consecuencias de la anulación de los actos impugnados C. Sobre el alcance de la condenatoria en daños y perjuicios
Consideraciones preliminares Con el respeto acostumbrado a los demás integrantes de la Sala Constitucional y a las partes de este proceso, me propongo poner de manifiesto mis razones diferentes para declararlo con lugar –respecto de la violación de la libertad de expresión– y los argumentos de mi voto salvado parcial por el que lo declaro sin lugar –respecto de la anulación de la orden sanitaria y el oficio conexo impugnados que dictó el Ministerio de Salud–.
De previo, haré una brevísima descripción de la litis. Luego explicaré mi posición. Sin embargo, para facilitar su comprensión, desarrollaré primero mi voto salvado parcial y luego mis razones diferentes. Por último, haré unas reflexiones sobre el expediente y la sentencia misma que confirman lo dicho en el voto salvado.
Muy a mi pesar este texto es extenso, pero está diseñado para que pueda ser leído, al menos, en tres niveles de profundidad. El primero, superficial: para eso bastará leer el índice, el resumen ejecutivo y algunos pasajes subrayados que aparecen en diversas páginas. El segundo, un poco más detenido, que supone leer todo el texto de corrido y seguramente saltando las abundantes transcripciones de la jurisprudencia. Finalmente, uno más exhaustivo, que exige leerlo todo, incluyendo las notas a pie de página.
He debido explayarme en algún tema por su importancia o por exigencias de la finalidad pretendida. Explico esto último: no es lo mismo contradecir lo que se afirma en la sentencia que argumentar que algo no se dijo en ella. Ese es el motivo por el cual, por ejemplo, lo relativo al examen de la legitimación en la fase de conocimiento del recurso es tan largo, pues era pertinente transcribir y glosar pasajes de los escritos de los recurrentes y de la sentencia.
Resumen ejecutivo Se pretende condensar aquí las ideas principales sobre lo siguiente: el voto salvado respecto la anulación de los actos impugnados, las razones diferentes por las que declaro con lugar el recurso en lo atinente a la lesión de la libertad de expresión y las reflexiones sobre la sentencia.
El caso Unos periodistas del periódico La Nación impugnan una orden sanitaria y un oficio conexo dictados sobre el Parque Viva, que pertenece al Grupo Nación S. A. (en adelante, Grupo Nación), que es propietaria del periódico. Aducen que su libertad de expresión ha sido lesionada en virtud de tales actos.
Posición de la mayoría de la Sala Declara con lugar el recurso de amparo en todos sus extremos, anulando los actos administrativos impugnados, pues estima que son arbitrarios y manifestaciones de abuso de poder y, a tenor del artículo 13.3 de la Convención Americana sobre Derechos Humanos (CADH), fueron unos medios indirectos para lesionar la libertad de expresión de los recurrentes.
Mi posición Voto salvado parcial. Declaro sin lugar el recurso respecto de la anulación de los actos impugnados, pues estimo que corresponde que sean conocidos en la vía ordinaria de la legalidad y no en un recurso de amparo. Lo anterior con fundamento en los siguientes argumentos.
Todo recurso de amparo es analizado por la Sala Constitucional en dos fases:
Fase de admisibilidad. En esta se examina si prima facie el recurso cumple con los presupuestos procesales: 1) los aspectos formales; 2) la competencia del órgano, que está determinado por el objeto que se pretende proteger (los derechos y libertades fundamentales que se alegan violados), el objeto impugnado (las conductas que se acusan de arbitrarias), el carácter de la lesión (si es directa o indirecta), y el respeto por la naturaleza del proceso (que es sumario); 3) la capacidad y la legitimación de las partes.
En el presente caso, podría haber duda sobre un aspecto que determina la competencia del órgano, esto es, si el objeto impugnado es susceptible de ser conocido en un proceso sumario. La interrogante surge porque habitualmente la Sala –por diversos motivos debidamente justificados– no ha conocido de órdenes sanitarias y porque la que aquí se impugna versa sobre aspectos técnicos particularmente complejos. Esto hace pensar que el recurso de amparo no es la vía idónea para que la Sala se pronuncie sobre la alegada arbitrariedad de esos actos administrativos. También surge la duda sobre si los recurrentes tienen legitimación, pues aducen la lesión a la libertad de expresión de ellos, pero los actos administrativos impugnados recaen sobre un inmueble que es propiedad del grupo empresarial al que pertenece el periódico en el que laboran. Sin embargo, como se alega que tales actos son medios indirectos para lesionar la libertad de expresión, que el artículo 13.3 CADH proscribe, pese a las dudas, podría parecer razonable que la presidencia de la Sala haya admitido el recurso para que fuera conocido por el fondo.
Fase de conocimiento: En esta, una vez recabados todos los informes de la parte recurrida y cualquier otro material que se haya allegado al expediente, la Sala realiza un segundo análisis en dos direcciones: verifica de manera definitiva si en efecto se cumplen con los presupuestos procesales y, solo después de constatarlo, analiza por el fondo el asunto.
Respecto de lo primero, en el presente caso, a mi juicio, corresponde examinar los dos puntos sobre los que surgen dudas razonables: si el objeto impugnado puede conocerse en proceso sumario y si hay legitimación de los recurrentes.
Luego del estudio del marco fáctico, de la constatación del acervo probatorio (numeroso, voluminoso, proveniente de múltiples autoridades involucradas y que en su mayoría versa sobre aspectos técnicos y particularmente complejos), de las normas y de la jurisprudencia aplicable (dictada antes y durante la pandemia) concluyo que el objeto impugnado no correspondía ser examinado en un proceso sumario como es el recurso de amparo. En esa línea, explico los motivos por los que la vía contencioso-administrativa es la sede llamada a examinar el reproche de los recurrentes, no solo por expresa previsión constitucional, sino porque ofrece muchas más ventajas para el examen riguroso de la cuestión y la posibilidad de dictar medidas cautelares e, incluso, solicitar un trámite preferente. También, después de examinar el marco fáctico y constatar la ausencia de pruebas que sustenten una vinculación entre lo pretendido y lo impugnado, advierto que los recurrentes no tienen legitimación. Además, desvirtúo el alegato que ellos presentan, en el sentido de que no tenían legitimación para acudir a la vía contencioso-administrativa para impugnar los actos administrativos cuestionados y para aducir allí la lesión a la libertad de expresión.
En consecuencia, al no cumplirse con dos presupuestos procesales insoslayables (competencia y legitimación), estimo que corresponde declarar sin lugar el recurso respecto de la anulación de la orden sanitaria y el oficio conexo. Es decir, no me pronuncio sobre estos, sino que señalo que el examen sobre su presunta arbitrariedad corresponde ser realizada en la vía contencioso-administrativa.
Razones diferentes para declarar con lugar el recurso respecto de la lesión a la libertad de expresión.
De previo a justificar mi estimatoria parcial del recurso, explico que –pese a que los actos impugnados no puedan ser conocidos en este recurso–, en virtud del principio iura novit curia sí cabe hacerlo respecto de otros actos que se reflejan en el marco fáctico. Además, como lo que se advierte del análisis de esto son unas lesiones por vías directas a la libertad de expresión, los recurrentes sí tendrían legitimación para ser parte de este proceso.
En primer término, expongo los motivos por los cuales estimo que no se configuró una violación al artículo 13.3 CADH. Analizo la jurisprudencia referida en la sentencia, tanto de la Corte IDH como de la Sala Constitucional, y muestro que más bien confirma mi tesis. Después me refiero a unos escenarios que no se dieron en el presente caso, pero cuyo estudio permite hacer unas reflexiones sobre el tema en discusión. Ahí pongo de relieve que todo apunta a que no hubiese bastado con probar la dependencia económica del periódico La Nación respecto del Parque Viva para declarar la lesión de la libertad de expresión.
Finalmente, luego del examen de las pruebas allegadas y de los hechos públicos y notorios, y en virtud de las normas y jurisprudencia aplicables, constato y declaro la violación a la libertad de expresión, por parte del señor presidente de la República, debido a unas manifestaciones que constituyeron una censura directa, expresa, aunque relativa, sobre los sujetos (los recurrentes) y el contenido (lo comunicado).
Consideraciones finales sobre el expediente y la sentencia. Estas permiten confirmar lo dicho en el voto salvado, en el que sostengo que el recurso de amparo no era el proceso en el que se debió conocer sobre ese objeto impugnado. En concreto, me refiero al dilema que se presenta entre “ordinariar” un recurso de amparo o resolverlo sin tener todos los elementos suficientes (prueba y partes) y a las implicaciones de haberse decantado por la segunda opción. También aludo a las consecuencias de la anulación de los actos impugnados y su posible impacto en temas de salud y seguridad públicas. Finalmente, hago unos comentarios sobre el alcance de la condenatoria en daños y perjuicios ?cuya ejecución solo puede ser solicitada por los recurrentes y circunscrita a la lesión de la libertad de expresión declarada, no al grupo empresarial propietario del medio en el que laboran?. No obstante, esta sentencia da la posibilidad a este de interponer un proceso de conocimiento por responsabilidad del Estado, en el que, partiendo de la declaración de nulidad de esos actos realizada en un proceso sumario, solo tienen que mostrar el nexo causal entre tales actos y los daños y perjuicios que aleguen.
Breve análisis de los elementos procesales del presente asunto Tipo de proceso El presente es un recurso de amparo, que es uno de los procesos que la Sala Constitucional conoce, establecido en los artículos 48 de la Constitución Política y 29 de la Ley de la Jurisdicción Constitucional (LJC).
Partes Recurrentes Los recurrentes son: Armando Manuel González Rodicio, Armando Mayorga Aurtenechea, Daniela Cerdas Espinoza, Diego De Jesús Bosque González, Esteban Enrique Oviedo Álvarez, Fabrice Le Luos, Guiselle Mora Morales, Harlen Natasha Cambronero Jiménez, Juan Fernando Lara Salas, Kimberly Herrera Salazar, Krisia Chacón Jiménez, Óscar Gerardo Rodríguez Arguedas, Ronald Arturo Matute Charpentier y Vanessa Auxiliadora Loaiza Naranjo. Todos, según se afirma, periodistas y miembros de la redacción del periódico La Nación.
Recurridos Los recurridos son: Rodrigo Chaves Robles, en su condición depresidente de la República yJoselyn María Chacón Madrigal,en su condición de ministra de Salud.
Objeto impugnado A tenor del escrito de interposición, el objeto impugnado es la orden sanitariaMS-DRRSCN-DARSA2-OS-0368-2022 y,por conexidad,el oficio MS-DRRSCN-DARSA2-1724-2022. Esto se deriva claramente de la petitoria en la que solicitan que “se declare con lugar el presente recurso de amparo, se anule la suspensión temporal del permiso sanitario de funcionamiento de Parque Viva y los actos administrativos que la ordenan”.
Objeto protegido Los recurrentes afirman lo siguiente:
“Las actuaciones arbitrarias (…) constituyen una grosera desviación de poder para vulnerar nuestro derecho a la libre expresión y el derecho de los costarricenses a recibir informaciones y opiniones sobre asuntos de interés público de conformidad con el artículo 29 de la Constitución Política[1] y el artículo 13.3 de la Constitución Americana sobre Derechos Humanos[2]” (escrito de interposición, p. 1).
Es decir, estiman que las actuaciones de parte de los recurridos lesionan la libertad de expresión por vías indirectas.
También aducen que esas mismas actuaciones violan el principio de legalidad y el principio de igualdad, establecidos respectivamente en los artículos 11[3] y 33 de la Constitución Política[4].
Admisibilidad y legitimación Los recurrentes estiman que el recurso debe admitirse porque los actos administrativos lesionan los derechos y principios mencionados. Es decir, consideran que el acto es arbitrario, por infracción del principio de legalidad y del principio de igualdad, y constituye una violación a la libertad de expresión de los propios recurrentes y del derecho a la información de los costarricenses. Al respecto señalan:
“Los actos administrativos empleados para ejercer censura indirecta o velada mediante presiones económicas relacionadas con el medio en que laboramos carecen de todo sustento técnico y no persiguen ningún fin legítimo, sino una represalia por la línea crítica del periódico y un intento de silenciarlo” (ibid.)[5].
Después afirman:
“La ilicitud de las presiones indirectas sobre los periodistas ha sido objeto de la jurisprudencia de la Corte Interamericana de Derechos Humanos” (ibid.).
Y luego citan varios casos resueltos por la Corte Interamericana de Derechos Humanos (Corte IDH)[6] e inmediatamente dicen:
“En este contexto, el recurso que presentamos es admisible y en consecuencia solicitamos que la Sala le dé el curso correspondiente. Efectivamente, lo actuado por los funcionarios recurridos (…) configura un supuesto evidente de desviación de poder (…). La particularidad y el carácter especial y extraordinario del caso es que no se trata de un asunto de mera legalidad o de legalidad ordinaria, es decir, de mera infracción legal, susceptible en consecuencia de ser conocido en la jurisdicción ordinaria correspondiente, sino que la desviación de poder en este caso concreto es el instrumento ideado para vulnerar nuestros derechos y libertades fundamentales de modo directo e inmediato, y capaz de producir este resultado. La violación directa o inmediata de derechos y libertades, como consecuencia inevitable de los fines espurios perseguidos de consuno por los recurridos y de los actos que los manifiestan, encaja como motivo en el ámbito ambiente de protección propio del recurso de amparo, a tenor de lo dispuesto en el artículo 29 de la Ley de la Jurisdicción Constitucional” (ibid., p. 2).
Es decir, entienden que la conducta administrativa es un supuesto de evidente desviación de poder, que tiene como fin lesionar la libertad de expresión y de información (en adelante, se hablará de la libertad de expresión para referirse a ambas, tal como lo hace el título del artículo 13.1 de la CADH ). Consideran que ahí radica lo que hace procedente que la Sala admita este recurso. Entonces, por estimar que esos actos administrativos han lesionado sus derechos y libertades fundamentales, afirman que el asunto no es de legalidad, sino que es propio de un recurso de amparo y, por eso, debe ser conocido y resuelto en esta jurisdicción y no en la jurisdicción ordinaria.
En ese sentido, indican lo siguiente:
“Si se considera erróneamente ese caso como un tema que debe ser conocido en las sede ordinaria por tratarse de un asunto de legalidad, se condenaría a los periodistas a no acceder a la tutela judicial, pues careceríamos de legitimidad para cuestionar los hechos aquí descritos en sede contencioso administrativa porque, tratándose de ataques indirectos a la libertad de expresión y prensa, los actos administrativos cuestionados no se dirigen en nuestra contra, sino que lesionan nuestros derechos de forma indirecta. Así, como máximo, podríamos actuar como coadyuvantes en una acción ordinaria, siempre sujetos a la suerte del principal y con limitados alcances, sobre todo en cuanto a la libertad de expresión, que es nuestra preocupación fundamental. La sede constitucional que tutela nuestro derecho a ejercer libremente el periodismo es el único medio apto para defendernos de los abusos que, de forma indirecta, esgrimen en nuestra contra los recurridos” (ibid.).
Esto es, reiteran que no se trata de un asunto de legalidad, y aducen otro argumento: si se les rechazara este recurso de amparo, se les lesionaría el derecho a la tutela judicial.
Además, para mostrar la vinculación entre los actos impugnados y las presuntas lesiones a la libertad de expresión, en primer término, aducen lo siguiente:
“No puede ser más evidente la amenaza de destruir a las empresas como represalia por las líneas editoriales de los medios de su propiedad y las actuaciones de sus directores periodísticos, mencionados en el discurso pronunciado por el ahora presidente el 29 de enero” (ibid., p. 4).
Luego explican los temas que, a juicio de los recurrentes, disgustaron al aquí recurrido y afirman lo que es medular para este asunto:
“En todos los casos, se trataba de publicaciones periodísticas serias, bien documentadas y totalmente pertinentes. No publicarlas habría afectado directamente el derecho de los ciudadanos a informarse sobre temas de interés público y, en el momento específico, el principio del votante informado. Como consecuencia del cumplimiento de ese deber y el ejercicio de ese derecho, a los directores y a nuestros colaboradores periodísticos se nos advirtió de la destrucción de las estructuras que nos permiten ejercer el periodismo independiente.
Parque Viva es una de esas estructuras, en el caso de Grupo Nación. Fue creado, precisamente, para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de ingresos experimentada por los medios de comunicación en todo el mundo debido a la migración de la publicidad hacia los gigantes de la Internet, como Google y Facebook. Ese hecho es público y consta en diversas manifestaciones de la empresa y sus personeros desde al menores el 2013. En el informe a los accionistas del período 2013-2014, visible en la página de nación.com https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html la presidencia ejecutiva afirmó: ?…los cambios en la industria, en el consumo de medios y en el ambiente competitivo nacional, seguirán retando al negocio de medios impresos. Conscientes de ese panorama, diseñamos, hace dos años, una estrategia para enfrentarlo. Mientras maduran las nuevas iniciativas, especialmente en el ámbito digital, todo medio periodístico requerirá de una fuente complementaria de ingresos, menos dependiente de la vena de publicidad. En consecuencia, como lo anunciamos el año pasado, invertimos importantes recursos y esfuerzos en la creación del Parque Viva, en la Guácima de Alajuela'” (ibid., p. 4; el destacado no es del original).
De ese modo, explican el ligamen entre el Parque Viva y el periódico La Nación, señalando que aquel es fuente de ingresos para este. A partir de esto alegan que la orden sanitaria[7], al impedir el funcionamiento del Parque Viva, deja sin soporte financiero al periódico, por lo que estiman que ese acto causa una lesión a la libertad de expresión.
Es decir, entienden que la orden sanitaria debe clasificarse dentro de “cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones” (artículo 13.3 CADH), pues tuvo como finalidad última lesionar la libertad de expresión, en el contexto de amenazas propinadas por el señor Rodrigo Chaves, primero durante la campaña electoral, luego como presidente electo, y también en el ejercicio del cargo.
Pretensiones Los recurrentes en su petitoria se refieren a tres aspectos: Por un lado, como se ha dicho, solicitan la anulación de la orden sanitaria. Por otro, piden que la Sala “le ordene al Presidente de la República y la Ministra de Salud abstenerse de ejecutar actos tendientes a lesionar directa o indirectamente la libertad de expresión de que gozamos los recurrentes, como todo ciudadano costarricense”. Y, finalmente, indicaron: “Renunciamos expresamente a pedir condenatoria en daños, perjuicios y costas”.
Marco fáctico Sin pretender sustituir el elenco de los hechos que están en consignados en la sentencia, es oportuno hacer sucintamente una relación del marco fáctico de la litis, con el fin de ofrecer el contexto que facilite la debida comprensión del voto salvado parcial y de las razones diferentes.
Muchos son hechos públicos y notorios y todos tienen respaldo documental en el expediente.
1-. El Grupo Nación tiene dos unidades de negocio de relevancia para el análisis del caso concreto. El periódico La Nación, obviamente relacionada con el ejercicio periodístico, y el Parque Viva, dedicada a la realización de actividades de entretenimiento. Este recinto, ubicado en La Guácima de Alajuela, contaba con permisos sanitarios para la realización de eventos.
2.- El 29 de enero de 2022, durante la campaña electoral presidencial, el actual presidente de la República hizo manifestaciones en los siguientes términos:
“Vamos a causar la destrucción de las estructuras corruptas de La Nación y de Canal 7. Óigame Ignacio Santos, óigame el otro (...) René Picado, óigame Armando González. Aquí estamos. Sígannos invisibilizando en lo nuevo, en lo bueno y acusando injuriosamente en lo malo, porque ustedes ya no ponen presidentes en Costa Rica”.
3.- Los recurrentes de este proceso son periodistas de La Nación.
4.- Denuncia: En el contexto de la realización de los eventos masivos organizados en el Parque Viva se habían generado noticias sobre el colapso vial en la zona. Además, el día 5 de julio de 2022 se presentó una denuncia anónima ante las autoridades del Ministerio de Salud, en la que se alegaba la existencia de peligros derivados de ese colapso, particularmente, las dificultades de los cuerpos de socorro para atender toda clase de emergencias, y se solicitaba la clausura del Parque Viva. Informes preliminares: Se requirió un criterio técnico a los jerarcas del MOPT sobre el particular, se hizo una inspección físico sanitaria en el Parque Viva, elaboración de informes técnicos, y una reunión del Comité Asesor Técnico de Concentraciones Masivas ?integrado por la ministra de Salud en calidad de coordinadora, el ministro de Obras Públicas y Transportes, y por funcionarios de la Cruz Roja Costarricense, de la Dirección de la Policía de Tránsito, de la Comisión Nacional de Emergencias, del Cuerpo de Bomberos, del Sistema de Emergencias 9-1-1 y de Gestión de Riesgo del Ministerio de Salud?.
5.- El 6 de julio de 2022, en conferencia de prensa, se le consultó al presidente de la República su criterio sobre el tema de la CCSS y la solicitud que se hizo a la Superintendencia General de Valores (Sugeval) respecto a los bonos emitidos por Grupo Nación. Al contestar, dijo que existía un tema muy serio con esos bonos que gobiernos anteriores habían comprado. Indicó que estaba preocupado por la capacidad de pago que tendría ese grupo, debido a los resultados contables y a la desviación de activos que, a su juicio, debilitan la probabilidad que el pueblo de Costa Rica pueda recuperar esos recursos que son sustanciosos.
6.- El 7 de julio de 2022, el director ejecutivo de Grupo Nación dio amplias explicaciones públicas y mencionó el papel de Parque Viva en el flujo de la caja del Grupo Nación.
7.- Orden sanitaria. Las autoridades del Área Rectora de Salud Alajuela 2 del Ministerio de Salud emitieron la orden sanitaria MS-DRRSCN-DARSA2-OS-0368-2022 del 8 de julio de 2022 ?notificada ese mismo día? en la cual se dispuso lo siguiente:
“En atención a denuncia anónima N° 243-2022, traslada (sic) mediante oficio MS-DM-5756-2022 desde el Despacho de la Ministra de Salud, por aparentes problemas estructurales, incumplimientos del plan de emergencia y condiciones de seguridad e higiene en el Parque Viva, y según consta en el acta de inspección ocular MS-DRRSCN-DARSA2-1639-2022 del día 05 de julio del 2022 al ser las 13:50 horas se realizó la respectiva visita en el sitio para valorar lo señalado en la denuncia. Así mismo, en concordancia con el principio precautorio y en atención a los oficios: MS-DM5814-2022, mediante el que se remite el Informe Técnico DVT-DGIT-2022-339 emitido por la Dirección General de Ingeniería de Transito del Ministerio de Obras Públicas y Transportes, el oficio MS-DM-5838-2022 mediante el que se remite el Acta N°28643-SMOPT-SP del Comité Asesor Técnico en Concentraciones Masivas, se ordena mediante el siguiente acto administrativo la suspensión temporal del Permiso Sanitario de Funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 (parque temático, autódromo, anfiteatro, eventos deportivos, culturales, ferias y exposiciones varias) hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los Criterios técnicos emitidos por el Benemérito Cuerpo de Bomberos de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud. Así mismo, su representada deberá presentar un plan remedial que abarque la solución a la problemática de los accesos y el consecuente riesgo a la Seguridad y Salud Publica ante la realización de Actividades de Concentración Masiva, y la generación de una eventual emergencia en dichas actividades”.
8.- Oficio conexo. Después de recabar los criterios técnicos del director del Cuerpo de Bomberos y de la presidenta de la Cruz Roja Costarricense, se dictó el oficio MS-DRRSCN-DARSA2-1724-2022 del 15 de julio de 2022, mediante el cual el director del Área Rectora de Salud Alajuela 2 le indicó al representante legal del Parque Viva que, como seguimiento a lo dispuesto en la orden sanitaria, se remitían los informes técnicos CBCR-027150-2022-OPB-00741 del Cuerpo de Bomberos, CRC-GG-SO-OF-074-2022 y CRC-GG-OF-012-2022 de la Cruz Roja Costarricense, 911-DI-2022-2202 del Sistema de Emergencias 9-1-1 y el DM-2022-3121 del Ministerio de Obras Públicas y Transportes (MOPT). Adicionalmente, se resolvió lo siguiente:
“Una vez conocidos y analizados dichos documentos de acuerdo con lo indicado en la orden de cita, queda demostrado que los mismos señalan que existe un evidente problema para la atención de emergencias (accidentes de tránsito, incendios estructurales, casos médicos, entre otros), por parte de las Instancias de Primera Respuesta tanto en las comunidades aledañas, como para los mismos asistentes a los eventos de concentración masiva que se realizan en el Parque Viva, debido a problemas de tránsito y acceso al lugar, por lo tanto, en concordancia con el principio precautorio y en aras de garantizar el cumplimiento de los artículos 21 y 50 de la Constitución Política, el artículo 11, 152, 153 y 154 de la Ley General de la Administración Pública y los artículos 1, 2, 3, 37, 38, 39, 322, 325, 348, 355, 356, 357 y 364 de la Ley General de Salud, se confirma en todos sus extremos y alcances la Orden Sanitaria MS-DRRSCN-DARSA2-OS-0386-2022”.
9.- El 13 de julio de 2022, en conferencia de prensa, el mandatario se refirió a la reacción del Grupo Nación y el periódico La Nación sobre el cierre del Parque Viva.
10. El 20 de julio de 2022, en conferencia de prensa, el señor presidente señaló, entre los motivos para cancelar el plan del tren eléctrico, la existencia de un ramal que pasa por Parque Viva.
Salvé el voto parcialmente porque estimo que la Sala Constitucional no debió pronunciarse sobre los actos administrativos impugnados (la orden sanitaria y el oficio conexo), debido a que el caso bajo estudio no cumple con los presupuestos procesales que en todo recurso de amparo deben acreditarse ante este órgano jurisdiccional.
Para desarrollar mis argumentos haré una referencia a las fases procesales de todo recurso de amparo que es resuelto por el fondo.
Fase de admisibilidad: los presupuestos procesales Para que un recurso de amparo supere la fase de admisibilidad, la Sala Constitucional debe verificar tres elementos: los requisitos formales de la demanda, su competencia para conocer del asunto y la legitimación de las partes.
Aspectos formales del escrito de interposición Corresponde, en primer término, constatar si el escrito reúne unas mínimas condiciones[8]. Como el recurso de amparo es un proceso informal, estas son muy pocas: nombres de los recurrentes y recurridos, los hechos, el objeto impugnado (qué acto, omisión o vía de hecho se ataca), el objeto protegido (los derechos fundamentales o libertades públicas presuntamente conculcados, que sería aquello que la Sala protegería), las pruebas y la pretensión. En realidad, lo indispensable es la determinación de quién es la parte recurrente, relatar los hechos y aportar un mínimo de sustento probatorio. Lo demás, el tribunal lo puede deducir o, si tiene dudas, puede dictar una prevención (un acto en el que ordena que le aclare lo que estime necesario) de conformidad con el artículo 42 de la LJC[9].
La competencia del órgano Luego la Sala debe verificar si es competente para conocer del asunto. La competencia está condicionada por varios elementos: el objeto impugnado, el objeto protegido, el carácter de la lesión y la naturaleza del proceso.
Artículo 29. El recurso de amparo garantiza los derechos y libertades fundamentales a que se refiere esta ley, salvo los protegidos por el de hábeas corpus.
Procede el recurso contra toda disposición, acuerdo o resolución y, en general, contra toda acción, omisión o simple actuación material no fundada en un acto administrativo eficaz, de los servidores y órganos públicos, que haya violado, viole o amenace violar cualquiera de aquellos derechos.
El amparo procederá no sólo contra los actos arbitrarios, sino también contra las actuaciones u omisiones fundadas en normas erróneamente interpretadas o indebidamente aplicadas. (El destacado no es del original).
En el presente caso, prima facie, la Sala es competente para conocer de la orden sanitaria y el oficio conexo que los recurrentes piden anular, pues son unas disposiciones de servidores públicos y se aduce que ha violado derechos y libertades fundamentales que se garantizan mediante el recurso de amparo. No obstante, como luego se verá con detalle, la Sala en la gran mayoría de los casos suele rechazar ad portas recursos de amparo contra órdenes sanitarias, alegando que su conocimiento no se aviene con las características propias de un proceso sumario y porque siempre se ha considerado que es el acto inicial del procedimiento, por lo que es a partir de ese momento en el que las partes pueden ejercer su derecho de defensa. De manera que para admitirlo debía tener fundadas razones que le apartaran de esa línea jurisprudencial. A esto me referiré casi de inmediato al señalar la necesidad de respetar la naturaleza del recurso de amparo. Basta ahora decir que, sobre la admisibilidad del presente recurso, cabe una duda en lo que respecta al objeto impugnado, y no solo por lo que se ha apuntado, sino porque esos actos no recaen directamente sobre los recurrentes sino sobre un inmueble propiedad del mismo grupo empresarial que es dueño de la empresa para la que laboran los recurrentes, que no es la sede donde realizan sus labores. Aunque este es un aspecto que hace relación más bien a la legitimación, como luego se examinará. En todo caso, seguramente ante la duda, se vio prudente cursarlo.
Desde el primer momento de su historia, esa Sala señaló:
“En buena doctrina constitucional el criterio se basa en que cualquier infracción de legalidad, en cuestiones relacionadas con esos derechos, puede causar eventualmente lesión de aquellos derechos fundamentales, pero cuando se trate de una lesión simplemente indirecta, por existir dentro del aparato estatal, órganos que pueden y deben resguardar esos derechos y reparar su violación, les corresponde a ellos conocer y no a esta Sala” (sentencia 1610-90)[13].
Merece ser citada otra sentencia que, además de recoger ese precedente de 1990, señala:
“Se impone advertirle que la procedencia del recurso de amparo, en general, está condicionada, no sólo a que se acredite la existencia de una turbación —o amenaza de ésta— a uno o más de los derechos o garantías contemplados en la Carta Política o los de carácter fundamental establecidos en los instrumentos internacionales de derechos humanos suscritos y debidamente incorporados al ordenamiento jurídico, sino también a que el agravio alegado comporte una amenaza o quebranto directo y grosero de aquellos derechos, que ponga en peligro aquella parte de su contenido que les es esencial y connatural, es decir, el núcleo que les presta su peculiaridad y los hace reconocibles como derechos de una naturaleza determinada. En este sentido, la jurisprudencia constitucional ha precisado que el problema de las violaciones directas e indirectas a la Constitución involucra, también, una necesaria apreciación de la idoneidad y naturaleza expedita que debe caracterizar a la vía del amparo (…). Por esas razones, el recurso de amparo no puede ser empleado para controlar la legalidad de los actos de las distintas Administraciones Públicas, siendo que el amparo es un proceso sumario de tramitación sencilla y rápida, incompatible con la realización de debates extensos y técnicamente complejos” (sentencia 2020-12053; el destacado no es del original)[14].
Nótese que la Sala señala que el recurso de amparo es idóneo solo para conocer lesiones directas, no las indirectas, debido al carácter sumario de ese proceso. Justamente por eso interesa detenerse a analizar la naturaleza de este recurso.
No todo acto u omisión o vía de hecho, que provengan de una autoridad, aunque sean de suyo impugnable, es susceptible de ser conocido en un proceso sumario e informal. Las razones pueden ser diversas: la complejidad jurídica o técnica del acto, la necesidad de contar con un amplio acervo probatorio para determinar su validez y eficacia, etc. Sobre esto hay jurisprudencia consolidada que la Sala reitera todas las semanas al rechazar buena parte de los recursos de amparo que le son presentados.
Igualmente, el tribunal debe constatar si el objeto protegido (los derechos fundamentales presuntamente conculcados) puede ser efectivamente garantizado mediante un recurso de amparo, que es un proceso sumario e informal. Al respecto hay una reiteradísima jurisprudencia sobre el particular, que la Sala también recoge de modo habitual.
Justamente en este sentido, suscribí con la magistrada Hernández López una nota que reiteramos en muchas ocasiones:
“IV.- NOTA DE LAS MAGISTRADAS HERNÁNDEZ LÓPEZ Y GARRO VARGAS CON REDACCIÓN DE LA SEGUNDA. El recurso de amparo es un proceso sumario por naturaleza y, a tenor del artículo 48 de la Constitución Política, está diseñado para proteger los derechos constitucionales (con excepción de la libertad e integridad personal) y los de carácter fundamental establecidos en instrumentos internacionales de derechos humanos aplicables a la República. Por ende, un asunto es susceptible de ser conocido mediante un recurso de amparo cuando se invoca la presunta de lesión de alguno de esos derechos. Pero eso no es suficiente. Es preciso que el objeto en discusión pueda ser conocido adecuadamente en un proceso sumario: es decir, en un trámite sencillo sin necesidad de una fase probatoria compleja. Además, el carácter sumario debe manifestarse no sólo en la fase de conocimiento sino también en su fase de ejecución. Sobre la base de lo anterior, las suscritas magistradas estimamos que el presente asunto no corresponde ser conocido en la Sala Constitucional mediante el recurso de amparo, pues, aunque podrían estar involucrados derechos fundamentales, para analizarlo debidamente se requiere producir prueba técnica proveniente de diversas disciplinas, con el fin de examinar los diversos elementos que entran en juego en su resolución” (nota a la sentencia 2020-23153).
Esto es así porque ciertamente muchos asuntos involucran derechos fundamentales, pero deben ser conocidos en su sede correspondiente. Por ejemplo, si una persona aduce que la defraudaron en una compraventa de un lote, qué duda cabe ?si en efecto fue así? que le han violado su derecho y que este es un derecho fundamental. Se trata del derecho reconocido en el artículo 45 de la Constitución Política; pero es claro que el litigio sobre el particular no corresponde ser conocido en la Sala Constitucional, ni siquiera si el vendedor fue un sujeto de derecho público, porque para resolver este tipo de conflictos está la jurisdicción correspondiente. Sin ir más lejos, pues los ejemplos podrían ser abundantísimos, si un transeúnte dispara a otro, el victimario está violando el derecho fundamental a la vida o, al menos, a la integridad de la víctima, pero evidentemente el asunto tampoco puede ser conocido mediante un recurso de amparo, porque esa conducta está tipificada y, por tanto, será el juez penal quien determine la responsabilidad y el alcance y las consecuencias de esta. Pues bien, esto la Sala habitualmente lo ha tenido muy claro en su jurisprudencia, por eso, cada semana, rechaza muchos recursos de amparo señalando que se trata de asuntos propios de la legalidad ordinaria.
Lo anterior significa que, para que un caso sea examinado y resuelto en un recurso de amparo, no basta aducir que la lesión del derecho fundamental alegada tiene su causa en una conducta de la parte recurrida. Y la Sala procura respetar esos criterios justamente para no invadir las competencias de la jurisdicción ordinaria (establecidas en los artículos 49 y 153 de la Constitución Política) o las de las autoridades administrativas, según corresponda. Pero no solo por ese motivo, sino porque de esa manera, residenciándose el asunto donde corresponde, las partes tendrán todas las garantías procesales propias del debido proceso, que en un recurso sumario e informal como el amparo se reducen. Así, por ejemplo, los informes de las autoridades, al ser dados bajo fe de juramento[15], se tienen por ciertos, por lo que las posibilidades de desvirtuarlos son mucho menores que en procesos plenarios[16].
Por eso la Sala debe constatar si en atención al objeto impugnado (los actos presuntamente lesivos), al objeto protegido (los derechos fundamentales presuntamente conculcados) y al tipo de lesión (si la afectación es directa o no) el asunto es susceptible de ser conocido en un proceso sumario como es el amparo.
Dicho lo anterior, surge la duda sobre si el presente recurso debió ser admitido. Todo parece indicar que no se trataba de una orden sanitaria relativa a un tema sencillo, sino, por el contrario, a uno de gran complejidad, que difícilmente podía ser analizada en un proceso sumario. Sin embargo, como bien dice la sentencia[17], la Sala Constitucional ha dejado un reducto de posibilidad de admitir recursos de amparo contra una orden sanitaria y, de hecho, excepcionalmente les ha dado curso. De manera que se podría pensar que en vista de la magnitud del agravio aducido y de la calidad del presunto agraviante y, ¿por qué no?[18], de la calidad de los presuntos agraviados, el caso revestía una relevancia particular. Por eso bien se podía entender que tenía las condiciones para ser tenida como una excepción a la línea jurisprudencial. Así, la duda sobre si el objeto impugnado podía ser conocido en esta sede mediante un proceso sumario, se resolvió a favor de los recurrentes, en la fase preliminar y no solo en esta[19].
La capacidad y la legitimación de las partes En tercer lugar, la Sala debe verificar si la parte recurrente tiene la capacidad y la legitimación procesales. Respecto de la capacidad, al ser un proceso informal, toda persona física en uso de razón y toda persona jurídica debidamente representada la tiene. En el presente caso, se trata de personas físicas que evidentemente tienen capacidad de actuar. Respecto de la legitimación activa[20] se puede afirmar que en el ordenamiento costarricense esta es universal: toda persona la tiene siempre que alegue violado algún derecho fundamental propio o ajeno. Esto es así porque el artículo 48 de la Constitución Política dice “toda persona”, y como toda persona (física) por el hecho de serlo tiene derechos fundamentales, entonces toda persona física puede válidamente interponer un recurso de amparo, es decir, estará legitimada siempre que alegue alguna lesión o amenaza a un derecho fundamental. Además, el artículo 3 de la LJC dice lacónicamente: “Cualquier persona podrá interponer el recurso de amparo”. En el presente caso, prima facie, los recurrentes tienen legitimación para acudir en amparo, porque alegan la lesión a la libertad de expresión, que está reconocida “por la Constitución Política y (…) el Derecho Internacional vigente en Costa Rica” (artículo 2 de la LJC). No obstante, de nuevo, cabe preguntarse si en efecto la tienen, porque ha de recordarse que piden la anulación de la orden sanitaria y el oficio conexo para que se les restituya en el goce de la libertad de expresión, pues estiman que esta les ha sido lesionada por dichos actos administrativos que consideran arbitrarios. Es decir, la petitoria recae sobre unos actos que no pesan sobre ellos sino sobre una propiedad de una empresa que también pertenece a su patrono. Sin embargo, son enfáticos en señalar que sí tienen legitimación para interponer el recurso, porque entienden que hay una vinculación entre el objeto impugnado –la orden sanitaria y el oficio conexo– y el objeto que buscan proteger –su libertad de expresión[21]–.
Ahora bien, se podría sostener que ese margen de duda, de nuevo, debía ir en favor de los recurrentes, por lo que este aspecto de la legitimación activa no debía por sí mismo ser un obstáculo para darle curso al amparo.
*** Superada esa fase de admisibilidad, como se sabe, la presidencia dicta un auto de curso, y se inicia la instrucción del proceso con el fin de conocer el asunto por el fondo.
Fase de conocimiento: aspectos por considerar y reconsiderar Generalidades Para conocer el asunto por el fondo, al dictar el auto de curso se solicitan informes a la parte recurrida. También se pueden pedir aclaraciones y pruebas a las partes o a otras instancias. Incluso se puede ampliar el recurso a otros sujetos que se tendrían como recurridos. En efecto, en la fase de conocimiento, corresponde allegar todos los elementos necesarios para determinar si lo aducido tiene un adecuado sustento probatorio, esto es: si el objeto impugnado es lesivo y si lo es de manera directa, si la lesión alegada y debidamente comprobada recae sobre los recurrentes, y si la responsabilidad debe atribuirse a los recurridos.
No obstante, no es eso lo único ni siquiera lo primero que la Sala debe hacer, sino que ha ocuparse de despejar toda clase de cuestionamientos sobre el cabal cumplimiento de los presupuestos procesales, porque una falencia en alguno de estos supone una lesión al debido proceso, que, por cierto, debe respetarse en un amparo, por más informal y sumario que sea.
En primer término, debe cerciorarse de que es competente y por eso debe calibrar –ahora con más rigor aún y con todos los elementos que ya en esta fase constan en el expediente– si se dan las condiciones antes aludidas.
Verificación definitiva de algunos presupuestos procesales En el presente caso, como he dicho, se entendió que prima facie dichos presupuestos se cumplían; pero, como he señalado, surgen dudas razonables sobre si realmente su cumplimiento se puede tener por acreditado. Por eso de inmediato analizaré dos aspectos que, a mi juicio, corresponde ser examinados otra vez: el objeto impugnado y la legitimación activa.
La orden sanitaria y el oficio conexo Además de los videos que aportaron, los recurrentes adjuntaron al escrito de interposición una serie de oficios y publicaciones como prueba documental:
“Notificación de la suspensión temporal del permiso sanitario de funcionamiento de Parque Viva del 8 de julio de 2022; informe de los inspectores del Ministerio de Salud, fechado el 5 de julio; visto bueno de los aforos emitidos por el Ministerio de Salud el 16 de diciembre del 2021 y ampliación del 20 de enero siguiente; nota periodística de entrevista al alcalde de Alajuela Humberto Soto publicada el 13 de julio; nota periodística de entrevista a Hellen Espinoza, dirigente comunal de La Guácima; nota periodística del 13 de julio sobre informe del FMI relacionado con la lentitud del tránsito en Costa Rica; portada del Diario Extra del 14 de julio; página informe a los accionistas del presidente de Grupo Nación para el período 2013-2014 de donde se extrae la cita incorporada al recurso; ratificación de suspensión temporal del permiso sanitario de funcionamiento de Parque Viva fechada 15 de julio; crónicas de conciertos en La Guácima; informe n.°DFOE-LOC-IF-00014- 2020 de 14 de julio del 2022; informe de auditoría operativa sobre la eficacia y la eficiencia en uso de los recursos de la red vial cantonal en la Municipalidad de Alajuela; informe de bomberos de Belén del incendio del 4 de marzo atendido por cuatro unidades; informe de la Cruz Roja fechado 12 de julio; informe del 911 del 11 de julio; informe del MOPT del 11 de julio; informe de Bomberos del 10 de julio; cartas de no objeción al acceso propuesto desde la Ruta 27 de la Dirección General de Ingeniería de Tránsito, el Consejo Nacional de Vialidad, el Consejo Nacional de Concesiones y la Comisión de Carreteras de Acceso Restringido; intercambio de correos electrónicos entre periodistas de “interferencia”, de Radio Universidad y la oficina de prensa del Ministerio de Salud; mensaje en redes sociales de Hulda Miranda, editora del programa “Interferencia” de Radio Universidad; respuesta de SUGEVAL a la Caja Costarricense de Seguro Social; nota periodística sobre estudio del FMI de la velocidad del tránsito vehicular en el mundo” (escrito de interposición, p. 16; se han suprimido los puntos y aparte).
Los recurridos, además de los actos impugnados, aportaron también otros documentos:
La denuncia; el oficio mediante el cual se remite la denuncia ante el Área Rectora de Salud Central Norte, varias notas periodísticas que dan cuenta de la problemática vial cuando se realizan eventos en Parque Viva; el acta de inspección n.°MS-DRRSCN-DARSA2-1639-2022; el oficio n.°MS-DRRSCN-DARSA”-1641-2022 de 5 de julio que es informe de seguimiento a la denuncia ambiental; oficio n.°DVT-DGIT-2022-339, suscrito por el Ing. Junior Araya Villalobos, funcionario de la Dirección General de Ingeniería de Tránsito; acta de la sesión del Comité Asesor Técnico de Concentraciones Masivas del 7 de julio de 2022; orden sanitaria n.°MS-DRRSCN-DARSA2-OS-0368-2022; informe técnico n.°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Jim Batres Rodríguez, Sub-Gerente operativo de la Cruz Roja Costarricense; informe técnico n.°CBCR-027150-2022-OPOB-00741 del 10 de julio de 2022, suscrito por el señor Alexander Araya Mico, de Operaciones de Bomberos del Benemérito Cuerpo de Bomberos; informe n.°CRC-GG-OF-012-2022 del 12 de julio de 2022, suscrito por el señor José David Ruiz Piedra, Gerente General de la Asociación Cruz Roja Costarricense; informe n.°CRC-GG-SO-OF-074-2022 del 11 de julio de 2022, suscrito por el señor Jim Batres Rodríguez, Sub-Gerente operativo de la Cruz Roja Costarricense y el informe n.°911-DI-2022-2202 del 11 de julio 2022, suscrito por María Elena Amuy Jiménez del Sistema de Emergencias 911.
A eso se sumaron los que después aportaron los recurrentes:
“Comunicado oficial, Municipalidad de Alajuela, desmintiendo al INVU (Prueba #1). Certificación notarial de usos de suelo # MA-ACC-U-01335-2013, de fecha 18 de junio de 2013, para construcción de Hotel y Servicio de Comidas, # MA-ACC-U-01334-2013, de fecha 18 de junio de 2013, para construcción de Anfiteatro y Centro de exhibiciones, # MA-ACC-U-01336-2013, de fecha 18 de junio de 2013, para construcción de campo ferial, # MA-ACC-U-00817-2013. de fecha 16 de abril de 2013, para construcción de parqueo, campo ferial y centre de convenciones. (ver prueba #2, primer punto). Resolución numero 3088-2013 de Selena. Proyecto Mejoras al Autódromo La Guácima. (ver prueba #4). Oficio DGIT-ED-5935-2014 del 01 de diciembre del 2014 donde la Dirección General de ingeniería de Tránsito emite formal aprobación del estudio de impacto vial (ver prueba #5). Certificación notarial del informe de la consulta de autenticidad de sellos, por medio de código OR del proyecto Obras de Infraestructura La Guácima, emitido por el Colegio Federado de Ingenieros y Arquitectos (ver prueba #2, segundo punto). Copia del índice de láminas de pianos constructivos del proyecto "Obras de Infraestructura la Guácima (ver Prueba # 3). Oficio CBCR-0018379-2014-INB-00736, fechado 16 de junio del 2014 donde el Benemérito Cuerpo de Bomberos acepta la eliminación de hidrantes y se pide subsanar defectos menores. (Ver Prueba # 6). Oficio DVT-DGIT-ED-2015-4056 donde el MOPT acepta la finalización del proyecto de construcción de mejoras viales y deja constancia de la recepción de las obras. (ver prueba # 7). Certificación notarial de Carta de Intenciones para reactivar servicios férreos entre Parque Viva (Guácima) e Incofer (ver prueba #8). Certificación notarial de las páginas 9 y 83 del documento ’APROBACION DEL CONTRATO DE PRESTAMO N° 2241 ENTRE EL GOBIERNO DE LA REPUBLICA DE COSTA RICA Y EL BANCO CENTROAMERICANO DE INTEGRACION ECONOMICA (BCIE) PARA APOYAR EL FINANCIAMIENTO DEL PROYECTO; CONSTRUCCl0N (EOUIPAMIENTO Y PUESTA EN OPERACIÓN DE UN SISTEMA DE TREN RAPIDO DE PASAJEROS (TRP) EN LA GRAN AREA METROPOLITANA, publicado en el Alcance No. 112 a La Gaceta No. 110, 14 de mayo del 2020 (ver prueba # 2. tercer punto). Certificación notarial de los Editoriales de La Nación de 25 y 26 de agosto de 2020 que explican la infamia sobre el supuesto ramal del tren eléctrico. (Ver prueba # 9). Certificación de las siguientes notas periodísticas: Noticia titulada “Los mandos medios a cada rato se atraviesan", Noticia titulada "Zona franca en Grecia iniciara obras después de 24 meses varada por rechazo de acceso a ruta 1", Nota titulada Chaves ataca a La Nación con dates distorsionados, Manifiesto “Defendemos la libertad de prensa", Articulo de Jimen Chan ¿En qué se parece Rodrigo Chaves y sus actuaciones a Donald Trump y las suyas? (Ver prueba #9). Certificación notarial del envío de respuesta a la CCSS en fecha lunes 8 de agosto del 2022, y sus documentos adjuntos; escrito de respuesta y hecho relevante pertinente fechado 26 de junio. (ver prueba # 10” (escrito de los recurrentes de 17 de agosto de 2022, p. 13; se han suprimido los puntos y aparte).
Eso significa que al momento de conocer por el fondo este asunto constaban en el expediente numerosos oficios de muy distintas autoridades sobre un tema particularmente complejo.
Es decir, no se trataba de una orden sanitaria como la que fue extendida a miles de habitantes durante la pandemia, muchas de las cuales fueron impugnadas mediante la interposición de recursos de amparo y que, por cierto, la Sala en su gran mayoría sistemáticamente rechazó. En dichos recursos, se alegaba que la orden sanitaria había comportado la lesión a otros derechos: libertad de tránsito, libertad de comercio, derecho al trabajo, etc. Sin embargo, la Sala entendió que debían inadmitirse, de conformidad con una reiterada jurisprudencia sobre órdenes sanitarias, a la que de inmediato aludiré.
Lo que ahora interesa destacar es que el objeto impugnado (la orden y el oficio conexo) no solo en sí mismo tiene amplios y complejos alcances, sino que para determinar si esos actos fueron arbitrarios era del todo necesario, al menos, analizar los documentos aportados por las partes, y estos ni eran pocos ni eran simples, ni congruentes entre sí.
(2) La no idoneidad del amparo: jurisprudencia constitucional Corresponde ahora examinar qué ha dicho la jurisprudencia de esta Sala sobre la idoneidad del recurso de amparo para conocer órdenes sanitarias. Entresacaré algunas de sus numerosísimas resoluciones sobre este tema. Comentaré primero la robusta jurisprudencia dictada desde los primeros años de este Tribunal y que atraviesa toda su historia hasta el año 2019, y después la que fue dictada durante la pandemia provocada por el COVID-19. Al referirme a ambas etapas dividiré las sentencias en aquellas mediante las que se dictan rechazos y las sentencias en las que se resuelve por el fondo. Dentro de estas últimas, haré algunas observaciones a un caso que es citado por la mayoría en la sentencia, en el que se adujo que la orden sanitaria impugnada lesionaba la libertad de expresión.
(a) Jurisprudencia en tiempos normales Como se verá, en tiempos normales, lo habitual ha sido que la Sala rechace de plano los recursos de amparo en los que se impugnan órdenes sanitarias. Desde sus orígenes la Sala Constitucional ha mantenido una casi ininterrumpida línea jurisprudencial en la que afirma de que no le corresponde revisar la legalidad de las órdenes sanitarias.
“UNICO: (…) Estando fundado el acto que se recurre en los artículos 356 y 363 de la Ley General de Salud, y en lo dispuesto en el Reglamento de Seguridad e Higiene Industrial, y habiendo tenido y ejercido el accionante su derecho de defensa através (sic) del procedimiento administrativo seguido al efecto, el acto se convierte en legítimo, desde el punto de vista constitucional, es decir, no produce quebranto constitucional alguno, quedando esta Sala en imposibilidad de revisar los alcances de mera legalidad que pudieran derivarse de él, aspecto que, en todo caso, sí puede ser discutido en la vía ordinaria correspondiente. No obstante se aclara que, no pueden las autoridades de Salud ordenar al accionante a demoler la estructura, si no demuestran que él es el propietario, ni pueden hacerlo por su cuenta, si no han oído previamente al propietario de ese inmueble” (sentencia 1991-1948; el destacado no es del original).
También ha señado que el recurso de amparo no es la vía para valorar la oportunidad y legalidad de la orden:
“[E]l recurso pretende que la Sala examine las razones técnicas en que ha fundamentado el Ministerio la orden sanitaria, a la que califican de ilegal e injusta y evidenciándose que no se ha dado ninguna violación a un derecho fundamental y no siendo esta la vía para revisar la oportunidad y la legalidad de lo actuado, el recurso resulta improcedente y debe rechazarse de plano” (sentencia 1992-856).
En idéntico sentido, y siempre para rechazar de plano, ha dicho que ya hay otros mecanismos para impugnarlas, esto es, los recursos administrativos ordinarios:
“El amparo, como se infiere de lo que afirma el recurrente, no tiene otro fundamento más que evitar que se declare el cierre de la actividad comercial aludida. La Sala ha sostenido reiteradamente, que las órdenes sanitarias son susceptibles de ser combatidas por medio de los recursos ordinarios del procedimiento administrativo, de manera que los interesados pueden, en esa vía, demostrar técnica y pericialmente, que su actividad no está en los supuestos a que alude la orden dicha. Así las cosas, el recurso resulta improcedente en la vía constitucional y siendo un asunto de legalidad, debe ser debatido en la sede correspondiente” (sentencia 1992-3056; el destacado no es del original).
Además, ha indicado que la orden sanitaria no constituye el acto final del procedimiento, por lo que su imposición de suyo no comporta una lesión al debido proceso:
“Sobre la procedencia o no de la orden sanitaria emanada por las autoridades competentes del Ministerio de Salud, los requerimientos técnicos que en ella se hacen respecto del incumplimiento en las condiciones físico- sanitarias y la falta de permisos aludida, tampoco pueden discutirse en esta sede, dado que son las autoridades del Ministerio de Salud, de conformidad con la legislación vigente y aplicable, las que deben velar por el cumplimiento de los requisitos mínimos en los negocios comerciales, entre otros, mediante criterios técnicos debidamente respaldados. Reiteradamente esta Sala ha señalado que las órdenes sanitarias que, en ejercicio de sus competencias, dictan las autoridades de salud, no constituyen el acto final de un procedimiento administrativo en el que no se le ha dado participación alguna a los afectados, sino que por el contrario, debe considerarse el acto inicial, el traslado que se hace a los afectados, para iniciar el procedimiento administrativo, dándoles oportunidad para que conozcan los estudios técnicos que respaldan la orden, los estudien, cuestionen, ofrezcan pruebas de descargo y hagan propuestas alternativas para solucionar los problemas que las autoridades han detectado. Igualmente, pueden cuestionar la orden mediante el recurso de revocatoria y apelación, si a bien lo estiman conveniente –tal y como lo ha hecho el recurrente-. Si no se le pusiera en conocimiento de los estudios y pruebas que sustentan la orden, o no se le diere oportunidad de cuestionarla, eventualmente podría estarse frente a una violación al debido proceso revisable en esta sede, pero ello no ha ocurrido en el caso que nos ocupa” (sentencia 2000-11215).
Y ha agregado que la Sala no es una instancia más en el procedimiento administrativo ni un contralor de legalidad.
“Lo planteado por la recurrente no es más que un conflicto de legalidad ordinaria ajeno al ámbito de competencia de esta Sala. En primer lugar, conforme lo ha sostenido reiteradamente este Tribunal, la orden sanitaria es el acto inicial del procedimiento administrativo, a partir del cual debe cumplirse el debido proceso a través del ejercicio de los recursos que procedan, como efectivamente los ejerció la amparada (folios 7 a 10). Ahora bien, lo resuelto en torno a dicho recurso por el Ministerio de Salud, según resolución DM-RC-9030-05 de las catorce horas treinta y un minutos del treinta y uno de octubre del dos mil cinco no puede se objeto de impugnación en esta vía, ya que la Sala no es una instancia más dentro del procedimiento administrativo ni un contralor de legalidad. De modo que si la recurrente estima que su casa no es inhabitable y, por ende, no procede ordenar su desalojo, y que los informes rendidos tanto por la Comisión Nacional de Emergencias como por el propio Ministerio de Salud -este último en relación con la inspección de campo realizada- son generales y no individualizan la situación concreta de su caso, no es en esta vía que debe presentar sus alegatos, sino ante la propia administración recurrida o, en su caso, en la jurisdicción ordinaria, pues son éstas -y no la Sala- las competentes para conocer y pronunciarse al respecto” (sentencia 2006-00773; el destacado no es del original).
Es decir, ha entendido que la jurisdicción constitucional no es la sede apropiada para conocerlas. Así, ha explicado que el examen sobre las órdenes sanitarias no se aviene con el carácter sumario del amparo:
“Por otra parte, como lo que se pretende con el amparo, según se desprende del libelo de interposición del recurso, es discutir en esta sede soporte técnico de los actos administrativos impugnados, el recurso es inadmisible, pues el diferendo que existiera sobre el particular constituye un conflicto de mera legalidad que por su naturaleza debe ser planteado, discutido y resuelto en la vía administrativa -como ha ocurrido-, o en la vía contencioso administrativa por agotamiento de la fase anterior. Más aún, discutir en esta sede sobre el contenido o sustento de las órdenes cuestionadas implica revisar en esta jurisdicción los criterios técnico empleados para llegar a la determinación impugnada, lo que no sólo resulta ajeno a la vía del amparo, sino que además excede su carácter sumario” (sentencia 1997-2548, el destacado no es del original).
Siguiendo esa lógica, y recogiendo muchos de los criterios antes mencionados[22], también ha sostenido que, si se está disconforme con una orden sanitaria, además de los recursos administrativos, se puede acudir a la vía ordinaria, para que ahí se valore el sustento técnico de esta, pues esto exige una fase probatoria importante:
“II.- CASO CONCRETO. Esta Sala ha establecido en forma reiterada que las ordenes sanitarias que emite el Ministerio de Salud -como ocurre en este caso-, constituyen justamente el acto inicial del procedimiento correspondiente en la cual se comunica las razones de hecho y de derecho que motivan tales órdenes, momento a partir del cual el administrado puede ejercer plenamente su derecho de defensa, y recurrir los actos administrativos por medio de los recursos y ante las instancias previstas al efecto. De esta forma, para el dictado de los actos en cuestión, la Administración no tenía que observar el debido proceso, dar audiencia previa o hacerle prevención alguna al amparado, pues con el ejercicio de los recursos que se le indican en las propia resoluciones citadas supra, se ejerce el derecho de defensa y se cumple el debido proceso. Ahora bien, si el amparado está disconforme con la procedencia de dichas órdenes sanitarias, ya que cuestiona su sustento técnico o la valoración probatoria que la fundamenta, ello hace referencia a un conflicto de legalidad ordinaria cuyo conocimiento y resolución escapa del ámbito de competencia de esta Sala. Máxime que esto entraña una discusión probatoria y técnica cuya resolución no es propio del carácter eminentemente sumario del recurso de amparo, proceso en el cual no es material ni razonablemente posible entrar en un complicado sistema probatorio o en la práctica de diligencias probatorias lentas y complejas. En mérito de lo expuesto, el recurso es inadmisible y así debe declararse” (sentencia 2015-001416; el destacado no es del original; idénticas consideraciones fueron reiteradas en las sentencias 2016-9673, 2016-15956 y 2016-17176).
Todas estas sentencias hasta aquí citadas –que son simples ejemplos, porque se trata de líneas reiteradísimas– han sido dictadas para rechazar de plano. Es decir, son argumentos con los que la Sala justifica por qué no entra a conocer por el fondo el asunto.
Sin embargo, ciertamente de manera excepcional, este tribunal ha admitido a trámite recursos de amparo contra órdenes sanitarias, cuando se han alegado lesiones groseras al debido proceso o se ha aducido que es necesario conocerlas para amparar otros derechos fundamentales invocados, como la libertad religiosa. No obstante, incluso en tales casos, igualmente la línea jurisprudencial es sólida en el sentido de que el fundamento técnico de la orden sanitaria correspondería ser discutido en las vías ordinarias de legalidad. En la inmensa mayoría de las veces, en esa fase declara sin lugar el recurso, y habitualmente en esos casos reitera muchos de los argumentos recogidos en los rechazos de plano. De inmediato haré referencia a algunos ejemplos[23].
Así, en un caso concluyó que no se había vulnerado el derecho de defensa:
“II.- Sobre el fondo. El amparo pretende tutelar el principio de legalidad y de igualdad, el debido proceso, el derecho a obtener una justicia pronta y cumplida y la libertad religiosa. En ese sentido, el reclamo particular del accionante es que las autoridades recurridas ordenaron el cierre de su Iglesia, motivados en una serie de mediciones sónicas, en las que no se le diera participación a su representada, y sin pronunciase de manera motivada la gestión que presentó. (…). De autos se desprende que las autoridades sanitarias recurridas intervinieron en el caso en estudio de la Iglesia Evangélica de Curubandé de Liberia, por las denuncias que por exceso de ruido habían presentado los vecinos del lugar, y que en el caso en cuestión se ha seguido un procedimiento administrativo, del cual el recurrente ha tenido conocimiento y oportunidad de defensa, incluso mediante nota de veinte de junio y dieciséis de julio, ambos de dos mil dos. Es justamente al tenor de esas reflexiones que no encuentra esta Sala que al recurrente se le haya vulnerado su derecho de defensa” (sentencia 2002-10129; el destacado no es del original).
También ha explicado que la orden sanitaria no se suspende con la interposición de los recursos ordinarios y que eso no lesiona el debido proceso. En lo conducente, advirtió lo siguiente:
“Además, en cuanto a la ejecución de la clausura del local comercial de la amparada, la Administración tiene la potestad de ejecutar por sí, sin recurrir a los Tribunales, los actos administrativos eficaces, válidos o anulables, aun contra la voluntad del administrado. Por esto, la interposición de recursos no tiene efecto suspensivo, a menos que el servidor que lo haya dictado, su superior jerárquico, la autoridad que decide el recurso o el órgano jurisdiccional que conoce del conflicto, ordenen suspender la ejecución cuando la misma pueda causar perjuicios graves o de difícil reparación, o cuando se trate de actos ineficaces o absolutamente nulos (ver artículos 146 y siguientes de la Ley General de la Administración Pública). Por otra parte, el artículo 53 de la Ley Orgánica del Ministerio de Salud, indica que el establecimiento de los recursos no suspende la ejecución del acto recurrido, a menos que, en casos muy calificados, en forma razonada, el Titular de la Cartera, interlocutoriamente y para evitar un resultado irreparable, ordene la suspensión provisional del acto, lo cual hará, en todo caso, bajo su responsabilidad. Por lo que si la recurrente considera que está en dicha hipótesis, deberá presentar la gestión correspondiente al Ministro de Salud. Por los motivos expuestos, el recurso debe ser desestimado como en efecto se dispone” (sentencia 2006-14378; el destacado no es del original).
Ha afirmado que no le corresponde cuestionar la legitimidad o contenido de las disposiciones del Ministerio de Salud, en lo atinente a la ejecución de las órdenes sanitarias:
“Es necesario aclarar que no corresponde a este Tribunal cuestionar la legitimidad o el contenido de las disposiciones tomadas por el Ministerio de Salud en cuanto a los plazos, prórrogas y resolución de recursos, relacionados con el dictado de las órdenes sanitarias, toda vez que ello es parte de su propia competencia” (sentencia 2010-004938).
Además, ha indicado que este Tribunal no es competente para conocer de las razones por las cuales se dispuso el cierre de un centro infantil, reiterando que no le corresponde valorar en un recurso de amparo el fundamento técnico de dicha decisión:
“IV.- Ahora bien, si la recurrente está inconforme con la actuación de la administración por haber revocado el acuerdo 31-17-2012, en el que se otorgó la habilitación al centro infantil "El Naranjito", dado que no cuenta con las condiciones mínimas requeridas y se instruyó al Área Rectora para realizar la clausura, ello escapa del ámbito de competencia de esta Sala, ya que el recurso de amparo ha sido instituido para tutelar infracciones o amenazas inminentes a los derechos y libertades fundamentales de las personas, y no para controlar en abstracto la correcta aplicación del derecho. En consecuencia, no corresponde en esta sede analizar las razones del Consejo accionado para disponer el cierre objetado, que como se indicó es parte de sus competencias, ya que el dominio de esta Sala está reservado al análisis de los acciones u omisiones impugnadas, y a su comparación con el ordenamiento jurídico, para determinar la legitimidad o ilegitimidad de lo impugnado, sin que sea posible incursionar en campos de la ciencia o de la técnica para ello, en atención a la naturaleza sumaria del amparo, proceso en el cual no es material ni razonablemente posible entrar a un complicado sistema probatorio o a un análisis de hechos que vaya más allá de los actos impugnados en si, circunscribiéndose más bien a las hipótesis fácticas en que esos actos se fundan. Por lo tanto, dichos extremos corresponden conocerse, discutirse y resolverse en el propio procedimiento administrativo, y una vez concluido el mismo, si la amparada estima que la resolución que dio por concluido el proceso administrativo, es contraria a derecho, tiene la facultad de impugnarla ante la vía contencioso administrativa, a fin de que en esa sede se determine sobre la procedencia o no de lo dispuesto por los órganos recurridos” (sentencia 2014-2423, el destacado no es del original).
Como puede observarse, se trata de ejemplos de sentencias que resuelven por el fondo y desestiman el recurso, aduciendo casi siempre lo mismo que se suele decir en los rechazos de plano.
(b) Jurisprudencia durante la pandemia Particular atención requiere la jurisprudencia de esta Sala dictada durante la pandemia provocada por el COVID-19. Especialmente en los momentos de mayores restricciones se interpusieron numerosos recursos de amparo en los que se impugnaban órdenes sanitarias, aduciendo que lesionaban el derecho al trabajo y la libertad de comercio (al obligar, por ejemplo, al cierre de locales comerciales). Eran casos de gran importancia, pues la limitación en el ejercicio de tales derechos supuso serios impactos en tantas familias costarricenses que, de la noche a la mañana, vieron mermada significativamente –cuando no cerrada– la fuente de ingresos para su subsistencia. En otros recursos se impugnaron las restricciones sanitarias vehiculares y las disposiciones sobre el uso de mascarillas.También se impugnaron órdenes sanitarias alegando que lesionaban derechos,ya no en la esfera patrimonial, sino en una más íntima y no menos importante:por ejemplo, se adujo la lesión a la libertad de culto y la violación a los derechos de las personas privadas de libertad para recibir visitas conyugales y de sus demás familiares.En todos esos casos,se podría decir, la Sala fue implacable y consistente, como de seguido se pasa a demostrar con algunas pocas sentencias, que sonsolo una muestra muy ilustrativa de lo que se acaba de afirmar.
Así, respecto de un amparo en el que se impugnaba una orden sanitaria que disponía el cierre de un negocio comercial ?eventual sustento laboral y económico de la familia de sus dueños y de sus colaboradores que dependen de la operación de dicho local?, la Sala dijo que el conocimiento de ese asunto excedía el carácter sumario del amparo y rechazó de plano el recurso:
“II.- SOBRE EL CASO CONCRETO. En el sub iudice, advierta el recurrente que no corresponde dilucidar en la vía sumaria del amparo si los hechos acaecidos son ciertos o no, si a su establecimiento comercial le resulta aplicable una u otra normativa sanitaria, o si la clausura era procedente; de igual forma, no compete a la Sala determinar la procedencia de la multa. Dicho de otro modo, no le corresponde a este Tribunal hacer las veces de jurisdicción de alzada en la materia y revisar si la decisión de decretar y ejecutar tal cierre, se ajusta o no a los hechos y a la normativa infra constitucional vigente, ni mucho menos usurpar las atribuciones de la autoridad sanitaria recurrida y, previa comprobación de los requisitos legales y reglamentarios del caso, ordenar que se anulen los actos cuestionados, tal y como pretende el recurrente, pues se trata de extremos de legalidad ordinaria que deben ser dirimidos en la vía común, administrativa o jurisdiccional. De este modo, lo expuesto constituye un extremo de legalidad ordinaria que excede la naturaleza eminentemente sumaria del recurso de amparo. Por lo tanto, deberá la parte recurrente, si a bien lo tiene, plantear sus inconformidades o reclamos ante la autoridad recurrida, o bien, en la vía jurisdiccional competente, sedes en las cuales podrá, en forma amplia, discutir el fondo del asunto y hacer valer sus pretensiones. En consecuencia, el recurso es improcedente y así debe declararse” (sentencia 2021-3603; consideraciones muy similares fueron reiteradas en la sentencia 2022-3545).
En igual sentido se pronunció en otra de tantas ocasiones, cuando al rechazar de plano los amparos, señaló que este tipo de actos deben ser conocidos en las vías ordinarias:
“Sostiene que, mediante la orden sanitaria R1-b11-001-2020 se dispuso el cierre de su negocio. Agrega que autoridades de policía se apersonaron al local comercial y lo clausuraron, debido a que supuestamente se permite el consumo de licor dentro del establecimiento, lo cual refuta. Considera irrazonable que autoridades policiales que no son funcionarios del Ministerio de Salud hayan clausurado el negocio por medio de una orden sanitaria, debido a la supuesta infracción del Decreto Ejecutivo 42227-MP-S dictado con ocasión de la pandemia del coronavirus COVID-19. (…)
En el sub lite, la Sala observa que lo planteado por la parte recurrente no es más que un conflicto de legalidad ordinaria, que no configura una violación a los derechos fundamentales de tal magnitud como para justificar la intervención de esta jurisdicción. En efecto, a este Tribunal no le corresponde valorar, de acuerdo con la normativa infraconstitucional que rige la materia, la procedencia o no de la orden sanitaria aludida, ni tampoco determinar si se incurrió o no en la falta acusada. Además, la Sala no omite manifestar que es a partir de la emisión de una orden sanitaria cuando se produce el acto inicial del procedimiento correspondiente. De modo que, a partir de la notificación de tal orden, el administrado puede ejercer plenamente su derecho de defensa, sea recurriendo el acto administrativo ante las instancias previstas al efecto, ocasión en que puede aportar la prueba que considere relevante y plantear los alegatos que estime oportunos- o realizando todos los actos que considere pertinentes en el ejercicio de su defensa. (…) En mérito de lo expuesto, se rechaza el recurso” (sentencia 2020-7165; el destacado no es del original; en igual sentido vid. sentencia 2020-7626 y 2020-7934).
En el contexto de la pandemia también se cuestionaron las medidas de apertura gradual que dispuso el Ministerio de Salud. Por ejemplo, los dueños de unos gimnasios adujeron que se les había infringido el derecho a la igualdad, el derecho al trabajo y a la libertad de comercio, y la Sala resolvió lo siguiente:
“I.- Objeto del recurso. Los recurrentes, quienes son dueños de gimnasios ubicados en la GAM, aducen incongruencia en la selección de los establecimientos comerciales que el gobierno, en el contexto de la pandemia por la covid 19, ha permitido abrir a partir del 10 de agosto de 2020. Refieren que el recurrido ha autorizado la apertura de salones de belleza, centros de estética y clubes de natación, pero no la de los gimnasios, pese a que en ellos se desarrollan actividades similares “e incluso más seguras que las que fueron permitidas”. (…) Arguyen que la restricción propicia la competencia desleal, pues los usuarios están trasladándose a los gimnasios ubicados en las zonas amarillas por encontrarse cerrados los que están localizados en zona naranja, lo cual, además, perjudica la contención del virus, ya que se entremezclen las personas de diferentes sectores. Estiman que la fase de apertura recién iniciada genera un trato discriminatorio y violenta su derecho al trabajo y la libertad comercial. Piden que se autorice la reanudación de las actividades enfocadas en el mantenimiento y acondicionamiento físico.
II.-Sobre el caso concreto. Como se colige, los reclamos de la parte tutelada versan sobre aspectos que exceden las competencias de este Tribunal Constitucional, el cual está llamado a enmendar groseras violaciones a derechos fundamentales, mas no a servir como un instrumento genérico para canalizar peticiones y disconformidades de otros tipos. En este sentido, este Tribunal Constitucional no es un contralor de la legalidad de las actuaciones o resoluciones de las autoridades recurridas y tampoco puede reemplazar a la Administración activa en la gestión de sus competencias, de modo que no le corresponde usurpar las atribuciones legalmente conferidas a otras dependencias u órganos como lo es el Ministerio de Salud, quien ejerce la rectoría en cuestiones atinentes al resguardo de la salud pública, en virtud de lo cual tiene la facultad y el deber de decretar las medidas técnicas que estime útiles y necesarias en el contexto de la actual pandemia, cuya pertinencia técnica no corresponde ser analizada en la vía sumaria del amparo sino que, si a bien lo tiene la parte recurrente, deberán ser planteados los agravios atinentes en la vía ordinaria de legalidad competente”(sentencia 2020-15420; el destacado no es del original).
De forma similar, la Sala se abstuvo de conocer sobre supuestas restricciones a la libertad de culto. Por ejemplo, se consideró lo siguiente:
“La parte recurrente manifiesta su disconformidad con las medidas tomadas por la Presidencia de la República y el Ministerio de Salud, en la atención de la pandemia ocasionada por el COVID-19 pues, según estiman, resultan discriminatorias. Consideran que se deben tomar los protocolos y medidas de protección propuestos por la Conferencia Episcopal, y proceder a la apertura inmediata de los lugares de libre culto (…). [P]or la vía del amparo, esta Sala no puede usurpar las atribuciones de las autoridades del Ministerio de Salud, a efecto de definir la procedencia de las pretensiones expuestas por la parte recurrente, de conformidad con las políticas de salubridad pública, pues se trata de materias que requieren ponderar criterios técnicos, médico-científicos y de oportunidad y conveniencia. Semejantes cuestiones, por su naturaleza y complejidad, deben dirimirse en la vía común, administrativa o jurisdiccional, y no en esta sede. En consecuencia, el recurso es inadmisible y así se declara”(sentencia 2020-9093; el destacado no es del original).
Adicionalmente este Tribunal advirtió que la aducida infracción a la libertad de culto correspondería ser planteada y resuelta en las sedes ordinarias:
“En este sentido, las restricciones sanitarias cuestionadas, prima facie, le son aplicadas a todos los templos e iglesias —independientemente de la religión o culto a la que pertenezcan— en atención a la naturaleza de la actividad y la congregación o afluencia de personas que asisten a ella, pues de lo que aquí se trata, es de tutelar el derecho a la salud y a la vida en una situación de emergencia sanitaria, todo lo cual toma primacía sobre otras consideraciones, sin que ello deje entrever, al menos preliminarmente y sin perjuicio de prueba en contrario, un deseo de perjudicar las actividades religiosas para dañar deliberadamente la libertad de culto. Por lo tanto, lo propio es que este asunto sea dirimido en la vía común, administrativa o jurisdiccional, por lo que deberá la parte tutelada, si a bien lo tiene, plantear sus inconformidades o reclamos ante la vía de legalidad competente, ya que es en tal sede en la cual podrá, en forma amplia, discutir el fondo del asunto y hacer valer sus pretensiones. En consecuencia, el recurso es inadmisible y así se declara” (sentencia 2020-9570; el destacado no es del original).
Nótese que eso significaba –tanto como en los demás casos que aquí se están refiriendo– que, pese a que entendía que podría estar involucrada una libertad o derecho fundamental, estimaba que la vía de la legalidad era la competente para conocer del asunto.
En otras ocasiones, rechazó el recurso por el fondo, por ejemplo, cuando se trataba de las restricciones sanitarias vehiculares. Sobre el particular, resulta ilustrativa la siguiente sentencia en la que, haciendo eco de varios precedentes, descartó la supuesta ilegitimidad de la restricción a la libertad de tránsito, y concluyó:
“Bajo ese orden de ideas, estima la Sala que para el caso bajo estudio resulta perfectamente aplicable lo establecido en las sentencias citadas en los párrafos anteriores, en los cuales se descarta que exista lesión a los derechos constitucionales, ya que el Estado ostenta la capacidad de regular de manera especial la circulación de vehículos sobre un sector o zona determinada, en aras de hacer prevalecer un interés público. Debe hacerse notar que en virtud de este interés público, el Estado se encuentra legitimado para establecer ciertas reglas especiales en cuanto a la circulación de automóviles, en procura del bienestar y bien común de las personas.(…).
En síntesis, en el caso bajo examen, el reclamo de la amparada gira en torno al mismo hecho discutido en los precedentes aludidos, es decir, a la restricción vehicular aplicada por el gobierno central. Bajo esa perspectiva, siendo que ese reclamo guarda una estrecha similitud con lo ya conocido y resuelto en esta sede, y considerando que no existe motivo alguno para cambiar el criterio vertido previamente por la Sala, el recurso debe ser rechazado por el fondo, como en efecto se declara (sentencia 2020-6917; el destacado no es del original; en similar sentido vid. las sentencias 2020-7538 y 2020-9509).
En relación con la disposición sanitaria sobre la obligación de utilizar mascarillas, la Sala declaró que no estaba en capacidad de valorar los criterios técnico-sanitarios que la respaldaban:
“SOBRE LA ADMISIBILIDAD DE ESTE RECURSO. En el sub lite, el recurrente alega que la medida de obligar a todas las personas a emplear una mascarilla para controlar en Costa Rica la epidemia de coronavirus es discriminatoria y violatoria del derecho a la igualdad por irrazonable y desproporcionada. (…) Dado lo anterior, se le aclara que las determinaciones impugnadas obedecen a criterios técnico-sanitarios y de oportunidad y conveniencia que la Sala no está en capacidad de valorar” (sentencia 2020-12551; el destacado no es del original).
Sin embargo, ciertamente, durante la pandemia admitió a trámite otros amparos en los que se impugnaban órdenes sanitarias.
En uno de ellos, tenía la particularidad de que no solo estaba de por medio la clausura de un local comercial, sino de la detención de una persona por el incumplimiento de las restricciones sanitarias y, al resolverlo por el fondo, señaló que no le correspondía pronunciarse sobre la procedencia de la orden sanitaria:
“La recurrente estima lesionados sus derechos fundamentales, toda vez que es propietaria del Restaurante Malibu No. 2, el cual cuenta con patente de restaurante, y oficiales de la Fuerza Pública y de la Policía Municipal, quienes se apersonaron el 1° de abril de 2020 a tal establecimiento, clausuraron el local comercial y la privaron de libertad de manera ilegal por supuestamente haber incumplido una orden sanitaria (…). En la especie, el Tribunal observa que la privación de libertad de la tutelada, efectuada a las 20:08 horas del 1° de abril de 2020, se ejecutó conforme al numeral 235 inciso a) del Código Procesal Penal, pues los oficiales de la Fuerza Pública consideraron que la amparada había sido sorprendida en flagrante delito al permitir el consumo de licor en la barra del local comercial aludido, lo que contraviene las medidas de salud adoptadas ante la pandemia del coronavirus COVID-19. (…) De esta forma, en el sub lite, no se evidencia que la tutelada haya sido aprehendida ilegítimamente durante la tramitación inicial del proceso, por cuanto el ordenamiento jurídico prevé la posibilidad de que se efectúe la aprehensión de una persona cuando es sorprendida en flagrante delito o contravención. Ergo, lo procedente es declarar sin lugar el recurso.
Por otra parte, la tutelada solicita que se levanten los sellos de cierre impuestos al local comercial de su propiedad. Sin embargo, a este Tribunal no le corresponde valorar, de acuerdo con la normativa infraconstitucional que rige la materia, la procedencia o no de la orden sanitaria aludida, ni determinar si se incurrió o no en la falta acusada. Además, nótese que es a partir de la emisión de una orden sanitaria cuando se produce el acto inicial del procedimiento correspondiente” (sentencia 2020-8302; el destacado no es del original).
También admitió a conocimiento unos alegatos de personas privadas de libertad. Sin embargo, al resolver por el fondo, igualmente se abstuvo de conocer los agravios relacionados con la suspensión de las visitas carcelarias y consideró que la discusión sobre esas disposiciones sanitarias no debía ser ventilada en esta sede:
“[L]a autoridad recurrida informa bajo fe de juramento -advertida de las consecuencias, incluso penales, previstas en el artículo 44 de la Ley que rige esta Jurisdicción- que actualmente, todo tipo de visitas a centros penitenciarios se encuentran suspendidas como medida preventiva en relación a la pandemia producto del COVID-19, y que dicha disposición fue comunicada a toda la población privada de libertad, indicándoles que los trámites se mantendrían suspendidos hasta que se puedan hacer efectivos. En lo atinente a la suspensión del beneficio, este Tribunal ha dispuesto que la suspensión referida se trata de una medida provisional, ejecutada en cumplimiento de órdenes emitidas de forma coordinada por las autoridades sanitarias y penitenciarias, respecto de la cual no le corresponde a esta Sala fungir como una instancia de legalidad y, con base en ello, valorar los criterios técnicos utilizados para determinar la procedencia de dicha medida” (sentencia 2021-14529; el destacado no es del original; en idéntico sentido vid. la sentencia 2020-10317).
En similar sentido, respecto de una orden sanitaria que ordenaba el cierre del Depósito Libre de Golfito, la Sala reiteró que no es una instancia más dentro de los diferentes procesos administrativos y judiciales, por lo que no le compete conocer por el fondo este tipo de asuntos:
“Ante el escenario descrito, en primer lugar, es necesario indicarle al recurrente que la Sala Constitucional no es competente para fungir como una instancia más dentro de los diferentes procesos administrativos o judiciales que tramiten los administrados. En el caso concreto, el recurrente pretende que este Tribunal entre a revisar el desalojo decretado pues, en su criterio, el mismo es improcedente en vista de que considera que tiene más de veinte años de laborar en la Plazoleta del Depósito Libre de Golfito. Sin embargo, ese reclamo se dirige expresamente a cuestionar en esta sede, aspectos que compete dilucidar a la jurisdicción ordinaria, ya sea a nivel administrativo o judicial, pues será ahí en donde, previa valoración probatoria, se podrá determinar quién tiene mejor derecho sobre el inmueble. En este caso, se acreditó que el recurrente no cuenta con patente municipal para ejercer la actividad de venta estacionaria extendido por la Municipalidad de Golfito, ni tampoco permiso del Ministerio de Salud. Incluso, no se pudo ni siquiera tener por probado que sea una de las personas desalojadas, según se extrae de los informes rendidos bajo juramento. En todo caso, según se aseguró bajo juramento, quienes se vieron afectados por el desalojo, acogieron la orden sanitaria sin problema. Así las cosas, al no tener esta jurisdicción competencia para analizar el fondo del asunto planteado, deberá el recurrente plantear su diferendo en la vía judicial ordinaria, previo agotamiento de la fase administrativa y por ende, no procede más que la desestimación del recurso como en efecto se ordena” (sentencia 2020-12161; el destacado no es del original).
Nótese de paso, que en esta y en las demás sentencias recién citadas, luego de haberle dado trámite, la Sala advierte en esta fase que no le corresponde resolver por el fondo y desestima el recurso; pero no es una desestimatoria del recurso porque entienda que la parte recurrente no tenga razón, sino porque constata que no cabe que en un recurso de amparo este tribunal se pronuncie por el fondo. Es decir, con más elementos, dice lo que habitualmente señala en los rechazos.
Asimismo, en otra ocasión la Sala reiteró que este tipo de medidas sanitarias ?al dictarse en el ejercicio de las propias competencias del Ministerio de Salud? no corresponde que, para determinar las razones que motivaron el acto, sean analizadas por la jurisdicción constitucional. También porque la orden sanitaria es el inicio del procedimiento administrativo, de manera que es a partir de su notificación que las partes pueden cuestionar su fundamento y ejercer su derecho de defensa:
“Tal y como se desprende de la sentencia supra citada, la orden de clausura que emite la administración es precisamente el acto que preside el inicio del proceso, por lo que es a partir de ese momento en que se expide la orden de clausura que debe respetarse de manera irrestricta el debido proceso en las actuaciones subsiguientes, lo cual según se describió anteriormente, fue debidamente respetado en el sub lite, al notificársele al recurrente la orden sanitaria e indicársele en esta los recursos que proceden y ante cuál autoridad, para que proceda de conformidad.
De igual forma, siendo medidas establecidas por los órganos administrativos al amparo de competencias que le son propias, resulta ajeno a la jurisdicción constitucional analizar o determinar si hay razones que hayan motivado su dictado, por lo que la discusión de su procedencia, viabilidad y duración escapa al conocimiento de esta jurisdicción (ver, en este sentido, sentencia No. 2006-9685, de las 13:17 horas del 7 de julio de 2006).
Así las cosas, lo procedente es declarar sin lugar el recurso en cuanto a este extremo, como en efecto se dispone, al comprobarse que al amparado se le brindó el debido proceso que corresponde en estos casos y se le informó cómo puede proceder, si a bien lo tiene, a efectos de impugnar las actuaciones que reclama” (sentencia 2021-7471; el destacado no es del original).
Es decir, aunque durante la pandemia la Sala dio curso a varios amparos en los que se impugnaban órdenes sanitarias, al resolverlos reiteró su jurisprudencia de siempre.
(c) El caso de Rolando Araya Monge Particular atención merece el precedente que resuelve un recurso de amparo presentado a favor del precandidato presidencial Rolando Araya Monge. Fue interpuesto en el contexto de la pandemia y fue admitido a trámite, pero se trae a colación especialmente porque en él se adujo la infracción a su libertad de expresión y también porque en la sentencia que resuelve el presente caso, la mayoría invoca este precedente para ilustrar un supuesto en que esta Sala sí entró a conocer la legitimidad de una orden sanitaria. Sin embargo, se hace necesario aclarar que en aquel asunto la mayoría de la Sala no examinó propiamente la legitimidad de la orden sanitaria y la supuesta restricción ilegítima a la libertad de expresión del señor Araya Monge. Dicho caso fue declarado con lugar por la mayoría al considerarse que hubo un problema probatorio de parte de los recurridos, quienes no resguardaron ni aportaron ante la Sala los videos de las manifestaciones del amparado que motivaron la emisión de la orden sanitaria. La Sala no valoró la legitimidad de la restricción a la luz de las declaraciones efectuadas por el señor Araya Monge. Incluso la mayoría puso de manifiesto que bien podría el Ministerio de Salud dictar restricciones de este tipo si se hubiera comprobado una amenaza a la salud pública. Al respecto, se resolvió lo siguiente:
“[L]os videos que sirvieron de base a la orden sanitaria dictada, objeto de este asunto, no se encuentran en el expediente administrativo, lo que solo le resulta imputable a la Administración. Tal situación impide que el amparado pueda cuestionar cuáles expresiones pudieron generar la reacción estatal y así defenderse. Ahora bien, como cualquier carga procesal, la parte que incumpla con ella en el sub examine, el Estado debe afrontar las consecuencias procesales de su omisión.
La Sala explica a la autoridad recurrida que, cuando se le reprocha a una persona el uso inadecuado de la libertad de expresión y se le imponen limitaciones a tal derecho, de modo inexorable debe existir certeza en cuanto a las razones de tales medidas excepcionales, que solo se pueden imponer en el marco de los casos permitidos por el orden constitucional y el convencional. Se reitera que la libertad de expresión resulta esencial para el sostenimiento de la democracia y, por ende, configura un aspecto cardinal de nuestro sistema político, por lo que toda restricción a ella no solo debe tener un adecuado fundamento jurídico-positivo, sea en la normativa interna o en el marco del derecho internacional de los derechos humanos, sino que, además, la autoridad competente se encuentra obligada a acreditar plenamente el sustento fáctico sobre el cual se basa.
Por el carácter sumario del proceso de amparo, tampoco podría la Sala asumir una posición inquisitoria e investigar cuáles videos pudieron eventualmente servir de fundamento al accionar estatal, en especial porque tal actividad tendría la finalidad de suplir las omisiones de las autoridades estatales, lo que roza con la naturaleza de Tribunal que defiende al individuo frente al Estado.
Finalmente, la Sala advierte que lo anterior no habría obstado para una valoración distinta, si se hubiese comprobado que las manifestaciones del amparado ponían en riesgo la salud de las personas y la actuación de la Administración se hubiese basado en un razonamiento jurídico positivo preciso y bien fundado. La Sala reafirma que el Ministerio accionado puede y debe salvaguardar la salud pública” (sentencia 2021-1515; el destacado no es del original).
Entonces, por las particularidades probatorias de ese caso –más bien por la ausencia de prueba– se dispuso la estimatoria del recurso. Pero, cabe reiterar que esa sentencia no se refirió al contenido de la orden sanitaria. De manera que, contrariamente a lo que se dice en la sentencia, muy respetuosamente considero que no es un buen ejemplo para ilustrar la tesis de la mayoría. En aquella ocasión, por cierto, el magistrado Castillo Víquez y yo salvamos el voto, sobre la base de la jurisprudencia que habitualmente ha afirmado que las órdenes sanitarias no son objeto de un recurso de amparo (vid. el voto salvado a la sentencia 2021-1515).
*** A partir de la revisión de la jurisprudencia es posible concluir que históricamente la Sala Constitucional ha sido muy rigurosa y restrictiva en conocer de recursos de amparo en los que se han impugnado órdenes sanitarias, incluso cuando se ha aducido que conllevan lesiones a derechos y libertades fundamentales de gran relevancia. Para ello, se ha apoyado en la normativa de protección a la salud pública que, en tesis de principio, legitima la conducta de las autoridades del Ministerio de Salud; ha estimado que no le corresponde revisar el fundamento técnico de la decisión por tratarse de aspectos probatorios altamente complejos, que no son propios de ser dilucidados en un proceso sumario como es el amparo; y ha señalado que la orden sanitaria es el acto inicial del procedimiento administrativo, de manera que a partir de su notificación formal se activan los mecanismos recursivos, tanto en la propia sede administrativa, como en la sede contencioso-administrativa, que es la vía idónea para controlar la legalidad de la función administrativa.
Entonces, para ser consistente con esas sólidas líneas jurisprudenciales, lo procedente habría sido que la Sala también desestimara este recurso de amparo. Además, como se ha dicho, si este Tribunal no ha atendido otros recursos de amparo en los que se aducía que las órdenes sanitarias impugnadas violaban otros derechos y libertades fundamentales de altísima importancia en la vida de las personas y las comunidades (derecho al trabajo, la libertad de comercio, la libertad de culto y la libertad de tránsito) no es fácil encontrar una justificación suficiente para que en el caso concreto se haya realizado un quiebre a esas líneas.
Cabe hacer una última consideraciónsobre un tema que se ha dado por supuesto: ¿Y con base en quéla Sala ha dictado esa jurisprudencia, si, como también se ha indicado, el artículo 29 de la LJC no excluye expresamente a las órdenes sanitarias dentro de los actos administrativos que podrían ser impugnados en un amparo?
La respuesta es la siguiente: Primero, con fundamento en el artículo 7 de la LJC, que le da a la Sala, por su carácter de tribunal constitucional, la competencia de definir (precisar, demarcar) su propia competencia[24]. Segundo, en virtud del artículo 9 de la LJC, que le permite rechazar un recurso de plano, cuando sea manifiestamente improcedente, o por el fondo, cuando haya precedentes[25]. Nótese que, si como dice la norma, puede rechazar por el fondo en cualquier momento, a fortiori –y de hecho así lo hace, como se ha visto– puede rechazar por improcedente un recurso también en cualquier momento. Tercero, sobre la base del respeto a la naturaleza del proceso y a lo dispuesto en los artículos 48 y 153 de la Constitución Política[26]. Y no solo por eso, sino también en atención a que ese artículo 48 no vino a anular el artículo 49 de la misma Constitución. Esto es, precisamente, lo que corresponde analizar ahora.
(3) La idoneidad de la vía contencioso-administrativa Es oportuno mostrar por qué la jurisdicción contencioso-administrativa es el marco previsto y propicio para el adecuado conocimiento del presente asunto.
(a) Previsión constitucional de control de la Administración Nótese que esa jurisprudencia constitucional sobre órdenes sanitarias, que tiene su origen en los primeros años de la historia de la Sala y se había venido fortaleciendo a lo largo de más de tres décadas, no afirma que estos actos administrativos de suyo son legítimos y que deben quedar exentos de control. En ese sentido, la Sala ha sido consistente en que le corresponde a la jurisdicción ordinaria hacer un análisis de legalidad para determinar que la orden sanitaria fue dictada conforme a Derecho. En efecto, justamente para ello el Constituyente estableció la jurisdicción contencioso-administrativa como atribución del Poder Judicial, con el objeto de garantizar la legalidad de la función administrativa del Estado. Por lo demás, es claro que el respeto a esa legalidad puede y suele tener impacto en la esfera de los derechos fundamentales, no solo patrimoniales. Pues bien, dice la Constitución:
Artículo 49.-Establécese la jurisdicción contencioso-administrativa como atribución del Poder Judicial, con el objeto de garantizar la legalidad de la función administrativa del Estado, de sus instituciones y de toda otra entidad de derecho público.
La desviación de poder será motivo de impugnación de los actos administrativos.
La ley protegerá, al menos, los derechos subjetivos y los intereses legítimos de los administrados.
A partir del contenido de ese artículo, la Sala ha derivado el principio constitucional de la revisión jurisdiccional de la función administrativa y el derecho fundamental a la impugnación de las conductas administrativas. Sobre el particular, es pertinente consignar una cita un tanto extensa, pero su densidad conceptual lo amerita:
“Actualmente, se admite por toda la doctrina del Derecho Público, el principio de la revisión jurisdiccional de la función administrativa, esto es, que cualquier manifestación específica de la función administrativa puede y debe ser revisada ante una instancia jurisdiccional para verificar su conformidad con el parámetro de legalidad (…). Este principio, en algunas constituciones, como la de Costa Rica, se traduce, al propio tiempo, en una garantía individual o derecho fundamental, así el artículo 49 de la Constitución establece la jurisdicción contencioso-administrativa para garantizar la legalidad de la función administrativa. En otras palabras, en la mayoría de los sistemas jurídicos, incluido el costarricense, el ciudadano o el administrado cuenta con la garantía de que cualquier acto administrativo de los poderes públicos sea revisado por la jurisdicción contencioso-administrativa, pudiendo, incluso, anular (por nulidad absoluta o relativa) ese acto cuando transgrede el ordenamiento jurídico (…). Este Tribunal Constitucional ha enfatizado el rango constitucional que tiene el principio de la revisión jurisdiccional de la función administrativa y el derecho fundamental a obtener tutela judicial efectiva contra las conductas administrativas que infringen el bloque de legalidad, así en el Voto No. 9928-2010 (…) consideró lo siguiente:
?IV.- REGULACIÓN CONSTITUCIONAL DE LA JURISDICCIÓN CONTENCIOSO-ADMINISTRATIVA Y LA ATRIBUCIÓN CONSTITUCIONAL DE UNA COMPETENCIA. El constituyente originario y el poder reformador se ocuparon de definir la competencia material y, por consiguiente, la extensión y alcances de dos jurisdicciones esenciales para el Estado Social y Democrático de Derecho. En efecto, en los ordinales 10 y 48 se establece la competencia material de la jurisdicción constitucional y, en el numeral 49, la de la jurisdicción contencioso-administrativa. Lo anterior deja patente, en la voluntad del constituyente originario y del poder reformador, la trascendencia tanto del control de constitucionalidad como de legalidad de los poderes públicos en aras de garantizar el goce y ejercicio efectivos de los derechos fundamentales y humanos consagrados, respectivamente, en el texto constitucional y los instrumentos del Derecho Internacional Público. Sin duda alguna, tales preceptos constitucionales encarnan lo que la doctrina ha denominado la cláusula regia del Estado Constitucional de Derecho. En lo que se refiere, particularmente, a la jurisdicción contencioso-administrativa, el artículo 49 constitucional, después de la reforma parcial (…) de 1963, dispone lo siguiente: (…) A partir de la transcripción literal del precepto constitucional, cabe resaltar lo siguiente:
1°) El constituyente derivado o poder reformador optó por un modelo de justicia administrativa “judicialista”, esto es, encomendándole a un orden jurisdiccional especializado del Poder Judicial la competencia y atribución de ejercer la fiscalización de la legalidad de la función administrativa, esto es, su conformidad sustancial o adecuación con el bloque de legalidad. Este sistema ofrece garantías y ventajas comparativas considerables para el justiciable, tales como la especialización, lo que acompañado de la carrera judicial dispuesta de manera infra-constitucional, representa una verdadera garantía de acierto y de cumplimiento del imperativo constitucional contenido en el ordinal 41 de la Constitución de una “justicia cumplida (…).
5°) El constituyente derivado optó por una justicia administrativa mixta, por cuanto, el párrafo primero, al definir el objeto del orden jurisdiccional contencioso-administrativo -“garantizar la legalidad de la función administrativa”-, debe complementarse, ineluctablemente, con el párrafo in fine, al preceptuar que ley brindará protección, como mínimo, a los derechos subjetivos y los intereses legítimos –sin distinguir, en cuanto a estos últimos, por lo que resulta admisible la tutela tanto de los personales como de los colectivos, sea corporativos o difusos-. Consecuentemente, la jurisdicción contencioso-administrativa, según el Derecho de la Constitución, fue instituida tanto para velar por la legalidad de la función administrativa como para la tutela efectiva de las situaciones jurídicas sustanciales de los administrados frente a los poderes públicos. Se conjuga, así, constitucionalmente, un rol objetivo y subjetivo de la jurisdicción contencioso-administrativa'” (sentencia 2013-04491; el destacado no es del original)[27].
Entonces la vía prevista para ejercer el control sobre actos administrativos como los impugnados es la contencioso-administrativa. Conviene ahora detenerse a considerar qué es lo que se examina en esa sede.
(b) Alcance del análisis en la vía ordinaria Si el objeto aquí impugnado (la orden sanitaria y el oficio conexo) se hubiese sometido al control en la vía contencioso-administrativa, se habrían valorado los requisitos de validez[28], es decir, los elementos sustanciales: tanto los subjetivos ?competencia, legitimación e investidura? como los objetivos ?motivo, contenido y el fin?; y los elementos formales ?motivación, procedimiento empleado y las formas de manifestación del acto?. También se habrían analizado los requisitos de eficacia[29] ?apropiada notificación?. Además, téngase presente que en el caso concreto se aduce que se trata de una desviación de poder por lo que justamente correspondía examinar el motivo, contenido y fundamento de los actos administrativos a la luz de la Ley General de la Administración Pública (LGAP), que en lo conducente dispone lo siguiente:
Artículo 132.
1. El contenido deberá de ser lícito, posible, claro y preciso y abarca todas las cuestiones de hecho y derecho surgidas del motivo, aunque no hayan sido debatidas por las partes interesadas.
2. Deberá ser, además, proporcionado al fin legal y correspondiente al motivo, cuando ambos se hallen regulados.
3. Cuando el motivo no esté regulado el contenido deberá estarlo, aunque sea en forma imprecisa.
4. Su adaptación al fin se podrá lograr mediante la inserción discrecional de condiciones, términos y modos, siempre que, además de reunir las notas del contenido arriba indicadas, éstos últimos sean legalmente compatibles con la parte reglada del mismo.
Artículo 133.
1. El motivo deberá ser legítimo y existir tal y como ha sido tomado en cuenta para dictar el acto.
2. Cuando no esté regulado deberá ser proporcionado al contenido y cuando esté regulado en forma imprecisa deberá ser razonablemente conforme con los conceptos indeterminados empleados por el ordenamiento” (El destacado no es del original).
Para valorar dichos elementos y poder concluir, con el debido sustento, que se trata de unos actos administrativos arbitrarios, se hacía indispensable examinar el fundamento de la orden sanitaria y, por lo tanto, la abundante prueba técnica aportada, proveniente de variados criterios de especialistas, que era procedente contrastar. Solo así habría sido posible determinar si, en efecto, se está frente a la ausencia de alguno o varios de los elementos esenciales del acto administrativo y de las acusadas lesiones de derechos y libertades fundamentales de los recurrentes.
Ese análisis, necesario para arribar a la conclusión de la supuesta nulidad del acto administrativo, excede sin duda alguna la naturaleza sumaria del recurso de amparo. Cabe reiterar que en centenares de ocasiones esta Sala ha advertido que “el recurso de amparo es un proceso sumario en el cual no es material ni razonablemente posible entrar a un complicado sistema probatorio o a un análisis de hechos que vaya más allá de los actos impugnados en sí” y se ha insistido sobre “la imposibilidad de analizar en esta sede la discrepancia en cuanto a criterios o parámetros técnicos” (vid. la línea ininterrumpida de la Sala, al menos, desde la sentencia 1997-2943, hasta la fecha en las recientes sentencias 2018-0787, 2019-16757, 2022-7145 y 2022-10379, entre otras).
En el caso concreto, como se ha dicho, era indispensable un análisis de plena prueba técnica para valorar la conducta administrativa de las distintas partes involucradas ?que no son exclusivamente las autoridades del Ministerio de Salud?. Todo lo anterior con el propósito de constatar que, tal como se acusa, el objeto impugnado (la orden sanitaria y el oficio conexo) está viciado de nulidad y es manifestación de una desviación de poder. Pero, además, en atención al objeto que se pretende proteger (la libertad de expresión y otros derechos fundamentales), era preciso examinar elementos probatorios adicionales para constatar una afectación cierta, real, efectiva a los intereses legítimos o los derechos subjetivos (sea cual fuere) presuntamente lesionados, pues de lo que se trata es de determinar el nexo causal entre el acto impugnado (la orden y el oficio conexo) y el daño infligido (la presunta lesión a la libertad de expresión y a otros derechos que se alegan violados).
En definitiva, como los recurrentes cuestionaron el fundamento de los actos administrativos impugnados, y los recurridos adujeron que se basaban en criterios técnicos, y la Sala pudo constatar que de suyo se estaba en presencia de materia altamente técnica y compleja, lo que correspondía en esta fase de conocimiento (en la que se suponía que procedía referirse al fondo del asunto) era reiterar la robusta jurisprudencia constitucional y, en atención a la naturaleza del recurso de amparo, declarar sin lugar el recurso en cuanto a la pretensión de anular los actos impugnados.
Se llega aquí a uno de los puntos clave del presente voto. Ya se ha dicho que prima facie el recurso cumple con los presupuestos procesales básicos para ser admitido, sin embargo, no cumple con esto último que se ha explicado: el análisis del objeto impugnado no es conforme con la naturaleza del proceso. En otros términos, lo que se impugna (la orden sanitaria y el oficio conexo), aunque se aduzca que es arbitrario y lesivo de derechos y libertades fundamentales, no corresponde ser conocido por la Sala Constitucional en un recurso de amparo, porque su plena y justa valoración excede la naturaleza sumaria de este proceso.
Pero la vía contencioso-administrativa no solo es la prevista para conocer este tipo de asuntos, especialmente si se considera la complejidad y los alcances de los actos impugnados en el presente caso, sino que se trata de una vía que tiene múltiples ventajas, como se explicará de inmediato.
(c) Ventajas de la vía ordinaria En primer lugar, la legitimación es más amplia todavía, según lo establece el artículo 10 del Código Procesal Contencioso-Administrativo (CPCA), pues pueden demandar quienes invoquen la afectación de intereses legítimos o derechos subjetivos y podrán pedir la declaratoria, el reconocimiento o el restablecimiento de una situación jurídica, con reparación patrimonial o sin ella[30].
Sin embargo, los recurrentes alegan que, si la Sala Constitucional no hubiese admitido este amparo, su derecho a la tutela judicial habría sido lesionado.
Aunque en un epígrafe posterior se hará referencia más detenida al tema de la legitimación, vale la pena citar de nuevo sus palabras y analizarlas a la luz de lo que ahora interesa:
“Si se considera erróneamente ese caso como un tema que debe ser conocido en las sede ordinaria por tratarse de un asunto de legalidad, se condenaría a los periodistas a no acceder a la tutela judicial, pues careceríamos de legitimidad para cuestionar los hechos aquí descritos en sede contencioso administrativa porque, tratándose de ataques indirectos a la libertad de expresión y prensa, los actos administrativos cuestionados no se dirigen en nuestra contra, sino que lesionan nuestros derechos de forma indirecta. Así, como máximo, podríamos actuar como coadyuvantes en una acción ordinaria, siempre sujetos a la suerte del principal y con limitados alcances, sobre todo en cuanto a la libertad de expresión, que es nuestra preocupación fundamental. La sede constitucional que tutela nuestro derecho a ejercer libremente el periodismo es el único medio apto para defendernos de los abusos que, de forma indirecta, esgrimen en nuestra contra los recurridos” (escrito de interposición, p. 2; el destacado no es del original).
Tales afirmaciones se apartan de lo dispuesto por el CPCA, pues, como se ha visto, los aquí recurrentes podían interponer una demanda para objetar la orden sanitaria y el oficio conexo, aduciendo que estos actos administrativos lesionaban su libertad de expresión y de prensa. No había ni hay obstáculo alguno para hacerlo: ni por el objeto impugnado (la orden sanitaria y el oficio conexo), ni por el objeto protegido (los derechos y libertades presuntamente violados), ni por la legitimación (que incluso podía tener como base intereses legítimos).
Entonces sí habrían estado legitimados no solo para acudir en defensa de los derechos constitucionales, sino de los legales; no solo de los derechos personales, sino de los patrimoniales; no solo de derechos subjetivos sino de intereses legítimos. Además, y esto es especialmente relevante para el caso que nos ocupa, podrían alegar no solo lesiones directas sino las indirectas y reflejas de cualquier derecho subjetivo o interés legítimo.
En segundo lugar, de conformidad con el artículo 31 del CPCA[31], para acudir a la vía contencioso-administrativa no es necesario agotar vía administrativa, al igual que no se exige para interponer un recurso de amparo, a tenor del artículo 31 de la LJC[32]. De manera que los recurrentes bien pudieron ir a esa vía, tanto como lo hicieron al acudir a la Sala, sin esperar conocer de lo resuelto en el recurso de apelación interpuesto por la sociedad propietaria del inmueble.
En tercer lugar, la jurisdicción contencioso-administrativa tiene amplias facultades para ejercer una robusta y eficaz justicia cautelar. Así en esa vía habrían podido pedir la suspensión inmediata del acto, cosa –por cierto– que no solicitaron ante la Sala Constitucional. Dicha suspensión podría haber sido concedida con o sin audiencia previa. Así lo establece el artículo 19 del CPCA que, en lo que interesa, señala:
Artículo 19. 1) Durante el transcurso del proceso o en la fase de ejecución, el tribunal o el juez respectivo podrá ordenar, a instancia de parte, las medidas cautelares adecuadas y necesarias para proteger y garantizar, provisionalmente, el objeto del proceso y la efectividad de la sentencia. 2) Tales medidas también podrán ser adoptadas por el tribunal o el juez respectivo, a instancia de parte, antes de iniciado el proceso.
Además, el órgano jurisdiccional que ejerce esa justicia cautelar tiene amplia discrecionalidad para imponer a las partes diversos tipos de obligaciones, cuyo cumplimiento supervisará:
“Artículo 20.- Las medidas cautelares podrán contener la conservación del estado de cosas, o bien, efectos anticipativos o innovativos, mediante la regulación o satisfacción provisional de una situación fáctica o jurídica sustancial. Por su medio, el tribunal o el juez respectivo podrá imponerle, provisionalmente, a cualquiera de las partes del proceso, obligaciones de hacer, de no hacer o de dar. // Si la medida involucra conductas administrativas activas u omisiones con elementos discrecionales, o vicios en el ejercicio de su discrecionalidad, estará sujeta a lo dispuesto en el numeral 128 de este Código”.
De manera que el juez de lo contencioso-administrativo está facultado incluso para modular la suspensión del acto impugnado, determinando si se da de manera total o parcial y, en este último caso, si se imponen condiciones. Por ejemplo, podría haber señalado que la suspensión no regía para la realización de eventos deportivos, que suelen tener una asistencia menos masiva que la de los conciertos.
Los recurrentes podían alegar los graves daños o perjuicios, actuales o potenciales derivados de los actos que se acusan como arbitrarios[33], y el órgano jurisdiccional debía hacer una ponderación considerando el interés público y el de terceros, y los derechos que los recurridos dicen proteger (la vida, la salud e integridad de los usuarios del inmueble y de los vecinos) [34].
Sobre el proceso cautelar, las normas disponen unos plazos cortos y a la vez unas condiciones adecuadas para que el órgano tenga todos los elementos de juicio necesarios[35].
Esta justicia cautelar no solo cuenta con previsiones normativas de gran calidad, sino que es de probada prontitud y eficacia. Para mostrar esto, se podrían consignar muchas resoluciones[36]. Basta señalar que solo en las últimas semanas se han acogido dos medidas cautelares contra actos gubernamentales[37].
Hay otra ventaja de la vía contencioso-administrativa que salta a la vista, especialmente cuando conoce de un proceso no sumario: la de ofrecer la posibilidad de contar con un examen exhaustivo de toda clase de prueba, a tenor del artículo 82 de CPCA[38].
Las ventajas y garantías procesales que ofrece la vía de lo contencioso-administrativa para conocer un asunto como el presente no acaban ahí. Si lo que se objeta es que la desventaja mayor es su lentitud, el artículo 69 del CPCA[39] prevé una solución que contribuye a evitarla: la declaratoria de trámite preferente, que establece plazos mucho más cortos y prerrogativas para acelerar el proceso.
Nótese que no se trata de una solución para suspender los efectos del acto, pues para eso estaría la justicia cautelar, sino para resolver la controversia con más celeridad. De manera que el asunto bien pudo llegar a sentencia, en un plazo razonable, pese a su complejidad, justamente porque –en atención al objeto impugnado, a la repercusión misma de esta, y a los derechos que se buscaban garantizar– existían claras posibilidades de que siguiera ese trámite preferente.
(1) Marco del problema Como he dicho, el artículo 48 de la Constitución Política establece una legitimación universal, y esto queda reflejado en el artículo 33 de la LJC que señala que “cualquier persona podrá interponer el recurso de amparo”. Esto ha sido entendido por la Sala como la previsión normativa de la legitimación activa universal, que incluye la legitimación activa vicaria. En otros términos, esas normas establecen que toda persona puede interponer un recurso de amparo y que esto incluye la posibilidad de interponerlo a favor de otra persona.
Pero, claro, esto es desde la lógica de que, si se interpone a favor de sí mismo, es porque el acto impugnado es lesivo para sí mismo. A la vez, si se interpone a favor de otra persona, es porque el acto impugnado es lesivo para esa otra persona.
Sin embargo, en el presente amparo estamos ante un caso atípico, porque los recurrentes alegan tener legitimación para interponer el recurso de amparo en el que impugnan unos actos administrativos que no recaen sobre ellos, sino sobre un inmueble que es propiedad de una empresa que pertenece al mismo grupo empresarial dueño del periódico para el que trabajan.
Dicen tener el derecho a que se les conceda anular la orden sanitaria y el oficio conexo –que estiman arbitrarios– como medio para el goce de su libertad de expresión, que consideran lesionada.
Entonces, aunque, debido a esas previsiones normativas, en los recursos de amparo casi nunca se presentan problemas de legitimación, en este sí. Y, parece que son conscientes de ello, pues en el escrito de interposición señalan:
“…tratándose de ataques indirectos a la libertad de expresión y prensa, los actos administrativos cuestionados no se dirigen en nuestra contra, sino que lesionan nuestros derechos de forma indirecta” (escrito de interposición, p. 2).
Entonces, la clave de la argumentación de los recurrentes para solicitar a la Sala que admita el presente recurso y se pronuncie sobre este es la vinculación que afirman que existe entre la orden sanitaria y la presunta lesión a la libertad de expresión. Es evidente que para tener por acreditada esa vinculación no basta probar el simple ligamen empresarial de las dos unidades de negocio, sino la dependencia del periódico (donde ellos ejercen su libertad de expresión) respecto del Parque Viva (sobre el que recae el objeto impugnado).
(2) Sobre el alegato que solo tendrían legitimación ante la Sala Los recurrentes no solo sostienen que tienen legitimación para venir en amparo, sino que incluso llegan a afirmar que únicamente aquí, ante la Sala, tienen legitimación, porque en la jurisdicción ordinaria solo podrían ser coadyuvantes y la libertad de expresión, que es la que les interesa que se les proteja, no podría ser garantizada:
“Si se considera erróneamente ese caso como un tema que debe ser conocido en las sede ordinaria por tratarse de un asunto de legalidad, se condenaría a los periodistas a no acceder a la tutela judicial, pues careceríamos de legitimidad para cuestionar los hechos aquí descritos en sede contencioso administrativa porque, tratándose de ataques indirectos a la libertad de expresión y prensa, los actos administrativos cuestionados no se dirigen en nuestra contra, sino que lesionan nuestros derechos de forma indirecta. Así, como máximo, podríamos actuar como coadyuvantes en una acción ordinaria, siempre sujetos a la suerte del principal y con limitados alcances, sobre todo en cuanto a la libertad de expresión, que es nuestra preocupación fundamental. La sede constitucional que tutela nuestro derecho a ejercer libremente el periodismo es el único medio apto para defendernos de los abusos que, de forma indirecta, esgrimen en nuestra contra los recurridos” (ibid., p. 2; el destacado no es del original).
Sobre estas aseveraciones, a mi juicio, pueden surgir dos reparos. El primero, como ya se ha visto, que parecen desconocer que en la jurisdicción contencioso-administrativa los recurrentes sí tendrían una legitimación aún más amplia, porque a tenor del artículo 10.1 del CPCA no solo podrían alegar un derecho subjetivo sino un interés legítimo. El segundo, que dejan de lado que la Sala no es la única que puede proteger los derechos fundamentales. Decir lo contrario, entender que la Sala es la única instancia para garantizar esos derechos, sería tanto como sostener que la jurisdicción ordinaria solo protege derechos patrimoniales y legales. En el fondo sería afirmar que la Sala Constitucional tiene el monopolio de la protección de los derechos fundamentales, cuando lo cierto es que tiene solo el monopolio de la protección de los derechos fundamentales mediante el recurso de amparo. Paso ahora a explicar esto que he dicho en apretada síntesis.
Los derechos fundamentales no fueron reconocidos al crearse la Sala Constitucional, sino que esta, al conocer del recurso de amparo, ha hecho que su garantía se pueda dar con gran eficacia y prontitud. ¿Qué otras vías jurisdiccionales hay para proteger derechos fundamentales? Las vías ordinarias, previstas en los artículos 153 y 49 de la Constitución Política, ya citados[40]. Por cierto, estimo que no sin motivo el Constituyente quiso que esa norma, junto con el artículo 48 –dedicado al recurso de amparo y al hábeas corpus– culminara el título IV, denominado “Garantías Individuales”, como para subrayar que ese título no solo establece los derechos fundamentales sustantivos sino los mecanismos para protegerlos jurisdiccionalmente.
La Sala protege los derechos fundamentales (con excepción de la libertad e integridad personales, que conoce en el hábeas corpus) mediante el recurso de amparo, que es una vía expedita y eficaz; y solo la Sala tiene competencia para conocer de ese recurso previsto en el artículo 48 de la Constitución Política. Pero, desde luego no es la única sede donde se protegen los derechos fundamentales. Si se dijera que el juez ordinario no protege los derechos fundamentales, estaríamos afirmando que este únicamente aplica la ley y los reglamentos. Por el contrario, el juez ordinario es de los primeros llamados a tutelar y hacer valer los derechos fundamentales de las personas. Por lo demás, la Sala misma a través de su jurisprudencia y, muchas veces a la vista de reformas legales que prevén otros cauces, ha ido delegando en otros órganos el conocimiento de asuntos que antes solo se conocían mediante el recurso de amparo[41]. Por eso he dicho que la Sala no tiene el “monopolio” en la protección de derechos fundamentales.
Además de que tenían legitimación para ser demandantes, alegando la violación de derechos subjetivos e intereses legítimos, también podrían haber pedido la correspondiente restitución e indemnización. Todo a tenor del artículo 10 del CPCA ya citado.
No era necesario que la empresa como tal interpusiera una demanda en la vía contencioso-administrativa. Ellos mismos pudieron haber acudido a esa vía para proteger la libertad de expresión aduciendo, como lo hacen acá, que los actos administrativos son arbitrarios, que son la materialización de una desviación de poder, y suponen una lesión a esa libertad. Según me parece, eso justamente es lo que hace que en el supuesto de que la Sala hubiese declarado sin lugar el presente recurso de amparo, la admisibilidad de una petición interpuesta por los recurrentes ante la Comisión Interamericana de Derechos Humanos, con miras a que el asunto fuese llevado luego a la Corte IDH, habría topado con un serio obstáculo, pues no se habían agotado los recursos internos de los que habla el artículo 46.1 de la CADH[42] y tampoco se habría podido invocar el artículo 46.2 de esa Convención[43]. Lamentablemente, el análisis sobre este interesante tema excede el objeto del presente voto salvado.
Ahora bien, dicho esto: que los recurrentes tendrían legitimación para acudir a la vía contencioso-administrativa, sin que la sociedad para la que trabajan lo hubiese hecho; y que podrían ser demandantes, no simples coadyuvantes; y que en esa vía se les protegería no solo derechos subjetivos (en este caso, la libertad de expresión), sino intereses legítimos; y que podrían obtener por ellos mismos la restitución que solicitan (e incluso la indemnización si la hubieran pedido), corresponde analizar si en efecto tienen legitimación para acudir en amparo ante la Sala Constitucional.
(3) Alegatos de los recurrentes sobre la causa de la legitimación Los recurrentes defienden que hay una vinculación entre el objeto impugnado (la orden sanitaria y el oficio conexo) y el objeto que buscan proteger (su libertad de expresión). Esto, pese a que esos actos recaen sobre un inmueble que no es del periódico ni se dedica a nada que haga relación al giro periodístico.
¿Pero en qué fundamentan ellos esa vinculación? En que los actos están motivados, no formalmente, sino en su intención última, por el afán de desestabilizar al Grupo Nación que es dueño de las dos empresas: el Parque Viva y el periódico La Nación[44].
“Los actos administrativos empleados para ejercer censura indirecta o velada mediante presiones económicas relacionadas con el medio en que laboramos carecen de todo sustento técnico y no persiguen ningún fin legítimo, sino una represalia por la línea crítica del periódico y un intento de silenciarlo” (ibid., p. 1)[45].
Los recurrentes aducen que las actuaciones lesivas por parte del presidente de la República se dan en dos direcciones: poner en duda la solidez financiera del Grupo Nación y el cierre del Parque Viva. Respecto de la primera afirman:
“Vale la pena señalar que ninguna autoridad financiera ha expresado las mismas dudas, Grupo Nación mantiene la clasificación “A” y los activos de la empresa duplican sus pasivos. Los estados financieros son públicos, porque Grupo Nación está inscrito en bolsa, y en ellos consta la reserva de los recursos necesarios para cancelar el próximo vencimiento” (ibid., p. 5).
Recogen unas manifestaciones del señor presidente en una rueda de prensa:
“?La rentabilidad de La Nación va en caída libre y eso significa que está incurriendo en pérdidas constantes, constantes, constantes. Y entonces uno se pregunta, si esa tendencia de pérdidas continúa, no sé, tal vez tengan una varita mágica y logren levantar el flujo de caja. ¿Qué pasa? Es el deber de cuidar la pensión de su abuelita. ¿Qué pasa si a la Nación se le ahora el flujo de caja y no está la propiedad porque está en otra parte? (…) ' afirmó el mandatario” (ibid., p. 5).
Se refieren al hecho de que el señor presidente instara a la Caja Costarricense de Seguro Social a solicitar información a la Sugeval sobre la capacidad de pago del Grupo Nación:
“Como queda claro, el espectáculo no tuvo otro fin que perjudicar al Grupo Nación, poniendo en duda sus finanzas, para coartar nuestra libertad de expresión porque ?la práctica habitual de inversionistas institucionales' es consultar directamente al emisor y valerse de la información publicada por mandato de ley.
Nunca antes un presidente se había ocupado personalmente de la suerte corrida por inversiones de una institución pública que ninguna autoridad financiera ha cuestionado. Nunca antes se dedicó buena parte de una conferencia de prensa presidencial a informar que se le formularon preguntas al emisor mediante Sugeval, en lugar de hacerlo directamente. Y dos días más tarde vendría el cierre del Parque Viva, sin duda para ver ?si a La Nación se le ahorca el flujo de caja'” (ibid., p. 6).
Acusan la ilegitimidad de dichas manifestaciones a la luz de sentencias de la Corte IDH y, en concreto, aducen:
“En nuestro caso, como es público y notorio, además del constante uso de la palabra ?canalla', una injuria para deslegitimar, amedrentar, y estimular el repudio a la prensa entre los seguidores del gobierno, lo cual es por sí mismo peligroso, las referencias a la salud financiera de Grupo Nación distan de la constatación ?razonable, aunque no necesariamente exhaustiva', de ?los hechos en los que fundamental sus opiniones', y el deber de ?hacerlo con una diligencia aún mayor a la empleada por los particulares, en razón de su alta investidura, del amplio alcance y eventuales efectos que sus expresiones pueden tener en ciertos sectores de la población, y para evitar que los ciudadanos y otras personas interesadas reciban una versión manipulada de determinados hechos'[46]” (ibid., p. 6).
En la argumentación, todo lo anterior parece tener una finalidad de ofrecer el contexto para mostrar la segunda vertiente de actuaciones que estiman lesiva: el cierre del Parque Viva, realizado mediante los actos impugnados.
“En las actuaciones de la Administración Pública dirigidas al cierre del Parque Viva hay una clara desviación de poder para violentar derechos humanos. Con las medidas adoptadas no se persigue la satisfacción de intereses públicos, sino la de intereses espurios consistentes en represaliar su derecho a informar. Este [es] el verdadero fin que tienen los actos administrativos adoptados. Estos actos no solo afectan económicamente a la empresa dueña de Parque Viva, sino que, además, al medio de información en que laboramos y, con ello, lesionan nuestro derecho a informar. Este es el verdadero fin que persiguen los actos administrativos frente a los cuales pido amparo” (ibid., p. 7; el destacado no es del original).
En el mismo sentido, agregan:
Si algo celebra la comunidad es que la desviación de poder del gobierno vertió luz sobre un problema de larga data que no se resuelve con los actos administrativos arbitrarios señalados en este recurso. La ineficacia de esos actos desvirtúa su pretendido fin público y evidencia que el único fin es afectar las finanzas del Grupo Nación en represalia por el libre ejercicio del periodismo de nosotros los recurrentes en intentarnos silenciarnos a futuro, como prometió el Presidente” (ibid., p. 13; el destacado no es del original).
Luego añaden un pasaje que va en la misma línea que los recién citados:
“La legalidad de las actuaciones descrita debe ser discutida, por quien tenga legitimación para hacerlo, en la jurisdicción apropiada, pero junto a la promesa de campaña del Presidente, las arbitrariedades apuntadas no dejan duda sobre el propósito persecutorio contra el periódico en que laboramos y su carácter de represalia, con desviación de poder, contra la línea informativa y editorial con grave lesión del derecho a la libertad de expresión. Por supuesto, la presión ejercida sobre las finanzas de la empresa pone en riesgo el ejercicio periodístico futuro e invita a entendimientos que lo comprometan” (ibid., p. 14; el destacado no es del original).
En un escrito posterior al informe dado por el presidente de la República, en el mismo sentido, los recurrentes afirman:
“?A Grupo Nación no se le puede exigir, como a cualquier otro comercio costarricense, ajustarse a los parámetros de la ley porque inmediatamente, a su parecer, se convierte en un ataque a la libertad de prensa', dice el informe del Presidente. Nunca alegamos los recurrentes semejante absurdo. Grupo Nación, y nosotros como individuos, estamos sometidos a las leyes. No pretendemos una excepcionalidad odiosa y antidemocrática. Los recurrentes sostenemos que en el caso concrete existe una desviación de poder para limitar indirectamente nuestra libertad de expresión en cumplimiento de la amenaza formulada durante la campaña política, a la cual el informe presidencial no se refiere una sola vez. Y en este punto vale señalar la falacia de los alegatos sobre el cumplimiento del deber de proteger intereses sociales con el cierre de Parque Viva. No es que los recurrentes pretextamos la libertad de expresión para eximir a Grupo Nación de cumplir la ley, es que el señor Presidente y la señora Ministra de Salud pretextan el cumplimiento del deber para materializar el propósito de silenciarnos expresado en la campana electoral y debidamente documentado” (escrito de los recurrentes del 17 de agosto, p. 9; el destacado no es del original).
De previo, se habían referido al origen de esa relación entre periódico La Nación y Parque Viva, que merece ser citado de nuevo:
“Parque Viva es una de esas estructuras [que nos permiten ejercer el periodismo independiente], en el caso de Grupo Nación. Fue creado, precisamente, para diversificar las fuentes de ingresos de la empresa y compensar la pérdida de ingresos experimentada por los medios de comunicación en todo el mundo debido a la migración de la publicidad hacia los gigantes de la Internet, como Google y Facebook. Ese hecho es público y consta en diversas manifestaciones de la empresa y sus personeros desde al menores el 2013. En el informe a los accionistas del período 2013-2014, visible en la página de nación.com https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html la presidencia ejecutiva afirmó: “…los cambios en la industria, en el consumo de medios y en el ambiente competitivo nacional, seguirán retando al negocio de medios impresos. Conscientes de ese panorama, diseñamos, hace dos años, una estrategia para enfrentarlo. Mientras maduran las nuevas iniciativas, especialmente en el ámbito digital, todo medio periodístico requerirá de una fuente complementaria de ingresos, menos dependiente de la vena de publicidad. En consecuencia, como lo anunciamos el año pasado, invertimos importantes recursos y esfuerzos en la creación del Parque Viva, en la Guácima de Alajuela” (escrito de interposición, p. 4; el destacado no es del original).
Como se puede observar, en este párrafo se habla de la vinculación, pero no se acredita la dependencia: solo se refiere a la justificación de la decisión de incursionar en otro giro comercial.
Los recurrentes no muestran datos que permitan observar desde cuándo y en qué porcentaje se da la aducida dependencia. Es decir, no aportan pruebas que hagan establecer una relación directa e inequívoca que permita afirmar, sin margen de duda, que la sostenibilidad del periódico La Nación depende del Parque Viva.
Por cierto, solo hacen una referencia analítica a los estados financieros del Grupo Nación, al afirmar la capacidad de pago, y explican que los activos son muy superiores a los pasivos, cosa que en efecto se refleja así en el informe de estados financieros consolidados auditados del 2020-2021. En el 2020: Los activos 68.883.898, los pasivos 27.661.566. En el 2021: los activos 68.555.759 y los pasivos 28.288.573[47].
En un escrito posterior, sí recogen las palabras del director ejecutivo del Grupo Nación en las que explica cuáles son las expectativas sobre el Parque Viva:
“Vale señalar que al día siguiente de la conferencia sobre los bonos, el director ejecutivo de Grupo Nación, Pedro Abreu, dio amplias explicaciones públicas y menciono el papel de Parque Viva en el flujo de la empresa. Un día después, el gobierno cerró precipitadamente Parque Viva.
Abreu declaro, entre otras cosas: ?Se habla de que La Nación solo arrastra pérdidas. Es muy importante hacer la distinción entre perdida contable y generación de flujo de caja. Nosotros estamos arrastrando perdidas contables, es cierto, pero estamos generando flujo de caja. Esto quiere decir que, entre la operación y las inversiones financieras, estamos generando flujo de caja suficiente para pagar la deuda, para pagar todos los intereses, para pagar todas las inversiones y, además, estamos ahorrando para hacerle frente a los vencimientos del futuro. Eso se puede ver en nuestros estados financieros, que son públicos' afirmó Abreu para añadir: ?Parque Viva ha estado parado por dos años (por la pandemia). Entonces, los números que hemos estado mostrando, donde el flujo de caja ha sido positivo, son con Parque Viva cerrado. Desde marzo de 2022, Parque Viva está funcionando, va a empezar a generar flujo de caja y va a empezar a aportar a ese flujo que ya estábamos generando. Entonces, los números de este año se van a ver mucho mejor que los del año pasado. Creemos que esa va a ser la tendencia de aquí al 2025'. (Ver prueba adjunta). Al día siguiente, Parque Viva quedo cerrado. (Ver publicación ?Chaves ataca a La Nación con datos distorsionados')” (Escrito de los recurrentes del 17 de agosto, p. 9).
Interesa entonces ahora observar si la sentencia fundamenta adecuadamente esa dependencia, que sería la raíz de la legitimación que les permite a los recurrentes interponer válidamente un amparo para que se anulen unos actos que no recaen sobre ellos.
(4) Consideraciones de la sentencia sobre la dependencia En realidad, la sentencia no se ocupa propiamente del problema de la legitimación. Da por sentada tal dependencia con argumentos que solo apuntan a explicar varios fenómenos que no cuestiono y que de suyo son hechos públicos y notorios, sin real incidencia en la comprobación de esa dependencia en el caso concreto.
En primer lugar, el fenómeno de la migración de lectores de prensa al formato digital:
“Los medios de comunicación tradicionales, principalmente los medios impresos, han sufrido en los últimos años un fuerte declive económico con la llegada del internet, la caída de la inversión publicitaria y su migración a las grandes plataformas digitales” (sentencia, considerando VIII).
Eso es algo inobjetable, pero es útil únicamente para mostrar el contexto en el que se desenvuelve el periódico La Nación y todos los medios de prensa.
De seguido explican que ese fenómeno ha llevado a otro: la reacción de los dueños de esas empresas ante ese cambio de circunstancias:
“En virtud de lo anterior, los medios de comunicación se han visto en la necesidad de innovar y buscar nuevos formatos, propuestas o mecanismos para buscar nuevos ingresos (y audiencia) que permitan, a su vez, financiar el periodismo y al medio como tal, sobre todo al periodismo de investigación que resulta costoso. En otros términos, se han debido implementar nuevas estrategias comerciales o poner en funcionamiento modelos mixtos con el fin de “rentabilizar a los medios de comunicación”, tal y como así ha sido llamado por algunos. Tanto es así que muchos medios de comunicación, hoy en día, no generan el dinero con su actividad principal o tradicional, sino con otras que le permiten subsistir” (ibid.).
Se reconoce que las acciones han ido encaminadas en varias direcciones: innovar y buscar nuevos formatos, utilizar otros mecanismos de ingresos que permitan financiar al periodismo. Es dentro de este último tipo de acción que estaría la inversión hecha por el Grupo Nación al adquirir y poner en marcha el Parque Viva, pues entienden que “muchos medios de comunicación, hoy en día, no generan el dinero con su actividad principal o tradicional, sino con otras que le permiten subsistir”.
Hasta aquí lo único que se puede tener claro es que la unidad de negocio original del Grupo Nación (el periódico) necesita de la nueva unidad de negocio (Parque Viva). Pero, tanto como los recurrentes, la sentencia no se ocupa de mostrar en qué medida y cómo se da esa dependencia.
Después la sentencia señala:
“A modo de ejemplo, los medios de comunicación modernamente han recurrido, entre otras, a las siguientes fórmulas o estrategias: a) algunos medios impresos han creado su propia plataforma digital y han instaurado los modelos por suscripción o lo que se ha llamado “pagar por ver”; fórmula a la que han recurrido con éxito grandes medios como The New York Times o The Guardian. b) Se ha recurrido a la creación de contenidos de mayor calidad y exclusividad (sobre temas específicos y de interés para ciertos sectores), que hacen atractiva la búsqueda y el acceso a estos. c) Se ha hecho uso de los podcast (serie de episodios sobre diversos temas grabados en audios y transmitidos online al que ha recurrido por ejemplo el medio The New York Times a través de su programa The Daily). d) Se ha promovido la organización de eventos, foros o congresos sobre determinados temas de la mano de expertos y personalidades, para lo cual, a su vez, se cobra por participar o por ingresar (los medios Texas Tribune o The Economist se han caracterizado por organizar eventos de este tipo). e) Se recurre también a la venta de piezas a terceros (los grandes medios, aprovechándose de la enorme experiencia y el soporte estructural con el que cuentan, cubren cierta información especializada, la procesan y la venden a otros, incluso a su propia competencia). f) Se ha hecho uso del llamado Brand licenser, que permite a los medios de comunicación licenciar su marca para que terceras empresas la utilicen en sus productos o servicios (v. gr. National Geographic vende productos relacionados con viajes y aventura, libros y hasta ha instalado tiendas relacionadas con su línea de cobertura)” (ibid.).
Como se puede observar, eso solo es un elenco de actividades que han llevado a cabo distintos medios de prensa o revistas impresas para innovar la forma de difundir ideas o noticias, en este nuevo y desafiante contexto. Pero ninguna de esas actividades hace relación a la diversificación de inversiones del grupo dueño de la empresa de comunicación con el fin de obtener recursos financieros para sostener el medio de prensa. En el presente caso, en cambio, los recurrentes están señalando que la unidad de negocio original del Grupo Nación (el periódico) depende para su subsistencia de otra unidad de negocio que nada tiene que ver con el ejercicio del periodismo o la comunicación (el Parque Viva).
De inmediato, la sentencia incursiona en el fenómeno de los holdings o conglomerados de empresas en los siguientes términos:
“Igualmente, cabe destacar que, como parte de esas fórmulas a las que han tenido que apelar los medios de comunicación para diversificar sus fuentes de ingreso y sostenerse financieramente, se ha recurrido también a la adquisición o a la adhesión con otras empresas cuyas actividades principales se encuentran relacionadas o no directamente con el periodismo (conformándose así lo que se ha denominado holdings o grupos de interés económicos). Este tipo de fenómeno en particular se ha manifestado en otras latitudes y también a nivel nacional” (ibid.).
Se entra entonces en un ámbito más cercano al del caso que nos ocupa, pues se trata de grupos empresariales cuya unidad de negocio original es el medio de comunicación, y que diversifican la inversión adquiriendo “empresas cuyas actividades principales se encuentran relacionadas o no directamente con el periodismo”. El Grupo Nación se enmarca en ese fenómeno. Pues bien, eso no está en tela de juicio. Es un hecho público y notorio, pero no refleja la real dependencia. Una cosa es que ese o cualquier grupo desee diversificar su inversión y otra distinta que al hacerlo quiera mantener una unidad de negocio deficitaria de suyo. En otros términos, los holdings no tienen como finalidad propia mantener en su seno una unidad de negocio financieramente inviable, sino aumentar los ingresos en diversas actividades y minimizar los riesgos que supone invertir todo el capital en una sola unidad de negocio.
Luego, la sentencia recoge ejemplos de holdings que tienen inversiones en el campo de los medios de comunicación. Inicia con el siguiente:
“Así, a modo de ejemplo, se tiene el caso del diario The Boston Globe y otros medios (propiedad, a su vez, del periódico estadounidense The New York Times), los cuales fueron adquiridos en el 2013 por John Henry, dueño del equipo de beisbol Red Sox y del equipo de futbol Liverpool FC, con el propósito de afrontar las cuantiosas pérdidas económicas sufridas por el primero, originadas por la migración de lectores y de la publicidad hacia el internet” (ibid.).
Es un buen ejemplo, aunque en dirección inversa: es el dueño de una empresa no periodística que adquiere dos empresas periodísticas. Pero no parece que el señor Henry pueda invocar la lesión a la libertad de expresión en caso de que sus respectivos equipos deportivos sean sancionados con cuantiosas multas. De todas maneras, recordemos que aquí estamos en primer término analizando el tema de la dependencia financiera, que sería condición para determinar la vinculación alegada entre actos administrativos y lesión a la libertad de expresión. Entonces, vale solo decir que ese ejemplo únicamente sirve para señalar que, en efecto, hoy como nunca la actividad periodística en formato escrito es menos rentable que la de otras unidades de negocio, no importa el giro, y que estas otras pueden servir de apoyo financiero, pues el dueño de ambas es el mismo y puede querer subvencionar la que no es rentable.
La sentencia continúa:
“Igualmente, se tiene que Warren Buffet, a través de su holding Berkshire Hathaway (sociedad dueña total o parcial de las acciones de varios grupos empresariales de textiles, seguros, automóviles, bebidas, etc.) en el año 2012, compró sesenta y tres periódicos del Grupo Media General del sureste de Estados Unidos, los cuales sufrían también una baja rentabilidad. Entre los diarios adquiridos por Buffett figuran el Richmond Times de Virginia, el Winston-Salem Journal de Carolina del Norte y el Morning News of Florence de Carolina del Sur” (ibid.).
De nuevo, el ejemplo es más cercano, pero, también de nuevo es inverso al caso que nos ocupa: el grupo empresarial que de por sí tenía diversificada su inversión en distintas actividades, aunque ninguna en el campo de la comunicación, según se refiere en este pasaje, adquiere “periódicos (…) los cuales sufrían también una baja rentabilidad”. Como el ejemplo es similar, los comentarios también lo serían. Corresponde entonces transcribir lo que la sentencia recoge de seguido:
“Asimismo, se cuenta con el caso de Jeff Bezos (fundador y dueño de Amazon, gigante compañía de comercio electrónico), quien en el año 2013 compró The Washington Post, con el fin de lograr su supervivencia, luego que este medio de comunicación sufriera igualmente los embates de la irrupción de nuevas tecnologías, el descenso de las audiencias y de los ingresos por publicidad. Nótese que, en este caso en particular, pese a que el medio de comunicación –según lo ha anunciado, entre otros, el medio español El País–, no se integrará o adherirá propiamente a Amazon, su adquisición forma parte de esa misma estrategia comercial tendente a ayudar a que el mismo pueda mantenerse funcionando” (ibid.).
Efectivamente, esto significa que el dueño de una unidad de negocio ajena a giro de los medios de comunicación invierte en uno de estos, pero no lo incorpora a su original esquema financiero. La verdad es que esa integración no se sabe si también se dio con el señor Henry o con el señor Buffet, y de suyo no tiene relevancia. Lo importante es que se trata de ejemplos en los que la viabilidad financiera de medios de comunicación se da gracias a la adquisición de estos por parte de dueños de empresas con otros giros comerciales más rentables.
En el presente caso es un grupo cuya unidad de negocio original es un periódico, del que se afirma que no es de suyo rentable, y que incursiona en otro giro comercial: adquiere otra unidad de negocio cuya actividad no se desarrolla en el campo de la comunicación. Así lo señala la sentencia:
“En Costa Rica, el uso de este tipo de mecanismos o fórmulas se ejemplifican a través de Grupo Nación S.A. (corporación de la cual forma parte el Periódico La Nación), el que dispuso comprar las instalaciones de lo que solía ser el Autódromo La Guácima y las convirtió en el centro de eventos llamado Parque Viva, como medio para diversificar las fuentes de ingresos de la empresa y compensar así la pérdida de ganancias sufrida debido a la migración de la publicidad hacia sitios de internet” (ibid.).
Eso, como he dicho, es un hecho público y notorio, y por lo demás se trata de una decisión financiera absolutamente legítima.
La sentencia agrega:
“Es entendible que dentro de la coyuntura actual donde los medios de comunicación escritos requieren apoyo financiero ante la pérdida de alguna de sus fuentes tradicionales de ingresos, se creen o establezcan –al amparo del ordenamiento jurídico–, otro tipo de empresas o sociedades que les brinden recursos y sostenibilidad económica o financiera para mantener a los primeros. El caso del Grupo Nación S.A., y la adquisición del hoy llamado Parque Viva arriba referido, representa un claro ejemplo de lo dicho” (ibid.).
Coincido en que es entendible, y se tiene por cierto que esto buscaba el Grupo Nación al incursionar en este nuevo giro comercial. Es decir, la adquisición del Parque Viva va en esa dirección: diversificar la inversión para que el grupo como tal tuviera réditos suficientes. Incluso concedo que tal diversificación pretendía hacer viable financieramente la existencia del periódico mismo. Pero la sentencia no se ocupa de mostrar la dependencia financiera en términos reales, que permitan constatar lo que dicen los recurrentes, quienes –como se ha visto– tampoco lo acreditan.
De inmediato la sentencia retoma lo que venía diciendo y añade:
“Este tipo de estructuras financieras, al igual que el resto de ejemplos supra citados, se convierten en una fuente de ingresos o recursos que coadyuva o hacen posible que la labor periodística pueda ser ejercida, habida cuenta que los ingresos que las primeras generan permiten sufragar o sopesar muchos de los gastos que demanda un medio de comunicación. Por ende, es una realidad que, si este tipo de mecanismos o propuestas se ven afectadas de forma ilegítima o arbitraria, se perjudica, a su vez, el ejercicio del periodismo; en esencia, la libertad de prensa, como manifestación de la libertad de expresión” (ibid.).
De nuevo, no cabe sin mayor dificultad admitir que la diversificación de inversiones permite compensar con las ganancias de una unidad de negocio las pérdidas de otro; pero aquí, en el presente caso, antes de entrar a argumentar sobre la arbitrariedad de los actos impugnados, es preciso probar, demostrar, aclarar que en efecto el periódico La Nación depende financieramente del Parque Viva. Y, luego de ese análisis exhaustivo, tengo para mí, que la sentencia omite la referencia a este punto tan importante, que es la clave de todo el arco argumentativo de los recurrentes, sin la cual no tienen legitimación.
Este considerando de la sentencia termina con un párrafo un tanto largo, pero que por su importancia y consistencia merece ser transcrito también:
“Ahora bien, la afectación refleja (indirecta o velada) que pueda concretarse a la libertad de prensa, merced de las medidas adoptadas en contra de dichas estructuras de financiamiento, es un aspecto que ha de ser ponderado en cada caso concreto, siendo claro que no todo acto o conducta administrativa que imponga un gravamen o establezca un contenido de efecto negativo en torno a esas entidades, supone una lesión refleja como la que se ha indicado. En efecto, cabe advertir que como toda persona administrada, estas estructuras se encuentran afectas y sujetas a las normas jurídicas que regulan, precisan y delimitan el ejercicio de sus respectivas actividades económicas. En ese sentido, su funcionamiento debe satisfacer y cumplir con las regulaciones propias de su actividad, lo que incluye, contar con las respectivas habilitaciones administrativas para el despliegue de la materia comercial. De ahí que deben contar con los respectivos títulos que permitan comprobar el cumplimiento de las normas urbanísticas, edilicias (dentro de estas, las atinentes a la Ley No. 7600), sanitarias, seguridad, así como las licencias y patentes comerciales que son debidos en cada caso. Adicionalmente, cumplir con la normativa fiscal atinente. De igual manera, en el curso de su actividad, como toda persona, se encuentran sujetas a la fiscalización y control del ejercicio de la actividad, a fin de verificar que mantienen el nivel de cumplimiento en virtud del cual, les fue habilitada la actividad comercial. En esa dinámica, la desatención de las condiciones de ejercicio que imponen esas regulaciones sectoriales, bien podrían (sic) llevar a la imposición de medidas administrativas de restricción o de sanción. Lo anterior, siempre que el ejercicio concreto de esa manifestación del poder de policía administrativa, pueda estimarse legítimo, a partir de la acreditación debida y oportuna de los presupuestos de incumplimiento que darían cabida a cada consecuencia jurídica, y que esa decisión se encuentre acorde al mérito de los antecedentes del caso y al Ordenamiento Jurídico aplicable (relación entre los elementos materiales objetivos motivo-contenido) y que sea congruente con el interés público tutelado. En esos supuestos, en que la función administrativa se establece como el ejercicio legítimo de potestades administrativas que procuran el resguardo del interés público, no podría postularse una suerte de infracción refleja a la libertad de prensa, sino, en la consecuencia lícita y previsible de la desatención de normas de orden público a las que se encuentra expuesta toda persona administrada. Por contraste, cuando esas medidas no encuentren respaldo en los diversos presupuestos de hecho o de derecho que, en cada supuesto, el plexo normativo define como antecedente necesario (presupuesto condicionante) para adoptar determinada decisión sancionatoria o de contenido negativo, o bien, cuando el contenido del acto adoptado a partir de la verificación de aquellas condiciones, sea desbordado, desproporcional, irrazonable en relación con esos antecedentes, antagónico con el interés público o en general, contrario a legalidad (en sentido amplio), se estaría frente a un comportamiento administrativo que puede implicar una desviación de poder (art. 113 LGAP) y supone, como se ha indicado, una lesión indirecta o refleja a la libertad de prensa. Se trata de un cuidadoso análisis de las particularidades de cada caso, como parámetro de una valoración neutral, equitativa y objetiva entre libertades y derechos fundamentales en un esquema de un Estado de Derecho y el ejercicio de las potestades administrativas que tienen, por principio y finalidad, la tutela y satisfacción del interés público. Ergo, no todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen, como tampoco, puede entenderse como legítima, sin más, toda función administrativa de control respecto de aquellas. De esa manera, en casos como el presente, en que se aduce una violación indirecta a la libertad de expresión y de prensa, producto de actividades de control de la Administración Sanitaria, corresponde a esta instancia jurisdiccional, ponderar los matices particulares, para definir si se trata de un ejercicio debido o indebido, como condición sine qua non de un juicio de valor en torno a la existencia o no del deber de tolerar válidamente esas imposiciones administrativas” (ibid.; el destacado no es del original).
Dicho en otros términos: cada unidad de negocio debe cumplir con el ordenamiento jurídico y la Administración puede imponer sanciones cuando estima que no es así; pero estas deben estar debidamente fundamentadas. Para determinar si lo están, es preciso examinar la relación entre los elementos materiales objetivos (motivo-contenido) y su congruencia con el interés público tutelado.
Justamente ese examen es lo que se espera que la Sala realice en los considerandos posteriores, pues como bien se dice en ese pasaje: “No todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen, como tampoco, puede entenderse como legítima, sin más, toda función administrativa de control respecto de aquellas”.
Aquí en este epígrafe del voto salvado se está haciendo un análisis para confirmar si se da el presupuesto procesal denominado legitimación, bajo el entendido de que la dependencia del periódico, no el simple ligamen financiero, es condición sin la cual no puede afirmarse que hay una vinculación jurídica entre los actos impugnados y la lesión acusada. Esto es, que tal vinculación es el requisito para ostentar dicha legitimación. Pero ya en el análisis por el fondo, como bien lo apunta ese pasaje de la sentencia, debe concurrir otra condición para que se declare la lesión: que el acto sea arbitrario. Sin embargo, como he mostrado en el anterior epígrafe, la complejidad que esos actos encierran hace concluir que su conocimiento no es propio de un recurso de amparo, que por naturaleza es sumario.
Así termina ese considerando en el que se echa en falta precisamente el análisis y la constatación de la dependencia aludida. Solo se puede concluir que el Grupo Nación amplió su gama de negocios, pero no se demuestra que el funcionamiento del periódico donde laboran los recurrentes dependa financieramente del Parque Viva y que, por lo tanto, haya mérito para entrar a examinar si la libertad de expresión de ellos se ha visto de algún modo afectada por actos que recaen en esa otra unidad de negocio.
(5) Los estados financieros y la dependencia aludida Ahora bien, en el escrito de interposición aparece un enlace a los estados financieros del Grupo Nación[48]. Me propongo hacer un breve análisis de estos de cara a la determinación de la dependencia alegada.
El mencionado enlace lleva al sitio Web donde aparecen los estados financieros consolidados auditados, los informes de la Presidencia[49], y los informes a los accionistas. Este último recoge también los dos anteriores. También constan los estados financieros trimestrales[50].
Respecto del último periodo que cierra en diciembre de 2021, interesa especialmente el cuadro titulado “La Nación, S. A. y subsidiarias. Activos, pasivos y resultados por segmentos al 31 de diciembre de 2020 y por el período terminado en esa fecha (expresados en miles de colones costarricenses)”, y el cuadro similar, pero al 31 de diciembre de 2021[51], porque reflejan en diversas columnas esos rubros por unidad de negocio. De previo a esos cuadros aparece la siguiente información:
“Al 31 de diciembre de 2021 y 2020 se presenta la información de los activos y pasivos, así como el desempeño financiero de los principales segmentos de operación con que cuenta el Grupo, que comprenden las actividades desarrolladas por: a) Medios - Incluye los ingresos provenientes de los diarios La Nación, La Teja y el semanario El Financiero, así como ingresos de impresión a terceros, producción y distribución de papeles y cartulinas, b) Digital - Comprende los resultados provenientes de los productos El empleo y Yuplón, c) Parque Viva - Negocio que gira en torno a la administración de recintos y creación de plataformas de entretenimiento, d) Portafolio, considera las inversiones a valor razonable con cambios en otro resultado integral que se mantienen en el exterior a través de su subsidiaria Desarrollo Los Olivos, S.A. e inversiones en instrumentos financieros locales e inversiones en asociadas y otras participaciones”[52].
En esos cuadros se indica lo siguiente. En el 2020, las pérdidas consolidadas de Medios, al que –según el texto citado– pertenecen los diarios La Nación y La Teja y el semanario El Financiero, fueron ¢ (1.772.204); y las pérdidas consolidadas de Parque Viva fueron ¢ (2.365.096)[53]. En el 2021 las pérdidas consolidadas de Medios fueron ¢ (1.969.114) y las de Parque Viva ¢ (51.802)[54].
De esa información solo es posible concluir:
1.- El periódico La Nación y el Parque Viva, pertenecen a Grupo Nación (hecho que, por lo demás, es público y notorio).
2.- La información que aparece en el sitio Web refleja los estados financieros consolidados del Grupo Nación, no los estados financieros de cada subsidiaria.
3.- Los cuadros que aparecen en el Informe a Accionistas sobre los activos, pasivos y resultados por segmentos al 31 de diciembre de 2020 y al 31 de diciembre del 2021, reflejan que ambas unidades de negocio –Medios (al que pertenece el periódico La Nación) y Parque Viva[55]– tuvieron pérdidas. Y en términos globales (ambos años), Medios ¢ (3.844.599) tuvo pérdidas mayores que las de Parque Viva ¢ (2.416.898).
Pero de eso no se puede inferir, sin más información aportada por la parte recurrente, que el periódico dependa financieramente del Parque Viva; sobre todo porque este último es una unidad de negocio con pérdidas. Esa situación financiera se refleja para ambas unidades también en los años anteriores. Entonces, entre 2018 y 2021 los resultados financieros fueron poco favorables tanto para el segmento de Medios (en el que se ubica el periódico La Nación) como para el Parque Viva.
[56] Quizá, los resultados observados en los últimos años podrían originarse en las inversiones y el endeudamiento que ha tenido que asumir el Grupo Nación en ese proceso de transformación de su negocio informativo y de búsqueda de nuevas fuentes de ingreso. Eventualmente, la expectativa es que en algún momento en el futuro la principal fuente de ingresos del Grupo Nación sea el Parque Viva. Pero lo cierto es que no es claro que el periódico La Nación, como medio de prensa, dependa de Parque Viva, al menos no en este momento.
Ahora bien, aunque no se podría decir que el desarrollo del Parque Viva se oriente a financiar a la unidad de negocio Medios, quizá sí podría entenderse que busca garantizar a los accionistas del grupo un adecuado retorno de su inversión.
Por otro lado, si lo que justifica esas pérdidas consolidadas son unas inversiones cuyo rédito se prevé en un plazo determinado, eso no fue debidamente acreditado. Fue únicamente mencionado en un escrito posterior, que aquí ya fue citado, en el que se recogen unas palabras del director ejecutivo del Grupo Nación, que tenían el propósito de defender la salud de las finanzas del grupo como tal. Sin embargo, a la vez, sirven para constatar que a la fecha el Parque Viva no ha tenido el flujo de caja que permita acreditar que el periódico La Nación dependa financieramente de él o, dicho de otro modo, que sin el Parque Viva no es posible llevar a cabo el periodismo que los recurrentes dicen ejercer.
En realidad, lo único que los recurrentes aportaron fue el enlace donde aparece la información, sin presentar la menor explicación contable que sustentara la afirmación de la dependencia.
En síntesis, la información que consta en el sitio Web ni alude ni es suficiente para tener por cierta la dependencia financiera de la unidad de negocio Medios respecto de la unidad de negocio Parque Viva. Incluso si la dependencia no fuera absoluta, podría valorarse la posibilidad de entender que hay vinculación jurídica entre los actos impugnados y la lesión alegada; pero el problema es que lo único que se acredita es que la diversificación de inversiones del Grupo Nación (hecho público y notorio) fue impulsada por los desafíos sufridos por el periódico La Nación, en el marco de la migración de sus lectores a otras plataformas (otro hecho público y notorio, que no exigía prueba).
Finalmente, debo hacer otra observación: De las declaraciones del presidente de la República antes y después de asumir el cargo, podría decirse que él mismo es quien hace la vinculación. No obstante, aquí no está en duda el ligamen financiero entre las dos unidades de negocio, pues ambas pertenecen al mismo Grupo Nación, sino la dependencia financiera del periódico respecto del Parque Viva y, como se ha visto, eso no fue probado por la parte recurrente ni analizado y constatado por la mayoría de la Sala. Se da por supuesta, siendo que es la condición para determinar si hay una vinculación jurídica entre actos impugnados y libertad presuntamente violada.
Además, a propósito de las palabras del presidente de la República, ya no en las declaraciones que dieron pie a la interposición del recurso, sino en las que contiene el informe a esta Sala, los recurrentes señalan:
“Pregunta el informe del señor Presidente: ?¿Como es posible, magistradas y magistrados, que Grupo Nación venga a decir que cifran todas sus esperanzas económicas en lo que pueda generar la actividad económica de Parque Viva para poder pagarle a sus empleados y que clausurar temporalmente ese lugar para la celebración de eventos masivos por incumplir con las condiciones mínimas de salubridad es un ataque directo a la libertad de prensa? Eso solo demuestra que la salud financiera de La Nación no es como la quieren hacer ver y que dependen de este lugar para subsistir financieramente'.
Nada de eso lo ha dicho Grupo Nación. Los recurrentes somos periodistas de Grupo Nación (…), somos profesionales a quienes se pretende limitar la libertad de expresión mediante acciones arbitrarias contra las ?estructuras' que sustentan nuestro libre ejercicio del periodismo, según lo prometió el mandatario. Por otra parte, no hemos hablado de un ?ataque directo' a la libertad de expresión, sino de uno indirecto, igualmente prohibido por el artículo 13.3 de la Convención y la jurisprudencia de la Corte Interamericana. Jamás dijimos que el pago de nuestros salaries dependa de Parque Viva, como también se afirma en el comunicado de prensa de la Presidencia. Para constatar todo lo dicho. basta leer el recurso, pero conviene señalar la insistencia en la supuesta demostración de que ?dependen de este lugar para subsistir financieramente'. ¡La infundada obsesión con las finanzas de la empresa se extiende hasta la interpretación de lo que no hemos dicho! Claro está, si los deseos transparentados por el pasaje resultaran ciertos, el cierre de Parque Viva pondría fin al molesto periodismo que hacemos los recurrentes y que motivo la amenaza proferida en campaña. Mas claro, imposible” (escrito de los recurrentes del 17 de agosto, p. 12; el destacado no es del original).
Este pasaje llama a la reflexión. Por un lado, como bien lo apuntan los recurrentes, el señor presidente confunde “Grupo Nación” con “periodistas de La Nación”. Por otro, el mandatario se extraña que ese Grupo Nación cifre sus esperanzas en el Parque Viva. Agrega que eso solo demuestra que la salud de La Nación (aquí no se sabe si se refiere al periódico o al grupo) no es buena y que, en efecto, según lo dicho por los recurrentes (que él confunde con el grupo) confirma que dependen del Parque Viva para subsistir financieramente (tanto el grupo como, se podría decir, el periódico). Con esas palabras no es que él dice que La Nación depende del Parque Viva, sino que dice que ellos afirman que La Nación (el grupo o el periódico) depende del Parque Viva.
Llegados a este punto, se resolvería el problema de la legitimación: los recurrentes afirman que el Periódico La Nación depende del Parque Viva[57] y el recurrido lo acepta, pues entiende que esto es una confirmación de que el grupo (o el periódico) carece de salud financiera. (Esto último justificaría su proceder, su preocupación manifestada sobre los bonos; pero, para efectos del análisis por el fondo del presente amparo, es un elemento que claramente le desfavorece, pues sería la confesión de que la orden tenía por fin dejar sin sustento financiero al periódico). De todas formas, lo que aquí interesa subrayar es que el señor presidente, aunque no afirma que exista esa dependencia financiera (ya sea del periódico mismo o del grupo) respecto del Parque Viva, tampoco la niega.
Pero resulta que los recurrentes contestan que no es cierto que ellos, ni el Grupo Nación, hayan dicho que La Nación, la empresa en la que ejercen el periodismo, dependa de Parque Viva. En cambio, dicen, si eso fuera así, si sí dependieran, si fuera verdad lo que dice el mandatario, el cierre del Parque sí que consumaría la lesión a la libertad de expresión:
“Claro está, si los deseos transparentados por el pasaje resultaran ciertos, el cierre de Parque Viva pondría fin al molesto periodismo que hacemos los recurrentes y que motivo la amenaza proferida en campaña” (ibid.).
¿Entonces? ¿Dependen o no dependen?
En todo caso, estimo que la falta de acreditación de la dependencia financiera del periódico (en el que los recurrentes laboran) respecto del Parque Viva (inmueble sobre el que recayeron los actos impugnados y que es propiedad de otra unidad de negocio) tiene un efecto jurídico procesal: la ausencia de legitimación para acudir ante la Sala a interponer válidamente un recurso de amparo por una supuesta lesión a la libertad de expresión derivada del cierre del Parque Viva. Esto es, al no acreditarse esa dependencia, tampoco se dieron las condiciones para que la Sala examinara por el fondo la existencia de un nexo entre el cierre del recinto y el impacto concreto sobre el medio de comunicación y su funcionamiento ordinario y, concretamente, la libertad de expresión de los recurrentes.
Debo añadir que incluso en el caso de que se hubiese acreditado la legitimación, subsiste la falta de idoneidad del recurso de amparo para conocer de los actos impugnados.
Además, es oportuno subrayar que este no es un análisis sobre el fondo del asunto, sino sobre los presupuestos procesales, cuya existencia no es prescindible sino constitutiva del debido proceso.
A. Introducción Como se recordará, los recurrentes piden la anulación de los actos impugnados que recaen sobre el Parque Viva, pues los acusan de arbitrarios y de constituir una vía indirecta para lesionar su libertad de expresión, porque dejan sin sustento económico, y por eso sin verdadera independencia, al medio en el que laboran.
Como se pudo apreciar, mi voto salvado va en dos direcciones. Por un lado, muestro que los recurrentes no tienen legitimación para alegar esa presunta lesión por medios indirectos, puesto que no se constata la vinculación entre los actos impugnados (la orden sanitaria y el oficio conexo) y la alegada lesión a la libertad de expresión. Esto porque no probaron que hubiese una dependencia financiera del periódico respecto del Parque Viva. Por otro lado, porque determinar si los actos impugnados son o no arbitrarios excede la naturaleza sumaria del amparo.
La mayoría de la Sala no se refiere a esos aspectos, sino que admite la vinculación entre los actos impugnados y la lesión presuntamente provocada por ellos, tal como lo alegan los recurrentes, y declara con lugar el recurso bajo el entendido de que se violó el artículo 13. 3 de la CADH.
Yo me decanté por declarar con lugar el recurso, en lo que se refiere a la lesión a la libertad de expresión, pero por razones diferentes de las de la mayoría. Me propongo ahora exponerlas.
En primer término, haré referencia al principio procesal que hace posible entrar a conocer de esta lesión y a los motivos por los que no hay obstáculo jurídico alguno para hacerlo. Luego explicaré por qué considero que no corresponde declarar la lesión de la libertad de expresión por vías o medios indirectos, es decir, la violación del artículo 13.3 de la CADH. Después haré unos comentarios sobre toda la jurisprudencia de la Corte IDH y de la Sala Constitucional respecto de esta norma, que es invocada en el expediente, y que más bien parecen confirmar mi tesis. Posteriormente, aludiré a unos escenarios que permiten hacer unas reflexiones sobre el tema en discusión. Finalmente, mostraré por qué, a mi juicio, sí se configuró la lesión a la libertad de expresión de los recurrentes.
Posibilidad de conocer de la lesión invocada A lo largo del voto salvado he subrayado que la Sala Constitucional no es competente para conocer del objeto impugnado (la orden sanitaria y el oficio conexo) y que los recurrentes no ostentan la legitimación que dicen tener. De manera que comprendo la extrañeza que podría ocasionar el hecho de que, a la vez, sostenga que sí corresponde entrar a conocer por el fondo el asunto en lo relativo a la libertad de expresión.
El aparente dilema desaparece cuando se advierte en qué sentido y bajo qué supuesto entro a conocer por el fondo este recurso de amparo.
En efecto, lo que afirmo es que es posible entrar a conocer si se ha configurado la lesión a la libertad de expresión, pero no la que aducen los recurrentes; y es posible entrar a conocer de un objeto impugnable (acto o conducta), aunque no haya sido atacado expresa sino tácitamente por los recurrentes; y que tal objeto sería la causa de esa lesión. Como ese objeto impugnado incide directamente en los recurrentes, aunque no haya sido expresamente alegado así, es posible conocer de este. Por eso, ellos tienen legitimación y se cumple con ese presupuesto procesal. Además, como se verá, por sus características, ese objeto y esa lesión son susceptibles de ser conocidos en un proceso sumario como el amparo.
¿Cabe hacer esa distinción para entrar a conocer lo no alegado? ¿Qué me permite hacer eso? El principio iura novit curia, que se traduce así: “el juez conoce el derecho”. Este principio está ligado con el aforismo da mihi facta, dabo tibi ius que, en términos sencillos, se suele traducir así: deme Usted los hechos, que yo le daré el derecho. En otras palabras: explíqueme qué paso y yo le diré quién tiene razón desde el punto de vista jurídico.
Se trata del principio clásico por el cual el juez está habilitado para tomar en consideración los hechos y aplicar el derecho, según estime que corresponde hacerlo, sin atenerse de modo necesario a las argumentaciones que le presentan las partes.
El Diccionario panhispánico del español jurídico de la Real Academia de Lengua Española define ese principio así:
?El tribunal conoce el derecho'. Principio que permite a un órgano judicial aplicar normas distintas a las invocadas por las partes, previa audiencia de las mismas.
Y el mismo diccionario, de inmediato transcribe una sentencia del Tribunal Supremo de España que ilustra muy bien el concepto:
“El principio iura novit curia permite al Juez fundar el fallo en los preceptos legales o normas jurídicas que sean de pertinente aplicación al caso, aunque los litigantes no las hubieren invocado, y que el juzgador solo esté vinculado por la esencia y sustancia de lo pedido y discutido en el pleito, no por la literalidad de las concretas pretensiones ejercitadas, tal y como hayan sido formuladas por los litigantes, de forma que no existirá incongruencia extra petitum cuando el Juez o Tribunal decida o se pronuncie sobre una de ellas que, aun cuando no fuera formal y expresamente ejercitada, estuviera implícita o fuera consecuencia imprescindible o necesaria de los pedimentos articulados o de la cuestión principal debatida en el proceso” (STS, 3.ª, 16-VI-2015, rec. 3739/2013; el destacado no es del original)[58].
Reitero, este principio permite al juez aplicar el Derecho según estime que procede, pero, eso sí, sin modificar los hechos. Claro está, el juez le dará el valor a estos según la relevancia que considere razonable; pero esto también pasa cuando no se invoca este principio. Es decir, el juez al valorar los hechos –los sopesa– y determina qué es lo que piensa que es relevante. De manera que, en atención a ese principio, lo significativo no es lo que pretende los recurrentes sino lo que narran las partes.
La Sala ha aplicado ese principio desde sus inicios, tanto en procesos de control de constitucionalidad[59] como en procesos de garantías jurisdiccionales de derechos fundamentales. He aquí algunos ejemplos referidos a estos últimos, concretamente a recursos de amparo:
“II.- El silencio del Ministro de Obras Públicas y Transportes en contestar las reiteradas peticiones y quejas de la recurrente y otros interesados constituye por si misma una violación de su derecho de petición consagrado en el artículo 30 de la Constitución Política. Aunque esa disposición no fue expresamente invocada en el recurso, sí lo fue el silencio del Ministro, el cual implica la indicada violación, que puede ser declarada por la Sala en virtud del principio "iura novit curia" y debe serlo en virtud de que los derechos y libertades fundamentales son de orden público, por definición” (sentencia 1989-73).
En el mismo sentido afirmó:
“En aplicación de este imperativo, y del principio "iura novit curia" el juez constitucional, está obligado a analizar cualquier aspecto que, aún si no ha sido alegado, pudiera resultar en una violación a un derecho constitucional” (sentencia 1991-1129).
En otra sentencia señaló que una lesión puede ser declarada, aunque no haya sido expresamente aducida en el recurso:
“El silencio del Banco Nacional al no contestar las reiteradas peticiones y quejas de los recurrentes en forma específica, constituye por sí misma una violación de su derecho de petición consagrado en el artículo 27 de la Constitución Política. Aunque esa disposición no fuere expresamente invocada en el recurso, sí lo fue el silencio del banco, el cual implica la indicada violación, que puede ser declarada por la Sala en virtud del principio "Iura Novit Curia" y debe serlo dado que los derechos y libertades fundamentales son de orden público por definición” (sentencia 1998-5839).
En la misma línea destacó que debe tenerse en cuenta la lesión que tácitamente alegó el recurrente:
“No habiendo lesión respecto de los derechos que el recurrente alega como violados, esta Sala, con fundamento en el principio iura novit curia, advierte que los hechos ponen en evidencia la lesión de un derecho que el recurrente, tácitamente, alega como lesionado: el derecho del acceso al expediente como parte integrante del derecho de defensa, cuyo ejercicio es una de las condiciones esenciales del debido proceso” (sentencia 2013-9403).
Si en todo proceso este principio clásico tiene cabida, mucho más en uno como el recurso de amparo, que es sumario e informal, y tiene como finalidad la protección de los derechos de las personas.
Inexistencia de la violación del artículo 13.3 de la CADH En primer término, deseo exponer por qué me parece que no se dio una violación de la libertad de expresión a través de medios indirectos. Para ello, antes de valorar el marco fáctico, haré un brevísimo análisis exegético de la norma que los recurrentes y la Sala consideran que ha sido violada.
Brevísimo análisis exegético del artículo 13.3 de la CADH Es oportuno transcribir de nuevo esa norma del Pacto de San José o CADH:
Artículo 13. (…) 3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones (el destacado no es del original).
Como se puede observar, este inciso tiene tres partes claramente definidas: la primera establece la prohibición de restringir, por vías o medios indirectos, la libertad de expresión; la segunda contiene los ejemplos de tales vías y la frase que suprime la taxatividad de tales ejemplos (o por cualesquiera otros); y la tercera recoge la característica esencial de esos medios, que hace relación a su finalidad (impedir la comunicación y la circulación de ideas y opiniones).
Además, aunque ciertamente el elenco de ejemplos vías o medios indirectos que recoge la norma tiene un carácter enunciativo y no taxativo, debe tenerse presente que esos “cualesquiera otros medios” deben seguir la lógica de los ejemplos mencionados, que tienen un común denominador: se trata conductas que recaen sobre la actividad comunicativa propiamente dicha. Incluso la tercera parte de la norma confirma esto, pues precisa que lo que hace ilegítimos a esas vías o medios indirectos es que están “encaminados a impedir la comunicación y la circulación de ideas y opiniones”.
Por otro lado, se habla de vías indirectas para lesiones directas, no de lesiones indirectas por vías indirectas. Eso es particularmente importante.
Consecuencia sustantiva de la no acreditación de la dependencia Como se examinó, los recurrentes no acreditan la dependencia financiera del periódico La Nación respecto del Parque Viva. Esto tiene un efecto procesal, pues al no haberse demostrado el vínculo entre los actos impugnados –que recaen sobre otra unidad de negocio distinta de aquella en la que laboran– y la presunta lesión a la libertad de expresión de los recurrentes, estos carecen de legitimación.
Sin embargo, en el presente caso, eso también tiene una consecuencia en la resolución sobre el fondo del asunto. No cabe entender que unos actos que recaen sobre un inmueble que pertenece a los mismos dueños del periódico sea un medio indirecto de lesionar la libertad de los recurrentes, pues, al no haber dependencia financiera, tampoco puede afirmarse que esos actos impiden “la comunicación y la circulación de ideas y opiniones” (artículo 13.3 de la CADH). Esto último incluso bajo el supuesto de que incidir en la situación financiera del periódico supone lesionar la libertad de expresión.
Inexistencia de la violación, aunque hubiese legitimación He dicho que no hay legitimación porque no se acreditó la dependencia, que constara la vinculación entre el objeto impugnado y la aducida lesión a la libertad de expresión. Pero ¿qué habría pasado si sí se hubiese acreditado? Es decir, ¿basta acreditar la dependencia financiera de un medio de comunicación a otra unidad de negocio de un giro comercial distinto, que pertenece al mismo dueño del periódico, para entender que todo acto presuntamente arbitrario que sufra ese negocio ajeno al ámbito de la comunicación incide en la libertad de expresión de quienes laboran en el periódico?
Este es un tema de gran importancia. Ahora bien, desde el momento en el que estimo que no se acreditó la dependencia, no sería necesario que me ocupara de reflexionar sobre él; pero no quisiera dar pie a confusiones.
La legitimación es un aspecto procesal, relativo a la admisibilidad del recurso (sobre el que el tribunal se puede pronunciar en cualquier momento, no solo en la fase inicial, esto es, puede declararlo sin lugar por falta de este presupuesto procesal: justamente eso es lo que hice en el voto salvado). Ahora bien, para entrar en estas reflexiones, se va a suponer que sí hay dependencia y, por eso, legitimación.
Evidentemente para que se entienda que se dio la lesión de la libertad de expresión por vías indirectas no es suficiente con acreditar la legitimación. Después hay que examinar dos extremos: si hubo afectación de esa libertad y si los actos impugnados fueron arbitrarios.
En efecto, nótese que el artículo 13.3 de la CADH habla de medios indirectos, pero la lesión debe ser directa. Al menos debe serlo para que sea objeto de un recurso de amparo, pues como se vio oportunamente en el voto salvado (al hablar de los elementos que condicionaban la competencia de la Sala para conocer de un recurso de amparo), hay abundantísima jurisprudencia en el sentido de que la lesión que se pretende proteger por esta vía ha de ser directa.
Dicha norma pone como condición esencial que esos medios o vías indirectas estén “encaminados a impedir la comunicación y la circulación de ideas y opiniones”. De hecho, como se ha apuntado, los ejemplos que el mismo artículo 13.3 de la CADH recoge, de modo enunciativo y no taxativo, se refieren a acciones que inciden en la empresa de comunicación.
Pero esto no lo digo yo solamente. Lo ha dicho la propia jurisprudencia de la Corte IDH y de la Sala Constitucional. En el siguiente apartado se hará referencia al particular con más detalle. Ahora corresponde analizar la otra condición: que los actos sean arbitrarios.
De manera que no sería necesario continuar con el análisis.
Pero vamos a suponer varias cosas que no están probadas con tal de continuar reflexionando sobre este asunto: Vamos a suponer que hay dependencia financiera de La Nación respecto del Parque Viva y que los actos impugnados impidieron o son una amenaza cierta por la que se impedirá “la comunicación y la circulación de ideas y opiniones”.
Entonces, bajo esos supuestos, correspondería entrar en el examen de la presunta arbitrariedad de los actos impugnados[60]. Es claro que solo habría dos posibilidades: que sean arbitrarios o que no lo sean.
(2) Si los actos no son arbitrarios: consecuencias Si los actos fuesen legítimos (porque se cumplieron todos los requisitos de validez y eficacia), tendrían la misma incidencia en la salud financiera del periódico, pero no habría nada que amparar. Esto es, la libertad de expresión no se habría visto lesionada, pues la incidencia financiera que tendrían los actos impugnados que se declarasen legítimos es un efecto colateral legítimo también, aunque perjudicial para el periódico. Para afirmar esto basta recordar el clásico principio del doble efecto[61], en virtud del cual se da la no imputabilidad del mal indirecto producido por un acto voluntario directo lícito y proporcionado. Esto, para el caso concreto, se traduce en lo siguiente: si se demostrase que los actos impugnados dictados por la Administración son legítimos (actos voluntarios directos que recaen sobre el Parque Viva), no se puede atribuir responsabilidad alguna a aquella (a la Administración, esto es, al Ministerio de Salud) por los efectos indirectos (aunque fuesen perjudiciales) que recaen sobre el periódico La Nación y, concretamente, sobre sus periodistas.
Entonces, si en la Sala –o en la jurisdicción contencioso-administrativa, que es donde a mi juicio procedía conocer de esos actos– se hubiese declarado que los actos son legítimos y no arbitrarios, materialmente habrían tenido la misma incidencia en la salud financiera del periódico; pero formalmente no se habría configurado ninguna lesión a la libertad expresión, tampoco bajo el supuesto del artículo 13.3 de la CADH. Es decir, los periodistas estarían en la situación vulnerable financieramente en la que, según sus alegatos, padecen; pero esa situación no sería fruto de una conducta lesiva sino legítima de la Administración y, por tanto, no habría lesión amparable de la libertad de expresión[62].
(1) Si los actos son arbitrarios: consecuencias Si se constata que los actos impugnados son arbitrarios, y todo bajo el supuesto de que hay dependencia financiera y de que hay afectación porque se impide “la comunicación y la circulación de ideas y opiniones”, entonces los actos, en principio, se tornarían lesivos de la libertad de expresión de los periodistas.
Sin embargo, como he explicado en el voto salvado –y me parece que quedará aún más claro en el epígrafe final sobre las reflexiones respecto del expediente y la sentencia–, el examen sobre los actos impugnados no corresponde hacerlo en esta sede. Por tanto, si la declaración de la arbitrariedad de estos se dio sin los necesarios recaudos procesales, entonces, la declaración de la lesión de la libertad de expresión por medios indirectos padece del idéntico vicio procesal.
Pero ¿por qué acabo de señalar que “entonces tales actos, en principio, se tornarían lesivos de la libertad de expresión de los periodistas”? Porque, desde mi perspectiva, incluso si los actos fueran arbitrarios no necesariamente se daría una lesión a la libertad de expresión por vías indirectas. Pero las reflexiones sobre este punto serán objeto de un epígrafe posterior.
Ahora lo que conviene subrayar es que, como se ha visto, en el presente caso no se dio una afectación a la libertad de expresión en los términos que lo señala el artículo 13.3 de la CADH y que, aunque se hubiese dado, esta solo habría sido amparable si la declaratoria de la arbitrariedad de los actos se hubiese dado con los recaudos procesales adecuados.
Es oportuno ahora detenerse en la jurisprudencia invocada, tanto por los recurrentes como por la mayoría de la Sala para sustentar la violación del artículo 13.3 de la CADH.
Consideraciones sobre la jurisprudencia invocada en el expediente Como se sabe, los recurrentes y la mayoría invocan el artículo 13.3 de la CADH para afirmar que una orden sanitaria y su oficio conexo dictados sobre el inmueble del Parque Viva lesionan la libertad de expresión de los periodistas que laboran en el Periódico La Nación ?sea, en otra unidad de negocio distinta al negocio Parque Viva?. Como parte de sus argumentos invocan jurisprudencia, tanto de la Corte IDH como de la Sala Constitucional.
Haré de inmediato unas consideraciones al respecto para mostrar que más bien esas sentencias abonan a mi tesis.
La jurisprudencia de la Corte IDH Desde mi perspectiva, es muy valiosa la jurisprudencia dictada por la Corte IDH que se trae a colación para aducir que en el presente asunto se produjo una infracción del artículo 13.3 de la CADH, pero los casos mencionados no tienen semejanza fáctica con el que se examina en el sub lite. Por eso las rationes en las que se sustentan esas sentencias no calzan ni pueden ser válidamente invocadas. Además, los recurrentes invocan algunos casos resueltos por la Corte IDH que, como se verá, lógicamente la mayoría de la Sala no la incorpora en la sentencia, pues supondría poner de manifiesto una debilidad en la argumentación. Esto lo paso a ilustrar de seguido.
En primer término, los recurrentes ?pero no la mayoría de la Sala en la sentencia? citan el caso “Ríos y otros vs. Venezuela”[63], dictada en un contexto de agresión y amenaza continuada contra periodistas, camarógrafos, fotógrafos y demás trabajadores de los medios de comunicación social. En dicha resolución la Corte IDH desarrolla así el contenido del artículo 13.3 de la CADH:
“340. Una interpretación literal de esta norma [artículo 13.3 de la CADH] permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas. La enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. Además, el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también “controles... particulares” que produzcan el mismo resultado. Para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones.
360. En cuanto al propósito perseguido por esos oficios, en el sentido de incidir indirectamente y presionar a los directivos respecto al contenido de la información difundida, el Tribunal nota que la Comisión y los representantes no han aportado pruebas o elementos que evidencien que la emisión de los oficios haya afectado la libertad de buscar, recibir y difundir información de las presuntas víctimas. Tampoco han aportado pruebas para desvirtuar el contenido de los oficios, emitidos con base en una normativa vigente en Venezuela (…).
380. Como ha sido señalado (supra párr. 340), este Tribunal estima que para que se configure una violación del artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones.
381. La Corte observa que si bien la presencia y manifestaciones de los agentes de la DISIP o de la Casa Militar en la estación “Los Mecedores”, donde se encontraban las antenas de transmisión de RCTV, pudieron ser percibidas como amenazas y provocar en las presuntas víctimas algún efecto amedrentador, el Tribunal no cuenta con prueba suficiente que demuestre que la amenaza de intervenir la señal del canal se hubiese materializado en actos concretos que afectaran los derechos de las presuntas víctimas de recibir y difundir información, en los términos del artículo 13 de la Convención (…).
394. En definitiva, no ha sido comprobado ante la Corte que los tres oficios emitidos por CONATEL relativos al contenido de un programa transmitido por RCTV y las intervenciones a sus emisiones hayan constituido restricciones indebidas e indirectas al derecho de las presuntas víctimas a buscar, recibir y difundir información, que constituyeran violación del artículo 13.1 y 13.3 de la Convención Americana, en perjuicio de aquéllas” (el destacado no es del original).
De lo transcrito es oportuno resaltar lo siguiente: “para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones”. Es decir, que el mecanismo indirecto empleado por las autoridades tenga un efecto directo sobre la libertad de expresión y la libre circulación de ideas y opiniones. La Corte IDH declaró que no quedó establecido que el Estado hubiera violado el derecho a buscar, recibir y difundir información, en los términos del artículo 13.3 de la CADH. Seguramente, por haberse rechazado la infracción a dicho numeral, la mayoría de la Sala no invocó esta sentencia como apoyo de su decisión[64]. Sin embargo, considero que la ratio señalada es sumamente importante, y en lo sucesivo se repite en los votos posteriores sobre el particular, manteniéndose incólume la condición advertida: “que la vía o el medio restrinjan efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones”.
En segundo lugar, la sentencia de la mayoría se apoya en lo dispuesto en el “Caso Ivcher Bronstein vs. Perú”[65]. En esta resolución, la Corte IDH sí declaró una infracción al artículo 13.3 de la CADH, pues constató que a través de presiones indirectas ejercidas contra el señor Baruch Ivcher Bronstein ?dejar sin efecto legal el título de nacionalidad peruana, sin el cual no podía continuar como propietario de una empresa concesionaria de canal televisivo en el Perú? se lesionó su libertad de expresión. En ese caso, al declarar la violación de esa norma, indicó:
“162. En el contexto de los hechos señalados, esta Corte observa que la resolución que dejó sin efecto legal el título de nacionalidad del señor Ivcher constituyó un medio indirecto para restringir su libertad de expresión, así como la de los periodistas que laboraban e investigaban para el programa Contrapunto del Canal 2 de la televisión peruana.
163. Al separar al señor Ivcher del control del Canal 2, y excluir a los periodistas del programa Contrapunto, el Estado no sólo restringió el derecho de éstos a circular noticias, ideas y opiniones, sino que afectó también el derecho de todos los peruanos a recibir información, limitando así su libertad para ejercer opciones políticas y desarrollarse plenamente en una sociedad democrática.
164. Por todo lo expuesto, la Corte concluye que el Estado violó el derecho a la libertad de expresión consagrado en el artículo 13.1 y 13.3 de la Convención, en perjuicio de Baruch Ivcher Bronstein” (el destacado no es del original).
Así, en dicha sentencia se determinó que –como consecuencia de la línea editorial asumida por el Canal 2– el señor Ivcher fue objeto de acciones intimidatorias de diverso tipo, que culminaron en restricciones concretas sobre la libertad de expresión: se le suspendió en el ejercicio de los derechos como accionista mayoritario y presidente de la compañía televisiva, y se le revocó su nombramiento como director de esta; y, por lo tanto, se le restringió la circulación de ideas que el amparado promovía. Es decir, se constató una restricción cierta al derecho a circular noticias, ideas y opiniones.
La mayoría de esta la Sala luego alude al caso “Ricardo Canese vs. Paraguay”[66]. En dicha resolución, la Corte IDH tuteló en genérico el artículo 13 de la CADH, declarando lo siguiente:
“[E]l Estado violó el derecho a la libertad de pensamiento y de expresión consagrado en el artículo 13 de la Convención Americana sobre Derechos Humanos, en relación con el artículo 1.1 de dicho tratado, en perjuicio del señor Ricardo Nicolás Canese Krivoshein”.
El marco fáctico de ese caso evidencia que se causó una lesión cierta a la posibilidad del señor Canese de ejercer su libertad de expresión. Esto por cuanto se constató que, luego de sus manifestaciones en el contexto de un proceso electoral, fue sometido a un proceso penal y a restricciones a su libertad de tránsito. En síntesis, la Corte IDH concluyó lo siguiente:
“[E]l Tribunal considera que, en este caso, el proceso penal, la consecuente condena impuesta al señor Canese durante más de ocho años y las restricciones para salir del país durante ocho años y casi cuatro meses constituyeron medios indirectos de restricción a la libertad de pensamiento y de expresión del señor Canese”.
En relación con este caso, se debe decir que hubo consecuencias directas sobre la persona emisora de las manifestaciones, quien, en virtud de estas se vio castigado penalmente con restricciones a su libre tránsito[67].
Seguidamente, corresponde aquí hacer referencia al caso “Perozo y otros vs. Venezuela”[68] que también fue invocado por los recurrentes, pero no por la mayoría de la Sala. Dicha sentencia versa sobre una situación política convulsa y un contexto de “amenazas [y agresiones] a comunicadores sociales”. La Corte IDH amparó la situación de los comunicadores a tenor del artículo 13.1, pero no del artículo 13.3, ambos de la CADH, en los siguientes términos:
“El ejercicio efectivo de la libertad de expresión implica la existencia de condiciones y prácticas sociales que lo favorezcan. Es posible que esa libertad se vea ilegítimamente restringida por actos normativos o administrativos del Estado o por condiciones de facto que coloquen, directa o indirectamente, en situación de riesgo o mayor vulnerabilidad a quienes la ejerzan o intenten ejercerla, por actos u omisiones de agentes estatales o de particulares. En el marco de sus obligaciones de garantía de los derechos reconocidos en la Convención, el Estado debe abstenerse de actuar de manera tal que propicie, estimule, favorezca o profundice esa vulnerabilidad y ha de adoptar, cuando sea pertinente, medidas necesarias y razonables para prevenir o proteger los derechos de quienes se encuentren en tal situación, así como, en su caso, investigar hechos que los perjudiquen (…).
367. (…) Una interpretación literal de esta norma [artículo 13.3 de la CADH] permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas. La enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. Además, el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también “controles... particulares” que produzcan el mismo resultado.
368. Este Tribunal estima que para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinja efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones.
369. Las declaraciones señaladas, examinadas en el contexto en que se produjeron, contienen opiniones sobre la supuesta actuación o participación de Globovisión, o de personas vinculadas a éste, en eventos desarrollados bajo circunstancias de alta polarización política y conflictividad social en Venezuela, lo cual se halla fuera del objeto del presente caso (supra párrs. 72 a 74). Independientemente de la situación o motivación que generó esas declaraciones, en un Estado de derecho las situaciones conflictivas deben abordarse a través de las vías establecidas en el ordenamiento jurídico interno y conforme a los estándares internacionales aplicables. En el contexto de vulnerabilidad enfrentado por las presuntas víctimas, ciertas expresiones contenidas en las declaraciones sub examine pudieron ser percibidas como amenazas y provocar un efecto amedrentador, e incluso autocensura, en aquéllas, por su relación con el medio de comunicación aludido. Sin embargo, el Tribunal considera que, en consideración de los criterios señalados en el párrafo anterior, esos otros efectos de tales pronunciamientos ya fueron analizados supra, bajo el artículo 13.1 de la Convención, en relación con el artículo 1.1 de la misma” (el destacado no es del original).
Luego de la lectura de tal pasaje, se comprende por qué la mayoría no hizo alusión a esa sentencia de la Corte IDH. Conviene destacar la ratio de la Corte, en el sentido de que para que se configure una violación al artículo 13.3 de la CADH es necesario que la vía o el medio restrinja efectivamente, aunque sea en forma indirecta, la comunicación y la circulación de ideas y opiniones. Esto, como es público y notorio, no ha sucedido en el presente caso, pues, luego del dictado de los actos administrativos, los periodistas han podido manifestar sin dificultad alguna sus ideas y opiniones, y la imposibilidad o dificultad cierta de hacerlo en el futuro ?debido a la existencia de tales actos? no fueron debidamente acreditadas.
Finalmente, es preciso hacer referencia al “Caso Granier y otros (Radio Caracas Televisión) vs. Venezuela[69], que sí fue invocado por los recurrentes y la mayoría de la Sala, en el cual se declaró la violación a la libertad de expresión por medios indirectos. Se enmarca dentro de la crisis política y social ocurrida en Venezuela, en la que “desde el año 2002 funcionarios del Estado venezolano, entre ellos el Presidente Chávez, realizaron distintas declaraciones respecto a que no serían renovadas las concesiones a algunos medios privados de comunicación social en Venezuela y luego “a partir de diciembre de 2006, funcionarios del Estado pasaron a anunciar la decisión oficial de no renovar la concesión de RCTV”. En esa sentencia se realizaron las siguientes consideraciones de interés:
“1.3. Restricciones indirectas – alcances del artículo 13.3 de la Convención 161. (…) Este Tribunal considera que el alcance del artículo 13.3 de la Convención debe ser el resultado de una lectura conjunta con el artículo 13.1 de la Convención, en el sentido que una interpretación amplia de esta norma permite considerar que protege en forma específica la comunicación, difusión y circulación de ideas y opiniones, de modo que queda prohibido el empleo de “vías o medios indirectos” para restringirlas.
162. Al respecto, la Corte señala que lo que busca este inciso es ejemplificar formas más sutiles de restricción al derecho a la libertad de expresión por parte de autoridades estatales o particulares. En efecto, este Tribunal ha tenido la oportunidad de declarar en casos anteriores la restricción indirecta producida, por ejemplo, mediante una decisión que dejó “sin efecto legal el título de nacionalidad” del accionista mayoritario de un canal de televisión” o por “el proceso penal, la consecuente condena impuesta […] durante más de ocho años y las restricciones para salir del país durante ocho años” en contra de un candidato presidencial.
163. Por otra parte, la enunciación de medios restrictivos que hace el artículo 13.3 no es taxativa ni impide considerar “cualesquiera otros medios” o vías indirectas derivados de nuevas tecnologías. En este sentido, el artículo 13 de la Declaración de Principios sobre la Libertad de Expresión indica otros ejemplos de medios o vías indirectas, al manifestar que “[l]a utilización del poder del Estado y los recursos de la hacienda pública; la concesión de prebendas arancelarias; la asignación arbitraria y discriminatoria de publicidad oficial y créditos oficiales; el otorgamiento de frecuencias de radio y televisión, entre otros, con el objetivo de presionar y castigar o premiar y privilegiar a los comunicadores sociales y a los medios de comunicación en función de sus líneas informativas, atenta contra la libertad de expresión y deben estar expresamente prohibidos por la ley. Los medios de comunicación social tienen derecho a realizar su labor en forma independiente. Presiones directas o indirectas dirigidas a silenciar la labor informativa de los comunicadores sociales son incompatibles con la libertad de expresión”. Igualmente, el perito García Belaunde durante la audiencia pública hizo referencia a otras posibles formas de restricción indirecta relacionadas con: i) “la publicidad, [ya que] los Estados son importantes agentes de publicidad y […] dar mucha publicidad o quitarla puede ser importante y, dado el caso, puede haber una especie de asfixia para los medios que básicamente viven de la publicidad”, o ii) “la tributación [cuando se dan] casos [en] que [las] empresas […] han sido cargadas tributariamente” con el fin de generar molestias o enviar mensajes al medio de comunicación” (el destacado no es del original).
Hasta aquí lo más relevante de ese pasaje es que la Corte IDH afirma que las restricciones de la libertad de expresión por vías indirectas son más sutiles, luego hace alusión a su propia jurisprudencia y subraya que la enumeración de estas que contiene el artículo 13.3 de la CADH no es taxativa y, finalmente, menciona otros posibles ejemplos, incluidos los que mencionó el perito. Al respecto, téngase presente que esas medidas –publicidad y tributos– recaen directamente sobre esos medios de comunicación. Después señala:
“164. Asimismo, la Corte recuerda que para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, en forma indirecta, la comunicación y la circulación de ideas y opiniones. Además, la Corte reitera que el artículo 13.3 de la Convención impone al Estado obligaciones de garantía, aún en el ámbito de las relaciones entre particulares, pues no sólo abarca restricciones gubernamentales indirectas, sino también controles particulares que produzcan el mismo resultado. Al respecto, la Corte resalta que la restricción indirecta puede llegar a generar un efecto disuasivo, atemorizador e inhibidor sobre todos los que ejercen el derecho a la libertad de expresión, lo que, a su vez, impide el debate público sobre temas de interés de la sociedad” (el destacado no es del original).
Como se puede observar, este párrafo es especialmente significativo porque reitera que para que se configure la violación de dicha norma la vía o medio indirecto debe restringir efectivamente la comunicación y la circulación de ideas y opiniones. En otros términos, para que una conducta se tenga como medio indirecto de restricción debe darse tal restricción. Si el efecto restrictivo no se da, el medio que se aduce como restrictivo no es tal, justamente porque le falta una condición esencial, la de incidir efectivamente en la libertad de expresión, esto es, en la comunicación y la circulación de ideas y opiniones. Esto que parece una obviedad es precisamente lo que lleva a concluir que aquí en el presente caso no se ha dado la alegada violación del artículo 13.3 de la CADH.
En ese mismo pasaje se dice que tal restricción puede manifestarse de varias maneras: puede tener un efecto disuasivo, atemorizador e inhibidor sobre todos los que ejercen el derecho a la libertad de expresión, lo que, a su vez, impide el debate público sobre temas de interés de la sociedad. Y es un hecho público y notorio que los periodistas recurrentes, luego del dictado de la orden sanitaria y el oficio conexo, han seguido realizando su labor según su propio criterio y posición, como procede en una sociedad democrática. Además, no mostraron fehacientemente –ni siquiera de manera indiciaria– que, debido a esos actos administrativos impugnados, en el futuro no podrían seguir haciéndolo.
En esa sentencia, después de referirse al contenido e importancia de la libertad de expresión en una sociedad democrática, la Corte IDH afirma:
“171. Teniendo en cuenta lo anteriormente señalado, la Corte recalca la necesidad de que los Estados regulen de manera clara y precisa los procesos que versen sobre el otorgamiento o renovación de concesiones o licencias relacionadas con la actividad de radiodifusión, mediante criterios objetivos que eviten la arbitrariedad. Específicamente, es preciso que se establezcan las salvaguardas o garantías generales de debido proceso, que cada Estado determine como necesarias en estos procesos a la luz de la Convención Americana, con la finalidad de evitar el abuso de controles oficiales y la generación de posibles restricciones indirectas (…).
189. Ahora bien, tanto la Comisión Interamericana como los representantes han aseverado que esta no era la finalidad real, por cuanto habría pruebas que demostrarían que existía una intención de castigar a RCTV por la línea editorial crítica contra el Gobierno. Al respecto, en el presente caso, la Corte considera necesario, tener en cuenta que el motivo o propósito de un determinado acto de las autoridades estatales cobra relevancia para el análisis jurídico de un caso, por cuanto una motivación o un propósito distinto al de la norma que otorga las potestades a la autoridad estatal para actuar, puede llegar a demostrar si la acción puede ser considerada como actuación arbitraria o una desviación de poder. Con relación a ello, el Tribunal toma como punto de partida que las actuaciones de las autoridades estatales están cubiertas por una presunción de comportamiento conforme a derecho. Y por ello una actuación irregular por parte de las autoridades estatales tiene que aparecer probada, a fin de desvirtuar dicha presunción de buena fe. Para lo anterior, la Corte procederá a: a) realizar un recuento de la prueba obrante en el expediente sobre la alegada finalidad no declarada, y b) examinar dicha prueba”.
Es decir, admite que corresponde hacer un examen para determinar si hubo o no desviación de poder, y para ello estima que es ineludible analizar la prueba[70]. Sobre el particular, la Corte IDH señala:
“197. La Corte concluye entonces, como lo ha hecho en otros casos, que los hechos del presente caso implicaron una desviación de poder, ya que se hizo uso de una facultad permitida del Estado con el objetivo de alinear editorialmente al medio de comunicación con el gobierno. La anterior afirmación se deriva a partir de las dos conclusiones principales a las cuales puede arribar este Tribunal a partir de lo descrito anteriormente, a saber, que la decisión se encontraba tomada con anterioridad y que se fundaba en las molestias generadas por la línea editorial de RCTV, sumado al contexto sobre el “deterioro a la protección a la libertad de expresión” que fue probado en el presente caso (supra párr. 61).
198. Asimismo, este Tribunal considera necesario resaltar que la desviación de poder aquí declarada tuvo un impacto en el ejercicio de la libertad de expresión, no sólo en los trabajadores y directivos de RCTV, sino además en la dimensión social de dicho derecho (supra párr. 136), es decir, en la ciudadanía que se vio privada de tener acceso a la línea editorial que RCTV representaba. En efecto, la finalidad real buscaba acallar voces críticas al gobierno, las cuales se constituyen junto con el pluralismo, la tolerancia y el espíritu de apertura, en las demandas propias de un debate democrático que, justamente, el derecho a la libertad de expresión busca proteger. Se encuentra probado, en consecuencia, que en el presente caso se configuró una restricción indirecta al ejercicio del derecho a la libertad de expresión producida por la utilización de medios encaminados a impedir la comunicación y circulación de la ideas y opiniones, al decidir el Estado que se reservaría la porción del espectro y, por tanto, impedir la participación en los procedimientos administrativos para la adjudicación de los títulos o la renovación de la concesión a un medio que expresaba voces críticas contra el gobierno, razón por la cual el Tribunal declara la vulneración del artículo 13.1 y 13.3 en relación con el artículo 1.1 de la Convención Americana en perjuicio Marcel Granier, Peter Bottome, Jaime Nestares, Inés Bacalao, Eladio Lárez, Eduardo Sapene, Daniela Bergami, Miguel Ángel Rodríguez, Soraya Castellano, María Arriaga y Larissa Patiño” (el destacado no es del original).
De lo subrayado se desprende con claridad que hubo una conducta encaminada a impedir la libertad de expresión a partir de la decisión estatal de no renovar la concesión a un medio periodístico que lucía contrario a los intereses del gobierno. Se trata, como se destacó, de una medida que “tuvo un impacto en el ejercicio de la libertad de expresión”. Además, debe ponerse de relieve un dato en extremo relevante: que esa medida recayó directamente sobre la empresa de comunicación.
Vale la pena hacer una recapitulación de las sentencias en las que la Corte IDH sí declaró la violación del artículo 13.3 de la CADH: En el caso “Ivcher Bronstein vs. Perú” se constató la privación arbitraria del título de nacionalidad por parte del Estado peruano al señor Ivcher Bronstein, con el objeto de privarlo del control editorial del canal de televisión que dirigía, por cuanto la legislación peruana vigente en el año de 1997 disponía que, para ser propietario de empresas concesionarias de canales televisivos en el Perú, se requería gozar de la nacionalidad peruana. En el caso “Ricardo Canese vs. Paraguay” se examinó la condena y las restricciones para salir del país, impuestas al ingeniero Ricardo Canese como consecuencia de manifestaciones hechas mientras era candidato presidencial; y, producto del proceso penal en su contra, el señor Canese fue sometido a una restricción permanente para salir del país que, en criterio de la Corte IDH, no cumplió los requisitos de legalidad, necesidad y proporcionalidad, exigidos en una sociedad democrática. Finalmente, el caso “Granier y otros (Radio Caracas Televisión) vs. Venezuela” no se renovó la concesión a RCTV y el cese de la transmisión correspondiente.
Las líneas de la Corte IDH son reiterativas en el sentido de que “para que se configure una violación al artículo 13.3 de la Convención es necesario que la vía o el medio restrinjan efectivamente, en forma indirecta, la comunicación y la circulación de ideas y opiniones”. En definitiva, lo que se procura es evitar que existan o se generen obstáculos al libre flujo informativo o de opinión. Por lo tanto, si no se demuestra que se impidió esta libre circulación, entonces, no se configura la lesión al artículo 13.3 de la CADH. Además, todos los casos tienen otro denominador común: se trata de medidas que recayeron directamente en la persona o en el medio de comunicación. La lógica de esa norma es que son lesivas las conductas que de forma indirecta causan una lesión directa a la libertad de expresión.
En el sub lite, por el contrario, no se logró demostrar cuál ha sido el impacto que el dictado de una orden sanitaria y su oficio conexo que recaen sobre un inmueble de otra unidad de negocio ajena al periódico haya tenido en la libertad de expresión de los recurrentes. En otras palabras, no se ha cumplido lo que la Corte IDH exige que para que se configure una violación al artículo 13.3 de la Convención: que la vía o el medio indirecto restrinja, efectivamente, la comunicación y la circulación de ideas y opiniones. Resalto la palabra efectivamente, esto es, que en efecto o verdaderamente, se restrinja la circulación de ideas y opiniones. En otras palabras, las rationes de las sentencias de la Corte IDH no pueden invocarse en el presente caso, pues el marco fáctico que se tiene por probado lo impide, porque no hay una constatación de que los actos administrativos que se acusan de arbitrarios (la orden sanitaria y el oficio conexo) hayan impactado, efectivamente, en la libertad de expresión de los recurrentes.
En síntesis, las sentencias de la Corte IDH que aquí se acaban de analizar (que fueron las invocadas por los recurrentes y/o por la mayoría de la Sala) permiten concluir que se declaró la violación del artículo 13.3 de la CADH solo cuando las vías o medios indirectos tuvieron una incidencia directa en el ejercicio de la libertad de expresión. Al sub lite, por el contrario, no se le puede aplicar válidamente dicha jurisprudencia para fundamentar la estimatoria del recurso, pues se trata de unos actos que tienen una incidencia directa en la unidad de negocio que pertenece también al grupo dueño del periódico, pero de los que no se demostró que hubiese tenido impacto directo sobre el ejercicio de la libertad de expresión de los recurrentes.
La jurisprudencia de la Sala Constitucional Corresponde ahora examinar la jurisprudencia constitucional que la mayoría de la Sala invoca para mostrar que en el presente asunto se sigue la línea de esas sentencias en las que se acreditó que, a través de medios indirectos, se causó una lesión directa a la libertad de expresión.
El primer caso que la mayoría trae a colación se refiere a un recurso en el que se examinó el proceder de un diputado de la República, que envió cartas a instituciones públicas con el aparente propósito de solicitar que se le retirara la publicidad al medio de comunicación. El recurrente alegó que esto debía ser considerado como tráfico de influencias, abuso de poder y censura previa. Se constató la existencia de las notas dirigidas a las instituciones públicas con las siguientes afirmaciones: “les insto a valorar como una responsable medida cautelar, la posibilidad de sacar del aire la publicidad institucional que pagan en este programa radial, mientras resolvemos en los tribunales la querella que estamos por incoar”. Al resolver, esta Sala recogió la ratio de las sentencias de la Corte IDH y concluyó:
“En este sentido, la censura puede ser directa –por ejemplo, la prohibición directa de cierta publicación- o indirecta (también denominada soft censorship, censura sutil, velada) –por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación–. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería ?…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones' (…).
La excitativa enviada a las instituciones públicas con el fin de que ellas retiraran la publicidad del programa de radio del amparado, se enmarca dentro de los casos de censura indirecta a la libertad de expresión por varias razones.
Primeramente, la publicidad provee el principal soporte financiero que permite la transmisión de los programas radiales y, a la postre, el sustento económico de las personas que trabajan en dicho programa. Es evidente que si se limita el ingreso económico del programa, también se llega a perjudicarlo o –inclusive– eliminarlo, todo en detrimento tanto de la libertad de expresión como de la de información. La situación descrita resulta incluso más grave cuando se trata medios de comunicación pequeños, como periódicos locales o pequeñas estaciones de radio, cuya estabilidad financiera puede llegar a depender en gran medida de la publicidad estatal”.
Nótese que la mencionada publicidad era la que se daba a conocer en el medio de comunicación recurrente. Se trataba de un ingreso económico derivado del funcionamiento del programa, no de la actividad propia de una unidad de negocio ajena a este.
La sentencia continúa:
“En segundo lugar, un diputado de la República no es un ciudadano cualquiera, sino que ostenta un poder político particular debido a su incidencia en la aprobación de proyectos de ley, respecto de los cuales existe cantidad de intereses tanto privados como públicos. Ergo, una recomendación o retiro de publicidad de un programa radial, emitido por un funcionario en una particular posición de poder político y teniendo como leitmotiv su disconformidad con las críticas contra él difundidas por determinado medio de comunicación, constituye una forma velada de intimidación que no solo afecta al programa radial directamente aludido, sino que además envía un mensaje intimidante al resto de medios fomentando un ambiente hostil a las libertades de expresión e información esenciales en un sistema democrático. En el sub iudice, tal amenaza incluso pasó a tener efectos concretos, en la medida que, según la prueba aportada por el accionante, la pauta publicitaria del ICAA, programada para el periodo del 15 de octubre al 15 de noviembre de 2014, fue suspendida mientras se respondía el oficio del recurrido (…).
En ese sentido, el envío de una nota a los patrocinadores del programa indicando que consideren retirar su patrocinio por el contenido negativo del mismo contra su imagen, constituyó una censura indirecta –en los términos señalados en la jurisprudencia de la Corte Interamericana supra citada-, al programa radial “Rompiendo El Silencio”. En la valoración que se hace tiene un peso específico el hecho de que el recurrido ostenta una posición de poder político por su cargo de Diputado de la República, y que efectivamente su misiva causó un efecto negativo más allá de un simple reclamo, al haberse acreditado en autos que produjo efectos sobre uno de los patrocinadores, quien suspendió temporalmente la publicidad (ICAA). Consecuentemente, se declara con lugar dicho extremo” (sentencia 2015-1782; el subrayado es del original; el subrayado con negrita no es del original).
Si se examina con detenimiento dicha resolución, se aprecia que la mayoría de la Sala que declaró con lugar el recurso hizo énfasis en el hecho de que la amenaza tuvo efectos concretos, puesto que una pauta publicitaria prevista para el programa del amparado fue suspendida. De modo que la conducta del legislador recurrido tuvo una incidencia directa sobre los ingresos y la publicidad del programa radial. Ahora bien, en el voto de minoría se consignó lo siguiente:
“La única circunstancia fáctica, a partir de la cual la mayoría de este Tribunal estimó que se produjo una censura, es que el Instituto Costarricense de Acueductos y Alcantarillados suspendió la pauta del 15 de octubre al 15 de noviembre de 2014, a la espera de la respuesta que se le ofrecería al co-recurrido Oscar López, cuando lo cierto del caso es que el programa radial siguió en el aire y difundiéndose, por cuanto, contaba con otros patrocinadores. En todo caso, la Directora de Comunicación de esa entidad pública informó que la pauta se reinició el 1° de noviembre de 2014. Estimo que tales circunstancias fácticas son absoluta y rotundamente insuficientes para tener por acreditada una censura directa o indirecta que, como se apuntó, nunca se dio. Debe tomarse en consideración que para acoger o estimar un proceso de amparo, de acuerdo con el artículo 29 de la Ley de la Jurisdicción Constitucional, debe existir una violación o amenaza de violación del derecho fundamental invocado, lo que no sucedió en el sub-lite. Adicionalmente, es menester apuntar que la censura previa, tiene su origen en conductas activas u omisivas de los poderes públicos que despliegan algún tipo de control o dejan de hacerlo para impedir la difusión de ideas, pensamientos, opiniones, lo que no sucedió en el sub-lite. Lo anteriormente apuntado queda patente, a manera de ejemplo, en dos casos emblemáticos de la Corte Interamericana de Derechos Humanos sobre la materia, que son los casos ?La última tentación de Cristo vs. Chile' e ?Ivcher Bronstein vs. Perú' en los que, respectivamente, la producción cinematográfica no se pudo exhibir entre 1988 y 2003, por resolución administrativa sustentada en una norma constitucional y se revocó, por decisión administrativa, la ciudadanía peruana del dueño de un canal televisivo que difundía un programa de críticas en contra del gobierno, por lo que dejó de transmitirse. En definitiva, no nos enfrentamos a ninguna supresión ilegítima, radical o no, de la libertad de expresión. Tampoco, resulta posible inferir, a partir de la circunstancia fáctica apuntada, un control o medio ilegítimo de censura indirecto o velado de carácter idóneo” (voto salvado del magistrado Jinesta Lobo a la sentencia 2015-1782; el destacado no es del original).
Esa postura disidente se acerca más a la jurisprudencia de la Corte IDH, en el sentido de que sostiene que para que exista una lesión al artículo 13.3 de la CADH se requiere una afectación directa y cierta en la libertad de difusión de ideas, pensamientos y opiniones. Pero, en todo caso, sí que cumple con otra de las condiciones de esa jurisprudencia: que la conducta recae directamente sobre el recurrente.
En segundo término, en el presente asunto la mayoría de la Sala invocó la sentencia de un recurso en el que se cuestionó que el Banco Nacional paulatinamente fue reduciendo la pauta publicitaria en el periódico La Nación. En el hecho probado e) de dicha sentencia se consignó como debidamente demostrado lo siguiente:
“e) En el primer semestre del año 2016, el Banco Nacional de Costa Rica dispuso la reducción paulatina de la pauta publicitaria en las páginas del Diario La Nación. De los $732.402,54 dólares estadounidenses invertidos en el 2014 y los $696.373,73 dólares estadounidenses invertidos en el año 2015, en el período citado del año 2016 se pasó a una pauta publicitaria de $123.347,47 dólares estadounidenses (ver documentación e informe rendido bajo juramento)” (sentencia 2016-15220).
Al respecto, luego de acreditados tales hechos, se realizaron las siguientes consideraciones:
“En conclusión, sobre este tema debe tenerse por demostrado que aun cuando pudieran existir razones técnicas u objetivas que apuntaban a una disminución de las pautas publicitarias del Banco al Periódico La Nación, lo cierto es que estas razones no fueron tomadas en cuenta para disponer, como en efecto se hizo, una pausa en la publicidad contratada a dicho medio de comunicación, a partir de la publicación de las primeras noticias a finales de febrero, y en particular, durante los meses de junio y julio, las cuales queda acreditado se dieron con el fin de ?lograr un cambio en la actitud' del Periódico La Nación, respecto de la manera en que se venían abordando los temas relacionados con el Banco Nacional desde hacía varios meses.- En síntesis, se logra acreditar en el caso, como se dirá, que se ha producido una censura indirecta de parte de un funcionario público a un medio de comunicación, como reacción a su línea editorial, con el único propósito de ?motivar' un cambio, es decir, manipular al medio para acercarlo a sus propósitos, ya fuera conseguir una cita con uno de los dueños del medio, o un mayor espacio sobre la versión del Banco frente a los cuestionamientos hechos. Todo lo cual sin duda, resulta lesivo del artículo 13.1 de la Convención Americana sobre Derechos Humanos y 28 y 29 de la Constitución Política (…).
El problema en este caso surge más bien cuando las empresas públicas se separan de ese cauce para gestionar su pauta publicitaria de acuerdo con finalidades ajenas a razones objetivas y técnicas, e incompatibles con marco constitucional de derechos fundamentales. Es en ese punto donde la participación de esta Sala adquiere plena justificación y ello es lo que se busca confirmar o descartar a través de este recurso de amparo (…).
Resulta constitucionalmente reprochable que el Gerente General de un Banco púbico, es decir, un funcionario público, haya emitido una orden de retiro de una pauta publicitaria a un determinado diario escrito, sin un fundamento objetivo y técnico válido, sino en razón de su disconformidad, con la forma en que se elaboraban las noticias y reportajes emitidos respecto de las actividades y situación de la entidad bancaria que representa. El Tribunal entiende que lo anterior constituye una censura indirecta, una forma clara de intentar influir en los contenidos informativos del medio de comunicación, y además envía un mensaje intimidante al resto de medios que fomenta un ambiente hostil a las libertades de expresión e información esenciales en un sistema democrático (…).
Eso es precisamente lo que ha quedado demostrado en este amparo, que el retiro de la publicidad durante el primer semestre del año 2016, pero en particular de los meses posteriores a las publicaciones de finales de febrero, se dio en un contexto de confrontación con el medio, donde se logra comprobar que la estrategia no obedeció a criterios objetivos, sino que se dio, en palabras del propio gerente, con el fin de ?motivar' al diario a cambiar su línea editorial y enfoque noticioso, en vez de utilizar los mecanismos legales, existentes como el derecho de rectificación y respuesta si se estimaba que se trataba de informaciones inexactas o agraviantes” (sentencia 2016-15220; el destacado no es del original).
En el caso aludido hay conductas que impactan directamente al medio de comunicación. En efecto, se demostró que hubo una intención manifiesta de reducir la pauta publicitaria, que es una de las fuentes de ingresos que sostienen al periódico amparado. Aquí cabe destacar que es cierto que la Sala tuteló propiamente los ingresos que recibe el medio de comunicación por concepto de publicidad, pero también lo es que esa tutela no alcanza a proteger cualesquiera actividades comerciales de los dueños del medio de comunicación, por el hecho mismo de que también pertenecen a ellos.
La mayoría de la Sala en el presente asunto también refiere un caso en el que la parte recurrente adujo que se realizó la entrevista denominada “La violencia doméstica contra el hombre” en el programa “Café Nacional” de la empresa pública Radio Nacional de Costa Rica y que, con posterioridad, el director de Radio Nacional publicó un artículo titulado “Amarga vergüenza”, en el que advirtió que censuraría de previo el tema de la agresión hacia los hombres e impediría que se volviere a hablar de eso en Radio Nacional. Ello implicó que la entrevista fuera borrada por completo del portal de Internet del Sistema Nacional de Radio y Televisión (Sinart) y de la página de Facebook. En dicha sentencia se dijo lo siguiente:
“En aplicación de lo anterior al sub-lite, la Sala advierte suficientes elementos para concluir que las declaraciones de los amparados fueron censurados y, con ello, se lesionaron sus derechos fundamentales. Tal conclusión se desprende de las manifestaciones expresas del Director de Radio Nacional al señalar, que la repetición de entrevistas como la de los tutelados ?por supuesto no va a suceder', y que él ?jamás hubiera permitido que esta entrevista saliera al aire...', pero ?...una situación como esta no volverá a pasar...'. La Sala observa que la parte recurrida advierte con absoluta claridad la censura que existirá ante futuras entrevistas como la cuestionada y el arrepentimiento por no haber censurado la efectuada. Para este Tribunal, no existe duda de que las expresiones transcritas constituyen una censura, especialmente por provenir del director del medio que sirvió para la transmisión de la entrevista de marras” (sentencia 2018-8396).
De lo reseñado tampoco hay duda de que existió una finalidad explícita a suprimir los contenidos que el amparado pretendía dar a conocer, por lo que se justifica la tutela a su libertad de expresión. Además, más bien parece ser un ejemplo lesiones por amenaza de censura y por censura posterior, realizadas por medios directos, por lo que es un tanto debatible que la norma que proceda aplicar a ese caso sea el artículo 13.3 de la CADH. Pero, de nuevo, nótese que los actos arbitrarios recaen directamente sobre quien comunica.
Luego, la mayoría de la Sala se refiere a otra sentencia que declaró una intromisión de parte de la Prodhab en la libertad de expresión del medio amparado, pues dicha agencia había dispuesto que se eliminara la imagen de una persona en un hecho noticioso concreto que, en criterio de la Sala, era de interés público y justificaba el uso de la imagen de esa persona investigada. En lo conducente, se resolvió lo siguiente:
“En este sentido, la censura de la libertad de prensa puede ser directa –por ejemplo, la prohibición directa de cierta publicación– o indirecta (también denominada soft censorship, censura sutil, velada) –por ejemplo, la utilización de diversos medios para intimidar y de ese modo evitar una publicación–. La Convención prevé una lista no taxativa de casos de censura por medios indirectos (controles de papel, de frecuencias, etc.) y concluye con la regla general, que sería ?…o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones' (2015-1782).
Considera la Sala que el ejercicio de las competencias de la Prodhab para fines de la Ley de Protección de la Persona frente al Tratamiento de sus datos personales, no puede ser utilizada como un censor del ejercicio legítimo de la libertad de prensa, porque ello sería, una censura indirecta, en control del Estado, de un derecho toral, esencial, para el sostenimiento del régimen democrático.
En ese sentido, estima la Sala que si el uso de la imagen (fotografía de la página del pasaporte) como en este caso, se da dentro de un contexto de un hecho noticioso de interés público, insertada en un documento público, relacionado directamente con el contenido de la noticia, –puesto que se trata de un tema migratorio fronterizo–, cuya utilización, además, no denigra ni afecta la imagen de su titular, no es válido, separar o descontextualizar esa imagen de su noticia, ni mucho menos pretender eliminarla, porque forma parte integral de ésta” (sentencia 2020-10961).
La estimatoria de dicho recurso de amparo se justifica precisamente en que hubo una restricción directa al medio de comunicación y, por tal motivo, concurrí con el voto unánime del asunto. Adviértase que aquí también el acto arbitrario recayó directamente sobre el periódico.
La mayoría de la Sala además invoca otra sentencia que también suscribí. En dicho asunto se constató que hubo manifestaciones o instrucciones de la entonces presidenta ejecutiva del Instituto Costarricense de Acueductos y Alcantarillados, dirigidas a servidores de dicha institución, para que no se brindaran declaraciones a dos medios de comunicación concretos. De forma sintética la Sala concluyó lo siguiente:
“En cuanto al punto, el Tribunal estima que en el sub examine existen indicios suficientes de que la presidenta ejecutiva del ICAA dijo la frase antes transcrita, lo cual, a todas luces, constituye una afectación a los derechos constitucionales a la libertad de pensamiento y expresión, de prensa y a la igualdad, todo esto en relación con los principios constitucionales democrático, de rendición de cuentas y de transparencia en la gestión pública, en virtud de que se trata de una especie de censura velada, dado que el resultado práctico de tal llamado es evitar que los medios de comunicación perjudicados tuviesen acceso a información pública” (sentencia 2020-016167; el destacado no es del original).
De esa cita se desprende una incidencia directa en relación con los medios de comunicación. Esto es, que se instó a los servidores de la institución aludida a abstenerse de “alimentar” o brindar información a dos periódicos concretos.
La mayoría de la Sala también cita lo resuelto recientemente en la sentencia 2022-23107, en la que también concurrí, mediante la cual se puso en conocimiento de este Tribunal un supuesto comunicado que la entonces ministra de Comunicación, Patricia Navarro Molina, les remitió por WhatsApp a todos los ministros y presidentes ejecutivos del Gobierno. Se adujo que, en la referida comunicación, la ministra instruía a todos los jerarcas a suspender, con carácter de urgencia, todo tipo de publicidad estatal a los medios Amelia Rueda, La Nación, CRHoy y Canal 7. Asimismo, que ahí mismo se les instaba “con carácter de urgencia a no participar en entrevistas en Hablando Claro y Amelia Rueda”. No obstante, dicho recurso fue desestimado en cuanto a tal extremo, dado que esta Sala no pudo tener por demostrado que se hubiera girado la orden o directriz que cuestionaba la recurrente. Sin embargo, como marco considerativo, se invocó la sentencia 2015-1782, sobre la que ya se hizo referencia al inicio de este acápite.
Por último, cabe apuntar que, aunque no fue invocado por la mayoría, es pertinente hacer referencia a la reciente sentencia dictada el 30 de setiembre de 2022, cuya parte dispositiva fue adoptada en los siguientes términos:
“Se declara parcialmente con lugar el recurso. En consecuencia, se anula parcialmente el oficio N°MS-DM-6218-2022 del 22 de julio de 2022, en cuanto a la prohibición en brindar declaraciones o información sin antes contar con la aprobación respectiva de los jerarcas del Ministerio de Salud. Se mantiene incólume dicho oficio, en cuanto a la gestión de consultas mediante un correo institucional (vocería institucional). Se advierte a las autoridades recurridas que, de conformidad con lo establecido por el artículo 71, de la Ley de la Jurisdicción Constitucional, se impondrá prisión de tres meses a dos años o de veinte a sesenta días multa, a quien recibiere una orden que deba cumplir o hacer cumplir, dictada dentro de un recurso de amparo y no la cumpliere o no la hiciere cumplir, siempre que el delito no esté más gravemente penado” (sentencia 2022-23075; el destacado no es del original).
En ese asunto la Sala acreditó que el oficio establecía la prohibición dirigida a los servidores del Ministerio de Salud de brindar declaraciones o información sin antes contar con la aprobación respectiva de los jerarcas de ese ministerio. Se estimó que eso implicaba una restricción a la libertad de información y se anuló parcialmente dicho oficio. También podría ser debatible si aplica a este caso el artículo 13.3 de la CADH, pero, sí lo fuera, nótese que el acto arbitrario se dirige a restringir directamente la libre circulación de información que nutre a los medios de comunicación.
En todo caso, todas las sentencias citadas por la mayoría tienen en común que de alguna manera se constató una restricción a la libertad en el flujo de la comunicación y las ideas, ya sea a través de la reducción en la publicidad que alimenta al propio medio de comunicación, de directrices concretas tendientes a eliminar contenidos noticiosos, o bien de restricciones a los servidores públicos para entrar en contacto con determinados medios de comunicación. Las rationes que fundamentaron esas sentencias, desde mi perspectiva, no resultan aplicables al presente asunto. En efecto, en este, como se ha afirmado a lo largo de estas páginas, no se logró acreditar una conducta específica destinada a restringir la libre circulación de la información y los derechos fundamentales de los periodistas amparados. Es decir, no consta dato alguno por el cual se pueda afirmar que los actos impugnados hubieran impedido que los recurrentes realizaran su labor periodística, es decir, el ejercicio de su libertad de expresión. Por lo tanto, por no acreditarse una restricción concreta, no resultan aplicables los antecedentes hasta acá invocados. Si hubiese habido una lesión a tal libertad, cabría entrar a examinar si los medios indirectos en efecto la restringieron, pero aquí no se advierte la lesión como tal. Además, y esto es particularmente relevante, en todos los casos en que la Sala declaró que los actos conculcaron la libertad de expresión, estos recayeron directamente sobre el comunicador o el medio de comunicación.
Estas luces que arrojan esa jurisprudencia, tanto de la Corte IDH como de la Sala Constitucional, son un punto de partida para retomar las reflexiones que se estaban haciendo en el epígrafe relativo a la inexistencia de la lesión.
Reflexiones adicionales sobre la inexistencia de la violación Como he dicho, desde el momento en el que se constata que no hay legitimación activa, no corresponde examinar por el fondo el asunto con el fin de determinar si se produjo o no la lesión alegada. Pero, si hubiese legitimación, esta no bastaría para declarar con lugar el recurso, pues deben darse al menos dos condiciones: que haya afectación a la libertad de expresión y que los actos sean arbitrarios.
Con la jurisprudencia anteriormente comentada, estimo que ha quedado más claro aún que en el presente caso no se configuró la afectación a la libertad de expresión, porque no hubo impedimento a “la comunicación y la circulación de ideas y opiniones”. Respecto de los actos, ya se indicó que en principio debe ser arbitrario para que se pueda plantear la posibilidad de sea formalmente lesivo. Si los actos son legítimos de suyo no cabría hablar de afectación a la libertad de expresión sino de un perjuicio, que no es antijurídico. Como dice la sentencia en un pasaje que fue transcrito en su totalidad y que aquí se cita en lo conducente:
“[N]o todo acto que incida de manera negativa en la esfera de una estructura financiera supone una alteración a la libertad bajo examen” (considerando VIII).
Ahora bien, ¿qué pasaría si el acto fuera legítimo de suyo, pero tiene reales y nocivas repercusiones en la estabilidad financiera del periódico, que harían imposible o dificultarían gravemente la libertad de expresión, en el sentido de que no sería posible hacer un periodismo independiente?
Para responder a esa interrogante cabría invocar el artículo 3 de la LJC:
Artículo 3. Se tendrá por infringida la Constitución Política cuando ello resulte de la confrontación del texto de la norma o acto cuestionado, de sus efectos, o de su interpretación o aplicación por las autoridades públicas, con las normas y principios constitucionales. (El destacado no es del original).
La norma es más aplicable en los procesos de control de constitucionalidad, pero, al estar en la parte preliminar de la ley y al referirse a “acto cuestionado”, nada impide que se utilice en procesos de garantías de derechos fundamentales, como el recurso de amparo.
Entonces, a tenor de esa norma, los actos de suyo legítimos podrían lesionar grave y formalmente la libertad de expresión, por lo que por esa razón podría entenderse que procedería su anulación.
Sin embargo, estimo que la aplicación del artículo 3 de la LJC tiene un límite. O más bien quizá ese mismo artículo aplicado vigorosamente es la llave para esclarecer sus propios límites.
En primer lugar, será preciso examinar si esos efectos lesivos son antijurídicos, pues, aunque sean perjudiciales, no necesariamente los actos que provocan tales efectos serían arbitrarios. Pero, además, no se trata solo de valorar los concretos efectos de los actos en su destinatario directo (Parque Viva), sino en otras esferas (el periódico La Nación y, por eso, los recurrentes)[71]. Es decir, sería necesario atender a los efectos que los actos impugnados tienen en la otra unidad de negocio (el periódico). Aun así, todo apunta a que hay que ir más allá. Corresponde considerar cuáles son los efectos de que estime que los actos arbitrarios son lesivos porque inciden en otra unidad de negocio y que, presumiblemente, al dejarla sin sustento económico, cercenan la libertad de expresión de los recurrentes.
En el presente asunto debe tenerse muy presente cuáles son las coordenadas de la cuestión: se trata de dos unidades de negocio –Parque Viva y periódico La Nación– que pertenecen al Grupo Nación, pero que no forman parte de un proceso de producción. Cada una tiene giros comerciales distintos y plenamente independientes, tanto por el objeto (a qué se dedican) como por los sujetos que en ellos intervienen. Cada unidad de negocio está sometida a reglas distintas en los diversos planos normativos y de gestión.
Pues bien, como se ha visto, el artículo 13.3 de la CADH señala que la lesión a la libertad de expresión por medios indirectos se da cuanto estos están “encaminados a impedir la comunicación y la circulación de ideas y opiniones”. Además, por jurisprudencia, tanto de la Corte IDH como de la Sala Constitucional, los actos deben recaer sobre el sujeto que comunica (personal física o jurídica). Entonces, la interrogante es: ¿aquellos actos que recaen sobre una unidad de negocio (Parque Viva) distinta del periódico son lesivos de la libertad de expresión porque inciden en la salud financiera de este?
Si se dijera que sí, esto es, que los actos son arbitrarios y son lesivos de la libertad de expresión porque repercuten en la estabilidad financiera del periódico, lo que se estaría afirmando es que la causa de la violación de la libertad de expresión es esa incidencia en tal estabilidad. Si de verdad fuera así, sería casi irrelevante que los actos sean de suyo arbitrarios o no, pues bastaría que incidiesen en la estabilidad financiera para que se tengan por lesivos antijurídicamente, porque lo que importaría es si por sus efectos los actos son lesivos antijurídicamente. Desde mi perspectiva, sostener eso tendría unas consecuencias contraproducentes para la sociedad y, paradójicamente, para los dueños del Grupo Nación.
De nuevo, la pregunta es[72]: ¿Los actos impugnados que recaen en el Parque Viva (que es una unidad de negocio dedicado a un giro comercial ajeno a los medios de comunicación) inciden en la libertad de expresión de los periodistas de La Nación (que es la unidad de negocio dependiente) por dejar sin sustento financiero al periódico y por eso son arbitrarios[73]?
La repuesta esta vez añade otro dato: Si se respondiera que sí, entonces, se tendría que admitir que todo acto que vaya en perjuicio de la salud financiera del Parque Viva lesionaría la libertad de expresión de los periodistas de La Nación, por dejar sin sustento financiero al periódico. En último término, como se ha adelantado, la causa de la lesividad antijurídica sería la incidencia en la salud financiera del periódico. Sin embargo, eso no parece razonable por varios motivos concatenados:
Para facilitar el análisis, se entenderá que la unidad de negocio A es la que tiene un giro comercial ajeno a los medios de comunicación (Parque Viva) y la unidad de negocio B es el periódico.
Primero. Toda persona física o jurídica desearía tener una unidad de negocio como B, para tener una suerte de impunidad respecto de la Administración en su unidad de negocio A, porque esta unidad deberá estar siempre indemne, protegida, de toda afectación financiera que se pruebe que incide en la actividad de la unidad de negocio B.
Segundo. Cabría el peligro de que todo acto legítimo de la Administración que recaiga en la unidad de negocio A, pero del que se pruebe que tiene incidencia financiera en la unidad de negocio B, se considere ilegítimo debido a sus efectos en la libertad de expresión de quienes allí laboran. Es decir, la Administración tendría serias limitaciones para obligar a respetar las propias normas de cada giro comercial, porque una vez probada la dependencia financiera de B respecto de A, todo se reconduciría a una lesión a la libertad de expresión, incluso aquellos actos de suyo legítimos.
Tercero. Ese peligro incluso podría comportar un riesgo para el propio dueño de la unidad de negocio A, pues si realiza un acto legítimo sobre esta que incida en la salud financiera de la unidad de negocio B, estaría incurriendo en un acto lesivo de la libertad de expresión de los periodistas que laboran en la unidad de negocio B. La presunta impunidad de la que gozaría la unidad de negocio A frente a la Administración, se convierte en una fuente de propia responsabilidad horizontal y sin fronteras frente a los periodistas que laboran en la unidad de negocio B.
Lo anterior sería así porque lo que haría que el acto fuera lesivo antijurídicamente de la libertad de expresión no sería la falta de alguno de los requisitos de validez (sustanciales y formales) y de eficacia[74], sino sus efectos sobre la salud financiera de la unidad dependiente; y se entendería que tal incidencia necesariamente afecta la libertad de expresión. Esto es, se consideraría que esa libertad quedaría lesionada con cualquier afectación financiera a la unidad de negocio B que provenga de la unidad de negocio A. De manera que bajo esa lógica todo acto que recaiga sobre la unidad A (no solo el arbitrario de suyo) que incida en la salud financiera de B impide “la comunicación y la circulación de ideas y opiniones” (artículo 13.3 de la CADH). Esto sin importar la naturaleza del acto, ni su carácter legítimo o no, ni la intensidad del impedimento.
Me pregunto si esa tesis resiste una aplicación universal. Parece que más pronto que tarde llevaría al absurdo.
Además, ha de tenerse presente que los holdings o conglomerados de empresas están integrados por unidades de negocio paralelas que se encuentran sometidas a reglas propias del giro al que se dedican. Por eso, la misma raíz financiera no permite extrapolar reglas de un negocio a otro: ni las prohibiciones, ni las protecciones ni los beneficios.
Tanto es así que, ante una quiebra de una de las unidades (que no sean parte de un mismo proceso de producción, sino que se dedican a giros comerciales distintos), los trabajadores de la unidad en crisis no podrían acudir al patrimonio de la otra unidad solvente, justamente porque se trata de dos unidades de negocio distintas y sus responsabilidades y derechos no son intercambiables.
Al respecto, dice la sentencia:
“[C]abe advertir que como toda persona administrada, estas estructuras se encuentran afectas y sujetas a las normas jurídicas que regulan, precisan y delimitan el ejercicio de sus respectivas actividades económicas. En ese sentido, su funcionamiento debe satisfacer y cumplir con las regulaciones propias de su actividad, lo que incluye, contar con las respectivas habilitaciones administrativas para el despliegue de la materia comercial” (sentencia, considerando VIII; el destacado no es del original).
Esto es así también por exigencias del principio de igualdad, pues de lo contrario, se trataría desigualmente a los iguales. Es decir, los dueños de medios de comunicación que, a la vez, sean dueños de otra empresa con un giro comercial distinto tendrían en este otro giro unas ventajas sobre los otros competidores, como se acaba de explicar.
Entonces, tal parece que la aplicación de un acto administrativo a una de las unidades de negocio, aunque tenga incidencia financiera en otra unidad de negocio que es paralela e independiente (por su objeto y por los sujetos que intervienen, y no forma parte de un mismo proceso de producción), no es suficiente para entender que se trata de un medio indirecto para lesionar antijurídicamente algún de derecho de los quienes estén vinculados a la otra unidad, tampoco si se trata de la libertad de expresión. Además, como se ha señalado, el artículo 13.3 de la CADH claramente indica que se entenderá lesivo si esa vía o medio indirecto impide “la comunicación y la circulación de ideas y opiniones”.
Hay un último elemento que vale la pena comentar. Aunque no sea posible consignar una respuesta unívoca, porque el tema tiene muchas facetas, cabe preguntarse sobre si el formato es parte del núcleo duro de la libertad de expresión, al menos, de la que es ejercida a través de un medio de comunicación. Para esto debe recordarse que la libertad de expresión conlleva por definición el deber de no hacer por parte del Estado: no impedir su ejercicio. Y, a tenor del artículo 13.3 de la CADH, se debe añadir que también hay una obligación de garantizar que no se impida ese ejercicio por medios indirectos. ¿Pero qué es lo que se debe proteger? Dice esa norma que “la comunicación y la circulación de ideas y opiniones”. No dice nada sobre el modo de hacerlo[75]. Es decir, no parece que proteger la libertad de expresión necesariamente signifique que el Estado deba garantizar absolutamente que alguien continúe ejerciendo esa libertad mediante un formato libremente elegido por quien comunica, sobre todo si se está ante la presencia de otras opciones de comunicación igual o más eficaces. Por eso no es palmario que esa obligación de garantizar alcance al deber de “fomentar” o proteger a toda costa “la comunicación y la circulación de ideas y opiniones” en un formato que por diversas las razones (causadas o padecidas) se torna inviable. Tales razones pueden ser logísticas, financieras[76] o, incluso, técnicas. Esta es una cuestión abierta al debate.
Motivos para acoger el recurso respecto de la libertad de expresión Los recurrentes dan cuenta de unos hechos para probar la vinculación entre el objeto impugnado y la lesión aducida. Parece que para ellos la importancia que algunos de estos tienen es que reflejan el contexto que permite valorar esa vinculación. Sin embargo, estimo que hay hechos que son en sí mismos significativos. Aquí se analizarán con el fin de determinar si constituyen violaciones directas a la libertad de expresión.
Marco normativo y jurisprudencial Hay dos normas que han de tomarse en consideración. Por un lado, el artículo 29 de la Constitución Política que establece:
Artículo 29. Todos pueden comunicar sus pensamientos de palabra o por escrito, y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca.
Por otro, en lo conducente, el artículo 13 de la CADH que señala:
Artículo 13. Libertad de Pensamiento y de Expresión 1. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección.
2. El ejercicio del derecho previsto en el inciso precedente no puede estar sujeto a previa censura sino a responsabilidades ulteriores, las que deben estar expresamente fijadas por la ley y ser necesarias para asegurar: a) el respeto a los derechos o a la reputación de los demás, o b) la protección de la seguridad nacional, el orden público o la salud o la moral públicas.
3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.
4. Los espectáculos públicos pueden ser sometidos por la ley a censura previa, con el exclusivo objeto de regular el acceso a ellos para la protección moral de la infancia y la adolescencia, sin perjuicio de lo establecido en el inciso 2.
5. Estará prohibida por la ley toda propaganda en favor de la guerra y toda apología del odio nacional, racial o religioso que constituyan incitaciones a la violencia o cualquier otra acción ilegal similar contra cualquier persona o grupo de personas, por ningún motivo, inclusive los de raza, color, religión, idioma u origen nacional. (El destacado no es del original).
La Sala Constitucional tiene una robusta jurisprudencia que subraya que el respeto a la libertad de expresión es una de las condiciones indispensables del Estado de Derecho y del ejercicio de la vida democrática. Entre muchas otras sentencias se puede transcribir parcialmente la siguiente:
“VIII.- La libertad de expresión como requisito indispensable de la democracia. La libertad de expresión sin duda alguna es una de las condiciones -aunque no la única-, para que funcione la democracia. Esta libertad es la que permite la creación de la opinión pública, esencial para darle contenido a varios principios del Estado constitucional, como lo son por ejemplo el derecho a la información, el derecho de petición o los derechos en materia de participación política; la existencia de una opinión pública libre y consolidada también es una condición para el funcionamiento de la democracia representativa. La posibilidad de que todas las personas participen en las discusiones públicas constituye el presupuesto necesario para la construcción de una dinámica social de intercambio de conocimientos ideas e información, que permita la generación de consensos y la toma de decisiones entre los componentes de los diversos grupos sociales, pero que también constituya un cauce para la expresión de los disensos, que en la democracia son tan necesarios como los acuerdos. Por su parte, el intercambio de opiniones e informaciones que se origina con la discusión pública contribuye a formar la opinión personal, ambas conforman la opinión pública, que acaba manifestándose por medio de los canales de la democracia representativa” (sentencia 2006-5977; el destacado no es del original; esas consideraciones han sido muchas veces reiteradas por la Sala, por ejemplo, en las sentencias 2015-1782, 2018-8396, 2019-8263 y 2020-16167).
Esta sentencia continúa con un pasaje particularmente relevante para el análisis que de inmediato se va a hacer:
“La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca; la no censurabilidad de los contenidos, si bien no se da en forma previa, encuentra algunas limitaciones, sin embargo, éstas deben ser tales que la libertad siga teniendo sentido o no sea vaciada de su contenido, básicamente, como toda libertad, debe ejercerse con responsabilidad, en fin para perseguir fines legítimos dentro del sistema” (ibid.; el destacado no es del original).
Es decir, se habla de la censura –entendida como el acto de reprobar– como un acto contrario a la libertad de expresión. Dicho de otro modo, se afirma que la consecuencia de esa libertad es la prohibición de toda clase de censura. Luego, no existe solo la censura previa, prohibida expresamente por los artículos 29 de la Constitución y 13 de la CADH, sino que puede darse una censura posterior, que tiene el propósito de inhibir cierto contenido informativo o de opinión. También se dice que la protección contra la censura alcanza no solo a los sujetos (quien comunica) sino al contenido (lo que se comunica).
Además, aunque no se desprende de esas líneas jurisprudenciales, estimo que se podrían incorporar otros criterios para completar una tipología de censura. Así, por su apariencia, puede ser velada o manifiesta; por los medios para ejercerla, puede ser directa o indirecta (por ejemplo, según lo previsto en el artículo 13.3 de la CADH); por sus efectos, puede ser absoluta (si la reprobación va de manera concomitante con la supresión) o relativa.
Finalmente, de manera sintética, ha dicho:
“La Sala recuerda que la defensa de la libertad de expresión es vital para el funcionamiento de un régimen democrático” (sentencia 2017-014977; el destacado no es del original).
Naturalmente, coincido plenamente con esa jurisprudencia, y he concurrido en muchas otras sentencias posteriores que fortalecen esa línea (vid. sentencias 2021-15417, 2022-4244, 2022-5915, 2022-9856, 2022-23107, entre otras).
Marco fáctico Cuando se leen los alegatos, se advierte que los recurrentes estiman que los actos administrativos son el último eslabón de una cadena de manifestaciones amenazantes de la libertad de expresión. Como he dicho, aluden a estas para reflejar un contexto y mostrar la vinculación entre la orden sanitaria (y el oficio conexo) y la lesión a la libertad de expresión. Sin embargo, a mi juicio, es preciso detenerse a examinar cuáles manifestaciones del presidente de la República –no solo las alegadas, sino las que tienen carácter de hecho público y notorio y que indubitablemente pueden considerarse parte de ese contexto– podrían constituir en sí mismas lesiones directas a la libertad de expresión.
Este examen debe estar medido por los requisitos de orden procesal: temporalidad, legitimación activa[77], legitimación pasiva, etc. Por eso, solo corresponde analizar los hechos acaecidos a partir del momento en el que el señor presidente asume el poder (pues antes no era funcionario público), hasta el momento en el que se interpuso el presente recurso de amparo (29 de julio de 2022).
Ese es el motivo por el cual se excluyen dos manifestaciones particularmente significativas: la del 29 de enero de 2022, en la que se refiere por sus nombres a los directores de medios[78], y la del 3 de agosto de 2022, que llama a los periodistas “fauna”, y afirma que una de las especies es la de las “ratas”[79].
Especial mención merece lo referente al término “prensa canalla”. Al respecto, los recurrentes dicen:
“En nuestro caso, como es público y notorio, además del constante uso de la palabra “canalla”, una injuria para deslegitimar, amedrentar y estimular el repudio a la prensa entre los seguidores del gobierno, lo cual es por sí mismo peligroso” (escrito de interposición, p. 6).
Sin embargo, es un hecho constatado que a partir del momento en el que asumió el poder, el mandatario no ha utilizado esa palabra, al menos en público. Por eso, este punto también se debe excluir del examen.
No obstante, es oportuno hacer dos consideraciones. En primer lugar, ciertamente no se ha dicho que una persona determinada es canalla, pero cuando se dice “prensa” no se alude solo a la empresa o medio como tal sino a quienes en ella ejercen el periodismo. En segundo lugar, es difícil encontrar un término más vejatorio que ese. Dice el Diccionario de la Real Academia Española:
canalla: Del it. canaglia, y este der. de cane perro.
1. f. coloq. Gente baja, ruin.
2. f. desus. perrería (?muchedumbre de perros).
3. m. y f. Persona despreciable y de malos procederes.
Es palmario que nadie merece ese calificativo.
Tampoco se toman en cuenta las manifestaciones hechas en la conferencia de prensa del 9 de julio ni la del 20 de julio de 2022, que se refieren a los dueños del Grupo Nación, no propiamente a los recurrentes.
Sin embargo, es suficiente para este análisis circunscribirse a la conferencia de prensa del 13 de julio de 2022. En esta ocasión, el señor presidente manifestó lo siguiente:
1:13:26[80] “La libertad de prensa en Costa Rica goza de buena salud. Tiene un Gobierno que la va a defender a toda costa. ¿Hay algún medio cerrado? ¿Algún periodista detenido? ¿Alguna rotativa parada? Obviamente no”.
Al respecto, debe señalarse que el señor presidente parece olvidar que esos no son los únicos modos de lesionar la libertad de expresión de los periodistas. No solo cerrar un periódico o arrestar injustificadamente a un periodista son conductas que violan la libertad de expresión. Esto es así no solo porque las lesiones directas se pueden dar por medios indirectos, a tenor del artículo 13.3 de la CADH, sino porque las lesiones directas por medios directos pueden darse de muchas formas.
En esa conferencia de prensa, el señor presidente hizo también otras manifestaciones sobre las que cabe hacer una advertencia preliminar. En muchos momentos alude al Grupo Nación y en otros de los periodistas que laboran en el periódico La Nación. A veces no es posible distinguir si se está dirigiendo a uno o a otros, porque se refiere a ellos como a un todo. Sin embargo, aquí se hizo una selección de las manifestaciones que indubitablemente se dirigen al periódico La Nación, aunque también podría entenderse que se está refiriendo a la vez al Grupo Nación como tal. Entonces, visto que los recurrentes laboran para tal medio, se ha de entender que son dirigidas a ellos:
1:16:46 “El artículo 50 de la Constitución Política, que yo juré defender (…), me obliga a hacer que los funcionarios hagan lo que La Nación dice de manera mentirosa, patrañosamente, es un ataque a la libertad de prensa” [lo destacado en cursiva con inflexión de voz, en tono burlesco e irónico].
1:17:25 “En el año 2017 un medio que no es parte de esta categoría, de esta especie, de este grupo, publicó e-mails internos del Parque Viva diciendo (…) ?aquí tenemos un problema serio y tenemos que ponernos a arreglarlo'” [lo destacado en cursiva con inflexión de voz, en tono burlesco e irónico]. 2017 al 2022: ¿qué ha pasado? Nada. ¿Dónde está el plan remedial?”.
1:18:08 “No solo le ha mentido a la población, el grupo La Nación. Ha difamado a la patria, ha difamado a los costarricenses ante la prensa y comunidad internacionales, (…) pidiéndole favorcitos a sus socios y amigos en la Sociedad Interamericana de Prensa para defender intereses mezquinos”.
1:18:50 “Lo que La Nación debió haber hecho en lugar de haber difamado esa patria bendita, donde la libertad de prensa está garantizada, fue ponerse a trabajar duro y honestamente para preparar un plan viable y honesto. Han tenido cinco años desde que ellos mismos reconocieron que había niveles de riesgo inaceptables y que había que arreglarlos”.
1:19:49 “¿Oyeron la mentira descarada que publicó La Nación? (…) que tiene desde hace dos años pidiendo acceso para la ruta 27 (…) Dice la Nación: ¡Los acusamos!: Esto es contra la libertad de prensa porque se mueven rápido. ¿A eso hemos llegado en Costa Rica?”.
1:23:56 “¿A quiénes defienden el Grupo La Nación?… ¿a la libertad de prensa o a sus intereses?”.
1:28:00 “Porque ellos se creen encima de la ley…”.
1:28:26 “Yo daría mi última sangre para proteger las libertades de nuestro pueblo, incluyendo la libertad de mentir y de desinformar que han ejercido con gusto, frecuentemente, esos estos medios aliados de la casta que se piensa monárquica de este país”.
1:29:50 “Ustedes, La Nación, tienen la libertad para trabajar. Les debería dar vergüenza difamar a su país (…)”.
Yo hubiera querido tener una conferencia de prensa normal (…), pero la cantidad de tinta, la cantidad de minutos en canales de televisión que se han dedicado a malinformarle a usted señora, a usted señor, a usted joven, en su casa, en su carro, donde quiera que esté oyendo esto, fue demasiado (sic), y este es mi derecho de respuesta, porque el derecho de respuesta esos medios (Ustedes saben la palabra, yo me la voy a callar) no creo que me lo hayan dado, porque me lo negaron en el pasado (…).
Yo sé que es una serie de expresiones y de meditaciones pasionales, fuertes. Yo sé que el pueblo de Costa Rica no está acostumbrado a ver un presidente diciéndole al Grupo de La Nación que se creen reyes con corona, costarricenses con corona. Pero esa es una nueva era. Aquí todos y todas somos iguales en libertad, en respeto, con absoluta libertad de expresión, aunque sean mentiras, pero la libertad de expresión no significa que alguien puede mentir descaradamente y que el gobierno y las personas ofendidas tengan que callarse”. (Lo destacado es lo que se estima relevante).
Consideraciones sobre las manifestaciones Estas manifestaciones reflejan el contexto de tensión, posterior al cierre temporal del Parque Viva, entre el mandatario y el Grupo Nación y el periódico La Nación. Aluden a personas determinables, algunos de las cuales son los recurrentes en el presente amparo.
Esas manifestaciones fueron públicas y hechas en su carácter de presidente de la República, es decir, de quien ostenta la más alta investidura. Eso significa que su conducta por sí misma tiene una grandísima proyección y relevancia El estilo vehemente no es lesivo de suyo. No obstante, las palabras y el tono beligerante en extremo sí pueden serlo, pues destruyen el clima pacífico que es necesario para el libre intercambio de ideas en una sociedad democrática. Más todavía cuando las manifestaciones desacreditan a personas concretas o a una línea informativa.
Como se dijo en una de las sentencias transcritas, esta Sala ha señalado:
“La libertad de expresión tiene como consecuencia la prohibición de toda forma de censura, en un doble sentido: no se puede censurar a los interlocutores, por una parte; y no se puede, en general, tampoco censurar en forma previa los contenidos posibles de la discusión: en principio, en una democracia, todos los temas son discutibles. La no censurabilidad de los sujetos tienen un carácter prácticamente universal, como lo establece nuestra Constitución, nadie puede ser privado de la libertad de hablar y expresarse como mejor le parezca” (sentencia 2006-5977; el destacado es del original).
Esto quiere decir que toda manifestación que suponga una censura, aunque por sus efectos sea solo relativa y no absoluta, pues con ella no se impidió la difusión posterior de las ideas reprobadas, constituye una lesión directa a la libertad de expresión, pues la libertad de expresión exige el respeto de quienes disienten y supone facilitar la comunicación de ideas sin desacreditación alguna, ni de los sujetos ni de los contenidos.
Los recurrentes merecen respeto en primer lugar por la dignidad propia de su condición de personas. Justamente, la salvaguarda de esa dignidad es el fin de todo Estado de Derecho. También merecen respeto por el hecho mismo de ser periodistas, cuya labor tiene particular importancia en una sociedad pluralista y democrática.
Ciertamente, el presidente de la República también tiene libertad de expresión, pero por su carácter de funcionario público, está limitada por los deberes propios de su cargo: el respeto a la Constitución y a las leyes, y a dignidad de los demás, y a las manifestaciones de críticas y disensiones.
En ese sentido, la Constitución Política dice:
Artículo 140. Son deberes y atribuciones que corresponden conjuntamente al Presidente y al respectivo Ministro de Gobierno:
Mantener el orden y la tranquilidad de la Nación, tomar las providencias necesarias para el resguardo de las libertades públicas.
Entonces, resguardar las libertades públicas –y dentro de estas se encuentra la libertad de expresión– es tarea asignada constitucionalmente al señor presidente. La norma también se refiere al orden y a la tranquilidad, necesarias no solo en el plano de la seguridad pública, sino en la convivencia pacífica propia de un régimen democrático. Por eso, provocar o contribuir a un nivel de violencia verbal dirigido contra los periodistas que disienten de sus enfoques luce como una afrenta al ambiente de paz social que debe promover.
Asunto distinto es si ese clima de violencia es magnificado por otros actores sociales, pero eso excede los alcances de estas páginas.
Corresponde ahora distinguir y analizar tres pasajes especialmente relevantes:
Primero. En los que llama mentirosos a los periodistas.
No procede pronunciarse sobre quién lleva razón sobre el fondo del asunto (ya he dicho hasta la saciedad, en el voto salvado, que a mi juicio debió conocerse en la jurisdicción contencioso-administrativa), pero es claro que en el marco de una sociedad democrática y pluralista no cabe llamar mentiroso a quien disiente, pues eso –además de denigratorio– ahoga el debate público, desestimula la libre circulación de ideas y opiniones. Por eso, si se estima que una persona o grupo de personas falta a la verdad y que eso tiene consecuencias relevantes –además de decirlo públicamente, pero sin censurar–, bien se pueden utilizar los cauces que el ordenamiento jurídico ofrece para zanjar la cuestión. Pero desacreditar a las personas de un modo tan beligerante no es solución, mucho menos lo es en una sociedad democrática.
Lo propio del periodismo es comunicar lo que se entiende que es veraz y justo. Por esa razón, llamar mentirosos a los periodistas significa calificarlos carentes de una cualidad que por su condición deberían tener. Es decir, cuando es dirigido a los periodistas, ese adjetivo adquiere una connotación particularmente peyorativa y es, sin duda, una censura.
Segundo. En los que afirma que La Nación, y por tanto los periodistas que trabajan en ese medio, han difamado a la patria y a los costarricenses.
El contexto de esto es el siguiente. El cierre del Parque Viva fue un hecho noticioso que fue recogido en prestigiosos periódicos latinoamericanos, bajo los siguientes titulares:
“Gobierno de Costa Rica cierra Parque Viva tras ataque de Rodrigo Chaves al diario ‘La Nación’”[81].
“Gobierno de Costa Rica cierra Parque Viva en medio de ataques del presidente al diario ‘La Nación’”[82].
“El gobierno de Costa Rica atacó a uno de los principales medios del país y luego cerró un estadio de esa empresa”[83].
Entonces, el señor presidente estima que el hecho de que tales medios y otros hayan dado cuenta del cierre del Parque Viva con un enfoque coincidente con el de La Nación, y sus periodistas, responde a las gestiones de ellos ante tales medios. Si así fuera, ¿porque qué sería eso reprochable? Tanto los periodistas de La Nación como los de otros medios son libérrimos para comunicar la noticia desde su ángulo. Y ¿por qué es deleznable que el periódico La Nación y sus periodistas busquen alianzas fuera de las fronteras? Este proceder es natural, lógico, comprensible, y no parece que por sí mismo suponga “difamación” de la patria y de los costarricenses, entre otras cosas, porque ni “patria” ni “costarricenses” son categorías o términos que se identifican con “gobierno”. De nuevo, esa desacreditación tan gravosa de los recurrentes constituye una censura que cercena el ejercicio de su libertad de expresión.
Tercero. En el que dice que lo manifestado en esa conferencia de prensa responde a su derecho a respuesta, que cree que le habrían negado.
Vale advertir que en ese pasaje no pronuncia “la palabra”: “Ustedes saben la palabra, yo me la voy a callar”; pero no es aventurado afirmar que alude a aquella que ha evitado decir desde que es presidente de la República. Esto por tres motivos: la supresión no significa que no aluda a ella; la suprime porque es denigratoria; la palabra parece evocar inequívocamente una palabra que los demás saben que es aquella que en su momento dijo que se refería también al periódico La Nación. Pero como lo anterior es solo una tríada de conjeturas, basta referirse a otro aspecto de ese pasaje: a la presunción de que el periódico no acogería su derecho a respuesta. Al respecto es obligado decir que bajo esa lógica se socaban las bases de un Estado de Derecho, pues es tomarse la justicia por propia mano. Otra cosa es que en la conferencia de prensa el mandatario estime oportuno hacer las aclaraciones y mostrar los motivos de la divergencia con el periódico, pero no es jurídicamente procedente que la justificación de esto se base en la presunción del incumplimiento, por parte del periódico y de quienes allí laboran, de lo establecido en los artículos 66 y siguientes de la LJC, relativo al derecho de rectificación y respuesta.
Esas manifestaciones hostiles y deslegitimadoras del medio en el que laboran los periodistas recurrentes, y por tanto de ellos mismos, no contribuyen a crear un clima de libre intercambio de ideas. Por el contrario, como he dicho, suponen una censura, que constituyen lesiones directas a los periodistas recurrentes.
Claro que toda autoridad, y por supuesto el señor presidente, puede utilizar los foros que tenga a su disposición para aclarar, contrastar, negar lo dicho por los periodistas; pero lo procedente es hacerlo en el marco del respeto, propio de una sociedad pluralista y que va en consonancia con nuestra tradición democrática.
Sobre esto último es llamativo que prácticamente no hay jurisprudencia sobre esta temática. Quizá esto se debe a que la tónica en este país hasta la fecha nunca ha sido que los funcionarios públicos ejerzan una censura de esta naturaleza ni con periodistas de La Nación ni con los de otros medios.
En vista de que por razones procesales no es posible conocer de las demás manifestaciones que son hechos públicos y notorios y son parte del contexto de tensión ya mencionado, tampoco es factible jurídicamente que me pronuncie sobre la existencia o no de un patrón de conducta sobre el particular.
Conclusión
Es posible concluir que las manifestaciones del presidente hechas el 13 de julio en la conferencia de prensa, que son parte del contexto referido por los recurrentes, constituyen ejemplos de censura directa, manifiesta, aunque relativa, y por ello son lesiones directas a la libertad de expresión de los recurrentes, por lo que estimo que procede declarar con lugar el recurso de amparo respecto de este extremo.
En vista de que no me pronuncio sobre los actos administrativos impugnados, esto es, la orden sanitaria y el oficio conexo, pues estimo que esta Sala no es competente para conocer de ellos en el marco de este recurso de amparo, no haré referencia a esos actos administrativos en sí mismos, es decir, si son o no arbitrarios. Sin embargo, me parece pertinente hacer unas consideraciones sobre el expediente y la sentencia. Ello permitirá confirmar lo dicho en el voto salvado, en el que sostengo que el recurso de amparo no era el proceso idóneo para resolver este asunto.
El dilema: “ordinariar” el amparo o respetar su carácter sumario El presente caso puso a la Sala Constitucional en una disyuntiva: desnaturalizar el recurso de amparo, transformándolo en un proceso ordinario –lo que de manera coloquial se llama “ordinariar” el amparo– o resolver sin todos los elementos necesarios. Por lo visto, la mayoría quiso salvar en lo posible la naturaleza sumaria del amparo. En efecto, aunque esta sentencia es voluminosa, hay motivos para estimar que respecto del examen de los actos impugnados se dieron dos tipos de falencias: uno en el plano probatorio y otro referido a las partes allegadas al proceso. Esto es lo que de inmediato paso a mostrar.
Sobre los aspectos probatorios Es preciso recordar que el recurso de amparo es sumario por naturaleza. Esto en palabras de la Sala, que por cierto todas las semanas utiliza en sus rechazos de plano, significa lo siguiente:
“[La finalidad del recurso de amparo es brindar tutela oportuna contra infracciones o amenazas a los derechos y libertades fundamentales, no servir como instrumento genérico por medio del cual sea posible accionar contra cualquier otra clase de quebrantos constitucionales o legales. Consecuentemente, la procedencia del recurso de amparo, en general, está condicionada, no sólo a que se acredite la existencia de una turbación —o amenaza de turbación— a uno o más de los derechos o garantías contemplados en la Carta Política o en los instrumentos internacionales de derechos humanos suscritos por el país, sino también a que el agravio alegado comporte una amenaza o quebranto directo y grosero de aquellos derechos, que ponga en peligro aquella parte de su contenido que les es esencial y connatural, es decir, el núcleo que les presta su peculiaridad y los hace reconocibles como derechos de una naturaleza determinada. Lo anterior, en doctrina, es conocido como el contenido mínimo esencial del derecho, el cual es vulnerado, por ejemplo, cuando se condiciona el ejercicio del derecho que sea, al cumplimiento de condiciones, presupuestos o requisitos de tal naturaleza que, en la práctica, hacen materialmente imposible o nugatorio su uso. En este sentido, la jurisprudencia constitucional ha precisado que el problema de las violaciones directas e indirectas a la Constitución involucra, también, una necesaria apreciación de la idoneidad y naturaleza expedita que debe caracterizar a la vía del amparo. Se ha dicho que “…en esencia, la idea básica puede estar en la distinción entre una lesión directa y otra indirecta de los derechos fundamentales. En buena doctrina constitucional el criterio se basa en que cualquier infracción de legalidad, en cuestiones relacionadas con esos derechos, puede causar eventualmente lesión de aquellos derechos fundamentales, pero cuando se trate de una lesión simplemente indirecta, por existir dentro del aparato estatal, órganos que pueden y deben resguardar esos derechos y reparar su violación, les corresponde a ellos conocer y no a esta Sala...” (Sentencia N° 1610-90 de las 15:03 horas del 9 de diciembre de 1990). Esto último pone de relieve el motivo por el cual el proceso de amparo es de carácter eminentemente sumario –es decir, breve y sencillo– y su tramitación no es compatible con la práctica de diligencias probatorias lentas y complejas, o con la necesidad de entrar previamente a examinar –con carácter declarativo– si los derechos de rango infra constitucional que las partes citan como parte del elenco fáctico del recurso de amparo o del informe de ley, según sea el caso, existen en realidad” (sentencia 2021-001965; el destacado no es del original; estas líneas jurisprudenciales son constantemente repetidas por este Tribunal, y por citar algunos ejemplos, vid. las sentencias 2018-18079, 2019-17891 y 2020-12053)[84].
Sin embargo, por las características de los actos aquí impugnados, se hacía necesario un riguroso análisis y contraste de amplia prueba técnica y criterios de las autoridades recurridas, a saber: los permisos otorgados por la Unidad de Permisos de la Dirección General de Ingeniería de Tránsito del MOPT; las condiciones en las que fue otorgado el permiso sanitario de funcionamiento MS-DRRSCN-DARSA2-RPSF-0177-2019 por el Ministerio de Salud; las autorizaciones de aforo dadas por el Área Rectora de Salud Alajuela 2 del Ministerio de Salud ?oficios MS-DRRSCN-DARSA2-4070-2021 del 16 de diciembre de 2021 y MS-DRRSCN-DARSA2-0163-2022 del 20 de enero de 2022?; el acta de inspección MS-DRRSCN-DARSA2-1639-2022 y el informe resultado de la inspección MS-DRRSCN-DARSA2-1641-2022 del 5 de julio de 2022 emitidos por el Área Rectora de Salud de Alajuela 2; el oficio DVT-DGIT-2022-339 del MOPT, que hizo referencia a las condiciones viales de la zona y que fue contundente al asegurar que, en el momento en que se realizan eventos de concentración masiva, la vía que da acceso al Parque Viva no tiene la capacidad suficiente para el manejo del tránsito generado; los criterios técnicos de los expertos del Comité Asesor Técnico de Concentraciones Masivas, que está integrado, entre otros, por representantes de la Comisión Nacional de Emergencias, el Benemérito Cuerpo de Bomberos y la Cruz Roja Costarricense[85].
De paso, cabe recordar que en un primer momento la orden sanitaria se dictó “hasta tanto se cuente para su análisis y toma de las respectivas acciones, con los criterios técnicos emitidos por el Benemérito Cuerpo de Bomberos de Costa Rica y de la Benemérita Cruz Roja Costarricense, con relación a la capacidad de la vía de acceso a dicho establecimiento por las unidades de primera respuesta de esas instituciones, mismos que están siendo gestionados por el Ministerio de Salud”[86].
Además, correspondía valorar diversos criterios técnicos recabados por las autoridades competentes. Así, entre otros, los siguientes que parecen tener relevancia[87]: el oficio MSP-DM-DVURFP-DGFP-DRSA-SBDRA-DPCAS-D26-0827-2022 del 10 de julio de 2022, suscrito por el subdirector regional de la Dirección de la Fuerza Pública de Alajuela, del que se desprende que la Fuerza Pública “ha venido enfrentando una situación de entorpecimiento en la atención de incidentes de carácter policial, en el perímetro externo inmediato del Parque Viva, situado en Rincón Chiquito en el distrito de La Guácima de Alajuela, en momentos en que se realizan actividades en ese lugar. Esta zona está catalogada por la Fuerza Pública como un área sensible; ya que convergen diferentes acciones delictivas”; el oficio CBCR-027150-2022-OPB-00741 del Benemérito Cuerpo de Bomberos, en el que se concluyó que “debido a las situaciones planteadas anteriormente, como consecuencia, existen varias comunidades como Rincón Chiquito, Rincón Herrera, Guácima centro, al igual que las propias instalaciones del Parque Viva, se podrían ver afectadas debido a que el tiempo de respuesta de las unidades de Bomberos aumenta de forma considerable, además, cuando se dan bloqueos en las carreteras, se imposibilita el acceso a las comunidades, situación que pone en riesgo las vidas y las propiedades”; los informes técnicos CRC-GG-SO-OF-074-2022 y CRC-GG-OF-012-2022, suscritos respectivamente por el sub gerente operativo y por el gerente general de la Asociación Cruz Roja Costarricense; el oficio 911-DI-2022-2202 del 11 de julio de 2022, rendido por la directora del Sistema de Emergencias 9-1-1; el criterio técnico DM-2022-3121 del 11 de julio de 2022, suscrito por el ministro de Obras Públicas y Transportes.
Todos esos son informes mencionados en la sentencia, pero en ella no se observa una valoración pormenorizada sobre los mismos, como seguramente habría sido lo procedente de cara a lo que la mayoría se propuso al conocer de los actos impugnados: determinar si eran arbitrarios y carentes de fundamento. Esto como premisa sin la cual no era posible declarar la lesión a la libertad de expresión. En efecto, como se ha visto, si el acto no era arbitrario, aunque se hubiese probado una afectación a los recurrentes derivada de dicho acto, no habría sustento para declarar con lugar el recurso por lesión a la libertad de expresión. Por eso se puede afirmar que, si se iba a hacer un examen por el fondo, era del todo pertinente el análisis sobre los aspectos técnicos.
Sobre las partes allegadas al proceso De la lectura de la sentencia, se advierte la ausencia de muchos sujetos involucrados de algún modo en los actos administrativos impugnados. Ciertamente, este asunto se cursó exclusivamente contra el presidente de la República y la ministra de Salud; sin embargo, la sentencia alude a una serie de conductas, competencias y criterios de otras autoridades que no fueron integradas a este proceso y cuyas consideraciones eran necesarias para llegar a una conclusión fundada. Por ejemplo, no se integró al ministro del MOPT, y a los jerarcas del Consejo Nacional de Vialidad, de la Dirección General de Policía de Tránsito, de la Dirección General de Ingeniería de Tránsito, del Consejo Nacional de Concesiones y de la Comisión de Carreteras de Acceso Restringido; a otras autoridades del Ministerio de Salud, a saber: las del Área Rectora de Salud Alajuela 2 y de la Dirección Regional Rectoría de Salud Central Norte; a los integrantes que emitieron criterio en el Comité Técnico de Concentraciones, en el que hay representantes de la Cruz Roja Costarricense, de la Comisión Nacional de Emergencias, del Benemérito Cuerpo de Bomberos, del Sistema de Emergencias 9-1-1 y de Gestión de Riesgo del Ministerio de Salud. Tampoco se integró al proceso a la Municipalidad de Alajuela ?autoridad a la que la mayoría de esta Sala le atribuye parte de la problemática que acá se examina y que bien pudo dar criterios orientativos para solucionar la situación que está en la base de esta litis?.
Muchas de esas autoridades pudieron haber sido integradas en calidad de recurridos, pues, como se sabe, en el trámite de un el amparo, el órgano jurisdiccional tiene facultades para ampliar el proceso, respecto de las partes y el objeto[88]. También las tiene para pedir prueba para mejor resolver, tanto sobre informes rendidos que merecen ser aclarados, como sobre prueba que consta –oficios, por ejemplo, que fueron emitidos por personas ajenas al proceso– y, naturalmente, sobre datos que aún no constan. Mucha de esa prueba adicional la puede pedir también a autoridades que no corresponde que se les tenga como partes.
Entonces muchas de las autoridades mencionadas pudieron estar como recurridos o como simples informantes –en el contexto de una prueba para mejor resolver–. Esto último incluso en el caso de que constaran oficios suscritos por esas autoridades.
En ese sentido hay otras autoridades que también pudieron haber nutrido el análisis de la cuestión. Por ejemplo, la Contraloría General de la República, que rindió un informe sobre la eficacia y la eficiencia en el uso de los recursos de la red vial cantonal en la Municipalidad de Alajuela; el Ministerio de Seguridad Pública y, particularmente, la Dirección General de la Fuerza Pública, por sus informes técnicos tan contundentes. Lo mismo cabría señalar del Instituto Nacional de Vivienda y Urbanismo (INVU), que emitió un informe, e incluso de la Secretaría Técnica Nacional Ambiental, que afirmó que el local de Parque Viva contó con una viabilidad ambiental únicamente para mejoras en el autódromo.
Con el fin de realizar un análisis cabal de la situación planteada, habría sido necesario examinar aspectos que no son propios de un recurso de amparo, por ejemplo: la legitimidad de una denuncia anónima; la supuesta irregularidad en la diligencia y premura de las conductas administrativas; la necesidad, oportunidad y conveniencia de emitir una orden sanitaria en aras de proteger la vida y salud humanas, supeditada también la recolección de mayores elementos técnicos que confirmaran la decisión; los alcances de la orden sanitaria y del oficio conexo; la vigencia de los permisos sanitarios y el cumplimiento de los aforos dispuestos por las autoridades del Ministerio de Salud; la competencia de esas autoridades para ordenar la presentación de una propuesta de mejora del flujo vial para la realización de eventos masivos; la responsabilidad de las empresas privadas en la solución de los problemas de colapso vial derivadas de actividades comerciales ejecutadas por ellas mismas. También, seguramente, valorar el adecuado control del desarrollo urbano y de la emisión de permisos sanitarios y de construcción en la zona en cuestión. Adicionalmente, determinar las causas objetivas que provocan el congestionamiento vial y los proyectos remediales de la Municipalidad de Alajuela y otras autoridades competentes en la materia; y atender a los posibles escenarios de respuesta en una situación de emergencia juntamente con un cuadro de congestionamiento vial severo. Del mismo modo, y a la luz de los cuestionamientos de los amparados, habría sido procedente sopesar la razonabilidad y proporcionalidad de la orden dictada en relación con las posibilidades materiales y los alcances de la responsabilidad de la sociedad propietaria del inmueble de dar solución a la problemática vial que se les atribuye.
Debe tenerse presente que los recurrentes argumentan que la orden sanitaria se ejecutó de manera arbitraria, pese a que aún no se contaban con criterios técnicos de la Cruz Roja y del Cuerpo de Bomberos, relativos a la capacidad de la vía de acceso al establecimiento, y que estos fueron aportados y comunicados días después del dictado de esa orden y que, además, resultan cuestionables. Esos señalamientos confirman que lo alegado y lo pretendido requería un juicio plenario en el que, al evacuar toda la prueba pertinente, fuera posible analizar también los cuestionamientos realizados a los informes técnicos posteriores a la orden, que vinieron a confirmar la problemática vial examinada por parte del Ministerio de Salud y otras instancias técnicas. En una sede y proceso apropiados no solo habría sido posible una adecuada recepción y valoración de la prueba, sino que se habría conferido la oportunidad de contrastar los criterios de las autoridades técnicas competentes. Por el contrario, por ejemplo, puede observarse que en la sentencia se pretende contrarrestar el criterio de la presidencia ejecutiva del INVU con una publicación realizada por el alcalde Municipal de Alajuela en una red social. Naturalmente no me pronuncio sobre si una u otra autoridad lleva razón, sino sobre el modo elegido por la mayoría de la Sala para contrastar opiniones de las autoridades que son contradictorias entre sí. En ese sentido, se podría decir que no parece que haya sido el más acertado desde el punto de vista jurídico procesal.
Todo lo que he consignado aquí, como se desprende del título de este acápite, pone en evidencia el severo dilema al que estuvo sometido este tribunal: “ordinariar” el recurso de amparo, para evacuar y examinar toda la prueba pertinente, o resolver sin todos los elementos necesarios para efectuar un análisis riguroso y pormenorizado de la cuestión, como esta lo demandaba. Esto último, por cuanto no soloestaba de por medio el resguardo de la libertad de expresión que se alegaba infringida, sino también el derecho de los habitantes a que se proteja su salud, su integridad física y su vida.
En mi voto salvado he mostrado que ese dilema se resolvía con solo que la Sala hubiese respetado la naturaleza sumaria del proceso de amparo, continuando así con su sólida jurisprudencia sobre el particular. De ese modo, habría declarado que este conflicto debió residenciarse en las vías ordinarias de la legalidad. Pues bien, ahora, la atenta lectura de la sentencia me lleva a confirmar que para determinar con certeza si los actos impugnados fueron arbitrarios, infundados o desproporcionados ?tal y como lo afirma la mayoría de la Sala? lo procedente era que este asunto fuera decidido en la vía ordinaria, luego de un examen integral de la situación y de todos los elementos probatorios acá esbozados. Al haberse analizado el objeto impugnado en un proceso sumario como el amparo, lamentablemente, están ausentes diversos elementos, en el plano probatorio y en el argumentativo, que habrían sido necesarios para arribar a la conclusión que la sentencia presenta. Como he dicho, se echa en falta que al menos se integrara a todas las partes involucradas en el fundamento técnico de la orden sanitaria cuestionada y que se desmintieran con precisión los argumentos técnicos invocados en dicho acto administrativo.
Es oportuno subrayar que, según el criterio de la mayoría, las autoridades recurridas ?al dictar la orden sanitaria? debieron “realizar una adecuada ponderación y adoptar la medida menos gravosa para los derechos fundamentales, propiciando su equilibrio y limitando su afectación al mínimo”[89]. No obstante, la sentencia no demuestra previamente en qué medida concretamente la orden sanitaria había afectado los derechos fundamentales de los periodistas amparados, esto es, si había una incidencia real sobre su libertad de expresión.
Finalmente, es plenamente justificado que los recurrentes y la sentencia tomen en cuenta manifestaciones del señor presidente cuando era candidato, pues eso ayuda a contextualizar los agravios que se acusan. Pero es llamativo que la sentencia valore manifestaciones del mandatario ulteriores a la fecha de la interposición del recurso de amparo.
Las consecuencias de la anulación de los actos impugnados La mayoría de la Sala dispuso anular la orden sanitaria MS-DRRSCN-DARSA2-OS-0368-2022 del 8 de julio de 2022, así como lo dispuesto en el oficio MS-DRRSCN-DARSA2-1724-2022 del 15 de julio de 2022, que la confirmó.
Esto hace que la situación sobre la problemática de acceso al Parque Viva, que es de conocimiento público, que ni los recurrentes ni los dueños del inmueble han negado, y que está reflejada en la gran cantidad de informes técnicos citados, retorne al momento en el que se presentó la denuncia ante las autoridades del Ministerio de Salud. De manera que, de haber algún siniestro que afecte la salud pública o la integridad de las personas, tal parece que la responsabilidad será compartida por la mayoría de la Sala.
Reitero que tanto el examen sobre la legitimidad de los actos impugnados como la ponderación de los derechos e intereses legítimos de los vecinos y usuarios bien pudieron llevarse a cabo ante la jurisdicción contencioso-administrativa. También porque ahí, mediante el ejercicio de la justicia cautelar, se habrían podido dictar medidas que modularan los efectos de la suspensión del acto e impusieran condiciones que procuraran proteger a terceros. En el sub lite, se ordenó sin más la anulación de los actos administrativos, omitiéndose toda condición que permitiera de alguna manera resguardar tales derechos e intereses.
En la sentencia, por un lado, se hace referencia al avance de un plan para dar solución al congestionamiento vial y, por otro, al anular los actos impugnados, no se indica prevención alguna sobre la necesidad de llevar a término la ejecución de las medidas que resuelvan definitivamente dicha problemática. Consignar esa prevención, al menos, habría tenido un valor simbólico: reflejar que la Sala es consciente de que realmente existe un riesgo para los vecinos y usuarios del Parque Viva.
Sobre el alcance de la condenatoria en daños y perjuicios Finalmente, me permitiré hacer unos comentarios sobre la condenatoria en daños y perjuicios. Como se recordará, en el escrito de interposición los recurrentes manifestaron que renunciaban a estos. Claro está, si el recurso fue declarado con lugar, la Sala no está legalmente habilitada para omitir esa condenatoria. Pero, ciertamente, el reclamo de estos daños y perjuicios es renunciable. Por otro lado, a la luz del escrito de interposición y de la lógica de la sentencia, debe entenderse que la condenatoria es solo en beneficio de los recurrentes y solo por la lesión a la libertad de expresión que se declaró derivada de los actos administrativos impugnados. No cabe entender que tales daños y perjuicios incluyen las eventuales situaciones patrimoniales relacionadas con el giro comercial de Parque Viva. Asunto distinto, y no descubro nada, es que los dueños de Parque Viva, están habilitados para interponer una demanda por responsabilidad del Estado en la jurisdicción contencioso-administrativa[90] sobre la base de la anulación de esos actos administrativos. Como estos ya dejaron de existir jurídicamente, no corresponde que ahí se valore si procedía o no la nulidad. Ya no será necesario alegar los motivos por los que se consideraron arbitrarios, ni habrá fase probatoria sobre este aspecto. Ahí únicamente se deberáacreditar la existencia y naturaleza antijurídica de los daños y perjuicios sufridos en su giro comercial, y el nexo causal de estos con los actos anulados. Este es un motivo más para meditar sobre si cabía que la Sala conociera de los actos impugnados. Lo cierto es que en un proceso sumario se resolvió sobre unos actos –de gran complejidad y enormes consecuencias, también en el plano patrimonial– cuya anulación agiliza el reclamo de unos daños y perjuicios auna unidad de negocio que no estuvo en el amparo ni se dedica al giro periodístico.
VII.Conclusión En atención a los argumentos antes expuestos, me pronuncio así sobre este recurso de amparo: Lo declaro con lugar respecto de la libertad de expresión, por cuanto se acreditaron manifestaciones del recurrido que configuran actos de censura directa, manifiesta, aunque relativa, que lesionan esa libertad de los recurrentes. Lo declaro sin lugar respecto de la anulación de la orden sanitaria y del oficio conexo porque, además de no acreditarse la legitimación activa, no procede conocer de esos actos en esta jurisdicción.
Anamari Garro Vargas 1 [1] Artículo 29. Todos pueden comunicar sus pensamientos de palabra o por escrito, y publicarlos sin previa censura; pero serán responsables de los abusos que cometan en el ejercicio de este derecho, en los casos y del modo que la ley establezca.
[2] Artículo 13. Libertad de Pensamiento y de Expresión.
1. Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección (…).
3. No se puede restringir el derecho de expresión por vías o medios indirectos, tales como el abuso de controles oficiales o particulares de papel para periódicos, de frecuencias radioeléctricas, o de enseres y aparatos usados en la difusión de información o por cualesquiera otros medios encaminados a impedir la comunicación y la circulación de ideas y opiniones.
[3] Artículo 11. Los funcionarios públicos son simples depositarios de la autoridad. Están obligados a cumplir los deberes que la ley les impone y no pueden arrogarse facultades no concedidas en ella. Deben prestar juramento de observar y cumplir esta Constitución y las leyes. La acción para exigirles la responsabilidad penal por sus actos es pública. La Administración Pública en sentido amplio, estará sometida a un procedimiento de evaluación de resultados y rendición de cuentas, con la consecuente responsabilidad personal para los funcionarios en el cumplimiento de sus deberes. La ley señalará los medios para que este control de resultados y rendición de cuentas opere como un sistema que cubra todas las instituciones públicas.
[4] Artículo 33. Toda persona es igual ante la ley y no podrá practicarse discriminación alguna contraria a la dignidad humana.
[5] Posteriormente hacen más alegatos en la misma línea, que serán transcritos en el voto salvado.
[6] En las razones diferentes se hará una breve referencia a estos.
[7] A la luz de la petitoria, ha de entenderse que se refieren a la orden y al oficio conexo. En adelante, cuando se habla de orden sanitaria, se alude también al oficio conexo.
[8] Al respecto: Artículo 38 de la LJC. En el recurso de amparo se expresará, con la mayor claridad posible, el hecho o la omisión que lo motiva, el derecho que se considera violado o amenazado, el nombre del servidor público o del órgano autor de la amenaza o del agravio, y las pruebas de cargo. // No será indispensable citar la norma constitucional infringida, siempre que se determine claramente el derecho lesionado, salvo que se invoque un instrumento internacional. // El recurso no está sujeto a otras formalidades ni requerirá autenticación. Podrá plantearse por memorial, telegrama u otro medio de comunicación que se manifieste por escrito, para lo cual se gozará de franquicia telegráfica.
[9] Artículo 42. Si el recurso fuere oscuro, de manera que no pudiere establecerse el hecho que lo motiva, o no llenare los requisitos indicados, se prevendrá al recurrente que corrija los defectos dentro de tercero día, los cuales deberán señalarse concretamente en la misma resolución. Si no los corrigiere, el recurso será rechazado de plano.
[10] Artículo 48. Toda persona tiene derecho al recurso de hábeas corpus para garantizar su libertad e integridad personales, y al recurso de amparo para mantener o restablecer el goce de los otros derechos consagrados en esta Constitución, así como de los de carácter fundamental establecidos en los instrumentos internacionales sobre derechos humanos, aplicables a la República. Ambos recursos serán de competencia de la Sala indicada en el artículo 10.
[11] Artículo 2. Le corresponde específicamente a la jurisdicción constitucional: 1. Garantizar, mediante los recursos de hábeas corpus y de amparo, los derechos y libertades consagrados por la Constitución Política y los derechos humanos reconocidos por el Derecho Internacional vigente en Costa Rica.
[12] En adelante, al menos en este segmento, cuando se hable de derechos fundamentales, se deberá entender que también se hace referencia a las libertades públicas.
[13] Esas consideraciones se han repetido textualmente en al menos 1734 resoluciones de la Sala Constitucional. Cfr. https://nexuspj.poder-judicial.go.cr. Y, en similar sentido, entre muchísimas otras, vid. las sentencias 2006-3919, 2017-17948, 2021-18328, 2021-27342.
[14] Por lo demás, esta sentencia es reciente, lo que muestra que se trata de una línea jurisprudencial que atraviesa toda la historia de este tribunal. Sin dificultad alguna se podrían encontrar en similar sentido algunas aún más recientes. Cfr. https://nexuspj.poder-judicial.go.cr [15] Artículo 44 de la LJC. (…) Los informes se considerarán dados bajo juramento (…).
[16] Entre muchas otras, vid. las sentencias 1995-4169, 2000-5401, 2022-0022 (reiterada durante el 2022 en al menos 16 sentencias), 2022-5941.
[17] La sentencia dice: “En ese particular, cabe destacar que esta Sala ha sostenido también que las órdenes sanitarias dictadas por las autoridades del Ministerio de Salud pueden ser revisables ante esta jurisdicción, en casos excepcionales, determinados de forma concreta por su ineludible directa relación con las libertades o derechos fundamentales esenciales en el sostenimiento del sistema democrático” (considerando IX, punto A, p. 191).
[18] Afirmo esto no porque los periodistas de La Nación sean ciudadanos de primera categoría y los demás no, sino porque de los alegatos y de los hechos públicos y notorios se puede advertir una tensión entre el periódico La Nación y el presidente de la República, y ese no es un dato menor ni soslayable. Justamente debe ser valorado en el contexto la necesaria protección de la libertad de expresión en un Estado democrático y pluralista.
[19] Digo esto porque estimo que había suficientes elementos para haber rechazado el recurso en esa fase, pero, aunque se considerara que esas dudas debían resolverse a favor de los recurrentes, tal como ahora se verá, la Sala en la fase de conocimiento pudo haber determinado que no era competente. Eso es parte del núcleo de este voto salvado parcial.
[20] Se deja de lado lo relativo a la legitimación pasiva, porque para el presente caso no tiene mayor relevancia: es incuestionable que los recurridos la tienen.
[21] Ellos añaden “y el derecho de los costarricenses a recibir informaciones y opiniones sobre asuntos de interés público” (escrito de interposición, p. 1), pero eso no corresponde protegerlo en un amparo, porque la Sala Constitucional siempre ha exigido que los amparados sean sujetos determinados o, al menos, claramente determinables; y la categoría “los costarricenses” es excesivamente amplia y convertiría el recurso de amparo en una acción popular. Seguramente, porque esto es una obviedad jurídica, la sentencia ni siquiera se ocupa de referirse a eso; pero yo he preferido hacerlo. Por lo demás, esa frase recién citada es traducida en el auto de curso en los siguientes términos: “el derecho del público a conocer informaciones de interés de la sociedad” (auto de curso, 29 de julio de 2022, p. 12), que, además, está así recogida en el resultando 1 de la sentencia. Asunto distinto que la libertad de expresión tenga de suyo una dimensión colectiva, pero esa no es la que se protege mediante el recurso de amparo. La existencia de tal dimensión sirve, y no es poco, para cualificar la importancia de respetar la dimensión individual del derecho a la libertad de expresión de los periodistas.
[22] Todo lo anterior es reiterado parcial o totalmente en diversas sentencias. A modo de ejemplo, vid. sentencias 2017-2350, 2018-1210, 2019-11129, 2020-2289.
[23] Para no extender las citas, se ha suprimido gran parte los pasajes en los que –como se ha advertido– la Sala, al conocer por el fondo, reitera lo que ha dicho en esos rechazos.
[24] Artículo 7. Le corresponde exclusivamente a la Sala Constitucional resolver sobre su propia competencia, así como conocer de las cuestiones incidentales que surjan ante ella y de las prejudiciales conexas.
[25] Artículo 9. La Sala Constitucional rechazará de plano cualquier gestión manifiestamente improcedente o infundada. // Podrá también rechazarla por el fondo en cualquier momento, incluso desde su presentación, cuando considere que existen elementos de juicio suficientes, o que se trata de la simple reiteración o reproducción de una gestión anterior igual o similar rechazada; en este caso siempre que no encontrare motivos para variar de criterio o razones de interés público que justifiquen reconsiderar la cuestión. // Asimismo, podrá acogerla interlocutoriamente cuando considere suficiente fundarla en principios o normas evidentes o en sus propios precedentes o jurisprudencia, pero si se tratare de recursos de hábeas corpus o de amparo deberá esperar la defensa del demandado.
[26] Artículo 153. Corresponde al Poder Judicial, además de las funciones que esta Constitución le señala, conocer de las causas civiles, penales, comerciales, de trabajo y contencioso-administrativas, así como de las otras que establezca la ley, cualquiera que sea su naturaleza y la calidad de las personas que intervengan; resolver definitivamente sobre ellas y ejecutar las resoluciones que pronuncie, con la ayuda de la fuerza pública si fuere necesario.
[27] Esa sentencia tiene muchos otros pasajes densos e interesantes y también atinentes, pero, para lo que aquí interesa, se han transcrito solo esos pasajes especialmente significativos.
[28] Artículos 128 y ss. de la LGAP.
[29] Artículos 140 y ss. de la LGAP.
[30] Artículo 10. 1) Estarán legitimados para demandar: a) Quienes invoquen la afectación de intereses legítimos o derechos subjetivos (…). 4) Cualquier interesado que haya sido afectado en sus intereses legítimos o derechos subjetivos, podrá pedir la declaratoria, el reconocimiento o el restablecimiento de una situación jurídica, con reparación patrimonial o sin ella.
[31] Artículo 31. 1) El agotamiento de la vía administrativa será facultativo, salvo para lo dispuesto en los artículos 173 y 182 de la Constitución Política.
(El primer artículo se refiere a los acuerdos municipales y el segundo dice: Artículo 182. Los contratos para la ejecución de obras públicas que celebren los Poderes del Estado, las Municipalidades y las instituciones autónomas, las compras que se hagan con fondos de esas entidades y las ventas o arrendamientos de bienes pertenecientes a las mismas, se harán mediante licitación, de con la ley en cuanto al monto respectivo).
[32] Artículo 31. No será necesaria la reposición ni ningún otro recurso administrativo para interponer el recurso de amparo.
[33] Artículo 21.- La medida cautelar será procedente cuando la ejecución o permanencia de la conducta sometida a proceso, produzca graves daños o perjuicios, actuales o potenciales, de la situación aducida, y siempre que la pretensión no sea temeraria o, en forma palmaria, carente de seriedad.
[34] Artículo 22.- Para otorgar o denegar alguna medida cautelar, el tribunal o el juez respectivo deberá considerar, especialmente, el principio de proporcionalidad, ponderando la eventual lesión al interés público, los daños y los perjuicios provocados con la medida a terceros, así como los caracteres de instrumentalidad y provisionalidad, de modo que no se afecte la gestión sustantiva de la entidad, ni se afecte en forma grave la situación jurídica de terceros. // También deberá tomar en cuenta las posibilidades y previsiones financieras que la Administración Pública deberá efectuar para la ejecución de la medida cautelar.
[35] Artículo 23. Una vez solicitada la medida cautelar, el tribunal o el juez respectivo, de oficio o a gestión de parte, podrá adoptar y ordenar medidas provisionalísimas de manera inmediata y prima facie, a fin de garantizar la efectividad de la que se adopte finalmente. Tales medidas deberán guardar el vínculo necesario con el objeto del proceso y la medida cautelar requerida.
Artículo 24. 1) El tribunal o el respectivo juez o la jueza dará audiencia a las partes hasta por tres días, acerca de la solicitud de la medida, salvo lo previsto en el artículo siguiente, de este Código. 2) Transcurrido ese plazo, el tribunal o el respectivo juez o jueza resolverá lo procedente, excepto si estima necesario realizar una audiencia oral, en cuyo caso la realizará en un plazo máximo de tres días hábiles.
[36] Vid., como ejemplos, las siguientes resoluciones: TCASVI250-2010: confirmó la tutela preventiva del medio ambiente ante las posibles afectaciones que podía genera la ejecución de la modificación de un Plan Regulador; TCASII 108-2016: confirmó las medidas cautelares en pro del desarrollo sostenible y el derecho a un medio ambiente sano y ecológicamente equilibrado (terrenos en disputa); TCA 552-2020: suspendió los decretos relacionados con la restricción vehicular sanitaria; TACASI 17- 2018: revocó la resolución del TCA que denegó la medida cautelar y en su lugar se ordenó suspender los efectos de una medida de salvaguarda arancelaria a las importaciones de arroz pilado.
[37] TCA (sin número conocido) de las 21:10 horas del 07 de octubre de 2022: suspendió de manera inmediata de los efectos del decreto denominado “Reforma Arancel de Servicios Profesionales de Consultoría para Edificaciones y Reglamento de Tarifas de Honorarios para los Profesionales de Agrimensura, Topografía e Ingeniería Topográfica” (honorarios profesionales). Solo pro informatione cabe agregar que de manera posterior a la votación del presente amparo, se han tomado otras resoluciones similares: TCA (sin número conocido) del 28 de octubre de 2002 (Expediente 22-005972-1027-CA); y TCA 671-2022 del 3 de noviembre de 2022 (Expediente 22-005678-1027-CA) que suspendieron los efectos derivados del Decreto Ejecutivo N°. 43704-JP-MEIC del 14 de setiembre de 2022 (honorarios profesionales de abogados y abogadas).
[38] Artículo 82. 1) La jueza o el juez ordenará y practicará todas las diligencias de prueba necesarias, para determinar la verdad real de los hechos relevantes en el proceso. 2) Los medios de prueba podrán ser todos los que estén permitidos por el Derecho público y el Derecho común. 3) Las pruebas podrán ser consignadas y aportadas al proceso, mediante cualquier tipo de soporte documental, electrónico, informático, magnético, óptico, telemático o producido por nuevas tecnologías. 4) Todas las pruebas serán apreciadas, de conformidad con las reglas de la sana crítica. 5) Las pruebas que consten en el expediente administrativo, cualquiera sea su naturaleza, serán valoradas por la jueza o el juez como prueba documental, salvo que sea cuestionada por la parte perjudicada por los medios legales pertinentes.
[39] Artículo 60. 1) En caso de que el juez tramitador, de oficio o a gestión de cualquiera de las partes, estime que el asunto bajo su instrucción reviste urgencia o necesidad o es de gran trascendencia para el interés público, directamente lo remitirá al conocimiento del tribunal de juicio al que por turno le corresponda, para que este decida si se le da trámite preferente, en los términos de este artículo, mediante resolución motivada que no tendrá recurso alguno. 2) Si el tribunal estima que el trámite preferente no procede, devolverá el proceso al juez tramitador, para que lo curse por el procedimiento común. 3) De dársele trámite preferente, se dará traslado de la demanda y se concederá un plazo perentorio de cinco días hábiles para su contestación. Cuando resulte necesario, el tribunal dispondrá celebrar una única audiencia en la que se entrará a conocer y resolver sobre los extremos a que alude el artículo 90 de este Código, se evacuará la prueba y oirán conclusiones de las partes. De no haber pruebas por evacuar se prescindirá de la audiencia oral y pública. Únicamente cuando surjan hechos nuevos o deba completarse la prueba a juicio del tribunal, podrá celebrarse una nueva audiencia. 4) El señalamiento de la audiencia tendrá prioridad en la agenda del tribunal. 5) Si la conversión del proceso se produce en una oportunidad procesal posterior a la regulada en el párrafo tercero de este artículo, el tribunal dispondrá el ajuste correspondiente a las reglas de dicho párrafo. 6) La sentencia deberá dictarse en un plazo máximo de cinco días hábiles, contados a partir del día siguiente a aquel en que se decidió darle trámite preferente al proceso o, en su caso, a partir de la celebración de la última audiencia. 7) En caso de ser planteado, la resolución del recurso de casación tendrá prioridad en la agenda del Tribunal de Casación de lo Contencioso-Administrativo o de la Sala Primera de la Corte Suprema de Justicia, según corresponda. El recurso deberá resolverse en un plazo de diez días hábiles.
[40] A los que se podría añadir otra norma de la Constitución: Artículo 70. Se establecerá una jurisdicción de trabajo, dependiente del Poder Judicial.
[41] Por ejemplo, el recurso de amparo electoral es de origen pretoriano, aunque luego fue previsto en el Código electoral; el conocimiento de la mora administrativa, después de la promulgación del CPCA, se deja en manos de la jurisdicción contencioso-administrativa; el examen sobre variados asuntos laborales, luego de la Reforma Procesal Laboral, se residencia en esa vía; los temas de autodeterminación informativa, luego de la entrada en vigor de la respectiva ley, son derivados a la Agencia de Protección de Datos de los Habitantes (Prodhab); entre otros.
[42] Artículo 46. 1. Para que una petición o comunicación presentada conforme a los artículos 44 ó 45 sea admitida por la Comisión, se requerirá: a) que se hayan interpuesto y agotado los recursos de jurisdicción interna, conforme a los principios del Derecho Internacional generalmente reconocidos.
[43] Artículo 46. 2. Las disposiciones de los incisos 1 a) y 1 b) del presente artículo no se aplicarán cuando: a) no exista en la legislación interna del Estado de que se trata el debido proceso legal para la protección del derecho o derechos que se alega han sido violados; b) no se haya permitido al presunto lesionado en sus derechos el acceso a los recursos de la jurisdicción interna, o haya sido impedido de agotarlos, y c) haya retardo injustificado en la decisión sobre los mencionados recursos.
[44] Luego se verá que este, a su vez, pertenece a Medios.
[45] Posteriormente se transcribirán otros alegatos que hacen en la misma línea.
[46] Las frases entre comillas simples provienen de Corte IDH. Caso Ríos y otros Vs. Venezuela. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 28 de enero de 2009. Serie C No. 194, párrafo 139, según el mismo escrito de interposición anota.
[47] MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), pp. 67 y 66, respectivamente.
[48] https://www.nacion.com/gnfactory/especiales/gruponacion/estados-financieros.html [49] En los tres casos, los últimos son los del periodo 2020-2021.
[50] El último es el del segundo semestre del 2022.
[51] Informe de Accionistas 2020-2021 (cuyo nombre dentro del texto es Informe Anual La Nación y Subsidiarias - 2020-2021), MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), pp. 67 y 66, respectivamente.
[52] Ibid., p. 65.
[53] Ibid., p. 67.
[54] Ibid., p. 66.
[55] MEMORIA 2020-2021_DIGITAL.pdf (nacion.com), (2020, p. 67; 2021, p. 66).
[56] AF-INFORME ANUAL-LN- 2018-19.pdf - Google Drive (2018, p. 64; 2019, p. 71). MEMORIA 2020-2021_DIGITAL.pdf (nacion.com) (2020, p. 67; 2021, p. 66).
[57] Recuérdese lo que dicen y que ya se ha transcrito en su momento: “…se nos advirtió de la destrucción de las estructuras que nos permiten ejercer el periodismo independiente. // Parque Viva es una de esas estructuras, en el caso de Grupo Nación” (escrito de interposición, p. 4).
[58] Definición de principio iura novit curia - Diccionario panhispánico del español jurídico - RAE [59] Vid. resolución 1990-290 (consulta de constitucionalidad), sentencia 1992-3410 (acción de inconstitucionalidad), [60] Para facilitar el análisis vamos a suponer que ambos actos impugnados son igualmente arbitrarios o igualmente no arbitrarios, esto es, no que uno es arbitrario y el otro sí lo es.
[61] La Corte Suprema de los Estados Unidos ha aplicado este principio para resolver casos sobre libertad de expresión (United States vs. O’Brien, 1968) y libertad de religión (Employment Div. Dep. of Human Resources vs. Smith, 1990).
[62] Ciertamente también existe la posibilidad de que haya responsabilidad de la Administración por conducta lícita, pero eso es absolutamente excepcional. Al respecto, el artículo 194 de la LGAP establece: 1. La Administración será responsable por sus actos lícitos y por su funcionamiento normal cuando los mismos causen daño a los derechos del administrado en forma especial, por la pequeña proporción de afectados o por la intensidad excepcional de la lesión.
[63] Corte IDH. Ríos y otros vs. Venezuela. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 28 de enero de 2009. Serie C No. 194.
[64] Alude a ese caso solo para referirse a los límites de las declaraciones de los funcionarios públicos en una sociedad democrática. Cfr. sentencia, p. 266.
[65] Corte IDH. Caso Ivcher Bronstein vs. Perú. Fondo, Reparaciones y Costas. Sentencia de 6 de febrero de 2001. Serie C No. 74.
[66] Corte IDH. Caso Ricardo Canese vs. Paraguay. Fondo, Reparaciones y Costas. Sentencia de 31 de agosto de 2004. Serie C No. 111.
[67] En un sentido muy similar, vid. Corte IDH. Caso Palamara Iribarne vs. Chile. Fondo, Reparaciones y Costas. Sentencia de 22 de noviembre de 2005. Serie C No. 135.
[68] Corte IDH. Caso Perozo y otros vs. Venezuela. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 28 de enero de 2009. Serie C No. 195.
[69] Corte IDH. Caso Granier y otros (Radio Caracas Televisión) vs. Venezuela. Excepciones Preliminares, Fondo, Reparaciones y Costas. Sentencia de 22 de junio de 2015. Serie C No. 293.
[70] Por cierto, en nuestro país, según el artículo 49 de la Constitución Política, ante un acto administrativo concreto, tal examen corresponde hacerlo a la jurisdicción contencioso-administrativa, tal como fue explicado en el voto salvado. Con esto quiero recordar de paso que, si se trataba de probar la desviación de poder alegada por los recurrentes, especialmente en un contexto con tanta complejidad técnica como el que está en la base del presente recurso, el amparo no era la vía apropiada.
[71] Naturalmente, si se trata de ponderar todos los intereses, también se deberían sopesar los efectos del acto o de su anulación en otros derechos de terceros (vida, integridad, salud) y en el interés público; pero, para efectos de estas reflexiones, centraré la atención en los efectos sobre la libertad de expresión.
[72] Bajo el supuesto de que el periódico depende financieramente del Parque Viva y de que los actos que recaen sobre aquel tienen consecuencias financieras en este.
[73] Son arbitrarios o antijurídicamente lesivos. (No se está considerando aquí la arbitrariedad intrínseca que pueden tener por ser faltos de alguno de los elementos de validez del acto).
[74] Los requisitos de validez: los elementos sustanciales: tanto los subjetivos ?competencia, legitimación e investidura? como los objetivos ?motivo, contenido y el fin?; y los elementos formales ?motivación, procedimiento empleado y las formas de manifestación del acto?. Vid. los artículos 128 y ss. de la LGAP. Sobre los requisitos de eficacia, vid. los artículos 140 y ss. de la LGAP.
[75] Ciertamente el artículo 13.1 de la CADH dice: Toda persona tiene derecho a la libertad de pensamiento y de expresión. Este derecho comprende la libertad de buscar, recibir y difundir informaciones e ideas de toda índole, sin consideración de fronteras, ya sea oralmente, por escrito o en forma impresa o artística, o por cualquier otro procedimiento de su elección. (El destacado no es del original). Pero, estimo que eso no desdice de las reflexiones arriba consignadas, pues parece que un análisis sobre el particular exigiría precisar los alcances de ese artículo en la libertad de expresión en general y en la libertad informativa o de opinión realizada como actividad comercial.
[76] Por lo demás, como se recordará, las dos sentencias de la Sala sobre supresión de la publicidad como medio indirecto de lesión a la libertad de expresión tienen en común que los actos arbitrarios recayeron directamente sobre los sujetos que comunicaban: en un caso, un programa de radio (2015-1782) y, en el otro, el periódico La Nación (2016-15220).
[77] No hay duda de que los periodistas tienen, de suyo, legitimación activa respecto de las lesiones por vías directas, aunque no las hayan aducido expresamente.
[78] Consignado en la sentencia como hecho probado, bajo el subtítulo otros hechos de interés 2).
[79] Conferencia de prensa del 3 de agosto, minuto 44:22 y ss. Cfr. (1794) En Vivo | Conferencia de prensa Consejo de Gobierno 3 de Agosto, 2022 - YouTube [80] En adelante se anotará así el momento de la intervención dentro de la conferencia de prensa del 13 de julio de 2022, realizada en Casa Presidencia. Cfr. (1792) En Vivo | Conferencia de prensa Consejo de Gobierno 13 de Julio, 2022 - YouTube [81] El Universal, México, 8 de julio. https://www.eluniversal.com.mx/mundo/gobierno-de-costa-rica-cierra-parque-viva-tras-ataque-de-rodrigo-chaves-al-diario-la-nacion.
[82] El Comercio, Perú, 8 de julio, https://elcomercio.pe/mundo/centroamerica/gobierno-de-costa-rica-cierra-parque-viva-en-medio-de-ataques-del-presidente-al-diario-la-nacion-noticia/ [83] Nación, Argentina, 9 de julio, https://www.lanacion.com.ar/el-mundo/el-gobierno-de-costa-rica-ataco-a-uno-de-los-principales-medios-del-pais-y-luego-cerro-un-estadio-de-nid09072022/ [84] Nótese que esta cita jurisprudencial recoge a su vez una que proviene de 1990, es decir, de los primerísimos momentos de la historia de la Sala y, sin dificultad, se podrían encontrar otras en igual sentido, incluso anteriores a esa que es citada.
[85] Vid. los hechos probados de la sentencia: 6, 10, 11, 16, 18 y 21.
[86] Hecho probado de la sentencia 23.
[87] Vid. los hechos probados de la sentencia: 26, 27, 28, 29, 30 y 31.
[88] Este último supuesto, que es más excepcional, acaece cuando el órgano, con los elementos que tiene a disposición, estima que hay algún otro aspecto quizá apenas mencionado por las partes, que es conexo al objeto de la cuestión, y sobre el cual corresponde referirse. En ese supuesto de nuevo dará audiencia a las partes para que se refieran sobre el particular.
[89] Considerando IX. Caso Concreto, punto B, p. 242.
[90] A tenor de la Constitución: Articulo 11. Los funcionarios públicos son simples depositarios de la autoridad. Están obligados a cumplir los deberes que la ley les impone y no pueden arrogarse facultades no concedidas en ella. // Artículo 41. Ocurriendo a las leyes, todos han de encontrar reparación para las injurias o daños que hayan recibido en su persona, propiedad o intereses morales. Debe hacérseles justicia pronta, cumplida, sin denegación y en estricta conformidad con las leyes.
También con fundamento en la LGAP. Artículo 190.1. La Administración responderá por todos los daños que cause su funcionamiento legítimo o ilegítimo, normal o anormal, salvo fuerza mayor, culpa de la víctima o hecho de un tercero.
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