Instituto Prensa y Sociedad
Clearly contradicting paragraph 4) of Article 139 of the Constitution
which establishes that "Judicial processes involving the accountability
of public officials (...) are always public", the Constitutional
Tribunal recently published a sentence on its website in which it
maintained exactly the opposite. It ruled that the public cannot access
information about the decisions made by judges in trials of public
officials for corruption, because this would threaten or affect the
right to privacy of the accused.
Using this criterion, the Constitutional Tribunal decided to reject the writ of habeas data filed by Yván Montoya Vivanco who, exercising his fundamental right to access to public information, requested copies of: (i) the decision of the Second Provisional Criminal Court of Lima to initiate a trial for the alleged commission of the offense of unfair collusion and others, (ii) the ruling issued by the Provincial Prosecutor in this case, and (iii) the final report of the Examining Magistrate.
To try to justify its decision, the Constitutional Tribunal compared this information to the request for private gynecological information contained in medical records.
IPYS believes this decision is unacceptable because it is unconstitutional, insofar as it establishes absolute secrecy about the decisions made by judges in criminal proceedings for corruption, unduly expropriating from the community's knowledge information of great public interest. Moreover, it leaves open the possibility that any person who disseminates information about court decisions made during corruption trials can be sued or reported for affecting the privacy of those accused for crimes of corruption. It also affects the constitutional right of individuals to analyze and criticize judicial rulings and sentences, significantly weakening public oversight of judicial decisions on anti-corruption related issues.
"The decisions made by judges in the context of judicial proceedings, especially on anti-corruption related issues, are not exempt from the principle of transparency, insofar as the information is of great public interest. Only in exceptional circumstances that should be analyzed case by case, is it possible to restrict publicity in this area, given the urgent need to protect the effectiveness of the judicial processes or the rights of defendants and victims, for example, in the case of under-age persons or offences involving sexual assaults. These exceptions must be tested in all cases. Thus, the exclusion of information is the exception and not the rule as established by the Constitutional Tribunal”, expressed Roberto Pereira, a constitutional lawyer and expert on matters relating to informative freedoms.
When consulted by IPYS, Yván Montoya stated that this ruling sets a terrible precedent in matters of access to public information. The attorney for the Institute for Democracy and Human Rights at the Catholic University (IDEHPUCP) expressed his rejection of this ruling, noting that the arguments are poor and clearly refutable.
"This decision made by the CT sets a terrible precedent in matters of access to information and above all, it annuls a preventative tool for the monitoring of the civil service. Besides being a pretty poor ruling in its arguments, it appeals to privacy when the Constitution clearly states that regarding public office, officials must be exposed to public scrutiny. This is not a health issue, we are dealing with trials for corruption against officials who worked for Cofopri (Organismo de Formalización de la Propiedad Informal, an organisation formalising property claims)", declared Montoya.
IPYS demands that the Constitutional Tribunal rectify this decision without delay through the appropriate channels, so that it is not invoked by the accused for crimes of corruption to keep the public from becoming aware of the decisions made by the judges who try them.
Using this criterion, the Constitutional Tribunal decided to reject the writ of habeas data filed by Yván Montoya Vivanco who, exercising his fundamental right to access to public information, requested copies of: (i) the decision of the Second Provisional Criminal Court of Lima to initiate a trial for the alleged commission of the offense of unfair collusion and others, (ii) the ruling issued by the Provincial Prosecutor in this case, and (iii) the final report of the Examining Magistrate.
To try to justify its decision, the Constitutional Tribunal compared this information to the request for private gynecological information contained in medical records.
IPYS believes this decision is unacceptable because it is unconstitutional, insofar as it establishes absolute secrecy about the decisions made by judges in criminal proceedings for corruption, unduly expropriating from the community's knowledge information of great public interest. Moreover, it leaves open the possibility that any person who disseminates information about court decisions made during corruption trials can be sued or reported for affecting the privacy of those accused for crimes of corruption. It also affects the constitutional right of individuals to analyze and criticize judicial rulings and sentences, significantly weakening public oversight of judicial decisions on anti-corruption related issues.
"The decisions made by judges in the context of judicial proceedings, especially on anti-corruption related issues, are not exempt from the principle of transparency, insofar as the information is of great public interest. Only in exceptional circumstances that should be analyzed case by case, is it possible to restrict publicity in this area, given the urgent need to protect the effectiveness of the judicial processes or the rights of defendants and victims, for example, in the case of under-age persons or offences involving sexual assaults. These exceptions must be tested in all cases. Thus, the exclusion of information is the exception and not the rule as established by the Constitutional Tribunal”, expressed Roberto Pereira, a constitutional lawyer and expert on matters relating to informative freedoms.
When consulted by IPYS, Yván Montoya stated that this ruling sets a terrible precedent in matters of access to public information. The attorney for the Institute for Democracy and Human Rights at the Catholic University (IDEHPUCP) expressed his rejection of this ruling, noting that the arguments are poor and clearly refutable.
"This decision made by the CT sets a terrible precedent in matters of access to information and above all, it annuls a preventative tool for the monitoring of the civil service. Besides being a pretty poor ruling in its arguments, it appeals to privacy when the Constitution clearly states that regarding public office, officials must be exposed to public scrutiny. This is not a health issue, we are dealing with trials for corruption against officials who worked for Cofopri (Organismo de Formalización de la Propiedad Informal, an organisation formalising property claims)", declared Montoya.
IPYS demands that the Constitutional Tribunal rectify this decision without delay through the appropriate channels, so that it is not invoked by the accused for crimes of corruption to keep the public from becoming aware of the decisions made by the judges who try them.
