New York, February 16, 2012--Today's decision by Ecuador's highest court to uphold the criminal libel conviction brought by President Rafael Correa against El Universo represents a serious blow to freedom of expression and a setback for democracy, the Committee to Protect Journalists said.
"The decision by the National Court of Justice is both disappointing and dangerous, as it sets a dark precedent for freedom of expression in the Americas," said CPJ Senior Americas Program Coordinator Carlos Lauría. "It is outrageous that Ecuador's leading newspaper may go bankrupt and its directors be imprisoned because they published an opinion column that harshly criticized the president."
In March 2011, President Correa filed the suit against the owners of the Guayaquil-based daily paper -- brothers Carlos, César and Nicolas Pérez Barriga -- and its editor, Emilio Palacio. All four were convicted in July and sentenced to three years in jail and fines totaling $40 million. Lawyers have suggested the fines would bankrupt the newspaper, which is one of Ecuador's most widely read.
The charges stem from Palacio's February 6 column titled "NO to lies," in which he repeatedly referred to Correa as "the dictator." In reference to a police uprising in September 2010, during which three people were killed, Palacios alleged that Correa had ordered troops to fire "without warning on a hospital full of civilians and innocent people," and insinuated that these actions could constitute a crime against humanity. Correa, who sought refuge inside the hospital after being accosted by protesters and was later rescued by Ecuadoran soldiers, denies ordering troops to fire.
The trial ruling against El Universo was upheld by an appeals court in September. The National Court of Justice upheld Palacio's sentence in late December, although the journalist had resigned from El Universo and fled to Miami several months earlier. Palacio filed for political asylum in the United States last week.
Today's ruling by a three-judge panel of the National Court of Justice came after a chaotic 15-hour hearing attended by Correa and about 20 of his cabinet ministers and top aides who occupied much of the eighth-floor courtroom, according to press reports. From his Twitter account, Correa called on supporters to descend on the court building until a decision was reached.
Government supporters quickly gathered outside the court, where they waved Ecuadoran flags, burned copies of newspapers, and shouted "Down with El Universo" and "The corrupt press must die," according to a video report on El Comercio's home page. About 70 anti-riot police with batons and shields were sent to the building as Correa supporters began scuffling with a group of about 20 opposition activists who held up signs saying: "Ecuador react! Say 'no' to the dictatorship," according to press reports.
Correa supporters also roughed up several journalists, including El Universo photographer Diógenes Balderón, who was kicked in the shins, and Romel Iza, a camera operator for RTU television, who was hit on the head with a stick, according to news reports.
During a break in the hearing, Correa told reporters: "If this legal process ends successfully, it would unleash in Ecuador and throughout our Americas similar lawsuits and would represent a great step forward for the liberation of our Americas from one of the largest and most unpunished powers: the corrupt media." However, Correa's assertion comes against a backdrop of increasing disfavor for criminal defamation penalties, with several Latin American governments deciding in recent years that civil remedies provide adequate redress, CPJ research shows.
The high court's decision just after midnight today came despite allegations of irregularities in the legal process. Many critics expressed suspicion in July, when Judge Juan Paredes issued a lengthy decision less than 24 hours after the trial concluded. El Universo obtained a court order allowing it to clone Paredes' hard drive for forensic examination. A domestic, court-approved consultant found irregularities in the document, while a U.S. consultant hired by the defense said his own examination showed that the judge's decision was actually written by Correa's attorney, Gutemberg Vera.
On Tuesday, Judge Monica Encalada, a lower court magistrate who Paredes said had given him scanned documents that sped up the process of writing his ruling, released a video and affidavit claiming that the original ruling against El Universo was written by Vera. In a statement, Encalada said: "I haven't collaborated in any way, nor have I added even half a word to the sentence that exists against El Universo." She claimed that Vera drafted the ruling and that he had offered about $750,000 to another judge in the case to rule in favor of the president, according to press reports.
Both Paredes and Vera denied the accusations, according to press reports. Encalada fled the country and arrived in Bogota, Colombia, Wednesday night.
César and Nicolas Pérez are currently in Miami trying to raise international support for their case. They have not announced when or if they plan to return to Ecuador. Panamanian President Ricardo Martinelli announced today on his Twitter account that he had granted political asylum to Carlos Pérez, who is now staying in the Panamanian embassy in Ecuador's capital, Quito.
Speaking by telephone from Miami, Nicolas Pérez told CPJ that once the sentence goes into effect in a few days, a warrant for their arrest will be issued and they will be detained upon arrival in Ecuador. He said: "We are still in shock even though the final verdict was not surprising. This will have a chilling effect on journalists, editors, and newspaper owners. They will now practice self-censorship and will censor their columnists." Correa, by contrast, told reporters "the truth has come shining through."
Thursday's ruling exhausts El Universo's legal appeals in Ecuador. But the case is already under review at the Inter-American Commission on Human Rights, part of the Organization of American States. El Universo is seeking a "precautionary measure" that would order Ecuador to suspend execution of the sentences pending a full international review of the case by the commission and, later, the Inter-American Court of Human Rights, according to press reports.
CPJ research shows that Correa's administration has led Ecuador into an era of widespread repression. In addition to pre-empting private news broadcasts, enacting restrictive legal measures, and smearing critics, civil and criminal defamation lawsuits have been used to silence critical journalists. On February 6, a regional civil court ordered journalists Juan Carlos Calderón and Christian Zurita to pay US$1 million in damages each to Correa, as well as US$100,000 for the plaintiff's legal fees, news reports said. The president had sued the journalists for defamation after the publication of their book, The Big Brother, in which they alleged that the president's older brother, Fabricio Correa, had obtained US$600 million in state contracts, largely for road construction, news reports said. Ecuadoran law bars presidential family members from using their relationships for economic gain.