A controversial 2011 defamation verdict against the leading Ecuadoran daily El Universo, which became a symbol of vastly deteriorating press conditions under President Rafael Correa, appears headed to a final determination. The nation's highest court is due to hear the newspaper's appeal, although the hearing date itself is still subject to intense debate. The ramifications are enormous for free expression in Ecuador: The verdict, if upheld by the high court, could bankrupt the newspaper, put its managers in jail, and send a chill quashing dissent for years to come. As it fights for its existence, the paper has mounted an aggressive defense that includes an allegation that the trial judge allowed the president's own lawyer to write the verdict.
Much is at stake, including the Ecuadoran government's reputation, when the National Court of Justice finally hears the appeal from El Universo. Over the past week, disagreements between El Universo and the government extended to the date of the parties' hearing before the high court and the selection of judges who'll hear the appeal. On Friday, El Universo's scheduled hearing was uncertain even hours before it was set to begin, with the government insisting it would happen and El Universo reporting it would not. The hearing was ultimately postponed, and the local press is now reporting that a new date could be announced at any time.
But whether the high court hearing is tomorrow, next week, or next month, El Universo is close to exhausting domestic remedies in its effort to overturn a verdict that stunned analysts throughout the hemisphere. In July, the Guayaquil-based paper's opinion editor, Emilio Palacio, and three of its executives, Carlos Pérez Barriga, César Pérez Barriga, and Nicolás Pérez Barriga (who are brothers), were sentenced to three years in prison apiece and a total of $40 million in damages on charges of defaming Correa. 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 rescued by Ecuadoran soldiers, denies ordering troops to fire.
The president has a long record of responding in an aggressive and adversarial way to critical news coverage. A CPJ special report published in September found that Correa's administration has led Ecuador into a new era of widespread repression by filing debilitating defamation lawsuits in civil and criminal courts, pre-empting private news broadcasts, enacting restrictive legal measures, and smearing critics.
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 fled to Miami several months earlier. Whenever the executives and representatives of the newspaper have their day before the high court, it could be one of the last opportunities to ensure a future for the daily, which is the government's most vocal critic.
El Universo's defense team is pursuing several avenues in challenging the verdict. The delay in the high court hearing stemmed from a motion seeking to replace the judges selected for the appeal, who the defense said were biased in favor of the president. By delaying the hearing, they hoped to plead the case in front a new set of justices who would take the bench at the end of the month. That request was denied on Monday, but the defense says it will appeal.
Separately, El Universo has alleged that the initial July 2011 verdict issued by Judge Juan Paredes was, in fact, written by Correa's own lawyer, Gutemberg Vera. Many critics expressed suspicion back in July, when Paredes issued a 156-page 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 consultant found irregularities in the document, but a U.S. consultant hired by the defense went further and said the judge's decision was actually written by Vera. The U.S. consultant, which compared the file that contained the verdict with documents written by Vera, noted that the documents shared a common Microsoft Word user name: "Chucky Seven." Paredes and Vera denied the defense allegation. Parades' lawyer pointed out to reporters that Chucky Seven is the user name for many pirated versions of Word, and thus exists on thousands of computers. El Universo has filed a criminal malfeasance complaint against Paredes based on the allegation that the judge did not write his own ruling. But the U.S. report is not admissible in court, including during the newspaper's own appeal, because the hiring of the U.S. consultant was not authorized by the court.
Regardless of who wrote the ruling, international legal experts have called it a dangerous precedent. As CPJ research has shown, the decision contradicts a mounting body of international legal opinion that affirms that public officials should not enjoy protection from scrutiny. It also runs counter to an emerging consensus in Latin America that civil remedies provide adequate redress in cases of alleged defamation. El Universo solicited the opinion of several legal experts on the decision's reasoning. Jorge Mosset Iturraspe, professor of law at the University of Buenos Aires, wrote:
Liability for criminal offenses, as with civil infractions, must be established and based upon damages that have been claimed and proven beyond a doubt. ... It goes without saying that the amount requested by the claimant is by far excessive; one might even call it absurd or unprecedented in Latin American law. ...The freedom of the press, the right to report and to express one's opinion, is consecrated in our constitutions and the international treaties we have ratified. This sentence ...surpasses the limits of reasonableness and appears to have been motivated by the wish to not recognize or attack that very freedom.