Colombia: Constitutional Court should uphold the principles of publicity and open justice in case of corruption in prisons

Circumstances of the case

On 16 March 2020, ARTICLE 19 submitted an expert opinion to the Constitutional Court of Colombia. The case concerns restrictions placed on journalists, the press and the public to access a criminal trial concerning the alleged corruption of medium and high-level public officials of two of the most populated prisons in Colombia, ‘Cárcel La Modelo’. The officials are alleged to have economically benefited at the expense of the rights of incarcerated individuals.

The Judge imposed restrictions on journalists, the press and the public on the grounds of protecting the rights of victims, witnesses and their families, and the interests of justice in the case. During the preliminary hearing, the Criminal Judge no. 22 classified the trial as confidential upon request of the Special Prosecutor against Corruption no. 23. The Criminal Judge instructed the applicants and the public to leave the court room, however, contrary to legal requirements, the Judge failed to issue any written decision outlining the rationale and legal grounds for imposing such a restriction.

Intervention submission

In our intervention, ARTICLE 19 submits that the exclusion of the press from criminal proceedings against public officials in the case of ‘Cárcel La Modelo’ imposed unnecessary and disproportionate reporting restrictions, interfering with the applicants’ right to freedom of expression and the principles of publicity and open justice in a democratic society.

In particular, ARTICLE 19 submits that:

• The complete exclusion of the media from attending a corruption trial will rarely, if ever, be a proportionate measure because of its particularly drastic nature. Any restriction on the right to freedom of expression must be provided for by law, pursue a legitimate aim, be necessary and proportionate. There must be no other less restrictive means of achieving the same outcome.
• International and regional human rights standards highlight the vital function of journalists and the media in serving freedom of expression and information, particularly in matters of public interest. This case requires an assessment of whether the Judge adequately presumed the openness of the court hearings, and the obligation of the State to provide access to the media. The Judge also did not consider the variety of alternative and less restrictive measures that could be adopted to achieve the proper administration of justice, and the protection of witnesses.

More broadly, this case provides the Court with a vital opportunity to set guidance on the assessment that Judges must make when different rights and interests are in play, namely: the right to freedom of expression, the rights of the victims, witnesses and their families, and the principles of publicity and open justice in Colombia.