The vote of the chambermaid Martín Irurzun directly requested the dismissal by Daniel Santoro and affirmed that Judge Luis Rodríguez violated his right to exercise journalism and to professional journalistic secrecy enshrined in article 43 of the Constitution.
In his vote, the experienced chambermaid said that the development of the cause “mean an undue restriction on freedom of the press and, with this, to a principle that directly relates to the essence of democracy ”, as established by the Court in the rulings: 324: 975, 248: 291, among others.
Irurzun said that the defense of the exercise of journalism and professional secrecy it’s a historic camera position and this was reflected in the rulings “Carlos Pagni”, “Dr. Hugo J. Pinto ”and former Financial Times 480 correspondent Thomas Catan.
In this conception, said the chambermaid, “prestigious jurists and journalistic institutions are enrolled that,alarmed by the constitutional implications of the ruling under reviewThey contributed their qualified opinions on the question to be resolved ”.
This is how he cited the amicus curie requests made to the court by constitutionalist Antonio Maria Hernandez, who acted as a constituent in the constitutional reform of 1994 and fought for the inclusion in the text of the guarantee of the secrecy of sources of journalistic information, finally incorporated into article 43 of the Constitution.
The valuable opinions of the constitutionalist point in the same direction. Daniel Sabsay and the jurists Marta Nercellas, Ricardo Alberto Guibourg and Luís René Herrero. They concluded that the ruling of Judge Luis Rodríguez “set a dangerous precedent, with enough force to provoke the self-censorship of those who dedicate themselves to the investigation and dissemination of news of collective interest, ultimately threatening an indispensable practice for the healthy functioning of republican democracy ”.
For the same purpose, the Dutch lawyer Alinda vermeer, in her capacity as director of the Media Legal Defense Initiative (MLDI) -a non-governmental organization that helps defend the rights of journalists, bloggers and independent media around the world-, and Fernando Ruiz, President of the Argentine Journalism Forum (FOPEA) warned about the consequences of Rodríguez’s ruling.
Those named referred to the situation of journalists who cover corruption cases in Argentina and Latin America; the relationship with the source and the collection of information as an essential component of investigative journalism; interference in journalism on matters of public interest and its strict exceptionality; and the inhibitory effect implied by the criminal sanction with respect to acts of collection and dissemination of information of journalistic interest.
The case affected “rights of constitutional roots projected in the case is not abstract -or merely conjectural-, but concrete”.
“The damage, indeed, is done, since the message inherent in the pronouncement of Judge Rodríguez weakens, for anyone interested in its content, the legal barriers that prevent the powers of the State, appealing to arbitrary objectives and unreasonable premises, persecute the journalist for the exclusive content of their publications”Irurzun highlighted.
Judge Rodríguez, despite Santoro’s claim, obtained the list of incoming and outgoing phone calls of the former, despite his refusal to reveal others, based on a constitutional right. Then, Irurzun voted “for entrust removal of those records, in order to prevent the detected constitutional tax from continuing to take effect “.
So, since “Santoro was summoned as a defendant in the aforementioned meager conditions, there were serious reasons to think that the course assigned to the investigation mattered an uprising against the normal exercise of freedom of the press”.
For the chambermaid it is a “certainty when the arguments used to incriminate him became known, prosecuting him as a necessary participant in an extortion attempt ”by Marcelo D’Alessio.
“It is not logical or acceptable that, in the absence of objective evidence of collusion or criminal agreement, the fundamental inference to sustain the responsibility of a journalist for the aforementioned crime start from evaluating and qualifying the content of the notes published by him -to the extreme of tracing in their titles, their allusions and their adjectives, some purpose that for the accusation would be coherent with his hypothesis of the fact-, for objecting the way in which -supposedly- was related to its source and how –according to the judge- it corroborated the data provided by it ”, he highlighted.
The chambermaid, the same one who voted for the right to the truth of the disappeared during the Menem government, affirmed that “no resolution or test measure can fix such an object, because tolerating this procedure would make a principle that constitutes a pillar of the democratic and republican system envisaged by the National Constitution lose operability, as it is the way in which the possibility of citizens to access the transmission of information and ideas is ensured”. The off the record is a channel through which informants pass on to journalists data that power hides.
For Irurzun “in all the precedents that I cited in this vote, clear parameters were set on the scope of freedom of the press and, on the other hand, the limits to the incrimination of activities linked to its exercise. Those limits were crossed here “.
He recalled that he invoked cases in which journalists from different media -with dissimilar editorial lines-, “published information that supposedly had, as a background, actions -of data leakage, illegal intelligence, violation of papers or private emails, etc.- that could imply the commission of crimes by other people ”. “It was also known of situations in which it could have been demonstrated, in the end, inaccuracy in the contents of notes referring to acts of individuals and public officials”He added.
In none of these precedents did the court “agreed to extend possible criminal liability to those who had exercised their press activity as news broadcasters – in the absence of objective evidence that would demonstrate a departure from that role – or guide the investigation against them bypassing, without adequate justification, barriers imposed by the National Constitution ”.
Irurzun endorsed the criteria used last December by the federal chamber of Mar del Plata by revoking the prosecutions that the judge and member of Legitimate Justice Alejo Ramos Padilla prosecuted Santoro.
“The magistrates acting in judicial cases have not been invested in their positions to judge the quality or content of a journalistic work, far from it, to apostrophize about the way a journalist ties in with his source, These issues, which in everything, may be subject to an ethical or credibility judgment of their work, which is incumbent on the society that consumes their journalistic product, and not on the judges, provided, of course, that they are not facing the commission of a crime, ”added Irurzun, citing the judge’s vote Eduardo Pablo Jimenez in the Federal Chamber of Mar del Plata.