On September 6, ex-Bolivian president Jorge Quiroga and his lawyer responded to court conviction of Quiroga’s for defamation, slander, and libel against Union Bank.  The charges refer to Quiroga’s statements on February 6, 2009, when he denounced Union Bank as an outlet for corrupt money laundering. Quiroga’s accusations occurred shortly after Jorge O’Connor D’Arlach, a petroleum contractor, was murdered and accused of planning to bribe state officials at YPFB, Bolivia’s national gas company, for $450,000 USD, that he withdrew from Union Bank.  Quiroga publicly stated, “An independent board should audit Union Bank, because it has become a laundering [service] for Chavez’s resources, for corruption and ill-obtained money for this government to use.”[i]

Media Misrepresents Case Details

Both the Bolivian media and US-based CNN have misrepresented national laws and the circumstances of the case, supporting intentionally or unwittingly Quiroga’s assertions that, because the Bolivian government owns 83% of the bank’s shares, the Morales administration is trying to punish him as an opposition leader and prevent him from running for future public office.[ii] Although the government is a major shareholder, Quiroga’s trial is private, not government, initiative.  Several media sources, as well as the press release from Quiroga’s legal team, have stated that the ruling lacks legal foundation, although the charges and the sentence comply with the stipulations of Bolivian criminal codes.

Although clearly the Morales administration harbors resentment against Quiroga, vocal opponent and author of the military forced coca eradication program from 1997-2002, there is little leeway in this case for judicial manipulation.  Legal norms used to prosecute him were all passed before Morales came to office.  Oddly, under Bolivian law, Quiroga could have nullified the charges against him by merely publically retracting his statements, quickly ending any potential perceived political persecution in the case.[iii]

Legal Clarifications in the Quiroga Case

A close reading of Bolivian Penal Code and the New Bolivian Constitution provides the following clarifications:

1. Quiroga’s statement in the press release that: “The ruling against me from the Third Criminal Sentencing Tribunal, only demonstrates the shameful subjugation of the justice (system) to Evo Morales’s instructions, and in the end, confirms the executive’s intention to criminalize critical opinions and judicialize politics, openly contradicting the principles of freedom so speech  consecrated in the Bolivian constitution and diverse international norms,”[iv] is inaccurate for multiple reasons:

a. The great majority of laws cited in the charges and sentence against Quiroga went into effect long before Morales entered office, and have not been modified by Morales legislation. For example, the 1972 Penal Code, passed by Supreme Decree by Hugo Banzer during his dictatorship defined defamation (Article 282), libel (283) and slander (287) and set sentence lengths and other penalties.[v] The New Criminal Procedures Code, which defines means of restitution in these cases (Article 23) and conditions for suspending sentences, (Articles 24 and 366) came into effect in 1999, when Quiroga was vice president during Banzer’s democratically-elected term.

b. One exception: the clause in the new constitution, passed in 2008 during the Morales administration, states that anyone convicted and sentenced in a criminal case, cannot hold public office, until the sentence has been served (Articles 234, clause 4.)[vi] The Bolivian and international press have misrepresented this stipulation, stating that if the conviction is not overturned on appeal, he will never be able to run for office again. The new constitution actually softens the conditions blocking people of convicted of criminal acts from government posts and other service (Criminal Code Articles 34-36.)[vii]

2. As he could not prove his statements against Union Bank, they qualify under Bolivian law as defamation, libel, and slander.[viii]

3. The sentence Quiroga received falls within these legal parameters (a maximum sentence of three years for defamation).[ix]

4. These charges are common in Bolivian legal dynamics, but courts routinely suspend when the accused, but make restitution to the offended party or parties through a formal, public retraction. Quiroga could have easily settled his case in this manner in the initial stages of the process; it is unclear why he chose not do so.

• In a recent example of a public retraction that  nullified potential charges, the co- director of the Opinión newspaper apologized for comments made by a columnist, stating that Evo Morales was a “cross between a llama and Lucifer.”  He promised that no such comment would be made again in Opinión.[x]

5. A lot of press coverage affirms that the ruling forces Quiroga to serve time in prison, the Criminal Procedures Code stipulates that sentences under three years in criminal cases can be suspended as long as the individual complies with court-ordered requirements (Articles 24 and 366).[xi] If he returns to Bolivia from the US as he claims he will on September 8, Quiroga would probably not spend even a day in jail.

6.Quiroga has the legal right to several levels of appeal, and his lawyers are doing so in the district courts, and may do so at the Supreme Court level.

7. Quiroga’s lawyers argue that the ruling is inappropriate and invalid because they claim that slander can only be committed against individuals (personas naturales) and not corporations (personas jurídicas), such as a bank.  This argument is unconvincing for several reasons:

a. The Penal Code definition of slander refers to the “direct offense of another,” without out clearly defining this term, nor limiting it specifically to individuals.

b. The definition of defamation, is more specific, stating that “…a conduct with the capacity to affect the reputation of an individual person or a collective….”[xii] It’s interesting to note that in the past, Bolivian courts ruled that another bank, Banco Económico is a natural entity, setting an important precedent.[xiii]

Bolivian courts should not be political battlefields

In an intensely polarized environment, Bolivian courts and media are regularly employed as fodder for political quarrels.  Yet, by publicly apologizing for his statements against Union Bank, Quiroga could have eliminated the charges against him.  Instead, he allowed the case to continue and has used the ruling to aggressively denounce Morales for meddling in the judiciary.  He also threatened to complain to the Organization of American States and the United Nations.  MAS may indeed politically benefit from the conviction, especially as it would force Quiroga to return to Bolivia and make it easier to try him for other charges.  This does not signify, though, that they inappropriately interfered in the recent judicial proceeding.  The defamation case falls within the framework of a “private action,” in which the plaintiff, in this case the Union Bank, directly petitions the court for charges.  Public prosecutors on the government payroll play no role at all in the process.  Furthermore, there is no evidence that the Morales administration influenced the legal proceedings, and the rulings are within Bolivian law.  Bolivian judicial officials, the executive and Quiroga all need to cooperate to insure that timely appeals and arguments are heard and fairly considered.  All parties must adhere to legal norms, and separate political concerns and agendas from legal proceedings. The Bolivian and international press should exercise greater care in their portrayal of this case and other politically sensitive issues.

[ii] El Deber, “Sentencia demuestra sometimiento del Poder Judicial al Gobierno,” 6 September 2010.

[iii] Article 289 of the Penal Code “The accused of a crime against honor [defamation, slander and libel] will be exempted from penalty if they retract before or during the inquiry.” “El sindicado de un delito  contra el  honor quedará exento de pena, si se retractare antes o a tiempo de su indagatoria.”

[iv] El Deber, “Sentencia demuestra sometimiento del Poder Judicial al Gobierno,” 6 September 2010.  Quiroga (in press release): “La sentencia dictada contra mi persona por el Juzgado Tercero de Sentencia en lo Penal, no hace sino demostrar el vergonzoso sometimiento de la justicia a las instrucciones del gobierno de Evo Morales y, en última instancia, confirma la intención del Ejecutivo de criminalizar la opinión crítica y judicializar la política, en abierta contradicción con los principios de libertad de expresión consagrados por la Constitución Política del Estado en Bolivia y por diversos instrumentos jurídicos de aplicación universal”,

[v] Article 282: DEFAMATION. – Any person charged with revealing or divulging in a public, tendentious, repeated manner, an act, quality, or conduct capable of affecting the reputation of an individual or collective person, shall be sentenced with one month to a year of public service or a fine of twenty to 240 days.

Article 283: LIBEL. – Any person, who by any means falsely attributes the commission of a crime to another, shall be sentenced to six months to three years, and fines of one hundred to three hundred days of jail time.

Article 287: SLANDER. – Any person, who by any means directly mars the dignity or decorum of another, shall be sentenced to from one month to a year of community service and fines of thirty to one hundred days.  If the crime pertaining to ARTICLE 283 and slander to which this ARTICLE refers were committed in the press, typed or manuscript [form], the author shall be considered guilty of defamatory libel and sanctioned with a fine of sixty to one hundred and fifty days, without affecting the corresponding sentences.

See:http://www.gnpplus.net/criminalisation/images/stories/documents_latin_america/bolivia_penal_code.pdf

[vi] Article 234: In order to hold public office, one must….:4.  Have no formal legal charges against or be convicted of and sentenced for a criminal offense, which has not yet been served. Nueva Constitución Política del Estado de Bolivia.  See: http://www.presidencia.gob.bo/download/constitucion.pdf

[vii] http://www.oas.org/juridico/spanish/gapeca_sp_docs_bol1.pdf

[viii] See endnote iii.

[ix] Ibid.

[x] Erbol, “Opinión admite que nunca debió publicar artículo que ofende a Evo,” 4 September 2010.

[xi] Nuevo Código de Procedimiento Penal, Ley 1970. New criminal procedures code:  http://www.congreso.gov.bo/leyes/1970.htm

[xii] See endnote iii.

[xiii] This ruling is similar to US laws pertaining to corporate personhood, which recognize corporations as “natural entities,” giving them the right to own property, manage bank accounts, enter legal agreements etc.  See: SANTA CLARA COUNTY v. SOUTHERN PAC. R. CO., 118 U.S. 394 (1886), available from: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=118&invol=394.