77.
On August 24, 2011, the representatives of El Universo newspaper filed a
constitutional action for precautionary measures before the Eleventh Court for Children
and Adolescents of Guayas (hereinafter "the Eleventh Court"), in order to know the
information that was in the computer equipment of the Fifteenth Court regarding the
defendants. In particular, they considered that there were inaccuracies regarding the
file that contained the text of the judgment of first instance, for which they requested
an electronic copy of all the electronic files created between May 16, 2011, and July 20,
2011 in the computer used in the Fifteenth Court. For this reason, they requested the
cloning of the hard drive of the head of the aforementioned Court. 120
78.
On August 25, 2011, the Eleventh Court admitted the measure against Judge
Oswaldo Sierra Ayora, who at that time was head of the Fifteenth Court. In the
precautionary measure, the full copy of the contents of the hard drive of “the computer
used by the defendant and the information regarding the process” in question was
ordered. 121 On August 26, 2011, an exact copy of the hard drive of the Secretariat of
the Court was made in the presence of a Notary Public and Judge Oswaldo Sierra. 122 On
September 2, 2011, the specialist technician Alex Rivera presented a report on the
expertise carried out regarding the cloned hard drive. In his report, he concluded that
the computer file that contained the text set forth in the first instance judgment was not
created on the computer equipment of the corresponding court, but rather came from
an external computer whose username was "Chucky -Seven”. 123
79.
On September 7, 2011, the Temporary Provincial Director of the Council of the
Judiciary instructed an ex officio prosecution against those who served as judge of the
Eleventh Court of the Family, Women, Children and Adolescents of Guayas, Fifteenth
Judge of Criminal Guarantees del Guayas, Twenty-Fifth Alternate Notary of the Guayaquil
canton, and Assistant of the Information Technology Unit of the Provincial Directorate of
the Guayas Judiciary Council, for having allowed the procedure to be carried out. 124 On
September 12, 2011, said persons were suspended from their duties for 90 days, by the
Council of the Transitional Judiciary, considering that disciplinary offenses had been
established. 125
80.
The Court considers it pertinent to note that, in relation to the statements and
affirmations of the Commission and the representatives, regarding the alleged violations
of the alleged victims' human rights, and which have been indicated in this chapter on
facts, Rafael Correa Delgado, in his amicus curiae brief submitted to this Court (supra
par. 10 and 11) stated, inter alia, that there was no violation of the right to freedom of
expression, since the article “NO to lies” contained a series of slanderous insults
indicating that the then President "had ordered the open fire against a hospital full of
civilians," which would have constituted "a crime against humanity committed by the
former president." In this sense, he considered that he is not dealing with an opinion
article of public interest, but rather an attack on his right to reputation, honor and
120
Cf. Constitutional Action of August 24, 2011 (evidence file, folio 5691).
Cf. Order of the Eleventh Court of Children and Adolescents of Guayas of August 25, 2011 (evidence
file, folios 5695 and 5696).
121
122
Cf. Notarial deed of August 26, 2011 (evidence file, folio 5701).
123
Cf. Technical report of September 2, 2011 (evidence file, folios 5703 to 5712).
Cf. Official document of the Provincial Director of Guayas of the Council of the Transitional Judiciary of
September 7, 2011 (evidence file, folio 5714).
124
125
Cf. Decision of the President of the Council of the Transitional Judiciary of September 12, 2011 (merits
file 5716 to 5721).
29