Balance the right to a fair trial with the public’s right to know

Media coverage on the murder of Manolis Kantaris at Athens city center was extensive since the very first days of the proceedings. Shortly after the arrest of the suspect, newspapers published unofficially disclosed evidence, a video and photographs of the crime scene obtained from security cameras in the crime area. Similarly, the media disseminated mugshots of the suspects for the murder of Antonino Barbaro obtained from an anonymous source and video footage of the arrest of the alleged perpetrators. According to the Italian Data Protection Authority “disclosure of mugshots, not justified by proven police’s need, constitutes an illicit processing of personal data.”

Another example of media malpractice related to coverage of criminal cases is using headlines that imply guilt. The Council of Europe’s ethical rules for journalists gives explicit guidance for the formulation of headlines and summaries – these must reflect as closely as possible the substance of the facts and data presented, which should be ensured by the appropriate means of verification and proof and impartiality in presentation. Contrary to these rules, in the initial phases of the criminal proceedings on the murder of Antonino Barbaro, a local newspaper posted a piece titled “Francofonte, they killed a 67-year-old man with 27 stab wounds for 700 euro: Carabinieri arrest the perpetrators of the murder”. Another example is observed in the media coverage on the case of the murder of Manolis Kantaris at Athens city center. Soon after the alleged perpetrators were detained headlines like “The murderers of Kantaris remanded in custody ” appeared in the press. In the the murder of Pamela Mastropietro, a newspaper front page stated “The Nigerian who tore the girl apart was not allowed to stay here” not only in the absence of a verdict, but even before the suspect was effectively arrested. In the case of the car accident in which journalist Milen Tsvetkov died, the Bulgarian National Radio published a news item on its website about filing the indictment act with the headline “The prosecutor’s office brought to court Christian Nikolov, who caused the death of Milen Tsvetkov” along with a picture of the accused looking down and chained among court guards on his way to the courtroom. All of these headlines strongly imply the guiltiness of persons that still had the legal status of suspects and accused at the time of publishing the news articles.

In the cases examined above, a behavior pattern in which the media jump to conclusions about the culpability of offenders and mislead the public can be observed. As already noted, public perception on one’s guilt or innocence could affect the criminal proceedings against the accused and their lives. As an example, in the Professor “Fakelakis” case, the media treated the accused with disrespect and humiliation from the outset, labelling him with a nickname that suggested he had committed the alleged crimes of bribery and blackmailing students. Arguably, the assiduous media attention to the case contributed to prolonging the accused’s pre-trial detention for 10 months. Moreover, it led to disciplinary proceedings against the professor by the TEI of Central Macedonia, which decided in favour of his definitive dismissal while the trial was still pending. In this regard, the rector declared that the presumption of innocence is not applicable to academic duties and, regardless of the absence of a verdict, claimed:

"We ought to protect the academic environment at this moment and not allow a man who is accused of all these things to upset our institution”.
The case of the car accident in which journalist Milen Tsvetkov died received massive media coverage, as the victim was a prominent professional journalist himself, and the defendant was the son of a Bulgarian MP. Soon after the arrest, a news agency published a piece exposing various information about the suspect’s family, their companies and links with political figures, together with family photos retrieved from the suspect’s social media profiles. The narrative was built on the assumption that the suspect was a spoilt young man whose parents’ money and power allowed him to be arrogant and break the rules without punishment. In a news article the words “murderer” and “a rich man’s son“ appeared in relation to the suspect. Soon after the incident, a number of footages of the incident from the neighboring commercial buildings’ CCTVs leaked in the social networks and circulated in the media. The videos were later added as evidence to the investigation, but their publishing magnified immensely the public’s rage against the alleged perpetrator.

In the Sotirya murder case, the brutality of the crime and the specifics of its investigation attracted significant media attention, which involved interviews with many people who were not directly linked to the criminal proceedings (witnesses, the chase volunteers, lawyers, psychologists, psychiatrists, politicians, etc.) The more publicity the case received, the stronger social reactions were generated. These culminated in public demands for a maximum sentence for the defendant – an illustrative example of public pressure on courts to decide in a certain way. Eventually, the accused for the Sotirya murder case was sentenced to the maximum term. Whether there is a linkage between public demands and the final judgment is disputable, but it is reasonable to assume that non-fulfillment of the public claims could have led to protests and outcry. It is noteworthy that later on, under the prospect that the sentence might be reduced from life imprisonment without parole (the gravest) to 30 years in case the accused person made a confession (as per the Bulgarian Criminal Code then in force), the victim’s family and local community organised a petition and a protest rally urging for legislative change that would not allow the provision to be applicable to offenders charged with premeditated murder. The initiative succeeded and the parliament adopted the respective legislative amendments. Strong public opinions shaped and reinforced by media coverage on criminal cases seem to have the ability to change national penal law. This is indicative of the media’s considerable power and the responsibilities indissoluble from this power.

The respect to the presumption of innocence in media reports is crucial for preventing miscarriages of justice, and minimising the harmful impact on the lives of the suspects and accused persons, which is in turn an essential part of a just society. The public’s right to information and freedom of speech are essential for democracy, but they should be fulfilled to the extent that no other fundamental rights such as those to private life and fair trial are infringed. Some studies reasonably suggest that in balancing the triad of freedom of expression, the right to privacy and private life, and the presumption of innocence, it is necessary to distinguish between “what interests the public” from “what is in the public interest”.

Standard 1

All human rights are inalienable and indivisible, but exercising one right should be balanced against the rights and freedoms of others. The public’s right to know encompasses the ability to access all types of information held by public bodies with a few exceptions such as classified data. In the context of criminal proceedings, that includes disclosure of information by judicial and police authorities, and all other public bodies involved in the proceedings. Usually, the media have the role of mediator communicating the information provided by public authorities to the general population. Journalists are responsible for its correct and objective presentation. Thus, media coverage on criminal cases, especially such of high public interest, is a major element for the fulfilment of the public’s right to information related to criminal justice.

Several case studies demonstrate that the media tend to violate the presumption of innocence in criminal cases that attract high public attention. The press infringes on the presumption of innocence by (1) publications stating premature judgements on a defendant’s guilt preceding a final court ruling; (2) disclosure of personal details that intentionally portray the accused or suspected person in an unfavourable manner; (3) disclosure of evidence during the pre-trial stage that has been retrieved by illegal means; (4) use of accusatory and prejudiced language about the defendant. A plausible explanation of these practices is the aim of media companies to increase their reader and viewership, pursuing sensations by catchy headlines and provocative text. It may result in intense public unrest eventually evolving into social movements that put pressure on the authorities to impose more severe punishments to the perpetrators. In relation to this, the Council of Europe Resolution 1003 (1993) Ethics of Journalism called for “news organisations [to] treat information not as a commodity, but as a fundamental right of the citizen. To that end, the media should exploit neither the quality, nor the substance of the news or opinions for purposes of boosting readership or audience figures in order to increase advertising revenue.”

Journalists are not obliged to obtain information only from official sources and could conduct separate investigations as well as get in contact with other stakeholders, including the defendants, victims, their lawyers and family members, witnesses, members of the local community, etc. Indeed, it is part of the journalists’ duty to inform the public about all viewpoints and facts in order to report comprehensive and objective information. Although the main purpose of journalism is to search and provide information about the truth, interference with the legal process and attempts to take over the exclusive powers of the judiciary to prosecute, investigate and rule judgements are problematic. In particular, excessive and unethical media coverage on criminal cases could lead to a “trial by media”. The concept is traditionally defined as “the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt or innocence before, or after, a verdict in a court of law”. Since the late 20th century, trial by media has been a common phenomenon in a number of countries.

Human rights law, both at the national and international level, has recognised that every person, suspected or accused of a crime, should have their guilt or innocence determined by an impartial court of law and within a fair and effective legal process. The presumption of innocence is one of the components of the right to a fair trial and shall be respected not only by the judiciary and law enforcement bodies, but also by media outlets, given their ability to influence the attitudes and perceptions of society. Today, the media are increasingly becoming a “public court”, albeit not authorised to serve in this capacity. Media practitioners usually do not feel obliged to act in accordance to legal principles as “innocent until proved guilty” or “beyond reasonable doubt”. Therefore, “trial by media” must be avoided and countered, as it undermines the rule of law and the capabilities of judicial authorities to properly conduct a fair trial. The legal principle stipulates that a fair trial could be achieved only by a hearing before an independent and impartial court of law.