Ministers' Deputies
    CM Documents

    CM(2003)85 12 June 2003
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    848 Meeting, 10 July 2003
    5 Media


    5.1 Steering Committee on the Mass Media

    Abridged report of the 59th meeting (Strasbourg, 13-16 May 2003)

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    1. The Steering Committee on the Mass Media (CDMM) held its 59th meeting on 13-16 May 2003 in Strasbourg. The meeting was chaired by Ms Alessandra PARADISI (Italy). The agenda, as adopted, appears in Appendix I.1

    2. At this meeting, the CDMM reviewed the work carried out by its various subordinate bodies and gave them guidelines for the continuation of their work. In this connection, the CDMM decided to retransmit to the Committee of Ministers for adoption the draft Recommendation on measures to promote the democratic and social contribution of digital broadcasting which the Ministers' Deputies had returned to the CDMM following comments made on it by one Delegation at their 829th meeting (26 February 2003). The Ministers' Deputies subsequently adopted this Recommendation at their 840th meeting (28 May 2003).

    3. The CDMM also approved a draft Recommendation and a draft Declaration on the provision of information through the media in relation to criminal proceedings. The Committee of Ministers is invited to adopt these texts (see Appendices II and III) and to take note of the draft Explanatory Memorandum to the draft Recommendation (see Appendix IV).

    4. In addition, the CDMM defined the theme and sub-themes of the 7th European Ministerial Conference on Mass Media Policy, made a number of arrangements for preparing the substance of the Conference and accepted the invitation of Ukraine to hold the Conference in this country during the second half of 2004. The orientations agreed upon by the CDMM for the Ministerial Conference will be reported to the Committee of Ministers under the item on the agenda of its meetings devoted to the preparation of Conferences of Specialised Ministers.

    5. In the light of the orientations approved for the above-mentioned Ministerial Conference, the CDMM decided to renew the terms of reference of its subordinate bodies for an additional year, until the end of 2004, to enable the latter to prepare the draft texts to be submitted to the Ministerial Conference for adoption and to finalise their work related to the implementation of the Action Plan that had been entrusted to the CDMM at the previous Ministerial Conference.

    6. Furthermore, the CDMM discussed the future World Summit on the Information Society (Geneva, 10-12 December 2003) and, in this context, made a number of comments on the draft message prepared by an Inter-sectoral drafting group set up following the decision taken by the Ministers' Deputies at their 824th meeting (15 January 2003) to send such a message to the Summit.

    7. The CDMM examined an application for observer status with one of its subordinate bodies, the Group of Specialists on online services and democracy (MM-S-OD), submitted by a non-governmental organisation (Internews). After examination of this application, the CDMM decided not to admit Internews as an observer within the MM-S-OD.

    8. Finally, the CDMM also took note of a number of recent legal and technical developments in the media field, as well as the work in progress within the Parliamentary Assembly's Sub-Committee on the Media; adopted the timetable for its meetings and those of its subordinate bodies for the remainder of 2003; approved a list of items for inclusion on the agenda for its next meeting; took note of the work carried out by the Standing Committee on Transfrontier Television.

    APPENDIX I

    Agenda

    1. Opening of the meeting

    2. Adoption of the agenda

    3. Information on the decisions of the Committee of Ministers of interest to the work of the CDMM

    4. Preparation of the 7th European Ministerial Conference in the media field
    (i) Substantive questions (theme, programme, participants)
    (ii) Organisational questions (dates, place, invitations)

    5. Group of Specialists on online services and democracy (MM-S-OD)
    (i) Work concerning illicit and harmful content on the Internet
    (ii) Work on Internet literacy
    (iii) Work on the democratic potential of new communication services
    (iv) Draft Recommendation of the Committee of Ministers on the right of reply in the online media

    6. Group of Specialists on freedom of expression and other fundamental rights (MM-S-FR)
    (i) Draft Declaration of the Committee of Ministers on freedom of political debate in the media
    (ii) Draft Recommendation and Declaration of the Committee of Ministers on the provision of information through the media in relation to criminal proceedings
    (iii) Draft Declaration of the Committee of Ministers on freedom of expression and the right to respect for private life
    (iv) Draft Declaration of the Committee of Ministers on freedom of expression and information in the context of the fight against terrorism

    7. Exchange of views on the work under way concerning the elaboration of an international instrument on cultural diversity

    8. Follow-up to be given to the Report on media diversity in Europe prepared by the Advisory Panel on media diversity (AP-MD)

    9. Group of Specialists on the democratic and social implications of digital broadcasting (MM-S-DB) 
    (i) Draft Recommendation on measures to promote the democratic and social contribution of digital broadcasting
    (ii) Questions concerning exclusivity rights and the right of the public to information
    (iii) Preparation of the Conference on digital television in Europe
    (Strasbourg, 3 November 2003)

    10. Definition of orientations for the work programme of the CDMM in 2004

    11. World Summit on the Information Society (Geneva, 10-12 December 2003)
    (i) Information on the preparations of the Summit
    (ii) Draft message of the Committee of Ministers

    12. Request for observer status on the MM-S-OD submitted by Internews

    13. Progress of work and recent legal and technical developments in the media field of interest to the CDMM

    14. Report on the Greek Presidency of the European Union

    15. Dates of the next meetings

    16. Items to be included on the agenda of the 60th meeting of the CDMM

    17. Other business
    (i) Work of the Standing Committee on Transfrontier Television

    APPENDIX II

    Draft Recommendation Rec(2003)…
    of the Committee of Ministers to member states
    on the provision of information through the media
    in relation to criminal proceedings

    The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

    Considering that the aim of the Council of Europe is to achieve greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage;

    Recalling the commitment of the member states to the fundamental right to freedom of expression and information as guaranteed by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”), which constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for the development of every individual;

    Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so;

    Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society;

    Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system;

    Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention;

    Recalling, furthermore, the right of the media and journalists to create professional associations, as guaranteed by the right to freedom of association under Article 11 of the Convention, which is a basis for self-regulation in the media field;

    Aware of the many initiatives taken by the media and journalists in Europe to promote the responsible exercise of journalism, either through self-regulation or in co-operation with the state through co-regulatory frameworks;

    Desirous to enhance an informed debate on the protection of the rights and interests at stake in the context of media reporting relating to criminal proceedings, and to foster good practice throughout Europe while ensuring access of the media to criminal proceedings;

    Recalling its Resolution (74) 26 on the right of reply – position of the individual in relation to the press, its Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure, its Recommendation No. R (97) 13 concerning the intimidation of witnesses and the rights of the defence, and its Recommendation No. R (97) 21 on the media and the promotion of a culture of tolerance;

    Stressing the importance of protecting journalists' sources of information in the context of criminal proceedings, in accordance with its Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information;

    Bearing in mind Resolution No. 2 on journalistic freedoms and human rights adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, December 1994) as well as the Declaration on a media policy for tomorrow adopted at the 6th European Ministerial Conference on Mass Media Policy (Cracow, June 2000);

    Recalling that this recommendation does not intend to limit the standards already in force in member states which aim to protect freedom of expression,

    Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states:

    1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions,

    2. disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and

    3. bring them in particular to the attention of judicial authorities and police services as well as to make them available to representative organisations of lawyers and media professionals.

    Appendix to Recommendation Rec(2003)…

    Principles concerning the provision of information through the media
    in relation to criminal proceedings

    Principle 1 - Information of the public via the media

    The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles.

    Principle 2 - Presumption of innocence

    Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused.

    Principle 3 - Accuracy of information

    Judicial authorities and police services should provide to the media only verified information or information which is based on reasonable assumptions. In the latter case, this should be clearly indicated to the media.

    Principle 4 - Access to information

    When journalists have lawfully obtained information in the context of on-going criminal proceedings from judicial authorities or police services, those authorities and services should make available such information, without discrimination, to all journalists who make or have made the same request.

    Principle 5 - Ways of providing information to the media

    When judicial authorities and police services themselves have decided to provide information to the media in the context of on-going criminal proceedings, such information should be provided on a non-discriminatory basis and, wherever possible, through press releases, press conferences by authorised officers or similar authorised means.

    Principle 6 - Regular information during criminal proceedings

    In the context of criminal proceedings of public interest or other criminal proceedings which have gained the particular attention of the public, judicial authorities and police services should inform the media about their essential acts, so long as this does not prejudice the secrecy of investigations and police inquiries or delay or impede the outcome of the proceedings. In cases of criminal proceedings which continue for a long period, this information should be provided regularly.

    Principle 7 - Prohibition of the exploitation of information

    Judicial authorities and police services should not exploit information about on-going criminal proceedings for commercial purposes or purposes other than those relevant to the enforcement of the law.

    Principle 8 - Protection of privacy in the context of on-going criminal proceedings

    The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.

    Principle 9 - Right of correction or right of reply

    Without prejudice to the availability of other remedies, everyone who has been the subject of incorrect or defamatory media reports in the context of criminal proceedings should have a right of correction or reply, as the case may be, against the media concerned. A right of correction should also be available with respect to press releases containing incorrect information which have been issued by judicial authorities or police services.

    Principle 10 - Prevention of prejudicial influence

    In the context of criminal proceedings, particularly those involving juries or lay judges, judicial authorities and police services should abstain from publicly providing information which bears a risk of substantial prejudice to the fairness of the proceedings.

    Principle 11 - Prejudicial pre-trial publicity

    Where the accused can show that the provision of information is highly likely to result, or has resulted, in a breach of his or her right to a fair trial, he or she should have an effective legal remedy.

    Principle 12 - Admission of journalists

    Journalists should be admitted to public court hearings and public pronouncements of judgements without discrimination and without prior accreditation requirements. They should not be excluded from court hearings, unless and as far as the public is excluded in accordance with Article 6 of the Convention.

    Principle 13 - Access of journalists to courtrooms

    The competent authorities should, unless it is clearly impracticable, provide in courtrooms a number of seats for journalists which is sufficient in accordance with the demand, without excluding the presence of the public as such.

    Principle 14 - live reporting and recordings in court rooms

    Live reporting or recordings by the media in court rooms should not be possible unless and as far as expressly permitted by law or the competent judicial authorities. Such reporting should be authorised only where it does not bear a serious risk of undue influence on victims, witnesses, parties to criminal proceedings, juries or judges.

    Principle 15 - Support for media reporting

    Announcements of scheduled hearings, indictments or charges and other information of relevance to legal reporting should be made available to journalists upon simple request by the competent authorities in due time, unless impracticable. Journalists should be allowed, on a non-discriminatory basis, to make or receive copies of publicly pronounced judgments. They should have the possibility to disseminate or communicate these judgments to the public.

    Principle 16 - Protection of witnesses

    The identity of witnesses should not be disclosed, unless a witness has given his or her prior consent, the identification of a witness is of public concern, or the testimony has already been given in public. The identity of witnesses should never be disclosed where this endangers their lives or security. Due respect shall be paid to protection programmes for witnesses, especially in criminal proceedings against organised crime or crime within the family.

    Principle 17 - Media reporting on the enforcement of court sentences

    Journalists should be permitted to have contacts with persons serving court sentences in prisons, as far as this does not prejudice the fair administration of justice, the rights of prisoners and prison officers or the security of a prison.

    Principle 18 - Media reporting after the end of court sentences

    In order not to prejudice the re-integration into society of persons who have served court sentences, the right to protection of privacy under Article 8 of the Convention should include the right to protect the identity of these persons in connection with their prior offence after the end of their court sentences, unless they have expressly consented to the disclosure of their identity or they and their prior offence are of public concern again or have become of public concern again.

    APPENDIX III

    Draft Declaration of the Committee of Ministers
    on the provision of information through the media
    in relation to criminal proceedings

    The Committee of Ministers of the Council of Europe,

    Recalling the commitment of the member states to the fundamental right to freedom of expression, as guaranteed by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”);

    Reaffirming that the right to freedom of expression and information constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for the development of every individual, as expressed in its Declaration on the Freedom of Expression and Information of 1982;

    Recalling the commitment to the fundamental right to the presumption of innocence and to a fair trial under Article 6 of the Convention and the fundamental right to respect for private and family life under Article 8 of the Convention;

    Recalling furthermore the right of the media and journalists to create professional associations, as guaranteed by the right to freedom of association under Article 11 of the Convention, which is a basis for self-regulation in the media field;

    Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention;

    Considering also the value which self-regulation by the media and co-regulation can have in striking such a balance;

    Aware of the many initiatives taken by the media and journalists in Europe to promote the responsible exercise of journalism, either through self-regulation or in co-operation with the state through co-regulatory frameworks;

    Aware also of the need to enhance an informed debate on the protection of the rights and interests at stake in the context of media reporting relating to criminal proceedings;

    Desiring to strengthen the responsible exercise of journalism in this context, notably by promoting the adoption of good practice by the media through codes of conduct or other initiatives;

    Concerned by the increasing commercialisation of information in the context of criminal proceedings;

    Desiring at the same time to foster the right to freedom of expression and information in relation to criminal proceedings, in particular by ensuring access by the media to such proceedings;

    Recalling its Resolution (74) 26 of the right of reply – position of the individual in relation to the press, its Recommendation No. (85) 11 on the position of the victim in the framework of criminal law and procedure, its Recommendation No. R (97) 13 concerning the intimidation of witnesses and the rights of the defence, its Recommendation No. R (97) 21 on the media and the promotion of a culture of tolerance and its Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information;

    Bearing in mind Resolution No. 2 on journalistic freedoms and human rights adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, December 1994) as well as the Declaration on a media policy for tomorrow adopted at the 6th European Ministerial Conference on Mass Media Policy (Cracow, June 2000);

    Aware of the seminars on media self-regulation organised by the Steering Committee on the Mass Media in Strasbourg on 7 and 8 October 1998, as well as by the European Commission and Germany in Saarbrücken from 19 to 21 April 1999;

    Aware of the public consultation with media professionals which was conducted by the Steering Committee on the Mass Media in January 2002,

    Calls on member states:

    1. to encourage responsible reporting on criminal proceedings in the media by supporting the training of journalists in the field of law and court procedure, in co-operation with the media and their professional organisations, educational institutions and the courts, in so far this is necessary for understanding court proceedings and the rights and interests of the parties to criminal proceedings and the state which are at stake during such proceedings;

    2. to support any self-regulatory initiatives by which the media define professional ethical standards with regard to media reports on criminal proceedings in order to ensure respect for the principles contained in Recommendation Rec(2003)… of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings;

    3. to seek co-operation with self-regulatory bodies in the media field;

    4. to involve professional associations in the media field in the relevant legislative processes concerning media reporting on criminal proceedings, for example via hearings or consultations;

    5. to make this Declaration available to the public authorities and the courts as well as to the media, journalists and their professional organisations.

    Invites the media and journalists:

    1. to organise themselves in voluntary professional associations and foster pan-European co-operation between such associations;

    2. to draw up professional ethical guidelines and standards for journalists, especially in relation to media reports on criminal proceedings, where such guidelines and standards do not yet exist, and to foster compliance with such professional ethical guidelines and standards;

    3. to treat in their reports both suspects and accused as innocent until found guilty by a court of law, given that they enjoy that right under Article 6 of the Convention;

    4. to respect the dignity, the security and, unless the information is of public concern, the right to privacy of victims, claimants, suspects, accused, convicted persons and witnesses as well as of their families, as guaranteed under Article 8 of the Convention;

    5. not to recall a former offence of a person, unless it is of public concern or has become of public concern again;

    6. to be sensitive to the interests of minors and other vulnerable persons involved in criminal proceedings;

    7. to avoid prejudicing criminal investigations and court proceedings;

    8. to avoid prejudicial and pejorative references in their reports on criminal proceedings, where these are likely to incite xenophobia, discrimination or violence;

    9. to entrust reporting on criminal proceedings to journalists with adequate training in these matters.

    APPENDIX IV

    Draft Explanatory Memorandum
    to Recommendation Rec(2003)...
    on the provision of information through the media in relation to criminal proceedings

    I. Introduction

    1. The Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the European Convention on Human Rights or ECHR) guarantees freedom of expression and information under Article 10, the right to the presumption of innocence and to a fair trial under Article 6 and the right to respect for private and family life under Article 8.

    2. The provision of information in relation to court proceedings, and in particular criminal proceedings, corresponds to the right of the public to be informed on matters of public concern, including justice. The right to a fair trial under Article 6 of the ECHR includes hearings in public and the public pronouncement of judgments. Openness to the public can be achieved by the media. However, Article 6 allows also for the exclusion of the public and the media from all or parts of the trial for a limited number of cases referred to in Article 6 itself. The exclusion of the media would also have to comply with the narrowly interpreted possible restrictions of freedom of expression and information under Article 10 of the ECHR. Where private information is disclosed during a trial, Article 8 of the ECHR may require the protection of the privacy of this information.

    3. Prominent cases in several member states concerning the media and the courts have caused wide public attention and debate about such issues as secrecy of investigations, the influence by the media on witnesses and judges, the presence of media in court rooms as well as audiovisual recordings of trials.

    4. Against this background, in 1996, the Steering Committee on the Mass Media (CDMM) identified the issue of media reporting in relation to criminal proceedings as being of common interest to all member states, when it proposed the creation of a Group of Specialists on media law and human rights (MM-S-HR) with a view to developing common principles for the protection of freedom of the media as well as other fundamental rights of individuals at stake before, during and after criminal proceedings. After having analysed national laws and practices as well as the relevant case law of the European Court of Human Rights, the MM-S-HR drew up a draft Recommendation on the provision of information through the media in relation to criminal proceedings, which was finalised by the Steering Committee and its Group of Specialists on freedom of expression and other fundamental rights (MM-S-FR) in 2003.

    5. The Committee of Ministers adopted Recommendation Rec(2003)…. at the …..th meeting of the Ministers' Deputies on …….

    II. General commentary

    6. This recommendation is addressed to governments of member states and hence their public authorities, including courts. Any recommendation of the Committee of Ministers is an instrument of political commitment, and not a legally enforceable instrument. Through its adoption by the Committee of Ministers, it binds all member states.

    7. The recommendation does not seek to directly address the private sector, and in particular the media or journalists. It is at the discretion of the member states to use measures which they consider appropriate in order to safeguard and protect the rights and interests of everyone in relation to criminal proceedings as outlined in this recommendation, depending on their respective circumstances and legal traditions.

    8. The recommendation provides guidelines for public authorities in the light of Articles 6, 8 and 10 of the European Convention on Human Rights. It does not intend to alter these provisions as well as the obligations of member states under the Convention. Furthermore, it does not intend to limit the standards already in force in member states which aim to protect freedom of expression.

    9. In the preamble of the recommendation, certain related recommendations and one resolution are recalled. Resolution (74) 26 on the right of reply recommends member states to recognise the right of reply and correction where media reports have been incorrect or otherwise infringe the rights of individuals. Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure includes the recommendation, that “information and public relations policies in connection with the investigation and trial of offences should give due consideration to the need to protect the victim from any publicity which will unduly affect his private life or dignity. If the type of offence or the particular status or personal situation and safety of the victim make such special protection necessary, either the trial before the judgment should be held in camera or disclosure or publication of personal information should be restricted to whatever extent is appropriate”. In Recommendation No. R (97) 13 concerning intimidation of witnesses and the rights of the defence, member states are recommended to take appropriate legislative and practical measures to ensure that witnesses may testify freely and without intimidation. In the context of organised crime, the exclusion of the media and/or the public from all or part of the trial should be considered. Finally, Recommendation No. R (97) 21 on the media and the promotion of a culture of tolerance contains principles for media reporting without inciting to ethnic intolerance.

    10. Following the case law of the European Court of Human Rights concerning journalists' sources, the MM-S-FR had elaborated Recommendation (2000) 7 on the right of journalists not to disclose their sources of information, which was adopted by the Committee of Ministers on 8 March 2000. Although the main focus of the present recommendation is on the right of the media to report about criminal proceedings, the MM-S-FR felt that Recommendation (2000) 7 should be referred to in this context, as journalists reporting about criminal proceedings might also disseminate information received from confidential sources. Recommendation (2000) 7 and Article 10 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights, would generally protect those sources in such a case.

    11. Member states are held “to disseminate widely this recommendation and its Appendix, where appropriate accompanied by a translation”, as the dissemination of the recommendation is a prerequisite for its proper implementation.

    III. Commentary to the Recommendation

    12. The specific recommendations or principles appear in the Appendix to the recommendation. This Appendix is an integral part of the Recommendation itself. It is only for sake of clarity that the individual “principles concerning the provision of information through the media in relation to criminal proceedings” are grouped in the Appendix.

    13. For the purposes of the recommendation, the term “criminal proceedings” shall be understood as any action taken by judicial authorities or police services as well as investigating bodies under the framework of penal law and procedure.

    Principle 1 (Information of the public via the media)

    14. Article 10 of the European Convention on Human Rights guarantees the right of the public to receive information of public concern. The principle of a public hearing and a public pronouncement of judgments under Article 6 ECHR is part of the fair administration of justice. Since media have a particular role in disseminating information to the public, they should be able to disseminate information about the activities of judicial authorities and police services. The right of the public to receive information on matters of public concern is of particular importance in this context; it includes the right for the media to freely report and comment on the functioning of the criminal justice system. The European Court of Human Rights established, for instance, that the media are one of the means by which politicians and public opinion can control and verify whether judges are discharging their heavy responsibilities in a manner which is in conformity with the aim which is the basis of the task entrusted to them.2

    Principle 2 (Presumption of innocence)

    15. Article 6, paragraph 2 of the European Convention on Human Rights guarantees the right to the presumption of innocence. This right is primarily a procedural right vis-à-vis judicial authorities, which defines the burden of proof in criminal proceedings. However, the fair administration of justice requires also that the presumption of innocence is not prejudiced indirectly through opinions and information relating to pending criminal proceedings disseminated by the media. The European Court of Human Rights has stated that “journalists reporting on criminal proceedings currently taking place must, admittedly, ensure that they do not overstep the bounds imposed in the interests of the proper administration of justice and that they respect the accused's right to be presumed innocent” (Du Roy and Malaurie v. France (2000) para. 34). This being said, the Court holds that an absolute and general prohibition of media reporting about criminal proceedings would be unnecessary and impede the right of the press to inform the public about matters which, although relating to criminal proceedings, may be in the public interest (ibid., para. 35 and 36).

    Principle 3 (Accuracy of information)

    16. The accuracy of information is important for both the credibility of judicial authorities and police services as well as the credibility of the media. Therefore, Principle 3 recommends that only accurate information should be provided, i.e. information based on facts or reasonable assumptions. Where the information is based on such assumptions, this should be clearly indicated. Although the truth of information might finally be judged by a court of law only, this Principle shall prevent that inaccurate information is provided knowingly or even on purpose, since it could undermine the authority of the law enforcement authorities and of the judiciary as well as compromise the rights of the parties to criminal proceedings.

    Principle 4 (Access to information)

    17. Principle 4 recommends that journalists should not be excluded from access to information on an arbitrary basis, for instance due to personal, political or other reasons, where such information has already been obtained lawfully by other journalists.

    18. National legal systems may also specifically grant access to official documents in this context in accordance with Articles 6 and 8 of the European Convention on Human Rights.

    Principle 5 ( Ways of providing information to the media)

    19. Under Principle 5, judicial authorities and police services should provide their information to the media through organised and authorised channels, rather than by judicial and police officers on an individual basis. The term “authorised officers” is to be understood in a wide sense, indicating that the authority concerned should designate a staff member for that purpose. Other “similar authorised means” in the sense of this Principle could include, for instance, the provision of oral information by official spokespersons on the spot, as well as written information material about a particular criminal proceeding given to journalists in advance of a trial.

    20. Some national judicial authorities and police services have developed their internal guidelines for contacts with the media, including rules for the preparation of press releases. Such internal guidelines might be useful for ensuring a high common standard among domestic authorities. This will enhance the reliability of information and should contribute to the quality of media reports. Under national law, police services may have less discretion than judicial authorities to provide information to the media concerning their work.

    Principle 6 (Regular information during criminal proceedings)

    21. Where journalists and the media are not informed about criminal proceedings which have gained the particular attention of the public through the persons involved, the seriousness of the facts or other circumstances of public concern, it is likely that journalists will pursue their own journalistic investigations. Such journalistic investigations conducted in parallel to judicial investigations may, under certain circumstances, bear the risk of having a negative effect on those judicial investigations, for example by publicly disclosing information, portraying witnesses or contacting criminal offenders. This being said, parallel journalistic investigations might also have positive effects, such as detecting witnesses or suspects.

    22. Some member states have prescribed by domestic law the secrecy of criminal investigations and police inquiries as a fundamental procedural principle. As stated by the European Court of Human Rights in its Du Roy and Malaurie judgment of 3 October 2000, however, an absolute secrecy of criminal investigations would not be compatible with Article 10 of the European Convention on Human Rights.

    23. Principle 6 therefore recommends that, under such circumstances, judicial authorities and police services should keep the media informed during criminal investigations, so long as this does not prejudice the secrecy of investigations and police inquiries or delay or impede the outcome of the proceedings. If there is nothing new to report, judicial authorities and police services should also mention this.

    Principle 7 (Prohibition of the exploitation of information)

    24. The commercial exploitation of information about on-going criminal proceedings by judicial authorities and police services could undermine the impartiality of the judiciary and the police. In addition, it could exclude journalists and media from access to such information due to its cost. In the same vein, information should not be exploited for purposes other than those relevant to the enforcement of the law.

    25. This Principle does not, however, exclude the charging of fees for the provision of information by judicial authorities or police services, in order to cover the expenses pertaining to the production and dissemination of that information.

    Principle 8 (Protection of privacy in the context of criminal proceedings)

    26. Everyone has the right to the protection of private and family life under Article 8 of the European Convention on Human Rights. Principle 8 recalls this protection for suspects, the accused, convicted persons and other parties to criminal proceedings, who must not be denied this right due to their involvement in such proceedings. The mere indication of the name of the accused or convicted may constitute a sanction which is more severe than the penal sanction delivered by the criminal court. It furthermore may prejudice the reintegration into society of the person concerned. The same applies to the image of the accused or convicted. Therefore, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.

    27. An even stronger protection is recommended to parties who are minors, to victims of criminal offences, to witnesses and to the families of suspects, the accused and convicted persons. In this respect, member states may also refer to Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure and Recommendation No. R (97) 13 concerning the intimidation of witnesses and the rights of the defence.

    Principle 9 (Right of correction or right of reply)

    28. Member states are recommended to recognise in their domestic law and practice a right of correction or reply or the possibility of bringing a complaint to a press council under Resolution (74) 26 on the right of reply. Principle 9 recalls this right in relation to criminal proceedings, where incorrect information may prejudice the presumption of innocence, for example. In addition, Principle 9 recommends granting such a right also against incorrect press releases of judicial authorities and police services, which would not otherwise qualify under Resolution (74) 26. Judicial authorities and police services should nevertheless bear in mind that there may be greater danger of prejudicial influence if they do not disclose information to the media.

    Principle 10 (Prevention of prejudicial influence)

    29. Opinions and information about matters which are the subject of criminal proceedings might, when they are disseminated publicly in the media, have a prejudicial influence on the presumption of innocence, as referred to in Principle 2. This risk is especially high where juries or lay judges are involved in criminal proceedings. Therefore, Principle 10 recommends that judicial authorities and police services should abstain from publicly providing information which bears a risk of substantial prejudicial influence to the fairness of the proceedings. In this context, the term “judicial authorities” shall also include prosecutors and investigating judges. The evaluation of the risk of prejudicial influence should be made on a case-by-case basis, in the light of the circumstances of each case.

    Principle 11 (Prejudicial pre-trail publicity)

    30. Virulent media reporting might, in exceptional and rare cases, have a negative influence on a given criminal proceeding, in particular on jury members, lay judges and witnesses. It is not the intention of this Recommendation to harmonise the legal remedies for accused under such circumstances. However, the MM-S-FR felt that a recommendation containing principles on the provision of information through the media in relation to criminal proceedings should also contain a principle recommending to member states that there should be an effective legal remedy, where the provision of information is likely to result, or has resulted, in a breach of the right to a fair trial.

    Principle 12 (Admission of journalists)

    31. Article 6 of the European Convention on Human Rights guarantees the fundamental right to a public hearing and the public pronouncement of a judgment. Such publicity is achieved by allowing the public to attend hearings and pronouncements of judgments, as far as members of the public are interested in attending, and depending on the capacity of the courtroom. Where seats in court rooms are not sufficient to accommodate all persons interested, judicial authorities might also consider transmitting a hearing audio-visually to another court room, if such facilities exist.

    32. By admitting the media to public hearings and pronouncements of judgments, much greater publicity can be achieved. Under certain circumstances, however, the fair administration of justice may require the exclusion of the public from all or part of a hearing under Article 6 of the ECHR.

    33. Principle 12 recommends that journalists should be admitted to public court hearings and the public pronouncement of judgments without discrimination and without prior formal and pre-determined accreditation requirements. Any discrimination would be contrary to the freedom of the media as guaranteed under Article 10 of the ECHR and could lead to a lack of publicity required under Article 6 of the ECHR. As a general principle, the media should not be excluded from court hearings, unless and as far as the public is excluded in accordance with Article 6 of the ECHR.

    Principle 13 (Access of journalists to courtrooms)

    34. Since the media provide wider public access to court hearings through their reporting, courtrooms should accommodate a sufficient number of seats for journalists. Depending on the public interest in a given hearing, larger courtrooms with more seats should allow for greater accommodation. The latter obviously depends on the circumstances and the availability of courtrooms. The presence of the media should, however, not exclude the participation of individual members of the public.

    Principle 14 ( live reporting and recordings in courts rooms)

    35. The live reporting or recording by the media of the voice or image of persons present at court hearings may have an undue influence on those persons. Witnesses may either be intimidated or attracted by cameras or the media, which might have an impact on their true reporting of facts. Victims may also feel intimidated by them. Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure as well as Recommendation No. R (97) 13 concerning the intimidation of witnesses and the rights of the defence refer to this phenomenon. For instance, pictures could be taken before the proceedings start. This being said, members States are entitled to take any legal provisions which they consider useful to protect certain categories of persons such as minors or handcuffed accused persons.

    36. Principle 14 draws the attention of member states to such a possible influence and recommends that live reporting or recordings by the media in court rooms should only be possible where expressly permitted by law or the competent judicial authorities. Such exceptional express permissions will provide a predictable and non-discriminatory legal framework. For instance, it might be determined that trials of historical importance can be recorded or filmed and possibly disseminated at a later stage. The same may be applied to criminal proceedings at a superior court instance, especially where such proceedings are a mere review of the law or essentially based on written submissions by the parties.

    Principle 15 (Support for media reporting)

    37. Judicial authorities may have an interest in supporting reporting about criminal proceedings by making available, upon simple request and where practicable, announcements of scheduled hearings, charges and other relevant information. Where they have such information, the media will be less likely to produce inaccurate reports which might have an undue influence on juries and lay judges or prejudice the presumption of innocence. Therefore, Principle 15 recommends providing such support in due time and where practicable. Such support should not be made subject to accreditation. During the proceedings, a representative of the court should be, as far as possible, available for the media in order to respond to their requests for clarification. Finally, journalists should be able to disseminate or communicate judgments to the public, without undermining the protection of privacy under Article 8 of the Convention of Human Rights.

    Principle 16 (Protection of witnesses)

    38. As mentioned above, media reporting about witnesses may have an intimidating effect on them, especially where the identity of a witness is disclosed. This might even be contrary to the witness protection under Recommendation No. R (97) 13 concerning the intimidation of witnesses and the rights of the defence. Therefore, Principle 16 recommends that the identity of witnesses should not be disclosed by the authorities to the media or by the media themselves, unless a witness has given his or her prior consent, the identity of a witness is of public concern, or the testimony has already taken place in public.

    Principle 17 (Media reporting on the enforcement of court sentences)

    39. Public scrutiny over the fair administration of justice is largely carried out through the media. The enforcement of court sentences is part of this administration of justice. Therefore, freedom of the media should include the possibility for journalists of having contacts with persons serving court sentences, as far as this does not prejudice the fair administration of justice, the rights of prisoners and prison officers or the security of a prison.

    Principle 18 (Media reporting after the end of court sentences)

    40. It is part of the fair administration of justice to allow for the re-integration into society of persons who have served their court sentences. Media reporting about cases and prisoners after the end of court sentences may prejudice such re-integration. Therefore, Principle 18 recommends that the right to the protection of privacy under Article 8 of the European Convention on Human Rights should include the identity of these persons and their prior offence, unless they and their prior offence are or have become of public concern. A simple anniversary of a crime would thus not be sufficient. However, persons and their offences may, for instance, be of public concern if those persons violate criminal law again or where their prior offence was a crime without a limitation period, such as crimes against humanity or genocide. The latter crimes are, for example, defined by the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes of 1974.

Note 1 The complete list of participants appears in the meeting report prepared by the Department (cf. document CDMM (2003) 11 add).
Note 2 Eu. Court H.R., Prager and Oberschlick v. Austria (1995), Series A, no. 313, para. 34.


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