Acquitted, but maybe still guilty. Trial by media and presumption of innocence.

Nicola Canestrini
Nicola CanestriniItalian criminal lawyer | canestriniLex.com at CanestriniLex - Canestrini Law Firm
“ACQUITTED. BUT
MAYBE STILL GUILTY”
Trial by media and presumption of innocence
Avv. Nicola Canestrini
BRUXELLES, 4 June 2019
Nov. 1st, 2007: A British student named Meredith Kercher was found dead
in Perugia, her throat slashed in a house she shared with American
student Amanda Knox. Amanda Knox and her boyfriend were arrested,
media coverage was extreme.
Acquitted, but maybe still guilty. Trial by media and presumption of innocence.
3 years Pretrial detention
Acquitted, but maybe still guilty. Trial by media and presumption of innocence.
“The international INTEREST on the case in fact
determined a sudden acceleration of ongoing investigation,
that, in the frantic search for somebody to
offer to the international public
opinion, certainly didn’t help the search for substantial
truth.”
Corte di Cassazione, ruling of 7 September 2015, n. 36080
“The trial had oscillations which were the result of stunning flaws, or
amnesia, in the investigation and culpable omissions in the investigative
activity”
A virulent press campaign
can (..) adversely affect
the fairness of a trial by
influencing public opinion
and, consequently, jurors
called upon to decide the
guilt of an accused
(ECHR, Kuzmin v Russia, 2010 § 62) 

Acquitted, but maybe still guilty. Trial by media and presumption of innocence.
EU DIRECTIVE
2016/343
ECHR Standard Fair
trial (art. 6)
CORNERSTONE OF FAIR TRIAL
Recomendation Rec
2003(13) Ministers
Committee COE
presumption
of innocence
Article 6 §2 cannot prevent the authorities from informing the public
about criminal investigations in progress, but requires that they do so
“with all the discretion and circumspection
necessary if the presumption of innocence is to be
respected"
ECHR, Allenet de Ribemont vs. France, 10 february 1995, 38
“No one can seriously doubt (..) that
uninhibited prejudicial pretrial
publicity may destroy the fairness of
a criminal trial”
U.S. Supreme Court Nebraska Press Assn. v.
Stuart, 427 U.S. 539 (1976)
“Member States shall
ensure that suspects
and accused persons
are presumed
innocent until proven
guilty according to
law”.
(16) The presumption of innocence would be violated
if public statements made by public authorities, or
judicial decisions other than those on guilt, referred to
a suspect or an accused person as being guilty, for as
long as that person has not been proved guilty
according to law. Such statements and judicial
decisions should not reflect an opinion that that
person is guilty.
PUBLIC REFERENCES TO GUILT (ART .4)
Member States shall take the necessary measures
to ensure that, for as long as a suspect or an
accused person has not been proved guilty
according to law, public statements made by
public authorities (..) do not refer to that person
as being guilty.
EU DIRECTIVE
2016/343
REMEDIES (art. 10)
Member States shall ensure that suspects and
accused persons have an effective remedy if
their rights under this Directive are breached
"It is of primary importance that public
statements do not prejudice a defendant’s
right to a fair trial.
The public interest in a fair trial is
fundamental and can override
other important principles such as open
justice and freedom of expression.” 
Media Protocol for Prosecutors, Crown Law, July, 1st,
2013 , principle 6
during trial
Ideas outside trial
ethic rules?
criminalization?
training?
data protection
authority?
..
retrial?
change of venue?
preliminary ruling to Lux?
compensation?
reduction of conviction?
…
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Acquitted, but maybe still guilty. Trial by media and presumption of innocence.

  • 1. “ACQUITTED. BUT MAYBE STILL GUILTY” Trial by media and presumption of innocence Avv. Nicola Canestrini BRUXELLES, 4 June 2019
  • 2. Nov. 1st, 2007: A British student named Meredith Kercher was found dead in Perugia, her throat slashed in a house she shared with American student Amanda Knox. Amanda Knox and her boyfriend were arrested, media coverage was extreme.
  • 4. 3 years Pretrial detention
  • 6. “The international INTEREST on the case in fact determined a sudden acceleration of ongoing investigation, that, in the frantic search for somebody to offer to the international public opinion, certainly didn’t help the search for substantial truth.” Corte di Cassazione, ruling of 7 September 2015, n. 36080 “The trial had oscillations which were the result of stunning flaws, or amnesia, in the investigation and culpable omissions in the investigative activity”
  • 7. A virulent press campaign can (..) adversely affect the fairness of a trial by influencing public opinion and, consequently, jurors called upon to decide the guilt of an accused (ECHR, Kuzmin v Russia, 2010 § 62) 

  • 9. EU DIRECTIVE 2016/343 ECHR Standard Fair trial (art. 6) CORNERSTONE OF FAIR TRIAL Recomendation Rec 2003(13) Ministers Committee COE presumption of innocence
  • 10. Article 6 §2 cannot prevent the authorities from informing the public about criminal investigations in progress, but requires that they do so “with all the discretion and circumspection necessary if the presumption of innocence is to be respected" ECHR, Allenet de Ribemont vs. France, 10 february 1995, 38
  • 11. “No one can seriously doubt (..) that uninhibited prejudicial pretrial publicity may destroy the fairness of a criminal trial” U.S. Supreme Court Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976)
  • 12. “Member States shall ensure that suspects and accused persons are presumed innocent until proven guilty according to law”. (16) The presumption of innocence would be violated if public statements made by public authorities, or judicial decisions other than those on guilt, referred to a suspect or an accused person as being guilty, for as long as that person has not been proved guilty according to law. Such statements and judicial decisions should not reflect an opinion that that person is guilty. PUBLIC REFERENCES TO GUILT (ART .4) Member States shall take the necessary measures to ensure that, for as long as a suspect or an accused person has not been proved guilty according to law, public statements made by public authorities (..) do not refer to that person as being guilty. EU DIRECTIVE 2016/343
  • 13. REMEDIES (art. 10) Member States shall ensure that suspects and accused persons have an effective remedy if their rights under this Directive are breached
  • 14. "It is of primary importance that public statements do not prejudice a defendant’s right to a fair trial. The public interest in a fair trial is fundamental and can override other important principles such as open justice and freedom of expression.”  Media Protocol for Prosecutors, Crown Law, July, 1st, 2013 , principle 6
  • 15. during trial Ideas outside trial ethic rules? criminalization? training? data protection authority? .. retrial? change of venue? preliminary ruling to Lux? compensation? reduction of conviction? …