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Trial by media, presumption of innocence and directive 2016/343.


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The Presumption of Innocence Directive covers the right not to be presented as guilty by public authorities before the final judgment.

Freedom of speech is the cornerstone of democracy, as presumption of innocence is the cornerstone of fair trial.

Published in: Law
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Trial by media, presumption of innocence and directive 2016/343.

  1. 1. “Acquitted. But maybe still guilty” Trial by media, presumption of innocence and fair trial Avv. Nicola Canestrini Fair Trials LEAP Annual conference Sofia, 9 - 10 March 2018
  2. 2. A virulent press campaign can, however, 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) 

  3. 3. 1. Yara Gambirasio Murder CASE: The fake video
 2. Amanda knox case (2007) a price to pay? 3. Loris Stival Murder prosecutors’ interview of a suspect .. on TV
  4. 4. 1. Yara Gambirasio Murder CASE: The fake video

  5. 5. 2. Amanda knox case (2007) A Price to pay?
  6. 6. “The trial had oscillations which were the result of stunning flaws, or amnesia, in the investigation and capable omissions in the investigative activity” “The international spotlight on the case in fact resulted in the investigation undergoing a sudden acceleration, that, in the frantic search for one or more guilty p a r t i e s t o c o n s i g n t o international public opinion, certainly didn’t help the search for substantial truth” Italian Supreme Court, ruling of 7 September 2015, n. 36080
  7. 7. 3. Loris Stival Murder prosecutors’ interview of a suspect .. on TV
  8. 8. “No one can seriously doubt, however, 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)
  9. 9. EU DIRECTIVE 2016/343 ECHR Standard Fair trial (art. 6) CORNERSTONE OF FAIR TRIAL cages in courtroom mug shots? Recomendation Rec 2003(13) Ministers Committee COE presumption of innocence media trial
  10. 10. Recomendation 2003 Ministers Committee COE on the provision of information through the media in relation to criminal proceedings (1) Information of the public via the media (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. (3) Accuracy of information (9) Right of correction or right of reply (8) Protection of privacy in the context of on-going criminal proceedings…
  11. 11. 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" Allenet de Ribemont vs. France, 10 february 1995, 38
  12. 12. The Court recalls that the presumption of innocence enshrined in Article 6 § 2 is one of the elements of a fair trial. It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty . .. The Court further recalls that it has found a breach of Article 6 § 2 of the Convention when prejudicial statements were made against an applicant, in the press, prior to his formal finding of guilt by persons acting as: police agents involved in the investigation, high-ranking police officers, Ministers, the Prime Minister, the Chairman of Parliament, the head of the press service of the Ministry of Internal Affairs and the Prosecutor General” ECHR, Mulosami vs Albania, 29864/03, 2013
  13. 13. “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
  14. 14. REMEDIES (art .10) Member States Member States shall ensure that suspects and accused persons have an effective remedy if their rights under this Directive are breached deadline: 1 april 2018 REc 2013/13 COE Principle 11 - Prejudicial pre- trial publicityWhere 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.
  15. 15. in trial remedies outside trial ethic rules? criminalization? training? data protection authotity? .. retrial? change of venue? preliminary ruling to Lux? compensation? reduction of conviction? …
  16. 16. "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
  17. 17. t @canestrinilex  g+ +canestrinilex f canestrinilex