CCPE-GT(2013)2

Strasbourg, 15 March 2013

WORKING GROUP OF THE

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE-GT)

ANALYSIS OF REPLIES TO THE QUESTIONNAIRE CIRCULATED WITH THE VIEW TO PREPARATION OF THE OPINION No. 8 OF THE CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS RELATIONSHIP BETWEEN PROSECUTORS AND MEDIA

Document prepared by the Secretariat

Directorate General I – Human Rights and Rule of Law

INTRODUCTION

The Consultative Council of European Prosecutors (CCPE) has been instructed to adopt in 2013 an opinion (No. 8) on the “Relationship between prosecutors and media” for the attention of the Committee of Ministers of the Council of Europe. A preliminary version of the questionnaire, prepared by the Secretariat for this purpose, was discussed in the course of the 7^th plenary session of the CCPE (26-27 November 2012 in Strasbourg). The plenary session set up a Task Force in order to prepare the final version of the questionnaire  consisting of the following members of the CCPE Bureau: Mr Cédric VISART DE BOCARME (Belgium), Ms Alessandra GIRALDI (Denmark) and Ms Raija TOIVIAINEN (Finland). Thefinal versionof the questionnairewas thus prepared and approved by the CCPE Bureau. It was then distributed to the CCPE members representing all member states of the Council of Europe.

The present document provides a summary of the replies to the questionnaire by the member states.

STRUCTURE OF THE SUMMARY

The questionnaire consisted of 36 questions related to all relevant aspects of the relationship between prosecutors and media, starting from legislative and regulatory framework to institutional system, mechanisms, procedures and operational experience. It also expands upon relevant policy issues as well as training and professional ethics of prosecutors and journalists. The questions are thus arranged in five sections, as follows:

 

a)    Existing legal provisions and regulations.  

b)    Organisation of communication.

c)    Proactive media approach of the prosecution service.

d)    Professional training of prosecutors and journalists, their ethics, conduct and means of communication.

e)    Regulation of media activities.

f)     Other information.

This summary[1] follows the same structure and order of questions under each section. It  analyses the replies received from member states, and highlights in a summarised way the most common legislative and institutional models and their respective operational experiences. The summary goes further and classifies such legislative and institutional models as well as draws general conclusions. At the same time, the summary does not intend to cover all particular situations and modalities in the member states, but gives an overall picture.

SUMMARY

A.  Existing legal provisions and regulations

1. The different aspects of relationship between prosecutors and media are determined by different laws in the member states, including the Constitution. Such relations are also regulated by internal regulatory instruments, for examples, Orders and Instructions by the Prosecutors General, Rules of Conduct, and other normative documents.

Such legislation and internal instruments take into account several important points:

a) the right to information which is usually guaranteed by the Constitution, and the resulting legislation like the Law on Free Access to Information or the Law on Freedom of Information and principles of openness of state institutions towards the public, including the media. In this context, the prosecutors are obliged to provide media with information. Such obligation is however subject to a number of serious restrictions;

b) the right to personal data protection guaranteed by the Law on Data Protection, Criminal Procedure Code, Public Prosecution Act as well as numerous internal institutional norms regulating the activities of the prosecution services. Such legislation and sub-legislation is based on the respect for private and family life and requirements of the presumption of innocence. The need to protect the rights and lawful interests of minors is especially important in this context;

c) the necessity to provide for the independence of the prosecution services from any undue influence and guarantee the effectiveness of its work, including through prohibition of disclosure of any information at the stage of pre-trial investigation. Such necessity is also regulated by the above-mentioned legislation and internal regulatory instruments.

2[2]. In many member states, the prosecutors may have direct relations with media[3], however this usually, but not necessarily, applies to the heads and deputy heads of the prosecution offices. In other countries, it is usually a spokesperson and/or press and information section who may communicate with media[4], however, exceptions may also apply, like in the case of Romania (see below in the country specific comments). It seems that in some countries, both prosecutors and spokespersons may communicate with media, depending on the case, or there are prosecutors who may act as spokespersons[5].

Country specific comments

In Albania, the law forbids the prosecutors, except in specific cases after having obtained the authorisation of the Prosecutor General, from making public or providing data to third persons, given that it might undermine the case in a process of investigation or trial, as well as from disclosing data with confidential and reserved character. In Armenia, an interaction with media is provided by the Adviser of the Prosecutor General on the issues of cooperation with media. By the order of the Prosecutor General, the adviser is authorised to make official announcements, comments or press releases in the name of the prosecution office. In separate cases, other officials authorised by the Prosecutor General can make announcements as well. In Austria, according to the “Media Order” of the Ministry of Justice, only press relations officers, who are also public prosecutors, and the heads of the public prosecution offices and their deputies may have direct contacts with media. In Belgium and France, the prosecutors themselves communicate with media. In Bulgaria, the relations with media are carried out primarily by the spokespersons of the relevant Prosecutors’ Offices who are active prosecutors themselves. In Czech Republic, the chief public prosecutor of each office is responsible for such relations, and it is up to his/her decision to either nominate a spokesperson or let prosecutors communicate directly. In Denmark, prosecutors are in fact encouraged to interact actively with the media, and usually the prosecutor participating in the court proceedings is also responsible for the contact with the media. In England and Wales, prosecutors are authorised to speak to the media about particular issues/cases as agreed with communications staff, and with the support of a press officer. Press engagement is encouraged, particularly among senior Headquarters staff and the Chief Crown Prosecutors who head up the Crown Prosecution Service Areas. In Finland, an approach similar to that in Denmark is applied, where each prosecutor communicates with the media about the cases he/she is dealing with. In Georgia, the chief public prosecutor of each office is responsible for such relations, and it is up to his/her decision to either nominate a spokesperson or let prosecutors communicate directly. In Germany, the prosecution offices and the Federal Public Prosecutor General maintain a press office or at least a press spokesperson. In Italy, frequently, with a reference to relevant cases, press conferences are held by the chief prosecutor (or by the vice-chief prosecutor in the larger offices). In Latvia, communication is mainly organized via Press Secretary, who is employed by the Prosecution Office directly under the Head Prosecutor of the Department of Analysis and Management of the Prosecutor’s General Office. In Liechtenstein, the Prosecutor’s Office has a spokesperson, who currently is the Chief Prosecutor. Prosecutors do not communicate themselves on their own cases. In Monaco, only the prosecutors may communicate an information, and it is the Prosecutor General who does this, without any authorisation or control. In Norway, in general, the prosecutor in charge of a criminal case is also handling the communication. A couple of offices have an information officer who is not a prosecutor. This person gives advice, but does not serve as a spokesperson. In Portugal, a Press Bureau has been created in the Office of the Prosecutor General charged with communication with media and some other functions. In Romania, the Order of the Prosecutor General stipulates that prosecutors shall supply information to the mass media only through the Public Information and Press Relations Bureau or through the spokesperson. However, there might be an exception where a technical public presentation is required by the prosecutor for the correct understanding of the respective case. In Russian Federation, the prosecutors have a right to direct relations with the media, however, the transfer of the information on specific cases is possible solely within the framework of the competences of the Prosecutor’s Office as a whole, observing certain procedures that guarantee the rights and freedoms of a person and a citizen, the interests of the public and the state and according to the official positions of certain officials. In Slovakia, the task to provide true, timely and universal information to the public is fulfilled by the Press and Information Section at the Office of the General Prosecutor and also by the appointed prosecutor in each Regional Prosecution Office. In Spain, the general rule is that, in every office, there is a prosecutor responsible for the relationships with the media, but it doesn’t prevent the possibility of every prosecutor having a personal relationship with the media if he/she follows the general rules about communication. In Sweden, the Code of Judicial Procedure states that all prosecutors make decisions independently, under full personal liability. Therefore, all prosecutors are responsible for communicating with the media in their own criminal cases. In Turkey, in line with the circular #33 of the High Council of Judges and Prosecutors, in order to inform public about the investigations and proceedings conducted by judicial authorities, it is envisaged that (1) the Public Prosecutor (wherever assigned as a spokesperson) and (2) Chief Public Prosecutors (where no spokesperson assigned) will hold the press releases verbally or in writing about the investigations.

3. In addition to prosecutors, usually the police (or other investigative body), lawyers and courts may communicate, each within the framework of their competence, with media. However, the level and extent of such communication is subject to general limitations and restrictions which apply to prosecutors (see above). In the course of pre-trial investigations, usually the prosecutor offices control the confidentiality of the documents and proceedings and they may or may not authorise the police to communicate with media. The lawyers, in addition to the requirements of the confidentiality of pre-trial investigations, are bound by their own professional rules and regulations.

 

4. All the respondent states indicated that their prosecution services have carried out joint press conferences and other public events with the police or other investigative bodies (such as tax authorities, for example) as well as with the courts and other state institutions such as central or local executive power bodies. Sometimes such joint press events have been a result of the work of joint inter-agency investigative teams[6]. However, in different countries, the practice of such joint events is different depending on high-profile cases and the level of public interest. Therefore, as this happens on a rather case-by-case basis, there is no general trend which can be identified in this field.

5. As regards during which stage of criminal procedure can prosecutors communicate the information (e.g. pre-trial investigation (including formal accusation), the court proceedings and the situation after the judgment), the general cross-cutting rule in all respondent states is that the requirements of the confidentiality of pre-trial investigation and respect for presumption of innocence, as well as protection of personal data at all stages, especially in the cases involving minors, must be observed in all cases. In some member states, communications can be carried out at all stages of criminal procedure[7]. In others, they can take place during pre-trial investigation (including formal accusation) and at the moment of sending the case to the court[8]. In some countries, there are no clear rules, for example, in Norway, where the right to provide information depends on the circumstances, and particularly on the type of information and the purpose of giving it. Furthermore, in Sweden, it is the prosecutor responsible for the investigation who decides when and what to communicate. This principle is valid from the beginning to the end of criminal procedure.

6. As regards whether the judges are authorised to inform the press, and during which stage of the procedure, the general rule is that the relationship between courts and media is independent from the one between the prosecutors and media. First of all, usually the court sessions are open (but of course there are important exceptions), therefore they can be visited by media representatives. Secondly, the courts in all respondent states may communicate relevant and non-confidential information (no opinions about the case may usually be communicated) concerning court proceedings to media. However, such practices considerably vary from one state to the other, depending on whether the judges communicate directly[9], and if yes, which kind of judges are allowed to do that[10], or if the judicial press officers or spokespersons fulfill this function[11]. In Italy, no specific provisions are given in this respect, and judges usually do not inform the press. Press releases are however given after important judgments, to avoid misinterpretation of the results by the public. In Spain, there is no general rule, and judicial authorities use institutional communication services in order to give information to the media. In Sweden, no particular authorisation is required. However, the judges, like prosecutors, are bound by the regulations concerning secrecy.

7. The absolute majority of respondent states indicated that there is no external supervision of the relationship between prosecutors and media[12]. The internal hierarchy in the system of prosecutors’ offices is responsible for controlling the communications with media. In addition, the rules of conduct and rules of ethics for prosecutors regulate this relationship, for example in France.

Refusal by the prosecutor office to give an information may be appealed to the higher internal authority or to the court. In some member states, prosecutors are particularly encouraged to communicate with media, like in Denmark, where the Director of Public Prosecutions has issued guidelines on how to interact with media.

8. In all respondent states, there are constitutional norms, relevant laws and internal rules which protect privacy, human dignity and presumption of innocence. The same norms protect from the phenomenon of “trial by press”. They are fixed in the laws on data protection and access to data, criminal procedure codes, legislation on the law enforcement bodies, public prosecution, judicial system and media as well as in a plenty of internal regulatory instruments.

9. The public prosecutors who break the rules or regulations of communication with media, are subject to liability in all respondent countries. However, it depends on a particular case what kind of liability should be imposed on the prosecutor in question. First of all, the question is whether his/her actions constituted a criminal offence. If the actions of the violating prosecutor cannot be qualified under criminal law (abuse of power, violation of secrecy or other applicable articles), then he/she will be imposed administrative or disciplinary liability. The latter is the most frequent type of sanction for the prosecutors violating the media communication rules. Disciplinary sanctions may include warnings, reprimands, fines, dismissals or other sanctions, depending on the gravity of the action, its intentional character and consequences. Then the question is what kind of damage was made. Depending on that, the question of civil liability will be decided.

10. As regards the security risks caused by disclosure of information concerning the prosecutors and the cases, the respondent states repeat the answers to the previous question and underline that violation of the rules of interaction with the media entails criminal, administrative, disciplinary or civil liability, if corpus delicti of the relevant violation is found in the actions of the prosecutor. The confidentiality rules for the investigation exist in all respondent states, and criminal or disciplinary liability is envisaged for their violation, however sanctions vary depending on the state and also depending on the particular case (disciplinary sanctions are the most frequent ones).

A couple of respondent states underline that, while the prosecutors are obliged to keep the secrecy of investigation, the defendant and other persons involved in the proceedings (victim(s) etc.) are not obliged and they have no difficulty in giving the information to media[13]. Although the other respondent states do not refer to this issue, it seems probable that the same situation prevails in them to a various extent.

Normally the rules of communication with media refer to the security risks[14], and this aspect may be included in the training programmes for prosecutors[15].    

As regards the security risks putting in danger the prosecutors themselves, normally the contact and other personal information of prosecutors are kept secret. If security risks occur, a threat assessment may be made and the case can be assigned to several prosecutors. The prosecutor in danger may be placed under protection[16].

11. The respondent states reported that there are no provisions set forth to forbid publishing a public prosecutor’s or a judge’s name when he/she is in charge of a case. However, in Bulgaria, as regards particularly the prosecutors, if the latter in a particular case does not want to disclose his/her name in order to avoid being harassed by media or he/she does not want to communicate with media, or for personal reasons, the spokesperson of the prosecution service usually complies with such request.

B.  Organisation of communication

12. The prosecutors communicate with media by means of press releases, press conferences, interviews, publications in the websites of the prosecutors’ offices, drafting reports, information materials, books and brochures, participating in conferences, seminars, round table discussions and other public events, by telephone, e-mail, use of social networks. In some countries, specific means of communication prevail, while the others are used less frequently[17]. Normally, the communication with media is an ongoing daily work by telephone and e-mail. Press releases, information in the websites of the prosecutors’ offices and interviews are also quite frequent. Other types of communication as mentioned above also take place, especially in cases of public interest.

The communication via social networks (twitter, facebook etc.) does not take place in some countries[18].

13. Press conferences or other releases can be made by prosecutors in cases of international investigations in the respondent states, with one exception[19]. However, in some countries it is mentioned that they are very rare[20]. In other countries, this is not mentioned, however it can be presumed that such events are also not frequent.

In some countries, the procedures in such cases are the same (this is expressly mentioned by the respondent states) as those followed with the cases within the national territory[21], with due regard to the sensitivity of such cases. Other countries do not mention any formalised procedures either, however, it can be presumed that press conferences in cases of international investigations are treated with more caution than ordinary national press events.

14. In all respondent states, the communication is established with all media: newspapers, television, radio, online agencies in the internet etc. Such communication is based on the requirements for the prosecutors to treat media and journalists equally and fairly. This means public information is given to every media requesting it irrespective of its capacities, opinions and other aspects.

15. There are no regulations in the respondent states prohibiting public prosecutors to give an advantage to single journalists (and/or leaving out some of them), with some exceptions[22]. However, in practice, advantages should not be given to single media or journalists, since this would create dependence and expectations for a “special support” and would have harmful effects for the independence of media. It may also violate the rules of ethics of prosecutors. It is the duty of all press relations officers to inform media in a correct, objective and impartial manner.

Some countries report that giving such advantages could be seen as a disciplinary offence[23].

However, it is normally possible to have intense contacts with single media and professional journalists who are specialised in the field of crime and investigation. Also, in cases of concrete questions from a certain journalist, information is provided only to the latter.

16. In many member states, the prosecutors may have direct relations with media[24], however this usually, but not necessarily, applies to the heads and deputy heads of the prosecution offices. In other countries, it is usually a spokesperson and/or press and information section who may communicate with media[25], however, exceptions may also apply, like in the case of Romania. It seems that in some countries, both prosecutors and spokespersons may communicate with media, depending on the case, or there are prosecutors who may act as spokespersons[26].

The above outline is incorporated into the summary of responses under the question No. 2 and is reproduced both under this question (No. 16) and the question No. 2.

The further country-by-country summary of responses to this question (No. 16) is incorporated into the summary of responses under the question No. 2 in order to provide for uniformity and is reproduced only under the question No. 2 (please refer there).

 

17. The journalists in the respondent states are free to communicate with prosecution services, and normally there are no restrictions. Special authorisations are not required either. Usually there are no specific rules on the part of media to enter into communication with prosecutors. They communicate via different means, including representatives of media, specialized journalists etc., however the media is free to choose whatever methodology of the communication which it considers effective and responding to the requirements of their work.

18. As regards the kind of information which may be disclosed (names of parties, witnesses, prosecutors, certain facts disclosed due to an investigation, whether or not linked to the case), the practices in different member states significantly vary, therefore it is difficult to make classifications. However, one overarching consideration is the respect for private and family life, other fundamental rights, the presumption of innocence and confidentiality of pre-trial investigation.  

Country specific comments

In Albania, information becoming public is assessed case after case. The names of the defendants may be published, but only after the request for trial has been sent to court. Exceptionally, names of the defendants are not made public when they are minors. In Armenia, the volume of the publicised information is determined by the body implementing the proceedings, and it cannot be made public if it can harm the objectiveness and comprehensiveness of the preliminary investigation, the security of participants of the trial, the presumption of innocence, breach other people’s rights, honour and dignity, personal and family life. In Austria, in general names and personal details of parties, witnesses, prosecutors etc. are not disclosed. Only in cases of special public interest, the names of these persons, especially of suspected persons, are disclosed, if the names are already known by the public and the disclosure does not harm the on-going investigation. In Belgium, it depends on each prosecutor who however must respect all legal provisions related to the protection of privacy and presumption of innocence. In Czech Republic, an information which could hamper the investigation should not be disclosed. The Criminal Code also prohibits publishing of the information leading to disclosure of identity of an accused, a victim, a witness and participating persons with a special regard to juveniles. In Denmark, as a principal rule, the names of the defendant, the witnesses and other persons involved in a criminal case are known to the public. However, if there is a risk that a publication of the identity may put those persons in danger or cause an undue invasion of privacy, the judge may grant an injunction against the media publishing the names, addresses and positions of the defendant, the witnesses etc. In England and Wales, the Press Office will routinely disclose: a) the names of defendants and the offences that they have been charged with; b) the reasons for a decision to charge/not to charge (when legally appropriate); c) the reasons for actions taken in particular stages of a case (when legally appropriate); d) brief details of the allegation – where and when it occurred, the damage caused, etc.; e) details of relevant policy. In Finland, during the pre-trial investigation and before a prosecutor has decided whether to pursue a case or to waive charges, the name of the suspect must not be disclosed to third parties. When the prosecutor has made the decision, the name of the accused (or the person against whom charges have been waived) is public. The offence for which a charge has been brought (the category of the offence charged) and the court in which the case is to be heard are also public. In France, there are no rigid rules and the kind of information which may be disclosed is decided on a case-by-case basis, however it is prohibited to disclose the identity of minors. In Georgia, an information which could hamper the investigation should not be disclosed. In Ireland, individual cases are not discussed. In Latvia, the names of parties, witnesses and prosecutors are not disclosed without their consent. In Liechtenstein, this depends on the kind of case and its facts. Generally neither names of parties, witnesses or prosecutors are disclosed. In Monaco, an information is disclosed when it does not put in danger the effectiveness of the investigation. In Norway, there are no absolute regulations on what sort of information can be given. Names of parties and witnesses are normally not disclosed. In Portugal, an information which endangers the fundamental rights cannot be disclosed. In Romania, the law provides exceptions to the communication of certain information in order not to jeopardize the results of the investigation. In the Russian Federation, an information which is not prohibited by law, including the names of the parties, witnesses, prosecutors, facts, which are disclosed as a result of investigation and which are connected or not with the case, may be disclosed. In Slovakia, law enforcement bodies and court inform the media about criminal proceedings according to the Code of Criminal Procedure. While doing so, they have the obligation to protect classified information, bank, trade, tax, mailing and telecommunication secrecy. In Spain, there are not specific limits except those related to the presumption of innocence and the fundamental rights (honour, privacy) of the parties involved. In Sweden, it depends on the circumstances. The names of involved persons will, normally, become public as soon as the prosecutor submits the indictment. However, prosecutors, even after the indictment, usually avoid disclosing names if it is not absolutely necessary. In Turkey, since there is not a specific regulation determining the principles of prosecution and media, the problem is tried to be solved through the general provisions. In this regard, the information not to infringe the privacy of the investigation and the right of privacy can be shared with media. The names of the parties and witnesses are not revealed in the implementation. By indicating certain facts within the scope of the investigation, the evidences are correlated with the investigation.

19. In some countries, particularly in Denmark, Finland, Norway and Sweden, there is a distinct official policy encouraging prosecutors to respond to the needs of media. In addition, there are strategies and communication plans developed in this respect. In other respondent states, notably in Belgium and France, as well as in the majority of others, the prosecutors are also encouraged to respond to media inquiries within the limits of the applicable legislation. In Czech Republic, for example, providing the public with information through media is obligatory under the provisions of the Code of Criminal Procedure.

However, even though the prosecutors are usually encouraged to respond to media inquiries, the guidelines or specific regulations to this effect do not exist in some respondent countries[27].   

20. The prosecutors’ communications with media are monitored or addressed in one way or another in the majority of respondent states, with some exceptions[28]. However, the extent of such monitoring and the concrete methodology, for example using the feedback from the public, communication surveys or other measures, vary from one state to the other.

In Denmark, for example, the Director of Public Prosecutions has established a central media unit that evaluates the efforts and achievements with regard to media contacts. In Slovakia, press spokespersons and regional spokespersons carry out systematic monitoring of the communication of prosecutors with media. Daily press monitoring is available to prosecutors and if necessary, they have the possibility to publish their response in reaction to information in media. In Sweden, professional media monitors are used and communication surveys are carried out regularly.

C.  Proactive media approach of the prosecution service

21. In those countries, where a distinct official policy encouraging prosecutors to respond to the needs of media has been developed, there is also a distinct media proactive approach[29].  The prosecution services in the majority of other respondent states, with some exceptions[30],  have also developed either a systematic methodology of communications or a proactive media approach.

For example, in Albania, the prosecution body regularly distributes decisions of prosecutors in cases of public interest (with the exception of elements that might affect the development process or life of minors, of third physical/juridical persons, etc.). In Czech Republic, the Supreme Public Prosecutor’s Office publishes its reviews in its website, organises regular meetings with journalists, press conferences and promotes prosecutors’ visibility with the aim to increase public awareness of their work. In England and Wales, the Crown Prosecution Service is committed to openness and transparency, and is often accountable to the public through the media, endeavouring to explain its decision making and fulfil requests for information where possible in order to build confidence in the organisation, particularly among victims and witnesses. In Hungary, in addition to the answers given in reply to the occasional requests of the media, the Chief Prosecution Offices issue regular press releases on criminal cases of high importance. In Italy, it is usually done with press conferences on the occasion of the provisional arrest of the defendant(s) in relevant cases. In the Russian Federation, the Prosecutors’ Offices have developed and carried out a proactive media approach by open and public reporting of its activities in the Internet, press, TV and radio. In Slovakia, the Public Prosecution Service has proactive approach to the media and it selects cases which are appropriate for publication. It gives press releases to media, it reacts to articles regarding Prosecution Service published in printed media, it organises briefings and discussions.

22. In all the respondent states, the prosecution services have developed activities to explain the work of prosecutors to the general public and media and to inform them about recent developments. Such activities include open days in prosecutors’ offices[31], periodical meetings with media representatives, “press breakfasts”[32], websites, information brochures, joint seminars with media, press releases and announcements, press conferences, lectures and presentations, legal opinions, teaching materials, handbooks, feedbacks on media activities, annual reports, strategy documents and policy statements, interviews, bulletins and other awareness instruments and events.

23. In the majority of the respondent states, with some exceptions[33], thecommunication with media can be used as an investigative tool. Most frequently, it is used to search for persons (suspects, accused or missing persons) and distribution of identikits, or for calls for witnesses of criminal acts.

In Ireland, for example, TV programmes are broadcasted where the assistance of the public is sought in relation to crimes highlighted in the programme. The assistance may include an appeal for general information or assistance in identifying individuals shown in a recording of the crime or identikit shown in the programme.

Other types of assistance sought from media is publishing images with the aim of gathering information from the public (respectively, a video registered on the scene of the murder and photographs of the disappeared children). The materials published in the media may serve as an evidence for starting an investigation. With a due consideration of the right to privacy, information – also e.g. pictures of a perpetrator or a crime – can be communicated to the media in order to prevent danger, solve a crime or promote the observance of law

The statements, distributed by the prosecutors’ offices, should be accurate, unbiased and should not contain confidential information.

D.  Professional training of prosecutors and journalists, their ethics, conduct and means of communication

24. Prosecutors are trained on the requirements of the European Convention on Human Rights (ECHR) as regards freedom of expression and access to information in the majority of respondent states, with some exceptions[34]. In some countries, professional training (initial and continuous) including the ECHR standards is compulsory for all prosecutors[35].

25. In the majority of respondent states, with some exceptions[36], the prosecutors are trained on how to interact with media.

26. In some member states, there are either periodic meetings with journalists (Albania), or training for journalists on how to interact with the prosecution services and/or court reporting (Armenia, Belgium, Bulgaria, Croatia, Denmark, England and Wales, France, Hungary, Portugal, Russian Federation, Slovakia, Sweden), or guidelines developed to this effect (Romania). Many respondent states have indicated not having information on this subject.

27. In many member states, there are joint training events of various nature organised for journalists and judges and prosecutors in order to help them to better understand each other’s role and support each other[37].    

28. In some member states[38], there are associations of media and journalists which are competent to a different extent to regulate their interaction with the prosecution services. Associations in the Czech Republic and Georgia do not play a special role in communication between the prosecutors and the public.

E.  Regulation of media activities

29. In many respondent states, there is a body that regulates the activities of media or deals with the complaints lodged against media: in Albania - the National Council on Radio and Television; in Armenia – Council of Information Issues; in Austria - the Austrian Press Council; in Croatia – the Croatian Media Board; in the Czech Republic - the Council for Radio and Television Broadcasting; in Denmark - the Danish Press Council; in England and Wales – the Press Complaints Commission; in Finland - the Council for Mass Media; in Germany - the German Press Council (“Deutscher Presserat”); in Hungary - the Media Council; in Latvia – the Ethics Commission established by the Association of Journalists; in Romania - the National Audiovisual Council; in Slovakia - Broadcasting and Retransmission Board; in Sweden - the Press Ombudsman and the Swedish Press Council).

30. In the cases concerning defamation, libel or slander, the person who suffers non-property damages has the right to claim compensation within the framework of a civil lawsuit which he/she initiates. As regards administrative or criminal responsibility, it may take place if qualified accordingly under the provisions of relevant legislation. The respondent states have reported that either it is the victim who must initiate the criminal proceedings and pursue the accusation (private prosecution)[39], or it is the prosecutor[40].

Country specific comments

In Armenia, insult and slander were decriminalised in 2010. In Austria, the offences of defamation and slander can be prosecuted only by the victim, and the crime of libel is prosecuted by the public prosecutor.     In England and Wales, libel is a civil matter in which the prosecution has no involvement. In Norway, defamation (libel/slander) is only subject to public prosecution when the victim so requests and it is also required in the public interest. In practice, public prosecution does not take place anymore. There is in principle a right to private prosecution in defamation cases, but such cases are rare. In 2005, a new penal code – not yet in force – was adopted. In this code, defamation is no longer a crime. In Romania, the offences of insult and calumny were expressly abolished in 2006. In Sweden, the libel and slander are crimes. However, they are subject to public prosecution only under certain circumstances.

31. In general, the journalists are subject to criminal or administrative liability and penalties provided by law on the same basis as all other persons, taking into account the specifics of each case.

32. Measures such as seizure or prohibition of publications may usually be taken within the framework of respective criminal procedures and usually by the court. The respondent states indicated that there is no censorship of any kind. Prosecutors do not have any general supervising role over media. They may intervene only in cases of unlawful criminal actions of journalists.

33. If a prosecutor is criticized by media for reasons connected with the criminal proceedings, the prosecutorial associations may intervene in some respondent states[41].

34. As regards the prosecutor being bound by a duty of discretion even if a media campaign has been started against him/her, the respondent states indicated that the fact that the media started a campaign against a prosecutor does not give the prosecutor the right to disclose any confidential information that, by law, must be kept secret. Obligation of secrecy is regulated by law, and therefore cannot be differently explained depending on the media campaign or other external factors.

35. If there are improper media attacks against the prosecution service or individual public prosecutors, the institutions, different from public prosecutors’ associations, having the power to reply may include labour unions (Austria), Ministry of Justice (Belgium and France), Press Council (Germany), the High Council for the Judiciary (Italy), trade union of magistrates (Monaco), Superior Council of Magistracy (Romania), High Council of Judges and Prosecutors (Turkey). In general, the hierarchy of the prosecution system may intervene.

F.   Other information

36. As regards other information or comments about the communication between prosecutors and media, Italy noted in particular that the prosecution service usually gives public information on relevant cases only in the initial stage (in particular when provisional arrest is enforced). The private parties, on the contrary, keep constant contacts with media throughout the whole proceedings (investigation, trial, appeal). This can lead sometimes to a somehow “unbalanced” public information. Another difficult issue is the excessive presence of some public prosecutors at the media stage, which can lead to an overexposure not only of a single public prosecutor, but also of the prosecution service as a whole in front of the public opinion. Another problem is the quite frequent violation of the confidentiality during investigations. For example, intercepted conversations are sometimes improperly published.

CONCLUSIONS

The relationship between prosecutors and media is a permanent process of improvement of professionalism of both professions and development of their cooperation within the framework of relevant legislative and internal regulatory instruments.

For media, the aim of development of such cooperation is a higher level of awareness of the activities of the prosecution services and free and unhindered access by the population to relevant information supplied in a timely and effective manner by media.

For the prosecution services, the aim of such cooperation is the reinforcement of the transparency of the work of prosecutors in line with European standards, with due regard, however, to personal data protection, privacy requirements, presumption of innocence as well as the necessity to provide for the independence of the prosecution services from any undue influence and guarantee the effectiveness of their work.

Therefore, improvement of professionalism of both professions is a necessary condition for balancing, on one side, the fundamental right to freedom of expression and information as guaranteed by Article 10 of the European Convention on Human Rights, and, on the side, 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.