Strasbourg, 4 December 2018
EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE
As adopted at the 31st plenary meeting of the CEPEJ
Strasbourg, 3 and 4 December 2018
Table of contents
1. This guide is intended for the use of courts and criminal prosecution authorities (public prosecutors and where applicable, investigating judges).
2. Its objective is to help them managing communications with the public and the media, mainly on the general performance of judicial institutions, existing queries about the institutions’ activities, specific claims and emergency situations.
3. It therefore deals with external communication and not with communication within the judiciary.
4. With regard to the communication from the judicial authorities, reference can also be made to the following documents:
- Opinion No. 7 (2005) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on "Justice and Society", adopted by the CCJE at its 6th meeting (Strasbourg, 23-25 November 2005) (cited: Opinion No. 7 CCJE).
- Opinion (2013) No. 8 of the Consultative Council of European Prosecutors on relations between prosecutors and the media, adopted by the CCPE at its 8th plenary meeting (Yerevan, 8-9 October 2013) (cited: Opinion No. 8 CCPE).
5. Among the three powers - executive, legislative and judicial – the judicial power is the least visible to citizens, mainly because it is the one that least intervenes in the public debate.
6. This characteristic may be for a good part explained by the fact that the members of the two other powers have to constantly justify to the electorate their activities, views and programmes. Political parties have always understood that in order to reach their constituency, they must employ communication strategies through all available means. In this respect, communication is in the DNA of political leaders who tend to devote time and effort in this exercise. Typically, judicial institutions are not subject to the same constrains because their 'customers' mostly have no choice to use their services or not. Magistrates are usually not subject to re-election and they feel less pressure to be identified by the public or to inform it about their work. In addition, magistrates are essentially subject to official secrecy about the cases they handle and, in any case, they largely and rightly feel that they should be discrete in their relations with the media.
7. As a result, justice might be rather unknown and misunderstood by the general public, politicians and the media, either with regards to the general running of judicial institutions, handling cases or in respect to the limits that the law imposes on pronouncements. For many people the function of justice remains obscure; moreover the use in courts of an impenetrable language does not help. However, in some European countries, the public tends to have a rather positive image of judicial institutions and might trust them better than politicians or journalists. The CCJE, in its Opinion No. 7, ch. 8, noted that: "The courts are, and the public accepts them as such, the appropriate place for the affirmation of legal rights and obligations and for the settlement of related disputes; the majority of the public respects the courts and believes in their ability to perform this function. However, the understanding of the role of justice in democracies - in particular the understanding that the judge's duty is to apply the law fairly and equally, without taking into account possible social or political pressures - varies considerably across countries and socio-economic models in Europe. The trust placed in the activity of the courts is therefore not uniform.
8. We live in a world of communication where the work of institutions is subject to constant public debate, and where criticism is expressed with less deference and more readiness than in the past. The parties to the proceedings and their lawyers, sometimes police officers or others, do not hesitate to comment publicly on ongoing cases and decisions.
9. In terms of image, nothing is taken for granted and justice cannot escape this trend. Every alleged mistake is likely to receive a broad attention with possible harmful consequences for the institutions and those who represent them. As a result, justice cannot, as it was in the past, confined itself any longer in an ivory tower, deliver judgements without taking into account how these will be received and understood, and look down at the people’ and media’s agitation with detachment and diffidence.
10. In the past, a defensive approach towards the media was seen as a good way to understand communication.
11. Today judges and prosecutors should know - and many are already aware of it - that they cannot escape the media coverage of an ever larger part of their activity and that judicial institutions, nolens volens, must face communication challenges.
12. This trend is also related to the growing need for transparency for all State activities. Transparency is vital for an efficient functioning of the justice system, since it empowers courts and public prosecutors with trust and respect of the public, and at the same time promotes a positive image. Public's trust in justice also depends on the understanding of judicial activity. This understanding is also a condition for the citizens' access to justice.
13. In its Opinion No. 8, the CCPE stated the following about this requirement of transparency: "Transparency in the performance of the prosecutor's duties is an essential component of the rule of law and one of the important guarantees of a fair trial. Not only must justice be done, but it must also be seen to be done. In order for this to be possible, the media should be able to provide information on judicial, criminal or other proceedings" (para. 30). "Applying the principle of transparency to the activities of prosecutors is a means of ensuring public confidence and the dissemination of information about their functions and skills. The image of the public prosecutor's office contributes significantly to public confidence in the proper functioning of justice. Giving the media the widest possible right of access to information on prosecutors' activities also helps to strengthen democracy and develop open interaction with the public" (para. 31).
14. The judicial world could seize the opportunity that “Journalist are partners and not enemies”, as mentioned in the communication concept of the Swiss Confederation's Prosecution Office. Journalists need information from judicial institutions and these can use contacts with the journalists to both explain their activity and strengthen their image.
15. The CCJE recognised that "the role of the media is essential to provide the public with information on the function and activities of the courts" (CCJE Opinion No. 7, para. 9). He also noted that "media professionals are entirely free to choose the subjects that can be brought to the public's attention and how they should be dealt with. It is not a question of preventing the media from making critical assessments of the organisation or functioning of justice. The judiciary should accept the role of the media, which, moreover, as observers outside the institution, can highlight dysfunctions and contribute constructively to improving court practice and the quality of services offered to users" (para. 33).
16. For the judiciary it is often possible to set a frame and conditions for such interactions, a frame where all respect official secrecy, particularly in the case of non-public proceedings, and makes it possible to respond to the requests of the media when these are legitimate. It is clearly necessary to maintain a balance between the dignity of judicial institutions and their representatives, which requires certain discretion, on one hand, and on the other hand the need for communication by appropriate and modern means.
17. Judicial institutions cannot simply improve their communication on ad-hoc basis, regardless of the purpose. On the contrary, communication should be part of a general strategy and it should:
· Inform the public, not only on the proceedings handled, but also on the judicial activity as a whole.
· Take into account the use of all available means of communication, including new technologies and related tools.
· Define the target audience for each type of communication (general public, specialised media, judges and prosecutors, politicians, lawyers, students, parties in proceedings).
· Identify the situations in which each target group needs to receive information.
· Define the message that the judicial authority wants to convey.
18. The most visible side of judicial communication includes the information offered to the public and media on the actual work of Justice in connection to specific cases, as for example the spreading of information about proceedings of specific importance, which are managed by judicial authorities. The interest of the public and the media for these proceedings might be stirred by the seriousness of events (blood crimes, large-scale frauds, etc.); the popularity of people involved (estate of a famous artist, criminal proceedings against public authorities, etc.); principles applied to specific situations (assisted suicide, clinical death, civil status of transgender, etc.); seasonal situations (offences committed during the summer in seaside resorts, etc.); and by other specific situations (particularly clever schemes, etc.). The media coverage of an event might also occur when less expected, because a journalist has shown an interest in the issue, or because someone has echoed a story on a social network. In all these situations, the public expects justice authorities to report on the issues, to provide all elements for the comprehension of the story, and even to confirm or invalidate information that is already of public knowledge.
19. Apart from specific proceedings, and in a broader perspective, the purpose of judicial communications could be that of asserting the role of justice in the society, and to explain the role and the general function of judicial institutions. Too often judicial power is seen as a 'minor' or less important power compared to the other powers (in some countries, for example, one speaks of 'judicial authority' instead of 'judicial power'). The executive and legislative powers occupy the media stage. Judicial institutions should demonstrate that for the effective function of society their contribution is not less important than that of the other powers.
20. At the same time, judicial communication can contribute in affirming the independence of judicial institutions, particularly when this is called into question. This may happen when politicians openly express their opinion on on-going proceedings, criticize judicial decisions, or take actions to set judges straight. It may also occur when politicians consider measures that might jeopardise the independence of justice, for example when they negatively alter the status of the judges or influence judicial staff career development. Thus, communication is a reminder of the principle of the separation of powers and its real implications.
21. Through a comprehensive communication, courts and public prosecutors can also promote the respect towards judicial institutions and their representatives. The justice system can only accomplish its role if the justice system, in general, and the magistrates, in particular, can rely on the respect of the institutions and their people. In this context, social actions might help the public in better understanding the complexity of judicial tasks, and the commitment of magistrates for a better quality of justice.
22. An appropriate communication also helps reinforcing – or restoring – citizens’ trust in judicial institutions, showing that the institutions and their members defend the general interest and ensure that decisions are taken within the limits of the law and within reasonable time-frames permitted by theavailable resources.
23. In the right context, judicial institutions may also take a public position on matters of interest to justice. This may involve informing the public on problems that directly concern judicial institutions (budget, working conditions, available resources, vacancies, judges' career development, statistics, etc.); deciding on legislative projects that could have consequences on the function of the institutions (judicial map reform, new procedure code, legislation on immigration, etc.); or explaining issues related to construction projects of new judiciary premises (eg: Neuchatel/Switzerland - project to build a new court which was submitted to public vote).
24. It may also be reasonable to say that judicial institutions and their representatives take a public position on issues related to public matters, regardless of on-going proceedings, and in order to inform the public and politicians about legal problems related to specific situations. For example, these might include the right to parenthood (surrogate mothers, adoption, etc.), or termination of life (organs transplants, living will, assisted suicide, life extension when the patient is in a state of cerebral death, etc.). The public involvement of judicial institutions can contribute to the identification of fair and practical solutions.
25. Judicial institutions can also contribute to citizens' understanding of the law, for example by clarifying for the public how legal provisions are applied or by giving some publicity to changes or additions to case law.
26. Overall, through suitable communication, courts and public prosecutors can preserve and strengthen the image of the justice system. This obviously implies to be present in the public debate and in the media.
27. The question is who, within the judicial institutions, is and/or should be responsible for the communication with the public and the media.
28. There is not a straight answer to this question since the choice depends on the object of the communication in question and on the specific circumstances. For example, if the responsibility to inform the public lays, as a principle, with the courts and public prosecutors that are directly involved in the specific proceedings, the approach is usually different for communication about the general judicial activity.
29. The aim of judges and/or prosecutors associations is to defend the interests of judicial institutions and, when necessary, individual magistrates.
30. Their public intervention is in particular justified on general matters concerning justice (budget, working conditions, career development, statistics, etc.), reminders about general principles (independence of justice, presumption of innocence) and other issues regarding legislative and social questions.
31. Professional associations can also play an important role in defending courts, prosecutors and/or single magistrates who have been publicly challenged in relation to specific proceedings, or on more general issues (court delays, integrity of a discredited judge, etc.).
32. In specific countries, a body is in charge of the administration of all the country’s courts.
33. These bodies may communicate - on behalf of all courts - on general matters and about topics pertaining to the administration and development of the courts. Possible fields of communication may be all the administrative issues, such as statistics, case handling time, number and subject of
cases, budgets and economy, etc. These bodies may also communicate about the system and the courts in matters interesting the general public, This can include programs towards schools, journalists, youngsters, etc., and general information about the justice system which might of use to witnesses and parties in proceedings.
34. Each court should be able to communicate about its organisation and function. Within this context, the court could inform the public of significant changes regarding its composition and provide statistical information on its activity (volume of incoming and closed cases, number of cases per magistrate, time frames to close cases, etc.).
35. Such publications may offer the courts the opportunity to attract attention on a specific situation which might jeopardize the correct administration of justice, in particular when it appears that the staff plan is insufficient or when vacant posts are not filled within reasonable time. They might also refer to an increase of new cases of certain nature, which might overload a court, or on the contrary the improvement of the clearance rate of cases.
36. A court should also have the possibility of taking a stance on specific situations regarding its entity, such as obsolete equipment, construction or renovation projects, or improvements in the organization of premises.
37. Regarding specific proceedings, courts may remind the public of the existence of fundamental principles, such as the independence of the judiciary (when pressure is applied on a judge) or the presumption of innocence (when the media neglect it). They may also choose to offer information to the public about current proceedings, always within strict limits, as we will see later.
38. The same principles apply, mutatis mutandis, to public prosecutors who however enjoy greater freedom in communicating about on-going proceedings.
39. As a principle, judges should not make public comments about their proceedings and the judgments they deliver, in order to maintain their impartiality (see below). However, they may intervene in the public debate with regards to other issues.
40. The position is different for public prosecutors as they may (and in specific systems, as in France, the law gives them the power to), during the investigation, inform the public when the situation justifies it. Prosecutors’ media statements are also possible during court proceedings, particularly when they bring objectivity to the public debate and when attorneys use the media to advance their arguments. As for judges, single public prosecutors can also openly comment on matters other than pending proceedings.
41. The advantage of communication coming from single judges and prosecutors is that these magistrates are familiar with the subjects under discussion. The disadvantage lies in the risk of inconsistent communication by the judicial institutions they are members of and different personal practices. For example, while some prosecutors are willing to meet the media and provide them with information, others are very reserved, make themselves inaccessible and tend to give little information. These different individual practices undermine the consistency of judicial communication and they expose the media to unnecessary difficulties. This situation feeds an unnecessary criticism towards the judicial system.
42. In order to ensure a consistent communication and to provide information for the media, some judicial institutions prefer to appoint a spokesperson. This is a designated person endorsed with media communication for a specific judicial entity, on general and/or specific matters.
43. This solution has the advantage of relieving magistrates from the tasks of media communication, and thus allowing them to fully devote their time to their judicial duty, strictly speaking.
44. In some countries, judicial bodies hire people with communication or similar skills to be responsible for media relations. They have the advantage of fully understanding communication techniques. In principle, they also provide an extensive knowledge of the media and how it works. In their previous experience they have already dealt with many journalists, and this can facilitate the relations in their role of spokespersons.
45. This solution seems to be only available to judicial bodies of a certain size, and whose budget allows this kind of disbursement. It also requires that the spokesperson becomes familiar with the judicial activity.
46. More often, the role of the spokesperson is awarded to a dedicated judge or prosecutor who, being relieved of certain other tasks, can devote the necessary time and effort to communication relations. In this case the spokesperson knows very well the functioning of the justice system, but he/she does not necessarily master the communication techniques, so it is necessary for them to undergo an appropriate training (see below).
47. In order to guarantee the rapidity of information, it might be necessary to arrange possible replacements.
3.6.3. THE ROLE OF THE SPOKESPERSON
48. In principle, the spokesperson is responsible for all communication activities on behalf of his/her judicial body. Therefore, he/she must be available to perform these tasks in order to be able to promptly respond to questions posed by the media.
49. He/she ensures a proactive, reactive, regular, accurate, sufficient, consistent and appropriate communication. The spokesperson identifies and meets specific communication needs, within the limits imposed by the law and the specific situation. This person also ensures that journalists are fairly treated (principle of equality among the media).
50. Where appropriate, the spokesperson shall also ensure the coordination of information with other services, bodies and people concerned (police, other State services, politicians, etc.).
51. In order to create or maintain a trustworthy and respectful relation between the judicial body concerned and the media, the spokesperson must maintain formal and informal regular contacts with journalists who usually follow the activity of courts and public prosecution offices. If there is an accreditation system in place, he/she will manage it with impartiality, without bias and in a transparent manner. Some courts and public prosecutors have set up a "Press Club" for interested journalists, within the frame of which they organise regular meetings, debates, etc.
52. In the event of recurring problems with certain media or journalists, the spokesperson may intervene to resolve the issues through discussions with the persons concerned and by proving all necessary clarifications.
53. Through regular contacts with single judges and prosecutors of his/her entity, the spokesperson will be regularly informed about the general functioning of this entity, on particular problems experienced by certain magistrates or courts and also on on-going cases which could be of interest to the media.
54. As a general rule, it is sensible that a spokesperson is directly responsible to the judge or prosecutor in charge of the judicial entity concerned (president of the court, chief prosecutor), who is in charge of supervising her/his activity. In particular, this supervision allows defining a coherent communication from the court or the prosecution service, in order to prevent discrepancies, and to offer a feedback to the spokesperson.
55. The CCJE advocates "the development of reception and communication services in the courts, not only to receive the public and guide users of judicial services, but also to contribute to a better understanding by the media of judicial activity" (Opinion No. 7 CCJE, para. 41).
56. For the CCJE, "this service, which judges should supervise, could thus have the following functions: to provide summaries of decisions to the media; to provide factual information on judicial decisions to the media; to be in contact with the media in relation to hearings that attract particular public attention; to provide factual clarification or correction on cases that have given rise to media relations.... The reception services or the court spokesperson could on this occasion specify for the media the legal issues and difficulties of the case in question, prepare the scheduling of the hearing, and make practical arrangements, in particular for the protection of persons participating in the hearing as parties, jurors or witnesses" (Opinion No 7 CCJE, para. 42).
57. The tasks that the CCJE would like to see assigned to a service can of course also be assigned to a spokesperson.
58. It may happen that two or more entities - judicial and political authorities, police - wish to communicate and communicate on the same subject, in particular in relation to the same ongoing proceedings.
59. In these circumstances, it is worth considering whether, in the concrete circumstances of the present case, it would be preferable for a single entity to handle the communication and for the others to refrain from public intervention. If so, the issue can be resolved through dialogue between the entities concerned. If an agreement cannot be reached, it may be necessary to refer the matter to the authorities to which the various entities are subordinate, so that the conflict of competence can be resolved.
60. Where public intervention by different entities can be justified, the dissemination of conflicting information should in any case be avoided through adequate coordination.
3.8. Training in communication techniques for judges and prosecutors
61. In the past, many judges and prosecutors have fallen into the trap of a poorly mastered communication, with negative consequences for the effective administration of justice and the image of the justice system in general.
62. Communication is a profession. Whoever is in charge, or takes care of it, must understand its complexity and possess all necessary tools. With the increase of means of communication and the subsequent speed of information, it seems increasingly risky to entrust media communication to judges and prosecutors trained 'on the job' only. Indeed, it is necessary to provide an appropriate training.
63. It is the responsibility of the judicial institutions to seek and offer proper communication training to judges and prosecutors. Even when such training was already delivered to them during their initial training period, it will be necessary to adapt it to the current situation. The training might include workshops intended for civil service executives, it can be aimed at judicial activity, or it might be a customised training course. Trainings might bring together judges and the media. Their participants will have a better understanding of judicial communication contexts (legal restrictions; the media and its function; media expectations and its limitations as for deadlines and so on), and of communication techniques (specific features, advantages and disadvantages, risks, and so on).
64. Of course trainings are not always free of charge and judges and prosecutors must find some time to attend it. This means setting achievable objectives and establishing an appropriate balance between costs and benefits for the attendees.
65. As a general rule, judges and prosecutors enjoy freedom of expression. The current notion of 'citizen-judge' implies that magistrates can participate in the community life and express their opinions, in private as in public, without unnecessary restrictions.
66. However, judges’ and prosecutors’ freedom of expression, when they act in their own capacity, is limited because of their specific status.
67. First and foremost, these limits come from the professional confidentiality to which they are subject, and which is regulated by the law (we will discuss below the extent to which judges and prosecutors, on specific procedures, can provide information to the public).
68. Limits to freedom of expression also come from general duties of confidentiality and dignity, to which judges are bound. Although each judge and prosecutor has the right to express their personal views on matters that may, or may not, be related to their judicial activities, they cannot, when they claim their official capacity, give the impression to the public that they would be partial, biased or lacking the objectivity or moderation necessary for the proper exercise of their office. While a judge or prosecutor might express a disagreement with measures proposed by politicians, it would be contrary to her/his dignity to do so using improper terms. Since this is a difficult exercise, some believe that the safest position for judges and prosecutors is to refrain from speaking publicly and as an individual about this kind of issues. On the other hand, there is no particular issue that could prevent the public intervention of the judicial institutions, a specific judicial body or association of judges and/or prosecutors, when the interests of justice are at stake. However, this must be done by not harming the image of serenity, objectivity and competence: all qualities that judicial institutions must guarantee to the public. As an example, this image is damaged when magistrates' associations express raging accusations on Twitter or inappropriately attack political leaders in a public rally.
69. The CCPE expressly recognized these principles, noting that: "Prosecutors also have the right to freedom of expression, while being subject to professional secrecy and a duty of confidentiality, discretion and objectivity. Prosecutors should pay particular attention to the risks that may result for the impartiality and integrity of the prosecution, when they appear in the media, in any capacity whatsoever" (Opinion No. 8 CCPE, para. 19).
70. Although twenty years ago judicial institutions had few means of communication, modern communication has increased the chances. Some judges and prosecutors are still reluctant to use new means of communication. This might be due to an insufficient understanding of these facilities and the risks of their usage. Nevertheless, these means do exist and it is worth exploring their relevance in judicial communication.
71. Below we will discuss the general means of communication used to inform about current proceedings and the general activity of judicial authorities. We will also describe some other means of communication in the chapter dealing with general information on the activities of justice.
72. The press release is and will remain an effective means of communication that can reach a great number of people, almost at the same time, with all information that the judiciary intends to circulate.
73. The press release is a document for the public prepared by the authority including facts, legal explanations and other considerations that the authority intends to share. The release should answer the journalists' six questions: who? when? what? where? how? why?
74. Texts are distributed according to the latest trends: from a fax distribution to editors registered on a pre-set list, we went to a multiple diffusion, sometimes still by fax, but also and most importantly by email, publications on Facebook, posts on Twitter, all means which allow to instantly reach a wider audience.
75. Among the several advantages of the press release, we can mention the following:
· Media equality: interested journalists have immediate and simultaneous access to the same information.
· Uniformity of given information: each recipient receives the same piece of information.
· Control of given information: publications include northing more and nothing less than what the legal entity wishes to communicate to the public.
· Reduced risk of distortions: in principle the media rely on the press release and if they publish – without a justification - a piece of information which is in contrast with the released text, a demand for correction of the news can be based on material elements (a journalist cannot claim that the alleged information mentioned by the judicial authority was not the news actually given).
· Reduced risks of skids: unlike as what can happen with press conferences or interviews, the sender of the press release does not have to say anything more or different than what is written in the dispatch.
The press release has also its disadvantages:
· Possible lack of taking into account the needs of the public and the media: it is not always easy to establish in advance which information could be of interest for the recipients. Also a brief statement can raise more questions than give answers.
· Lack of interaction with the recipients: the dispatch does not allow its recipients to ask for clarifications or additions, and if the text is misunderstood, there is a risk of misinterpretation (see however below).
· Error risk:. a while ago the author of this document badly revised a press release, which had been dictated to a police officer in relation to a murder case. The communication – in French - said that the victim had been 'skinned' (“écorché”) instead of saying that he had his 'throat slit' (“égorgé”). This caused some uproar among journalists who luckily corrected the text.
· Each comma counts and the concerned authority will has to stand by what was written and dispatched.
76. In order to avoid tricky interpretations and to satisfy needs for information not previously identified, the press release often indicate a contact person, to which journalists can refer (via phone and email) for any additional information. It is also advisable to specify a time limit within which to address further questions, in order to avoid constant solicitations that might disrupt activities.
77. With the press conference the media – sometimes selected on the basis of their alleged interest in the subject - is invited to gather in a specific place and at a set time in order to receive information from the judicial entity concerned.
78. Usually the press conference begins with a presentation made by a judge, a prosecutor or a spokesperson (might be several), and continues with questions and answers with the journalists.
79. The following elements should be taken into consideration:
· Equality of the media: interested journalists have immediate and concurrent access to information (at least for those who have the opportunity to send a journalist to the press conference).
· Uniformity of given information: each participant receives the same piece of information.
· Interaction with the beneficiaries of the information.
· High regard for the needs of the public and the media: opportunity to complete and correct a statement without delay (for example in case of an insufficient or inaccurate presentation, which appears after a question posed by a journalist).
· Partial control of given information: although the initial presentation might be well mastered, the question and answer debate can cause surprises and lead magistrates and spokesman to give statements not previously planned, or even including something different from what was expected (misinterpretation).
Suggestions for a successful press conference:
· Location: accessibility for a large number of attendees, suitability of premises with particular attention to capability, availability of Wi-Fi, parking access, etc.
· Timing: with regard to print media, it is important to take into account that editorial conferences are often held in the morning and the deadlines for preparation and publication of articles. It seems that journalists prefer late morning press conferences, apart from emergencies.
· Speaker(s): the person or persons who have the information and the authority to inform and answer questions with credibility.
· Subject/object: it must be interesting; one should avoid calling a conference for minor reasons and making such conferences a tedious routine.
· Adjustments according to the importance of the event and to practical possibilities.
· Organization: 'master of ceremonies' who gives the floor to others.
· Distribution of a written summary: it is a tool generally favoured by journalists that helps avoiding misunderstanding.
· Objects for presentation (e.g.: seized drugs) or photographs (for objects not available during presentation).
· Questions and answers session: honest answers to questions even when one has to admit that one does not know the answer or when it is impossible to give an answer; offer of explanations, in these cases.
· Leave some time to respond to each individual journalist: special needs of certain media, radio or TV. Relative 'exclusivity', or at least to give the impression to readers/listeners/viewers that the journalist received something special. Editors will love that.
80. The response to a press conference is generally more favourable when journalists feel that the judicial authority has not wasted their time, and that they have instead facilitated their work.
81. Sometimes journalists like to get an interview with a judge, a prosecutor or a spokesperson, with the aim of obtaining exclusive information, which their competitors who did not request an interview will not have. Interviews are beneficial to proactive journalists who seek sources rather than wait for communication coming from the justice system. This way, they can also obtain unpublished information.
82. Interviews can be possible regardless of the media involved. Electronic media may consider immediate broadcast, live from a studio or over the phone, or a recorded interview that will be shown (in full or in part) at a specific time chosen by the editorial staff. The interview for the written press is usually conducted over the phone, but also with a journalist who visits the premises of the affected judicial entity.
83. The obvious risk associated with an interview, as long as it is not live broadcast on electronic media, is the distortion of comments. There are plenty of examples showing distorted statements, because of misunderstandings by journalists, or personal or even malicious interpretetation by them. Also, it is not infrequent to see cases when an interview of a certain length of time is partly transmitted with extracts that were taken out of context, thus expressing a different position from the one sought by the judicial authority.
84. To avoid this risk, the judge, prosecutor or spokesperson might require, as a precondition to the interview, to later check the statements before publication. In principle, journalists prefer to accept this kind of arrangement, rather than simply being refused an interview. This method could be justified in case of sensitive or technical issues, when it is likely that journalists may misunderstand the comments.
85. Depending on the subject and upon previous agreement between the journalist and the person interviewed, the interview can be defined as 'on the record', when the journalist is allowed to publish everything discussed and can mention the person who gave the information. It can also be defined as 'off the record', when the journalist cannot directly use the information received, is not allowed to mention to third parties the statements collected, as well as the author of such statements.
86. The 'off the record' arrangement is useful when the representative of the judicial authority needs to explain to the media why a specific piece of information cannot be published, or when the journalist only needs some 'background' information to advance an investigation, avoiding to embark on wrong tracks. This exercise is quite delicate because the representative of the judicial authority must trust the journalist.
87. The interviewer should be aware that the message must be delivered in a way that corresponds to the particularities of each media concerned. A television or radio intervention generally does not exceed a few tens of seconds and the subject must therefore be particularly concise and clear. The interview for publication in the press may deal more broadly with the questions asked, but the judge, prosecutor or other spokesperson should be aware that only a fraction of his or her statements will actually be published and that, if he or she wants to get the message across, the use of “punchlines” can produce good results.
88. One could suggest that each judicial entity defines in advance a list of judges or prosecutors who are entitled to accept interviews with journalists, and also the circumstances when interviews are possible.
89. In order to obtain information, sometimes journalists may contact a judge, a prosecutor or a spokesperson in writing, or as it often happens today by e-mail. This is particularly the case when a journalist intends to publish an article and wants, or must depending on the ethical rules of his profession, to receive the reaction or a response of the institution or the person concerned.
90. The authority member shall then reply to all questions in writing, in an proper manner and, where appropriate, after referring the matter to the hierarchy. If the journalist has indicated a certain format for the answers (maximum number of characters based for example on the scope of the publication), the observance of such request ensures that the information will be published as such.
91. As for the case of news release, a written response allows a good command of the information given (if applicable, with the same demand for checking the text before publication as in the case of an interview).
92. Internal rules within each judicial entity should define competencies and processes for written responses.
93. Nowadays, most judicial institutions have websites which they use to present their organisation and its activity. The website can also be a communication instrument to inform the media and the public about current proceedings (locations and dates of public hearings, etc.), upcoming events (conferences, debates, etc.) and news from the judicial entity involved (changes in personnel, etc.).
94. The design and maintenance of a website requires a certain investment, but it would be difficult for judicial authorities to be too thrifty in this respect. Such a site directly reflects the image of the authorities concerned and everyone knows that a poorly designed website, which is difficult to access and to use, with basic or not up to date information, gives a negative image of the concerned entity.
95. In some cases, it may be constructive to have specific (sub)websites dealing with specific topics (i.e. proceedings in estate cases) or aimed at specific groups of persons (i.e. journalists, lay judges).
96. Furthermore, one might consider the possibility of developing apps to be used directly on a smartphone.
97. Social media include publishing tools (Wikipedia, Twitter), discussion tools (Skype and also Twitter), general digital contact social networks (Facebook, Instagram, where users keep contacts with others, share experiences and keep in touch over time) and professional networks (LinkedIn for the creation of professional contact networks, which is also likely to be consulted by future recruiters or partners), as well as digital social content networks (Youtube for videos, Flickr for photos, that offer the possibility to share and consult content).
98. Since 2010, social media have appeared in political communication. The globalization of social media in today's world, the speed of information transmitted and the loss of interest and trust of citizens in traditional media explain why politicians are increasingly using these tools to communicate to their constituents and other media. Social media can also reach a very wide audience and young people in particular, for whom they are often the only source of information. Social media are growing fast and becoming a platform of substantial influence. They are disrupting the rules of communication and are -for now - not curated by a body that is in turn governed by rules or certain ethics. As already mentioned, that provides unhindered and free dissemination of information to the public, but no guarantee that the target audience will in fact be reached. Therefore, the communication will often have to take place through a site that attracts the key recipients of the message on a site provided by a third party, in some cases also a non-regulated body. The communicators have to select such parties with care.
99. Most judicial institutions have not yet grasped the possibilities offered by these instruments - or at least some of them - to ensure their communication needs. Probably, this is partly due to the fact that magistrates mainly belong to generations who did not benefit from these tools in their early youth and therefore are not necessarily used to them. Besides, a presence on the social media requires frequent interventions, which most courts and public prosecution services can hardly afford with their own resources.
100. Social networks are developing rapidly and are becoming an important platform for influence. They disrupt the rules of communication and are not - for the time being - governed by an organization that is itself governed by rules or a certain ethic. As mentioned above, this allows for free and open dissemination of information to the public, but there is no guarantee that the target audience will actually be reached. As a result, communication will often have to take place through a site that attracts key recipients of the message, on a site provided by a third party, in some cases also an unregulated organization. Communicators must choose them carefully.
101. This does not mean that in the near future judicial authorities will necessarily be able to do without the current means of communication. They will always be able to count on the fact that journalists will reclaim - also on social networks - the information transmitted to them. However, it is necessary to assume that high-speed news circulation will always be considered as a necessary component of communication, and that it can only be obtained with the use of social media by courts and public prosecutors.
102. It can also be added that it is possible to keep a complete control over the information transmitted to the public, which is directly, and without intermediaries, reached by the communication decided by the judicial authority. This enables clear, balanced and complete messages to be conveyed without the risk of being altered by journalists. These messages can reach the widest audience, including young people, who do not read newspapers, even digital ones, and do not watch television. They also allow, depending on the media in real time, interaction with other users to immediately complete or correct the information given.
103. However, the use of social media also exposes courts and prosecutors to certain risks. The first of these is the impoverishment of information by reducing it to a short summary: the news will necessarily be then a minimal message (Twitter), which often will be read superficially (Facebook). Another risk is that a publication on a social media might trigger a discussion that is then difficult to follow. Inadequate use of social media also carries the danger of a certain banality of justice. Moreover, once the news has been published on a social media, even for a short period of time, it is likely that it will be immediately copied and shared; therefore, the subsequent correction of an error does not prevent the original error from being published without limits.
104. It can be pointed out that the presence on social networks is an essential difference with other means of communication. It involves dialogue, conversation. On a social network, the sender of the initial message should in principle be ready to interact, within minutes, hours and even days, with those who will speak on the same network in connection with the initial message. Otherwise, there is a risk of misuse of this message, of a controversy arising from a misinterpretation - accidental or deliberate - of it or of not following up on legitimate questions. This obviously requires greater availability, which judges and prosecutors, individually, cannot always - or generally cannot - assume.
105. As already mentioned, social media are designed for dialogue. Approaching them as a one-way communication medium, as was done with the old media platforms, would result in the loss of the opportunities they offer and the risk of diminishing trust in the authority that publishes the information, as a reliable communicator.
106. In order to avoid the risk of undue use of data, in particular resale to third parties, authorities using this type of communication should ensure that specific clauses are included in contracts with access providers.
107. Apart from the above, social media publications have essentially the same advantages and disadvantages of a press release.
108. So, should the judicial authorities affirm a presence on the social media? One may discuss this. In any case, this presence cannot entirely replace the more traditional means of communication and it requires staff resources that courts and public prosecution services do not necessarily have. If a Facebook page - or what will be the equivalent in the future - can undoubtedly be considered as a reasonable and perhaps necessary investment, it is not necessarily the same for a sustained presence on a media like Twitter, whose excess of many users have already made this means of communication not naturally adequate for the judiciary.
109. Then, there is the need to try and adapt the communication to different recipients, with the difficulty that in some cases, the same information should be delivered in several forms and contents, in order to meet the expectations of different target audiences.
110. Competent authorities could, where this is not yet the case, prepare and disseminate guidelines to guide the use of social networks by judicial institutions and their members. In an area where the boundaries are not necessarily clear, such guidelines can probably prevent abuse and/or inadequate interventions.
111. Public lectures and debates on justice-related topics may be organised.
112. These can bring together, as speakers, not only judges and prosecutors, but also political leaders, journalists, professors of law and other members of civil society.
113. For example, the target public might include people of a specific region, lawyers, schools, etc.
114. The CCJE noted the importance of actions in collaboration with schools: "Relevant school and university education programmes (not limited to law schools) should include a description of the judicial system (including classroom interventions by judges), court visits and active teaching of judicial procedures (role playing, attendance at hearings, etc.). Thus, courts and judges' associations can work in collaboration with schools, universities and other educational establishments to present the judge's specific reasoning in school curricula and in public debate" (Opinion No 7 CCJE, para. 12).
115. In some countries, judicial institutions prepare and publish filmed messages. These messages are intended to inform the public - or parts of the public - about judicial activity in general or about specific aspects of that activity. They can be transmitted on television, on the internet or on platforms such as YouTube.
116. Also in some countries, the courts secure video footage of specific court hearings and/or of the rendering of specific judgments. These are broadcast live via the courts’ own websites or via YouTube and/or brought by television (typically by public service channels).
117. Obviously, this mode of communication requires resources, i.e. a certain investment of time on the part of the judicial authorities, and as a general rule, the use of communication specialists. In this respect, cooperation with television channels can facilitate the film production.
4.10. Public broadcasting of hearings
118. Some courts allow television cameras in courtrooms and public broadcasting, live or deferred, of all or part of hearings, most often in cases with high media impact.
119. The possibility of using this type of means depends on national legislation, directives from higher authorities and local customs.
120. The obvious advantage of public broadcasting of hearings is transparency, as everyone can see for themselves how justice is done in the proceedings in question.
121. The major disadvantage is that trial participants (judges, prosecutors, parties, lawyers, witnesses), or even the public in the courtroom, may have to adapt or be tempted to adapt their behaviour to the presence of cameras, with the risk that the trial may turn into a spectacle rather than aiming at seeking the truth and the proper application of the law.
122. The CCJE expressed itself as follows on this issue in its Opinion No. 7:
"The question of the presence of cameras in courtrooms for reasons other than procedural reasons has been the subject of considerable debate.... Some members of the CCJE were very reserved about this new form of publicity given to judicial activities" (para. 44).
123. "Publicity of justice is one of the fundamental procedural guarantees in democratic societies. If international law and domestic regulations provide for exceptions to the principle of open court, it is important that these exceptions be limited to those provided for in Article 6(1) of the ECHR" (para. 45).
124. "The principle of the publicity of justice presupposes that citizens and media professionals have access to the judicial forums where trials take place, but the development of audiovisual means of information gives the events reported such an amplification that it radically transforms the notion of the publicity of justice. While it may have a beneficial effect on the public's knowledge of the conduct of judicial proceedings and the image of justice, it is feared that the presence of television cameras in courtrooms may disturb the proper conduct of proceedings and change the behaviour of those involved in the trial (judges, prosecutors, lawyers, parties to the proceedings, witnesses" (para. 46).
125. "In the event that the broadcasting of hearings is televised, fixed cameras should be used and the presiding judge should have the possibility both to decide the conditions of the filming and to interrupt the broadcasting at any time. These measures, as well as any other necessary measures, should preserve the rights of individuals and ensure the proper conduct of the hearing" (para. 47).
126. "The views of those present at the proceedings should also be taken into account, in particular for certain types of proceedings, such as those involving private facts" (para. 48).
127. "In view of the particularly high impact of television broadcasting and the risk of drifting towards unhealthy curiosity, the CCJE encourages the media to develop their own code of ethics aimed at ensuring a balanced broadcasting of the filmed debates, so as to guarantee an objective report of the hearing" (para. 49).
128. "There may be compelling reasons to film judicial proceedings in strictly defined cases, for example for pedagogical and educational purposes, or to preserve the filmed memory of proceedings of particular historical interest for future use. If such grounds exist, the CCJE stresses the need to ensure the protection of the persons concerned by the trial, in particular by means of filming methods that do not affect the serenity of the proceedings" (para. 50).
129. On one hand, communication made by judicial authorities must satisfy the needs of the authorities, and on the other hand it should meet supposed expectations from the media and the public.
130. This requires a certain balance in order to avoid the "too much" effect, which weakens the judicial speech and makes it somewhat lose its meaning, and the "too little" effect, which creates an excessive void to the other actors of the media world and does not meet the needs of the public and of justice itself.
131. Ideally, information should come at the right time and should be adapted to the target audience (accredited journalists, media in general, public). Daily press conferences may be justified in large-scale investigations, following serious public events (e.g. terrorist attack), but not if the purpose is to inform the media about the day-to-day activities of a court. A few lines of information may suffice if the message is simple, but not if it is a question of explaining why a public prosecution service does not have the means necessary for the proper performance of his tasks: it's all about circumstances.
132. Judicial communication must be recognised by its quality: factual truth, objectivity and clarity. Journalists immediately identify cases where the information they received is insufficient, imprecise or even false. They also do not appreciate the authority's refusal to confirm facts already known to the media.
133. the person in charge of judicial communication should refrain from speculation ("it seems to me that ..."; "logically ...", etc.) and, when he/she is not sure of the facts, he/she should not hesitate to answer "I don't know, I'll find out". A confession of ignorance is always better than risky speculations or of the dissemination of erroneous information.
134. Judicial institutions should probably ensure that they address the public as positively as possible and that they do not appear to give, in their communication, a prominent or even exclusive place to complaints related to their situation. While it is obviously legitimate for a court to draw the public's attention to shortcomings in the means at its disposal, such a message could, for example, be accompanied by considerations relating to an increase in the number of cases handled by a judge, improvements in the court's internal organisation, etc. Recriminations perceived as perpetual by the public, politicians and the media may weaken the messages and the situation of judicial institutions.
135. The timing of the communication of information must be appropriate. Some situations require immediate communication, due to the nature of the facts or the interest of the public and the media. The timing of the communication can also be dictated by the timing of the procedure (proximity to a hearing). In other cases, there is no external pressure to dictate when information will be disseminated. In the latter case, the choice of timing by the judicial institution should take into account the need for it not to give rise to suspicions of motives unrelated to the needs of judicial communication. In particular, it is important to avoid unnecessary interference with, for example, political processes (upcoming elections, etc.).
136. In some countries or at local level, judicial authorities have established a system for accreditation of journalists.
137. In general, accreditation is reserved to journalists who are properly trained and who are media-active in judicial activity. The effect is that accredited journalists have privileged access to information, such as the possibility of consulting all judgements, without secrecy restrictions and within a press room. They can also request interviews with judges and they might have priority seating in courtrooms.
138. The advantage of such a system is that qualified journalists can report on judicial activity in a way that is supposed to be more competent and objective than it would be for colleagues, who are less familiar with justice-related events.
139. The biggest disadvantage is that the different media are not equally treated, and this may push those excluded from the system to adopt a more critical position towards the authorities.
4.13. Communication by third parties
140. Depending on the circumstances, third parties may wish to take public positions in support of judicial institutions, for example when they consider that the independence of the judiciary is endangered by actions or statements of other State bodies.
141. The question then arises for judicial institutions is whether they should intervene publicly to support these positions, provide information to these third parties themselves to enable them to support their arguments or rather refrain from doing so. The problem arises in particular terms when the third parties in question consider means such as the call to demonstrate in the street.
142. The answer obviously depends on the particular circumstances of each case, but judicial institutions must in any case ensure that they do not appear to be instruments in the hands of third parties pursuing another agenda and that they respect their duties of reserve and dignity.
143. As already observed, we must start from the idea that the activity of judicial authorities is rather poorly known and often badly understood by the public and the media.
144. It is therefore justified to take tangible measures to improve public information on this activity.
145. The tools used by justice to communicate to the public and the media about judicial activity in general are in part the same as those mentioned above.
146. However, judicial institutions may use other tools. We will mention some of them below, although with no claim at it being a complete list:
· Websites of the judiciary and/or specific sites of courts and public prosecution services (organisation of judicial entities, activity reports, case law, etc.)
· Documentation available to the public, on judicial sites and elsewhere
· Information desks or "Question Time" on judicial sites
· "Open days" for courts and public prosecution services (with, for example, information stands where magistrates and clerks are available to answer questions on specific aspects of the activity, a video presenting the entity, fictitious hearings, etc.)
· Press conferences (presentation of the annual activity report, etc.)
· Participation of judges and prosecutors in public debates (media, conferences-debates, presentations for associations and clubs, etc.)
· General interviews given by magistrates ("What does a prosecutor / trial judge- do?")
· Television programmes focusing on the functioning of the judicial system (documentaries, produced by media professionals in collaboration with the judicial authorities and with the endorsement of the heads of the judiciary, which present specific aspects of the activity of the judiciary, for example the daily work of juvenile judges)
· Presence on social networks, especially Facebook
147. Experience shows that citizens are interested in the activity of judicial authorities when it is presented in an accessible way. In particular, open days generally attract a wide audience and give a positive image of the justice system.
148. At all times, proceedings have attracted media and public attention. This is especially true for criminal cases. In some cases, civil cases also receive media coverage (recent examples in France: disputed estate of a popular singer and arbitration proceedings concerning a former minister). This may also be the case for administrative procedures (recent example in Switzerland: annulment, by an administrative court, of the result of a popular vote).
149. Justice cannot ignore the need of the public to be informed and has an interest in an accurate presentation of the proceedings by the medias. It must therefore ensure that the media have access to complete and accurate information, as much as possible, and according to the legal framework.
150. Because of their fundamentally different roles in the trial, courts and prosecution services (or other criminal prosecution authorities) do not assume the same responsibilities and do not have the same flexibility with regard to public information. Hence, their situation will be examined individually from the communication point of view.
151. As a general rule, courts and their judges do not have to openly report on pending proceedings, nor are they supposed to comment on their judgements in the media.
152. As the CCJE has noted, "judges express themselves primarily through the motivation of their decisions and should not explain them themselves in the press or, more generally, express themselves publicly in the media on the cases for which they are responsible" (Opinion No 7 CCJE, para. 34).
153. However, this does not stop courts from ensuring that the public is well informed about current cases, before and during the hearings, and from ruling the proceedings in a way that allows the media to understand the proceedings and the issues at stake.
154. The courts are open and accessible for all, except for specific hearings held behind closed doors.
155. They should express themselves clearly and understandably, in both speech and writing. The wording – whether in judgements, letters or guidelines – must be easy to read for everyone addressed.
156. The language in the courts should reflect the high quality, service, and efficiency that is required in order to be known and respected. One may therefore consider the possibility of drafting a policy for good language usage in court. This language policy should aim at ensuring that the oral and written communication is consistent and accessible for the many different target groups: citizens, businesses, organisations, attorneys, public authorities, journalists, politicians, etc.
157. Whether drafting letters, summons, guidelines or other written forms of information, it is important to imagine the recipient as an ordinary citizen. Very few people have the qualifications to understand the specialist language used by professionals in the justice system. Similarly, very few people are used to reading long, complicated sentences or closely-written texts. Letters and other texts should therefore always be written in a simple, clear and understandable language, in order to make sure that whoever the text is directed at can read and understand it without difficulty.
6.2.2. PRIOR TO HEARINGS
158. The calendar of hearings - in principle anonymised - should be made available to the media. Before the Internet era, they were sent to the interested media. Today, it is sufficient to publish the calendar on the court website.
159. Within the limits imposed by official secrecy, other documents may be circulated before the hearings. In criminal cases of a certain importance and in some countries, it is customary for journalists to have access to indictments upon request. This allows them to distinguish what, in the mass of proceedings, could be of interest to the public, and then, if necessary, to prepare for the hearing.
160. It may be possible, for cases monitored by the media which are not limited to a hearing with subsequent judgement, to inform journalists of the progress of the proceedings. This can be done through press releases and/or publications on the court website.
161. More sensitive is the question of whether, prior to the hearing, the court should agree to provide explanations to the media in connection with specific proceedings. In any case, it seems difficult that judges who are called to rule on the matter will express their views. However, in some cases, it may be useful for a spokesperson to provide purely factual information, such as the expected duration of a hearing, the number of witnesses to be heard or the general context of the case.
6.2.3. DURING HEARINGS
162. If it is clear that judges in charge of a case should not make public comments other than those allowed in the strict framework of the hearing, although nothing stops them - within this same framework - from explaining the procedure to the parties, clearly communicating and motivating transitional pronouncements, etc. In doing so, they help the media in understanding what is happening and then circulating accurate information.
163. Depending on the circumstances, the court spokesperson could provide the media with additional information, for example regarding courtroom incidents. However, the spokesperson should limit the communication to purely factual answers and avoid any interpretation.
164. The judges enhance openness and transparency by speaking loud and clear, in an understandable language, in the courtroom, enabling parties, witnesses and all present listeners to follow the proceedings.
165. Where a judgement is pronounced in oral form, that reasoning should be sufficiently clear, precise and concise so that not only the parties and their attorneys, but also the public and the media, can fully understand what has been decided and for what reasons. This exercise is not always easy, especially in complex procedures or in discussion of technical issues, but it deserves an effort.
166. Whether there was an oral statement of reasons or not, written reasons for the judgement should meet the same requirements of clarity, precision and conciseness. Therefore, drafting in a language that is also accessible to non-professionals should be preferred.
167. Judgements often have various recipients: the parties involved, professionals such as judges and lawyers, jury members and occasionally the media. All have different preconceptions and expectations, and they read the judgement from their various viewpoints. It is difficult to consider every interest, but if the parties involved understand the judgement and its premises, including its wording and concepts, professionals will also be able to understand them. The language and presentation of the judgement should therefore not only be clear and factual, but also understandable to the recipients. Some countries have also edited guidelines on this subject.
6.2.5. AFTER JUDGMENTS
168. Practices concerning the publication of judgements differ from country to country and, within the same State, according to the level of jurisdiction. Most supreme courts publish their judgements in full. This is also the case for many appellate courts. Publication of first instance judgements is less frequent.
169. According to the different traditions, published judgements can be anonymised or not. Anonymising judgements before publication require a certain amount of work and staff resources. However, some jurisdicial bodies design their judgements in such a way that this can be made automatically, using appropriate computer programs.
170. Publication may take place on a specific website, as well as in journals and law reports.
171. It would probably be appropriate if, as far as possible, judgements are published on the courts' websites. This would allow attoneys, other jurists and professors in law to easily keep abreast of case law, but also it will allow the media to have access to judgements in a way that they can report to the extent deemed useful to the public. For example, all judgements of the Swiss Federal Court are published – anonymised - on the court website a few weeks after they have been delivered.
172. In some cases, if a judgement was not delivered in an open court, but the previous procedure was followed by journalists, it may be justified that the court issues an immediate press release, including the operative section and a summary of the recitals.
173. Judges do not have to publicly comment on their judgements after they have been rendered. The reasons given in court or in the judgement should suffice.
174. However, it might happen that the media will publish false information in connection with a judgement simply because of journalists’ misunderstanding. In this case, the interest of the public and of the court may encourage the court to request the media involved to publish a corrigendum. This type of approach is not welcomed by the editorial staff, but may prove necessary depending on the importance of the procedure, the impact of false information on the public, the possible consequences of this false information on the image of the court, etc.
175. Media shows a fair interest in criminal proceedings of critical importance, which may be due to the gravity or particularity of the offence committed, as well as to the notoriety of the persons concerned or of their attorneys. Criminal prosecution authorities must be vigilant on such issues and they have to be prepared to respond, both during the investigation and within the limits of the law, in order to meet the expectations of the media and the public.
176. In countries where criminal prosecutions are carried out only by the public prosecutor's office, it is its responsibility to inform the public about the on-going proceedings.
177. In situations where are involved investigating judges, the law or the common practice may govern which authority is empowered to communicate about pending cases. In France, investigating judges are invited to refrain from any sort of communication, which falls within the exclusive competence of the public prosecutors. The solution may be different elsewhere.
178. In some countries, communication on criminal cases is entirely or partially responsibility of the police (Great Britain, Spain, etc.). Statements by the police will not be discussed here, although it is understood that the same principles apply, mutatis mutandis, to police communication.
6.3.2. GENERAL FRAMEWORK FOR PUBLIC PROSECUTOR'S OFFICE COMMUNICATION
179. The public -prosecutor's office must respect a specific communication framework. In other words, some limits are set to the communication.
180. These limits include the main principles of criminal law: independence of the judiciary; effectiveness, secrecy and impartiality of the investigation; presumption of innocence; impartiality of the judge; rights of victims and their relatives; respect for the principle of human dignity (no giving out of details that could only serve to satisfy a negative curiosity); etc.
181. The CCPE expressed itself as follows on the role of the public prosecutor's office in communicating with the media and the public:
182. "The public's right to receive information should be ensured.... However, the way in which this law is applied may be influenced and depends on the specific circumstances of the case. This right may also be subject to restrictions, if necessary, in order to ensure compliance with the basic principles" (Opinion No. 8 CCPE, para. 22).
183. "Prosecutors may provide information to the media at all stages of their activities, while respecting the legal provisions governing the protection of personal data, privacy, dignity, presumption of innocence, ethical rules relating to relations with other participants in the proceedings, as well as legal provisions prohibiting or limiting the conditions for the dissemination of certain information" (idem, para. 38).
184. "In all cases, the legal provisions governing legally protected secrets, including the confidentiality of investigations, should be respected" (idem, para. 39).
185. "Prosecutors should ensure that information provided to the media does not compromise the conduct of investigations and prosecutions or the purpose of the investigation. It should not infringe the rights of third parties or influence those involved in investigations or prosecutions, or judicial proceedings" (idem, para. 23).
186. "Prosecutors should be especially sensitive to the rights of the defence, freedom of expression, the presumption of innocence and the right to be informed" (idem, para. 24).
187. "In their communications, prosecutors should ensure that they do not compromise the rights of the defence by disseminating information prematurely and by not allowing the defence to respond to it. They should also ensure that they do not transmit information that does not respect the right of victims to be informed in an appropriate manner. Nor should the provision of information infringe the right of individuals to a fair trial" (idem, para. 25).
188. "In their communications, prosecutors should ensure that the safety of the persons concerned, including witnesses, victims, prosecutors and magistrates handling sensitive cases, is not compromised" (idem, para. 26).
189. "A balance must be struck, through respect for the presumption of innocence, between the public interest in information and the protection of the honour and integrity of individuals. The prosecutor, where it falls within his or her competence, shall be careful not to allow a detained person to be exposed publicly and shall protect, in an appropriate manner, from media pressure the persons concerned by a case and, in particular, the victims in order to avoid any risk of media harassment" (idem, para. 27).
190. "At all stages of the procedure, participants, regardless of their roles, have the right to dignity, respect for their private and family life and personal safety" (idem, para. 28).
6.3.3. DURING THE INVESTIGATION
191. Communication needs may be different depending on whether the investigation relates to events for which the media and the public are anyway promptly informed (crimes committed in public space, searches of a certain scale that require significant deployment of means, arrests in the public domain, etc.), or, on the contrary, linked to facts in principle unknown to the media and the public (apart from the possibility of leaks, which are not to be excluded).
192. The public prosecutor's office must decide whether it is satisfied with reactive (passive) communication and only intends to respond to media requests or, on the contrary, if it intends to spontaneously publish information through proactive (active) communication.
193. When an event is anyway already known to the public, proactive communication is often necessary in order to avoid the circulation of fake news or when it is necessary to respond to multiple requests from the media. It is thus a problem of anticipating instead of correcting information. The situation is different when facts are basically unknown to the public and the media: in such cases, it is for the prosecution service to define whether proactive communication is justified; for example, this may be the case if leaks seem likely or if spreading information about the case is in the public interest (eg: dismantling of a drug trafficking ring).
194. Whatever the situation, the criminal authority's communication must respect the legal framework.
195. The principle is that official secrecy or investigative secrecy - to which are subject prosecutors, their assistants, and police officers - prevents the public disclosure of information, unless certain conditions are met.
196. As a general rule, there must be a specific public interest - not just some interest of the public or the media – that justifies the circulation of information. There must be a balance between the interest of the persons concerned in maintaining secrecy and the public interest - and the interest of the public - in the provision of information.
197. In principle, public interest is based on one or more of the following criteria:
· Obtain the cooperation of the population for the resolution of cases, or for the search of suspects (call for witnesses ; media dispatch of a photo with the blurred face of a suspect, with an appeal to come forward, then media distribution of the clear image, and finally publication of the images on the police website).
· Warn or reassure the public (examples: series of frauds on older people, detention of a serial thief).
· Correct or prevent the dissemination of inaccurate information or rumours.
· Particular importance of a case (gravity of the infringement, importance of the procedure, publicity already given in the media, etc.).
As for the content of the information provided by the criminal authority, the following criteria shall apply:
· Objectivity of the communication: the information given must be based solely on objective elements taken from the procedure.
· Safeguarding the interests of the investigation: refrain from revealing facts that could compromise the outcome of current investigations if known to the public (examples: scheduled searches, nature of some gathered evidence, etc.).
· Answer, as far as possible, to the six traditional questions of journalists: Who? When? What? Where? How? Why?
· Accuracy of information: never lie, even by omission.
· Respect for the presumption of innocence: no bias about guilt, except when the suspect has already made a reliable confession (possibly explicit reminder about the presumption of innocence, in particular when this is undermined by already disclosed publications).
· Respect for the personality of people involved: no unnecessary details on family situation, physical and psychological state or personal situations of the people concerned.
· Identity and other information about the prosecuted person and other persons concerned: practices vary significantly according to national and local customs. Some criminal authorities have the habit of revealing the identity of suspects, while others do not even reveal their nationality; special criteria may apply when public figures are involved. (The CCPE, in its Opinion No. 8, para. 29, states the following on this subject: "As far as possible, during the investigation phase, the identity of suspects should not be disclosed. Particular attention should be paid to victims' rights before disclosure").
· Proportionality : for example, in principle it is excessive to publish a news about a village shopkeeper that has been arrested for drunk driving; the situation is different if the arrested person is a Member of Parliament.
· Transparency, where possible.
· What is useful and justified, and only that (“neither too much nor too little”).
· Respect for the independence of the judiciary and the impartiality of judges.
198. The criminal authority has a wide discretion in determining when to give information to the public, and where appropriate, the extent and nature of the publication.
199. In some countries, quite often leaks occur during criminal investigations: the media publish the content of interrogation and expert reports, they provide information on planned acts of investigation, etc. Such leaks may be caused by the criminal authority involved (prosecutor and assistants), by the police or also by the parties' attorneys. They may require the communicating authority to adapt the communication to new situations created by the leaks.
6.3.4. PROCEEDINGS BEFORE THE COURT
200. The criminal prosecution authority is a party to the proceedings before the court. Therefore, it basically has the same scope as the other parties to publicly comment on the conduct of the proceedings. However, in doing so it should exercise a certain caution, and in any case it should refrain from negative remarks about the court.
201. In particular, on the brink of debates, a prosecutor may have to explain facts and their context, certain legal questions and the consequences of specific courtroom incidents to journalists.
202. Once the judgment has been pronounced, the parties' representatives do not refrain from expressing their feelings and conclusions in connection with the pronouncement.
203. As for the public prosecutor, he/she should also impose a certain caution, but nothing should prevent him/her from indicating to the media whether or not he/she intends to appeal the judgment, and if he/she would file a joint appeal in the event that another party appeals. He/she should also be able to respond to media inquiries about the possible consequences of the judgment, in relation to the specific situation and in general about law enforcement.
204. The media often works with very short time limits. Some journalists are not regularly working in the field of justice and many of them are not trained in court matters. Therefore, it may be useful to provide information directed towards the journalist about the general rules, the rights and obligations of the journalists when covering court cases and expectations that the courts may have towards the media. Such information should be provided in an easy accessible manner (i.e. website, app or other digital mean), that is constantly updated thus, enabling the journalists the best environment to provide accurate and balanced coverage to the public.
205. In a situation of strong competition, media may be tempted to seek and publish "scoops", without taking into account the interest of an investigation; the control of an extraordinary situation (terrorist attack, etc.); or the protection of the privacy of the people involved.
206. In some countries, specific situations have led political authorities to find ways to regulate media activity. For example, in France after the 13 November 2015 attacks, the legislator gave the mandate to the Conseil supérieur de l'audiovisuel to adopt a Code of Good Conduct, designed to prevent excesses in the audio-visual coverage of terrorist attacks (television channels dispatched images of security forces preparing for an assault on hidden terrorists, which could have provided the terrorists with information likely to endanger the hostages). This code of conduct was prepared during meetings between journalists, experts, professional organisations, victims' representatives and the Paris prosecutor.
207. Elsewhere, one considers – for now ? – that with the self-regulation of journalists in the exercise of their profession Is sufficient. Codes of ethics and other charters of journalists' rights and duties contain more or less precise rules designed to guide the media in the search and processing of information.
208. In general, crises occur at a time when they are least expected and therefore without the possibility of a preparation.
209. Crises include the following situations, which demand prompt and adequate communication from the judicial authority:
· Major events (serious crimes, etc.)
· Publication of incorrect information about on-going cases (in particular cases where this publication poses an immediate threat to the functioning or reputation of a judicial institution, for example because of the very wide dissemination of false information on social networks)
· Public attacks against a court or a public prosecutor in general
· Public attacks on judge/s or prosecutor/s
· Proven or suspected errors of judiciary authority on cases management
According to specific situations the purpose of crisis communication includes the following:
· To inform on the current situation and approved actions
· To reassure or warn the public
· To correct and rectify inaccurate information
· To restore facts and explain legal circumstances
· To preserve or restore confidence in the judicial authority or other institutions
· To preserve or restore the reputation of natural and legal persons
· To respond to attacks
210. In such circumstances, it is essential to secure the media access to information in order to prevent speculations, publications of dubious interpretations, etc. In this context, the judicial authority should be available. In particular, if the entity in question does not have already appointed a spokesperson it should consider it, as this allows to channel and manage media requests. The spokesperson should be appropriately available to respond in real time, or at least without delay. This may require the appointment of one or more replacements, who, if necessary, may act on behalf of the spokesperson. It is also possible to set up a crisis unit, including – when provided - the spokesperson, other members of the concerned authority and, where appropriate, representatives of other entities, in order to ensure proper coordination of the communication.
211. Communication should take place in a timely manner; it should take into account the needs of the different types of media and ensure a fair treatment of journalists (equal access to information sources and information transmitted). The information provided should be accurate and sufficient.
212. Assigning the right priority to communication will also enable magistrates and registrars of the judicial entity concerned - and especially those who are in charge of the procedure which gave rise to the crisis - to continue working in a calm and efficient manner.
213. When other entities are also involved in the situation, coordination of communication with these entities is of paramount importance (other judicial entities, police, emergency services, political and administrative authorities, persons and private organisations directly concerned and possibly their attoneys).
214. The first priority for the person in charge of communication is to collect all relevant information, considering the difficulty that it can come from multiple sources. Therefore, the spokesperson must establish a direct access with the holders of the information, in order to receive all necessary answers, and to obtain from them all relevant information, immediately and in real time.
215. The steps for information handling are as follows:
· Centralization with the communication manager (spokesperson or other)
· Distribution of information
216. Depending on circumstances, information distribution may be proactive, which could be the rule, or reactive. The target recipients may include the media, but also the public (through social media), other state entities and individuals and organisations directly concerned (victims, relatives, etc.). Information distribution within the entity concerned may also be justified.
217. For the means of communication, we can refer to what was mentioned above, specifying that it may be necessary to provide different information to different recipients, depending on the "need to know" and on the need to protect certain information that must remain confidential.
218. Crisis communication necessarily involves some risks. The first one is about a possible confusion, in an emergency situation, between speed and haste: the spokesperson must remember that it is always recommended to give accurate information a bit later, rather than offering quick and incorrect news. Another risk could be the rapid evolution of the situation: the information given to the public at a certain point in time may already be out of date. Other problems then come from the quality of the material available when they are collected in an emergency: this information may be incomplete, not reliable and even inconsistent. Finally, one must mention the risk of interference: parallel investigative journalism, spreading of live information on the media (which can harm the process) and interventions by third parties, in particular from political staff (public interventions or interventions towards the judicial entity concerned).
219. When a judicial institution finds that an error has been made within it, it would be futile to try to deny it when the media question the court concerned about it. Communication must be adapted to the particular situation and must allow it to be controlled as far as possible, while avoiding that the error permanently tarnishes the image of the entity concerned or even that of the judicial system in general. One method that generally works well is to:
o acknowledge the error (explaining, where applicable, how it may have occurred and without trying to minimize it in a way that is not credible);
o apologize or express the institution's regrets ;
o say that every effort will be made to ensure that a similar error does not occur again;
o describe, where applicable, the measures that have been and/or will be taken to prevent the recurrence of similar errors.
220. Where the error was individual, it is probably appropriate for the head of the institution (president of the court or attorney general) to speak publicly to express, where appropriate, his or her trust and support for the person concerned. Such intervention is obviously less justified if significant disciplinary sanctions are considered.
221. If a judge is unfairly accused in the media, specific measures can be taken. The CCPE has dealt with the case of prosecutors (Opinion No. 8 CCPE, para. 45), but the same principles may also apply to judges: "When a prosecutor is unfairly implicated as an individual in the media, he or she is entitled to have the disputed information corrected or to use other legal remedies, in accordance with national law. Nevertheless, in such cases or when false information has been published concerning events or persons in the cases it deals with, any reaction should, if possible, come from the head of the department or a spokesperson of the public prosecutor's office, and in serious cases from the public prosecutor or the highest authority of the competent prosecutor's office or state. This official reaction will limit the need for the prosecutor concerned to exercise his right of reply, which is guaranteed to all persons, as well as the risk of excessive personalisation of the conflict".
222. The awareness of risks and the implementation of well-defined processes generally ensure an adequate communication in crisis situations.
223. Judicial authorities should have a clear picture of their media image and how their own communications are perceived and treated by the media and, as in the case of social media, how they are perceived by the public.
224. For this reason they can, within the limits set by their resources, prepare so-called press reviews, i.e. research and collection of what the media publish about them and ideally, retrieve relevant information and internally distribute it at regular intervals.
225. Press reviews allow judicial authorities to establish whether their messages have been properly understood, reproduced and disseminated, and also what is interesting for the media and their possible needs for additional information. They also reflect the institution's media image.
226. They may encourage the court/public prosecution service to take specific measures to amend incorrect information or to complete previously given information.
227. A regular situation assessment, based on press reviews, may demonstrate the need for the judicial authority to take general measures to improve its communication, to redress its public image and where necessary, to improve the functioning of the entity, on the basis of justified considerations that this functioning has incited.
228. If the judicial entity has a spokesperson, he/she should be responsible for preparing and internally disseminating press reviews, unless the available budget makes it possible to delegate this task to a communication agency.
229. In order to evaluate the image of judicial institutions and the impact of their communication, it is also possible to resort to surveys or polls. Some courts offer their users - parties, attorneys, the public during hearings - the opportunity to complete forms by answering questions on the perception of court processes. Besides, the media might also take the initiative to conduct satisfaction surveys among the users. The analysis of the results basically can provide a fairly accurate assessment of the institutions concerned, which may encourage them to improve their image and functioning.
230. Among the executive, legislative and judicial powers, the last one is the least visible to citizens, essentially because it involves itself less in the public debate. As a result, justice is often poorly known and understood, while public confidence in justice depends on public understanding of the judicial activity.
231. Justice cannot avoid the media coverage of an increasing share of its activity and judicial institutions, nolens volens, must face communication challenges, taking into account the ever growing requirements of transparency in state activities.
232. Journalists should be seen as partners, and not adversaries of judicial institutions. These can implement a framework and establish conditions for their interactions with the media.
233. Judicial communication should be part of a general strategy that should define the messages the judiciary wants to convey to the public, relate to information about the whole judicial activity, consider the use of all available means of communication and define the target audience for each type of communication.
234. The purpose of judicial communication includes:
· to inform about concrete activities of the justice system, in particular cases (proceedings);
· to assert the role of justice in the society;
· to affirm the independence of judicial institutions, in particular when it is called into question;
· to promote respect for judicial institutions and their representatives;
· to reinforce or restore citizens’ trust in judicial institutions;
· to take public positions on matters of interest to justice and society, if circumstances justify it;
· to improve the understanding of laws by the public;
· more generally, to strengthen the image of justice.
235. To determinewho can and must be in charge, for the judicial institutions, of the communication with the media and the public depends not only on the purpose of the communication, but also on the specific circumstances.
236. In particular, professional associations of judges and/or prosecutors may communicate on general subjects concerning justice, fundamental principles (independence of justice, presumption of innocence, etc.) and legislative and social issues. They can also play an important role in defending courts, public prosecutors and/or individual magistrates who have been openly involved. The same can be said of the bodies in charge of the administration of the justice system, where such bodies exist.
237. The courts may especially communicate on their organisation, functioning and activity. They may also take positions on situations of specific interest for their entity. Concerning proceedings that are under way, the possibility of disseminating information is limited. The same principles apply, mutatis mutandis, to public prosecutors, who however enjoy greater freedom in communicating on pending proceedings.
238. Single judges should refrain from openly making comments on the proceedings of which they are in charge. However, when justified, public prosecutors may inform the public during the proceedings. Judges and prosecutors may be involved in public debates on other matters.
239. In order to ensure consistent communication and accessibility to information to the media, judicial institutions may designate a spokesperson who:
· relieves the magistrates from the tasks of communication;
· may have journalistic background or may be a specialised judge or prosecutor, relieved of some other tasks;
· assumes, as a principle, the entire communication of his/her judicial entity;
· ensures a proactive, reactive, regular, accurate, sufficient, consistent and appropriate communication;
· identifies specific communication needs, which he strives to meet within the limits imposed by the law and expediency;
· ensures that journalists are fairly treated (principle of equality among the media) ;
· ensures, where appropriate, the coordination of the information with other services, entities and persons involved;
· maintains regular contact with journalists who usually follow the judicial activity, as well as with the judges and prosecutors of his/her entity;
· should be directly subordinate to the judge in charge of the relevant judicial entity (president of the court, chief prosecutor).
240. Judicial institutions should identify and offer appropriate communication training to the judges and prosecutors,– as well during initial as on-the-job training.
241. In general, judges and prosecutors enjoy freedom of expression. However, when judges and prosecutors claim their position or are introduced as such, their freedom of expression is limited as a consequence of their particular status (secrecy of function, general duties of reserve and dignity).
242. Means of communication available to judicial authorities:
· press release : allows to offers information that courts intend to disseminate to many people, in principle at the same time;
· press conference: in addition, allows immediate interactivity with media representatives;
· interview granted to a journalist by a judge, prosecutor or spokesperson: as a precondition to the interview, the judge, prosecutor or spokesperson may require to check the references made before publication; each judicial entity should especially define who is entitled to accept interviews;
· written responses to written questions : internal rules should define competencies and processes for these responses; communication must be adapted to the type of media concerned;
· website (and/or app) : organisation and activity of the entity ; upcoming hearings and events; other news from the entity ;
· social media : directly available to a very large public and reaches particular segments and groups of the public;
· conferences and public debates on topics regarding justice;
· filmed messages : inform the public about general judicial activity and particular aspects; transmitted on television or over the Internet (YouTube);
· for general information on judicial activity : documentation available to the public, information desks, “open doors” days;
· broadcasting of specific court hearings and/or rulings.
Whatever the means, judicial authorities’ communication should:
· meet the needs of these authorities and the perceived and presumed expectations of media and the public;
· intervene at the right time;
· adapt to the target audience;
· be recognized by quality (factual truth, objectivity, clarity, absence of speculation)
243. An accreditation system for journalists within the judicial authorities may be set up. The advantage is that qualified journalists can report on judicial activity, and the disadvantage is that media are not equally treated.
244. Justice cannot ignore the public’s need for information and it has an interest in a correct way for the media to present the proceedings.
245. Because of their fundamentally different roles in the trial, the courts and prosecution services (or other criminal prosecution authorities) do not assume the same responsibilities and do not have the same flexibility with regard to information to the public.
246. As a general rule, courts and their judges should comment publicly on pending proceedings.
247. The hearing schedule should be made available to the media and the public. If necessary, press releases and court websites can inform journalists of further steps in the proceedings.
248. Before the hearing, the concerned judges should not make open comments on the cases. However, in certain situations it may be useful for a spokesperson to provide purely factual information (expected duration of a hearing, number of witnesses).
249. However, in specific circumstances it may be useful for a spokesperson to provide just factual information (expected duration of a hearing, number of witnesses).
250. Depending on the circumstances, the court spokesperson could provide the media with additional information, as about courtroom incidents.
251. When a judgement is verbally rendered, the reasoning should be clear, precise, concise and comprehensible for journalists and the general public. The written reasons in the judgement should meet the same requirements; instructions may be given to judges to achieve this goal.
252. Judgments should be published – most frequently in anonymous form - on court websites, at least for superior courts.
253. Judges should not publicly comment on their judgements after they have been rendered. In the event of an erroneous report by the media, the court may request a corrigendum.
Public prosecution services
254. The public prosecution services may communicate on pending proceedings, within the limits set by the main principles of criminal law.
255. When an event is already known to the public, proactive communication is most often required, in order to anticipate rather than correct.
256. There must be a public interest in the spreading of information in order for a communication to be justified (public collaboration in solving cases or searching for suspects; warning or reassuring the public; correction or prevention of the dissemination of inaccurate information or rumours; particular scope of the case).
257. Content of the given information:
· objectivity and accuracy;
· safeguarding the interests of the investigation;
· if possible, respond to the questions : Who? When? What? Where? How? Why? ;
· respect for the presumption of innocence ;
· respect for the personality of people involved;
· respect for the independence of the judiciary and the impartiality of judges.
258. During the court proceedings, the public prosecutor should hold certain discretion. However, outside the debates, he/she may have to explain to journalists the facts and their context, as well as specific legal questions.
259. Once the judgment has been rendered, the public prosecutor should also hold certain discretion, but he/she may indicate whether or not he/she intends to appeal the judgment.
260. Self-regulation of journalists in the exercise of their profession through codes of ethics is the rule, but media authorities can also impose a code of conduct.
261. Depending on the case, the purpose of crisis communication is to inform on the situation and the measures adopted; to reassure or warn the population; to rectify inaccurate information; to preserve or restore confidence in judicial institutions; to preserve or restore the reputation of natural and legal persons; and to respond to attacks.
262. The media should have access to accurate and verified information.
263. If the entity concerned does not yet have a spokesperson, it should consider appointing one. A crisis unit may also be set up. Coordination of communication with other entities concerned must be ensured.
264. Communication must take place in a timely manner, taking into account the various needs for the different types of media.
265. The spokesperson gathers relevant information from different sources, which should spontaneously forward the information to him/her. The steps for information handling are as follows: sorting, compiling, cross-checking, synthesis and diffusion.
266. Crisis communication necessarily involves some risks: in urgent cases, to confuse speed and haste; interference through journalistic investigations and publications; interventions by third parties, including political staff.
267. Judicial authorities should be able to get a clear picture of their image in the media, how their own communications are perceived and treated by the media and, in the case of social media, how they are perceived by the public.
268. To this end and within the limits of their resources, they may set up press reviews and carry out surveys and polls.