Authors:

Andriy Yosypov – Attorney, Partner at Barristers Law Firm

Yuriy Zhovtan – Attorney, Partner at Barristers Law Firm, PhD, Member of the Information Policy and Media Committee of the National Association of Advocates of Ukraine

In the information sphere, the media play a crucial role in shaping public opinion and significantly influence societal perceptions of judicial proceedings, particularly in high-profile criminal cases. However, such coverage can have both positive and negative consequences for criminal proceedings.

On the one hand, media coverage promotes the transparency of judicial proceedings and enhances public trust in the justice system. On the other hand, it may exert pressure on the court and affect the objectivity of decisions and the substantive consideration of cases.

The public’s right to access information is a fundamental element of a democratic state, enshrined in various national and international legal instruments, including the Convention for the Protection of Human Rights and Fundamental Freedoms.

At the same time, Article 6 of this Convention guarantees everyone the right to a fair trial, which includes judicial impartiality and adherence to the presumption of innocence.

The European Court of Human Rights has repeatedly emphasized in its rulings the importance of maintaining a balance between the right to information and the right to a fair trial.

A notable example is the case of *Sunday Times v. the United Kingdom* (1979), in which the Court recognized that media coverage could affect the impartiality of judicial proceedings. Consequently, it allowed for certain restrictions if they are necessary to protect other rights, particularly the right to a fair trial. However, the Court stressed that such restrictions must be proportionate and justified.

Media influence on criminal proceedings often manifests in partial or sometimes inaccurate coverage of case details even before a court decision is made. This can shape public opinion regarding a person’s guilt, which, in turn, affects both the participants in the proceedings and the judges. Although judges are required to uphold the principle of independence, they may, in practice, experience external pressure.

Moreover, information disseminated by the media can influence the jury, distorting their perception of the case. Since jurors are not professional judges, they may be more susceptible to media influence.

Media coverage of criminal cases can have negative consequences, such as:

1. Publications and reports often contain subjective judgments, which can create an image of the suspect/defendant as a person who has committed a crime even before the court has reached a final decision. This constitutes a clear violation of the presumption of innocence.

2. Even with judicial independence, media pressure can influence decision-making, especially in high-profile cases that have gained significant public attention, thereby affecting the court’s impartiality.

3. Public opinion shaped by media coverage of criminal cases can cause reputational damage to suspects/defendants and their families, even if they are later found not guilty. This contributes to social stigmatization.

4. Parties to criminal proceedings may use the media to pressure the court, shape a favorable public narrative, or discredit the opposing side, which amounts to a form of manipulation.

In global legal practice, there are various approaches to regulating media influence on judicial processes. For example:

In the United Kingdom, the principle of «sub judice» is actively applied, which prohibits the publication of any information that may influence the course of a trial before its conclusion. The goal is to ensure a fair trial by preventing the formation of biased opinions in society, especially among jurors.

In the United States, the mechanism of «gag orders» is used, which prohibits participants in a trial from disclosing certain information about the case. These orders are used to ensure an unbiased trial, especially in high-profile cases that attract significant media attention.

In Ukraine, the practice of limiting media influence on criminal proceedings is not yet perfected. The norms of the Criminal Procedure Code regulate the issue of disclosing information during pre-trial investigations. Specifically, Article 222 of the Criminal Procedure Code prohibits the disclosure of information from a pre-trial investigation without written consent from the investigator or prosecutor. However, the purpose of these provisions is primarily to protect the confidentiality of the investigation and prevent undue influence on witnesses, experts, and other participants in the process, rather than to protect the fair conduct of the trial from media pressure.

In recent years, there has been a significant increase in the practice of publishing video recordings of searches, detentions, and textual materials outlining the position of investigative bodies regarding criminal proceedings. This is mainly characteristic of the press services of the NABU, SBI, and BEBU, which widely use official statements, press conferences, and social media as channels for communication with the public.

Such activities of law enforcement press services often create risks of violating the principle of presumption of innocence, as enshrined in Article 62 of the Constitution and Article 6 of the Convention, as well as Article 17 of the Criminal Procedure Code of Ukraine. Moreover, there are substantial doubts about the compliance with the provisions of Article 222 of the Criminal Procedure Code in such publications, as the case materials lack any permissions for disclosing the confidentiality of the pre-trial investigation, especially to third parties who are not participants in the proceedings.

Similar situations have already been the subject of consideration by the European Court of Human Rights, particularly in the cases of «Allenet de Ribemont v. France» (1995) and «Y.B. v. Turkey» (2020), where the Court stated that public statements by state authorities that directly or indirectly suggest the guilt of an individual before a court verdict constitutes a violation of their rights.

The activities of law enforcement press services also do not go unnoticed by Ukrainian courts.

The practice of adopting decisions that do not resolve the cases substantively but draw the attention of the authorized bodies to established violations of the law in criminal proceedings, requiring appropriate responsive measures, has not yet become widely applied. However, it is already being implemented in the activities of the High Anti-Corruption Court.

In cases No. 991/392/23 and 991/4071/22, within the framework of the preparatory court hearing in criminal proceedings, the High Anti-Corruption Court (HACC) found violations of the presumption of innocence, as enshrined in paragraph 2 of Article 6 of the Convention and Article 17 of the Criminal Procedure Code, in the statements of the Director of the NABU.

Although such decisions are not yet a well-established practice in general jurisdiction courts, the trends set by the HACC in attempts to ensure the adherence to the presumption of innocence are positive and should subsequently be extended for application in other courts across Ukraine.

Special attention should be paid to the consequences of disclosing details of criminal proceedings during martial law, when publicity can not only positively influence public trust but also create threats to ensuring a fair trial.

Article 27 of the Criminal Procedure Code enshrines the principles of publicity and openness of judicial proceedings and stipulates that criminal proceedings in courts of all instances must be conducted openly. At the same time, it establishes exceptions when the court may decide to conduct criminal proceedings in closed sessions.

One such case is when conducting proceedings in an open court hearing may lead to the disclosure of information protected by law.

Despite the lack of a clearly defined concept of legally protected secrets, the Law on «Access to Public Information» defines information to which access is restricted.

Such information includes, in particular, classified information, and information that contains state, professional, banking, intelligence secrets, the secrecy of pre-trial investigations, and other secrets protected by law.

Thus, the imperfection of the provisions of Article 27 of the Criminal Procedure Code effectively allows court hearings to be conducted in closed sessions due to the possibility of disclosing information that contains the secrecy of a pre-trial investigation, as such information is protected by law.

In criminal offenses against the established procedure for military service, investigative judges and courts make decisions to conduct hearings in a closed session based on the possibility of disclosing state secrets.

Although such decisions are aimed at preventing the use of information from criminal proceedings by the enemy within the scope of the information war and at protecting state interests, they do not comply with the requirements of Articles 27 and 517 of the Criminal Procedure Code.

Pre-trial investigation and judicial proceedings in criminal cases containing information that constitutes state secrets are conducted in compliance with the requirements of secrecy. (Article 517 of the Criminal Procedure Code). Persons with the appropriate clearance and access to specific classified information are permitted to participate in such proceedings. Court hearings must take place in specially equipped courtrooms, and courts must have storage facilities for securing classified documents and materials containing such information.

Thus, there are contradictions in such court decisions about conducting closed hearings, denying public and media access to the trial, which are motivated by the presence of state secrets. However, these hearings are not conducted in compliance with the requirements of the secrecy regime.

Ensuring the principles of publicity and openness of judicial proceedings, with the participation of media representatives and the public in court hearings, significantly minimizes the negative impact on society from information provided by law enforcement press services, publications, and reports that contain evaluative judgments about the guilt of the suspect or accused.

The current wording of Article 27 of the Criminal Procedure Code regarding the possibility of closing a hearing where secrets protected by law may be disclosed is unable to provide a balance between the principles of openness, publicity, and transparency of proceedings, and the protection of state interests.

The lack of a more clearly defined definition of state secrets allows investigative judges, courts, and participants in proceedings to subjectively assess the presence or absence of such information in the case materials and the consequences of its disclosure.

The prioritization by society of obtaining information from social networks, Telegram channels, rather than from licensed media with editorial policies and statutes, only deepens the problem of potential manipulation of public opinion, particularly regarding the coverage of criminal proceedings. The absence of editorial policies among «opinion leaders» and the lack of filters in the form of editors when presenting information only exacerbates the issue of the reliability of the information when it is published, especially in relation to criminal proceedings or specific individuals involved in these proceedings.

Addressing such problems cannot be focused solely on changing the provisions of the criminal or criminal procedural codes. This must be a comprehensive issue of the state’s information policy, the problems of which are particularly acute under martial law and have become more relevant in connection with the armed and informational aggression of the russian federation.