In the realm of public information, the media play an important role in shaping public opinion and significantly influence the public’s perception of court proceedings, particularly in high-profile criminal cases. However, such coverage can have both positive and negative consequences for criminal proceedings.
On the one hand, it promotes transparency in court proceedings and increases public trust in the justice system; on the other hand, it can put pressure on the court and
affect the objectivity of the decisions rendered and the consideration of cases on their merits.
The public’s right to information is one of the key components of a democratic state, enshrined in a number of both national and international legal instruments, in particular 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 requires the impartiality of the court and respect for 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 striking example was the case of “Sunday Times v. the United Kingdom” (1979), in which the Court recognized that media coverage can affect the impartiality of judicial proceedings. Therefore, it allowed for certain restrictions if they are necessary to protect other rights, in particular the right to a fair trial; however, the Court emphasized that such restrictions must be proportionate and justified.
Media influence on criminal proceedings often manifests itself in partial, and sometimes inaccurate, coverage of case details even before a court decision is rendered. This can shape public opinion regarding a person’s guilt, which, in turn, affects both the parties to the proceedings and the judges, who—although they are required to adhere to the principle of independence—may in fact be subject to pressure.
Furthermore, information disseminated by the media can influence a jury by distorting their perception of the case. Since jurors are not professional judges, they can easily be swayed by the media.
Media coverage of criminal cases can have negative consequences, for example:
1. Publications and reports often contain value judgments, which can create the impression that the suspect or defendant is guilty of the crime, even before the court has rendered a final decision in the case, which is a clear violation of the presumption of innocence.
2. Even assuming the independence of the judiciary, media pressure can influence decision-making, especially in high-profile cases that have garnered public attention, which exerts influence on the court.
3. Public opinion, shaped by the media’s coverage of criminal cases, can cause reputational harm to suspects/defendants and their families, even if they are found not guilty, thereby contributing to public condemnation.
4. Parties to criminal proceedings may use the media to pressure the court, shape public opinion in their favor, or discredit the opposing party, which constitutes a form of manipulation.
In global legal practice, there are various approaches to regulating the media’s influence on court proceedings; for example:
In the United Kingdom, the “sub judice” principle is actively applied, which prohibits the publication of any information that could influence the course of a trial until its conclusion. Its purpose is to ensure a fair trial by preventing the formation of biased opinions in society, especially among jurors.
In the United States, “gag orders” are used to prohibit participants in legal proceedings from disclosing certain information about the case; such orders are used to ensure an impartial trial, particularly in high-profile cases that attract significant media attention.
In Ukraine, the practice of limiting the media’s influence on criminal proceedings is currently not fully developed. Provisions of the Code of Criminal Procedure regulate the disclosure of information during the pretrial investigation. In particular, Article 222 of the Code of Criminal Procedure prohibits the disclosure of information regarding the pretrial investigation without the written permission of the investigator or prosecutor, but the purpose of these provisions is primarily to protect the confidentiality of the investigation and prevent interference with witnesses, experts, and other participants in the proceedings, rather than to safeguard a fair trial from media pressure.
In recent years, the practice of publishing video recordings of searches and arrests, as well as written materials setting out the investigative authorities’ position on criminal proceedings, has become significantly more widespread. This is largely characteristic of the activities of the press offices of the NABU, the State Bureau of Investigation (DBR), and the Bureau of Economic Security (BEBU), which extensively use official statements, press conferences, and social media as channels of communication with the public.
Such activities by the press services of law enforcement agencies often pose risks of violating the presumption of innocence, enshrined in Article 62 of the Constitution, Article 6 of the Convention, and Article 17 of the Code of Criminal Procedure of Ukraine. Moreover, there are serious doubts regarding compliance with the provisions of Article 222 of the Code of Criminal Procedure in such publications, since the case files contain no authorizations to disclose the confidentiality of the pretrial investigation, let alone to third parties who are not parties to the proceedings.
Similar situations have already been the subject of review by the European Court of Human Rights, in particular in the cases of “Allenet de Ribemont v. France” (1995), “Y.B. v. Turkey” (2020), where the court held that public statements by state authorities that directly or indirectly imply a person’s guilt prior to a court verdict constitute a violation of that person’s rights.
The activities of law enforcement agencies’ press offices have not gone unnoticed by Ukrainian courts either.
The practice of issuing decisions that do not address the merits of a case, but instead draw the attention of competent authorities to facts of legal violations established during criminal proceedings that require appropriate remedial measures, has not yet become widespread, but is already being implemented in the practice of the High Anti-Corruption Court.
In cases Nos. 991/392/23 and 991/4071/22, during a preliminary hearing in criminal proceedings, the High Anti-Corruption Court found, based on statements by the director of the National Anti-Corruption Bureau of Ukraine (NABU), a violation of the presumption of innocence enshrined in Article 6(2) of the Convention and Article 17 of the Code of Criminal Procedure.
Although such decisions are not yet established practice in courts of general jurisdiction, the trends set by the High Anti-Corruption Court in its efforts to ensure compliance with the presumption of innocence are positive and should eventually be extended for application in other courts of Ukraine.
Particular attention should be paid to the consequences of disclosing details of criminal proceedings under martial law, when public access to proceedings can not only positively influence public trust but also pose threats to the administration of justice.
Article 27 of the Code of Criminal Procedure enshrines the principles of publicity and openness in judicial proceedings and stipulates that criminal proceedings in courts of all instances shall be conducted in open court. At the same time, it establishes exceptions under which a court may decide to conduct criminal proceedings in a closed session.
One such case is when conducting proceedings in an open court session could lead to the disclosure of a secret protected by law.
Despite the lack of a clearly defined concept of “secrets protected by law,” the Law “On Access to Public Information” specifies the types of information to which access is restricted.
Such information includes, in particular, classified information and information containing state, professional, banking, and intelligence secrets, secrets of a pretrial investigation, and other secrets provided for by law.
Thus, the imperfections in the provisions of Article 27 of the Code of Criminal Procedure effectively allow court hearings to be held in closed session on the grounds that information containing secrets of a pretrial investigation might be disclosed, since such information is protected by law.
In criminal cases involving offenses against the established order of military service, investigating judges and courts issue rulings to hold hearings in closed session on the grounds that state secrets may be disclosed.
Although such decisions are intended to prevent the adversary from using information from criminal proceedings in the context of information warfare and to protect state interests, they do not comply with the requirements of Articles 27 and 517 of the Code of Criminal Procedure.
Pretrial investigations and court proceedings in criminal cases containing information constituting state secrets shall be conducted in compliance with the requirements of the secrecy regime (Article 517 of the Code of Criminal Procedure). Only individuals who hold the appropriate security clearance and have been granted access to specific classified information are permitted to participate in such proceedings. Court hearings must take place in specially equipped courtrooms, and courts must be equipped with secure storage facilities for classified documents and physical media containing such information.
Consequently, there are contradictions in such court decisions regarding closed proceedings and the exclusion of the public and the media from court hearings: while the decisions are justified by the presence of state secrets, the proceedings themselves are not conducted in compliance with the requirements of the secrecy regime.
Ensuring the principles of transparency and openness in judicial proceedings, as well as the participation of media representatives and the public in court hearings, significantly minimizes the negative impact on society of information released by the press services of law enforcement agencies, publications, and reports containing evaluative judgments regarding the guilt of a suspect or defendant.
The current wording of Article 27 of the Code of Criminal Procedure, regarding the possibility of closing a hearing at which a legally protected secret may be disclosed, fails to strike a balance between the principles of openness, publicity, and transparency of proceedings and the protection of public interests.
The lack of a more clearly defined definition of “information protected by law” allows investigating judges, courts, and participants in the proceedings to assess, based on their own subjective views, the presence or absence of such information in the case files and the consequences of its disclosure.
The fact that society prioritizes obtaining information from social media and Telegram channels rather than from licensed media outlets with editorial policies and charters only exacerbates 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 a filter in the form of editors when information is published only exacerbates concerns about the reliability of information upon its release, particularly regarding criminal proceedings or specific individuals involved in those proceedings.
Solving such problems cannot focus solely on amending the provisions of the Criminal Code or the Code of Criminal Procedure. This must be addressed as a comprehensive issue of the state’s information policy, the challenges of which are acutely felt under martial law and have become particularly relevant in light of the Russian Federation’s armed and information aggression.
Author: Yuriy Zhovtan, attorney and partner at Barristers, and Andriy Yosipov, attorney and partner at Barristers
Source: https://zib.com.ua/ua/165972-mediyniy_vplivnaslidki_aktivnogo_visvitlennya_kriminalnih_sp.html?fbclid=IwY2xjawI9YG1leHRuA2FlbQIxMAABHahRbE4xxRfEjCa7xxHpTLgI4nGjw7w1gNynXprwPIMIviX32V9_YxVV6g_aem_aC_McFBgl6DoLBr71Sm5-w