COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
Recommendation Rec(2003)13
of the
Committee of Ministers to member
states
on the
provision of information through the
media
in relation to
criminal proceedings
(Adopted by
the Committee of Ministers on 10
July 2003
at the 848th meeting of the
Ministers' Deputies)
The Committee
of Ministers, under the terms of
Article 15.b of the Statute
of the Council of Europe,
Considering
that the aim of the Council of
Europe is to achieve greater unity
between its members for the purpose
of safeguarding and realising the
ideals and principles which are
their common heritage;
Recalling the
commitment of the member states to
the fundamental right to freedom of
expression and information as
guaranteed by Article 10 of the
Convention for the Protection of
Human Rights and Fundamental
Freedoms (hereinafter “the
Convention”), which constitutes one
of the essential foundations of a
democratic society and one of the
basic conditions for its progress
and for the development of every
individual;
Recalling that
the media have the right to inform
the public due to the right of the
public to receive information,
including information on matters of
public concern, under Article 10 of
the Convention, and that they have a
professional duty to do so;
Recalling that
the rights to presumption of
innocence, to a fair trial and to
respect for private and family life
under Articles 6 and 8 of the
Convention constitute fundamental
requirements which must be respected
in any democratic society;
Stressing the
importance of media reporting in
informing the public on criminal
proceedings, making the deterrent
function of criminal law visible as
well as in ensuring public scrutiny
of the functioning of the criminal
justice system;
Considering
the possibly conflicting interests
protected by Articles 6, 8 and 10 of
the Convention and the necessity to
balance these rights in view of the
facts of every individual case, with
due regard to the supervisory role
of the European Court of Human
Rights in ensuring the observance of
the commitments under the
Convention;
Recalling,
furthermore, the right of the media
and journalists to create
professional associations, as
guaranteed by the right to freedom
of association under Article 11 of
the Convention, which is a basis for
self-regulation in the media field;
Aware of the
many initiatives taken by the media
and journalists in Europe to promote
the responsible exercise of
journalism, either through
self-regulation or in co-operation
with the state through co-regulatory
frameworks;
Desirous to
enhance an informed debate on the
protection of the rights and
interests at stake in the context of
media reporting relating to criminal
proceedings, and to foster good
practice throughout Europe while
ensuring access of the media to
criminal proceedings;
Recalling its
Resolution (74) 26 on the right of
reply – position of the individual
in relation to the press, its
Recommendation No. R (85) 11 on the
position of the victim in the
framework of criminal law and
procedure, its Recommendation No. R
(97) 13 concerning the intimidation
of witnesses and the rights of the
defence, and its Recommendation No.
R (97) 21 on the media and the
promotion of a culture of tolerance;
Stressing the
importance of protecting
journalists' sources of information
in the context of criminal
proceedings, in accordance with its
Recommendation No. R (2000) 7 on the
right of journalists not to disclose
their sources of information;
Bearing in
mind Resolution No. 2 on
journalistic freedoms and human
rights adopted at the 4th European
Ministerial Conference on Mass Media
Policy (Prague, December 1994) as
well as the Declaration on a media
policy for tomorrow adopted at the
6th European Ministerial Conference
on Mass Media Policy (Cracow, June
2000);
Recalling that
this recommendation does not intend
to limit the standards already in
force in member states which aim to
protect freedom of expression,
Recommends,
while acknowledging the diversity of
national legal systems concerning
criminal procedure, that the
governments of member states:
1. take or
reinforce, as the case may be, all
measures which they consider
necessary with a view to the
implementation of the principles
appended to this recommendation,
within the limits of their
respective constitutional
provisions,
2. disseminate
widely this recommendation and its
appended principles, where
appropriate accompanied by a
translation, and
3. bring them
in particular to the attention of
judicial authorities and police
services as well as to make them
available to representative
organisations of lawyers and media
professionals.
Appendix to
Recommendation Rec(2003)13
Principles concerning the provision
of information through the media
in relation
to criminal proceedings
Principle 1
- Information of the public via the
media
The public
must be able to receive information
about the activities of judicial
authorities and police services
through the media. Therefore,
journalists must be able to freely
report and comment on the
functioning of the criminal justice
system, subject only to the
limitations provided for under the
following principles.
Principle 2
- Presumption of innocence
Respect for
the principle of the presumption of
innocence is an integral part of the
right to a fair trial. Accordingly,
opinions and information relating to
on-going criminal proceedings should
only be communicated or disseminated
through the media where this does
not prejudice the presumption of
innocence of the suspect or accused.
Principle 3
- Accuracy of information
Judicial
authorities and police services
should provide to the media only
verified information or information
which is based on reasonable
assumptions. In the latter case,
this should be clearly indicated to
the media.
Principle 4
- Access to information
When
journalists have lawfully obtained
information in the context of
on-going criminal proceedings from
judicial authorities or police
services, those authorities and
services should make available such
information, without discrimination,
to all journalists who make or have
made the same request.
Principle 5
- Ways of providing information to
the media
When judicial
authorities and police services
themselves have decided to provide
information to the media in the
context of on-going criminal
proceedings, such information should
be provided on a non-discriminatory
basis and, wherever possible,
through press releases, press
conferences by authorised officers
or similar authorised means.
Principle 6
- Regular information during
criminal proceedings
In the context
of criminal proceedings of public
interest or other criminal
proceedings which have gained the
particular attention of the public,
judicial authorities and police
services should inform the media
about their essential acts, so long
as this does not prejudice the
secrecy of investigations and police
inquiries or delay or impede the
outcome of the proceedings. In cases
of criminal proceedings which
continue for a long period, this
information should be provided
regularly.
Principle 7
- Prohibition of the exploitation of
information
Judicial
authorities and police services
should not exploit information about
on-going criminal proceedings for
commercial purposes or purposes
other than those relevant to the
enforcement of the law.
Principle 8
- Protection of privacy in the
context of on-going criminal
proceedings
The provision
of information about suspects,
accused or convicted persons or
other parties to criminal
proceedings should respect their
right to protection of privacy in
accordance with Article 8 of the
Convention. Particular protection
should be given to parties who are
minors or other vulnerable persons,
as well as to victims, to witnesses
and to the families of suspects,
accused and convicted. In all cases,
particular consideration should be
given to the harmful effect which
the disclosure of information
enabling their identification may
have on the persons referred to in
this Principle.
Principle 9
- Right of correction or right of
reply
Without
prejudice to the availability of
other remedies, everyone who has
been the subject of incorrect or
defamatory media reports in the
context of criminal proceedings
should have a right of correction or
reply, as the case may be, against
the media concerned. A right of
correction should also be available
with respect to press releases
containing incorrect information
which have been issued by judicial
authorities or police services.
Principle
10 - Prevention of prejudicial
influence
In the context
of criminal proceedings,
particularly those involving juries
or lay judges, judicial authorities
and police services should abstain
from publicly providing information
which bears a risk of substantial
prejudice to the fairness of the
proceedings.
Principle
11 - Prejudicial pre-trial publicity
Where the
accused can show that the provision
of information is highly likely to
result, or has resulted, in a breach
of his or her right to a fair trial,
he or she should have an effective
legal remedy.
Principle
12 - Admission of journalists
Journalists
should be admitted to public court
hearings and public pronouncements
of judgements without discrimination
and without prior accreditation
requirements. They should not be
excluded from court hearings, unless
and as far as the public is excluded
in accordance with Article 6 of the
Convention.
Principle
13 - Access of journalists to
courtrooms
The competent
authorities should, unless it is
clearly impracticable, provide in
courtrooms a number of seats for
journalists which is sufficient in
accordance with the demand, without
excluding the presence of the public
as such.
Principle
14 - live reporting and recordings
in court rooms
Live reporting
or recordings by the media in court
rooms should not be possible unless
and as far as expressly permitted by
law or the competent judicial
authorities. Such reporting should
be authorised only where it does not
bear a serious risk of undue
influence on victims, witnesses,
parties to criminal proceedings,
juries or judges.
Principle
15 - Support for media reporting
Announcements
of scheduled hearings, indictments
or charges and other information of
relevance to legal reporting should
be made available to journalists
upon simple request by the competent
authorities in due time, unless
impracticable. Journalists should be
allowed, on a non-discriminatory
basis, to make or receive copies of
publicly pronounced judgments. They
should have the possibility to
disseminate or communicate these
judgments to the public.
Principle
16 - Protection of witnesses
The identity
of witnesses should not be
disclosed, unless a witness has
given his or her prior consent, the
identification of a witness is of
public concern, or the testimony has
already been given in public. The
identity of witnesses should never
be disclosed where this endangers
their lives or security. Due respect
shall be paid to protection
programmes for witnesses, especially
in criminal proceedings against
organised crime or crime within the
family.
Principle
17 - Media reporting on the
enforcement of court sentences
Journalists
should be permitted to have contacts
with persons serving court sentences
in prisons, as far as this does not
prejudice the fair administration of
justice, the rights of prisoners and
prison officers or the security of a
prison.
Principle
18 - Media reporting after the end
of court sentences
In order not
to prejudice the re-integration into
society of persons who have served
court sentences, the right to
protection of privacy under Article
8 of the Convention should include
the right to protect the identity of
these persons in connection with
their prior offence after the end of
their court sentences, unless they
have expressly consented to the
disclosure of their identity or they
and their prior offence are of
public concern again or have become
of public concern again.