President of the Supreme Court

Pavel Šámal

Dear President of the European Court of Human Rights
Dear Minister,
Your Eminence, Cardinal Duka,
Dear General Attorney,
Dear Chairmen of both Supreme Courts,
Ladies and Gentlemen,
Dear Colleagues,

It is a great pleasure for me to participate in this conference dealing with fair trial, its limits, and the media. I would like to focus on the principle of presumption of innocence as it is enshrined in the national Czech legislation as well as from the point of view of Article 6 Paragraph 2 of the Convention on the Protection of Human Rights.

First, it should be noted that the national legislation is based on the Charter of Fundamental Rights and Basic Freedoms (Art.2/1993, Coll.), which notes in Art.40 Paragraph 2 that a person against whom a criminal proceeding has been brought shall be innocent until her guilt is declared in a court’s final judgement of conviction. The principle of presumption of innocence is stipulated in § 2 Paragraph 2 of the Criminal Procedure Rules which says: „Until the guilt has been declared by the court’s final judgement of conviction, the one against whom the criminal proceedings has been conducted must not be viewed as a guilty one.” It is interesting that the prepared new Code of Criminal Procedure stipulates that the principle of presumption of innocence will be defined like in the Charter, i.e. in a positive way, including the emphasis on the principle which says that “the accused is not obligated to affirmatively prove his innocence.” Moreover, this principle will also include the rule in dubio pro reo. Even though the definition of this principle stresses especially the rules of producing evidence, it cannot be limited only to the area of bringing evidence because in general, this principle also includes the principle of unbiased approach of bodies responsible for penal proceedings. Therefore, the principle of presumption of innocence should be also viewed as an instrument for the protection and a good reputation of a person before unjustified accusation that he has committed a crime.

In this respect the European Court of Human Rights jurisprudence needs to be taken into account. According to the ECHR, presumption of innocence is violated if for instance, the court or other public authority statement suggests that the prosecuted person is guilty before the person’s guilt was legally proved. This judicial decision also defines requirements regarding acts such as preliminary statements of the court or other public authorities on the guilt of the accused or defendant.¹ It is also necessary to differentiate between the fact whether a public statement has been made that a certain person is suspected of committing a crime, and a clear statement that a person has committed a crime without the person being legally proven guilty². It is always necessary to assess whether the principle of presumption of innocence was violated given the circumstances of a concrete case under which the statement has been made. The principle of presumption of innocence prohibits especially those statement of public authorities on the ongoing criminal proceeding which would support the public opinion on the guilt of the suspect, and which would anticipate the assessment of given facts by the court. This principle obviously does not prevent national authorities from informing the public on the ongoing criminal proceedings and investigation. But they should do that with discretion and caution. The ECHR stressed the importance of the choice of words in public authorities’ statements before the person is brought to justice and is convicted of committing a crime.

In this respect the ECHR has only recently dealt with this matter in the Maslarova vs. Russia case. Among other things the ECHR decided about whether the statements made by the public prosecution spokesman had violated the principle of presumption of innocence. The spokesman noted with a big deal of certainty that it is almost evident that Ms. Maslarova misused public funds. According to the ECHR this statement went beyond the scope of a mere information because it unambiguously implied that the complainant had stood behind the misuse of public funds. According to the ECHR a spokesperson must avoid any semantic ambiguities in relation to the ongoing criminal proceedings. Since these statements could be interpreted as categorical claims of a high state representative on the guilt of the complainant of misusing public funds, the ECHR stated that Article 6 paragraph 2 of the Charter had been violated, and noted that the state and its bodies are obliged to objectively inform on the ongoing investigation or criminal proceedings. The spokesperson and other employees at the court or public prosecution’s offices must abstain from statements that would anticipate the guilt of the accused or the culprit.

The basic rules related to public information on the ongoing criminal proceedings are incorporated in the Czech Criminal Procedure Rules in the provision of paragraph 8a and others. When providing information, the law enforcement bodies must not jeopardize the explanation of facts necessary for the assessment of the case because a preliminary publication of individual facts of the criminal proceedings could hinder or even foil the detection of the criminal case and the conviction of the perpetrator. A special, very strict legal regulation is applied under Act No. 218/2003, Coll., on Justiciary in Suits of Youth, which prohibits disclosure of information on juveniles which could lead to the identification of the juvenile who is subject to the criminal proceedings. The law enforcement bodies must not disclose facts about parties to legal proceedings which do not directly pertain to the criminal activity. This measure protects the person and the personal data of all parties to criminal proceedings. Hence, the law enforcement bodies must respect the presumption of innocence laid down by § 2 paragraph 2 of the Rules of Criminal Procedure.

The principle of presumption of innocence is also inherent in the last clause of § 8a Article 1 of the Criminal Procedure Rules. It stresses that information leading to the identification of a person who is subject to legal proceedings must not be disclosed. It is namely necessary to make sure that certain information on the suspect (later the accused) must be kept secret in order to reduce the defamatory effect of the criminal proceedings as much as possible. In the next phases the full name of a physical person or other data from which the person’s identity could be recognized, must not be disclosed. Even if the public knows the full name of the suspected or accused physical person, information must be conveyed in harmony with the principle of presumption of innocence. Namely, the accused does not have to be sentenced but, on the contrary, the criminal proceedings can be abated, or the accused can be acquitted. Law enforcement bodies can disclose information leading to the identification of a person only when it is necessary for achieving the purpose of the criminal proceedings and only to the extent and under the conditions mentioned in § 8d of the Criminal Procedure Rules. One of the exceptions to the ban on public information is public interest. If public interest and the right to information prevails over the interest in the protection of personal data and privacy of the individual, those data can be made public. This is closely linked to the protection of journalists and their right to disseminate information – journalists must obviously act in good will and provide reliable and accurate information.³

On the one hand, there is the public interest in having a perpetrator of a crime prosecuted and convicted, and therefore, citizens have the right to information about the ongoing criminal proceedings. On the other hand, there is the interest of the accused in having a fair court respecting the presumption of innocence, to decide about his guilt or innocence. When informing the public about the criminal proceedings, the law enforcement bodies must be careful not to jeopardize the crime detection. At the same time, they must respect the principle of presumption of innocence, which entails concrete requirements for public authorities, including spokespersons. The statements must be formulated appropriately within the meaning of the ECHR jurisprudence in order not to create the impression or conviction of the public about the guilt of a person. Hence, the principle of presumption of innocence does not prevent the authorities from informing the public about criminal proceedings – however, the information about the ongoing criminal proceedings and the procedural position of concrete persons must be clear and accurate.

Notes