High Public Prosecutor in Prague

Lenka Bradáčová

“The right to inform the public, and the right of the public to be informed can get in conflict with equally important public and private interests which are protected by the ban on disclosing confidential information about criminal proceedings.”

“The authority and impartiality of the judicial power, the effective prosecution of criminal acts, and the right of the accused to presumption of innocence and protection of his private life, are the values we should respect. “

Let me first stress that I consider it appropriate to set the limits and ways of communication of public prosecution with public media officials as well as the constitutional basis and related legal limits.

I would like to mention the document of the 2014 Consultative Committee of European Prosecutors which contains a recommendation for public prosecutors how to communicate with the media. Public prosecutors are encouraged to regularly inform the public about their activities and ensuing results through the media. In their work they should aspire to be transparent and to win public confidence. In big cases and in disseminating false information about persons or circumstances of the case, the Consultative Committee advises that information should be provided directly by the leading public prosecutor.

Article 17 of the Charter of Fundamental Rights and Freedoms generally refers to freedom of speech and the right to information by obliging national public authorities and local authorities to provide information about their activities in an appropriate way. The conditions and execution are set by the law. In this case it is Act No. 141/196, Coll., on penal proceedings (hereinafter Criminal Procedure Rules). Its provisions § 8a – 8d regulates conditions of providing information about criminal proceedings related to both the physical and the legal entities. The regulations concern protection of information and informing the public by law enforcement bodies, protection of information about criminal proceedings by third persons, ban on publishing some information, and exceptions from this ban. When providing information to the public about their activities, law enforcement bodies are bound to a general obligation not to impede the clarification of facts that are important for the criminal proceedings, not to publish data on persons involved in the criminal proceedings that do not directly pertain to the criminal activity, and they must not violate the principle which says that 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. Moreover, in preliminary procedures, there is a ban on publishing information leading to the identification of a prosecuted person, an aggrieved or a concerned person, and a witness. The above-mentioned notes make it clear that law enforcement bodies have the responsibility to inform the public about their activities, but at the same time, they have the obligation not to dislose some information to the public.

Law enforcement bodies inform the public about their activity through the public media. The definition of this term is more complex, because the national legislation has not yet reacted to a relatively new phenomenon of the electronic media, or information mediated by the internet. The so-called “new media” is the subject of a general civil regulation which, however, does not fully reflect the specifics pertaining to the mediation of electronic information to the public as it is the case of the traditional media as stipulated by the media law.

The Criminal Procedure Rules in §8c regulates the ban on disclosing information without consent of a person who is the subject of that information, information about the regulation of interception, and recording of the telecommunication operation, or information thus obtained, telecommunication operation data, or information obtained by shadowing persons and matters if they facilitate the identification of that person, and if they were not used as evidence at the court. At the same time, the CPR §8c contains procedural regulations and exceptions from the ban on disclosure, in which the legislator defined four basic areas when the information, to which the ban is applied, can be disclosed in a necessary extent. The break is possible in cases of disclosing information for the purpose of search for persons in order to achieve the purpose of criminal proceedings. The Criminal Procedure Rules allow for disclosure in case of the implementation of the principle of public court trial, and last but not least, when disclosure is in public interest.

One of the basic principles in adhering to the obligation to provide information about criminal proceedings to the public and the performance of competence is the principle of proportionality. Essentially, no law is absolute in principle, and when two laws contradict, it is necessary to compare them (Article 4 of The Rights of Man and Citizen 1789). In general, courts use tests of proportionality for assessing the principle of proportionality: for instance, the Czech Constitutional Court uses a three-step test to assess the need of interference, its appropriateness, and comparison of the relevance of the two rights.

Under Article 10 of the European Convention, everyone has the right to freedom of speech. This right includes the right to take views and accept and disseminate ideas without the interference of state authorities, and irrespective borders. Since it includes obligations and responsibility, the execution of these rights can be subject to formalities, conditions, restrictions, or sanctions stipulated by the law, which are essential in democratic society in the interest of national security, territorial integrity, or public security, law and order, and prevention of crime, protection of health or morale, protection of reputation, or the rights of others, prevention of leak of confidential information, or preservation of authority and impartiality of the judicial power.

The High Public Prosecution Office in Prague based its examination procedures against the Economia Publishing House, which operates the Internet news web site Aktualne.cz, on the above-mentioned principles. On 12 May 2017, the web published information about the ongoing preliminary procedure concerning misappropriation of the European funds for sports at the Ministry of Education. Criminal proceedings of accused persons were at the very beginning. The information was published immediately after the accused persons were detained, during the decision about their detention. It should be noted that one of the detention reasons was the so-called collusion detention, that means the accused could obstruct the criminal proceedings by influencing witnesses who had not yet been questioned. The information disclosed on the web included facts about the intimate relations of the accused persons as well as data on subjects, both legal and physical entities, which should be questioned as witnesses during the criminal proceedings. The author of the public article clearly drew from the police decision to start criminal proceedings, which was delivered to the accused persons and their defenders. The prosecutor of the High Public Prosecution Office in Prague sent a notice to the publishing house to delete the part of the public statement concerning the identification of witnesses and the intimate relations between the accused persons. He also warned the company that in case the notice was disregarded, the company would be fined and thus forced to comply with the notice.

Before the procedural act, i.e. before sending the notice, the public prosecutor considered all circumstances of the case in the context of the decision of the European Court of Human Rights, and inspired by the decision of the Grand Chamber of 29 March 2016 in re Bédat vs. Switzerland, he examined the following deliberations.

As regards the necessity of the action, he took into account that the press plays an essential role in democratic society, and although he must not go beyond the limits, especially as regards the reputation and rights of others pertaining to the protection of confidential information, his role is to mediate – in keeping with his obligations and responsibilities – information about all matters of public interest. Under Article 10 of the Convention, protection of journalists is dependent on the fact that they act in good will with the aim to provide accurate and reliable information in keeping with the principles of responsible journalism. The concept of responsible journalism also embraces the legitimacy of the journalist’s conduct and the assessment whether he acted in a responsible way in disclosing the information. It is an important, although not critical, aspect. The media’s role is to disclose information about legal proceedings, and the public has the right to learn about the information. However, there should not be reports which could, intentionally or unintentionally, affect the right of a person to fair trial, or harm public confidence in the role of courts in criminal justice.

These general starting points were followed by concrete considerations, that means the public prosecutor had to resolve the following questions.

How did the journalist get the respective information? How did the article contribute to a discussion in public interest? What was the impact of the publication of the article on the criminal proceedings, and how did the information affect the private life of the accused persons?

The way the person gets the information which he then discloses in public, and which is considered confidential from the point of view of criminal proceedings, that means not public, can be deemed relevant to a certain extent as regards the balance of interests protected by Article 10, paragraph 2 of the Convention. In our case, the journalist has obtained information by violating the legal obligation by the third person. It was not stated that he obtained information by acting illegally. However, this conclusion is not a decisive factor because the ECHR general conclusions indicate that professional journalists must know about a confidential character of information disclosed in the article. This confidentiality is evident in the document on which the journalists most probably built. As regards the content of the article, the public prosecutor based his considerations on the conclusions that Article 10 does not only protect the essence of information and ideas but also the form in which they are disclosed. Therefore, it is not up to the law enforcement authorities to determine instead of the press what reporting tool the journalist should have used. Freedom of the press includes the possibility to exaggerate to a certain extent or even to provoke. But the journalist should distance himself from sensationalism, or the kind of reporting to satisfy the relatively unsound curiosity everyone is prone to feel as regards criminal cases. Readers should not create the opinion and anticipate the result of a court proceeding without the least respect to the principle of presumption of innocence. The public prosecutor perceived the disclosure of information about the intimate relation between the accused persons as almost beyond the limits of publication, even though one of the accused was a public authority representative.

Another necessary question the public prosecutor had to resolve was how the content of the article contributed to the discussion in public interest. Being aware of the fact that the public has legitimate interest to be informed about criminal proceedings, and that information concerning the execution of powers of law enforcement authorities is the subject to public interest, the public prosecutor had to consider whether the content of the article and in particular the information which was not public given the stage of criminal proceedings, could contribute to public debate or, whether it served exclusively to satisfy the curiosity of certain readers about details of the private lives of the accused persons. Since the accused persons were taken into custody upon the decision of the court, the journalist could not obtain their statement in a situation when they were restrained of personal freedom, could not effectively defend their rights, and information about their intimate life was disclosed in public.

In principle, the rights guaranteed by Articles 10 and 6, paragraph 1 of the Convention enjoy the same protection. It is legitimate that the confidentiality of criminal proceedings be granted a special protection due to what is at stake during the proceedings for the administration of justice and for the right of the accused persons to presumption of innocence. The nonpublic stage of preliminary proceedings focuses on the protection of the interest of the accused persons, especially presumption of innocence, and in general terms, their personal interest and relations. Confidentiality as mentioned by the ECHR is justified by the need to protect the process of creating views of judges and decision making in justice. And even when considering this principle, the ECHR Grand Chamber assumed that the risk of influencing the criminal proceedings is the reason for national authorities to adopt respective measures such as a ban on disclosing confidential information.

The right to protect good reputation is protected by Article 8 of the Convention as part of the right to respect private life. For the state to meet the positive obligation to protect the right of one person according to Article 8, it can be compelled to restrict, to a certain extent, the rights of another person protected by Article 10. The ECHR assumes that the existence of the above-mentioned civil means to protect private life in the national legislation, does not deprive the state of its positive obligations ensuing from Article 8 of the Convention towards the accused in criminal proceedings. As regards concrete circumstances of the case in question, it should be reiterated that the accused persons were in custody, that means in a vulnerable position, at the time the article was released.

To sum up, when we generally accept the principle that freedom of speech cannot be and is not the absolute right, in criminal proceedings it is necessary to consider the interest in a fair investigation of criminal acts which can be harmed by manipulations with the evidence, making witnesses not credible, or any other risk on the one hand, and the principle of a fair trial, including none of the basic principles of presumption of innocence. The principle of fair trial includes the assessment of possible influence of the trial proper, and the protection of the rights of accused persons, as well as interest in the protection of personal rights, that is privacy of persons, both the accused, victims, witnesses, or other persons involved in the trial.

This text was inspired by the decision of the Grand Chamber of the European Court of Human Rights from 29 March 2016 in re Bédat vs. Switzerland, including quotations from this decision. This ECHR decision ranks among similar decisions that can serve as guidelines and inspiration for law enforcement authorities in solving legally complex situations.