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NB_CE
Strasbourg, 26 November 2012

CCPE (2012)8
English only

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS (CCPE)

Elements for the preparation of the questionnaire concerning the relationship between prosecutors and media (Opinion N°8 (2013) of the CCPE)

A. Disclosure of information to media: conflicting interests

Explanatory note:

The Recommendation Rec(2003)13 of the CoE Committee of Ministers on the provision of information through the media in relation to criminal proceedings referred to the following:

    · the commitment of the member states to the fundamental right to freedom of expression and information as guaranteed by Article 10 of the European Convention on Human Rights;
    · 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;
    · 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;
    · 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;
    · 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.

Questions:

1. In view of the above, please describe existing restrictions to the right to information in the field of prosecutorial activities in the context of striking the right balance between the possibly conflicting interests protected by Articles 6, 8 and 10 of the European Convention on Human Rights, as mentioned above in the Recommendation Rec(2003)13 of the CoE Committee of Ministers.

2. As regards secrecy of pre-trial investigations and preventing dissemination of information during such investigations (e.g. secrecy of witness depositions, other evidences, procedural motions etc.), please particularly focus on:

    · the legislative and sub-legislative norms;
    · internal regulatory instruments;
    · relevant mechanisms and procedures.

3. In the context of the above, please clarify:

    · at what stage during pre-trial investigation an information can be made public?
    · who can disclose such information to media (public prosecutor, parties to the case, their lawyers, other persons)?
    · in which conditions this may happen (what kind of authorisations/permissions are required, any procedural safeguards, pre-conditions or prerequisites)?
    · what kind of information may be disclosed (names of parties, witnesses, prosecutors, facts which have become known due to investigation, regardless whether they are directly linked or not to the subject of the case, etc.) ?
    · how it is ensured that such disclosure of information to media does not violate the protection of private life, reputation and human dignity and the presumption of innocence ?

4. What are the procedures, if any, that guarantee access to information and access by journalists to prosecutorial activities and case files? Please make appropriate references to existing regulations on this matter.

5. Is there official policy encouraging the prosecutors to respond to the needs of the media, and how this policy is implemented? What are the steps, if any, undertaken to develop cooperation between prosecutors and media?

B. Professional training of prosecutors and media, their ethics, conduct and means of communication

6. Are the prosecutors trained during their initial and continuous training on the requirements of the European Convention on Human Rights as regards freedom of expression and access to information?

7. Are the prosecutors trained on how to interact with media?

8. Are the journalists trained on the requirements of the Convention as regards protection of private life, reputation and human dignity and the presumption of innocence?

9. Are the journalists trained on how to interact with the prosecution services?

10. Are there joint training courses, conferences, seminars etc. organised for prosecutors and journalists in order to help them to better understand each other’s role and support each other, in the context of striking the right balance between the above-mentioned rights?

11. Are there professional associations of the media and journalists, which serve as a basis for self-regulation in the media field as regards its interaction with the prosecution services?

12. Does your country have ethical rules or equivalent for prosecutors regulating their relations with the media? (please specify)

13. Does your country have ethical rules or equivalent for the media regulating their relations with the prosecutors? (please specify)

14. Do the prosecution services have spokespersons? Are they prosecutors? Are the prosecutors allowed, by regulations and/or by ethical or professional conduct rules, to make statements to the press? If so, under what circumstances?

15. Do the prosecution services hold press conferences? If so, what are the procedures?

16. What are the technical means for communication and access to information? Are television cameras allowed into the prosecutorial services? If so, what are the rules and regulations governing the broadcasting of the recorded TV images in order to prevent the risk of manipulation?

17. In the case of information made public by the prosecution services, how it is ensured that it is made available to all media outlets, in order to avoid discrimination and selective use of the media?

C. Supervision of media activities vis-à-vis national legislation and practices

18. In the light of national law and practices, please describe criminal, administrative and civil implications of libel, slander, and/or similar violations of a person's reputation, and the role of the prosecution services.

19. Please give information about penalties provided for by law, with special reference to violations committed by journalists.

20. Are there different thresholds for the journalists’ responsibility, e.g. as regards the public figures and private individuals? If so, is there, however, protection for private life of public figures, and under what circumstances?

21. What degree of professional diligence and integrity is requested from journalists? What criteria govern the distinction between lawful and unlawful acts, if the information provided is false? Are there differences between facts reported as such and expressing opinions? Is the fact that information comes from a qualified source (e.g. a prosecutor) an element that permits disclosure in any case or at least exempts the journalist from verification?

22. What precautions are requested in the broadcasting, e.g., news concerning provisional arrest of a citizen on the basis of criminal charges?

23. Please provide information as to the amount of compensation to the victims of the above-mentioned violations. Are there established criteria?

24. Please describe protective measures available, respectively within criminal and civil procedures (e.g. seizure of publications, order not to distribute a book, etc.) and the role of prosecutors. Are there measures in your country that are or might be considered as a form of preventive censorship? Is there a role for the prosecutors in supervising media activities?

25. If a prosecutor or a prosecution service is attacked by media for reasons connected with the criminal proceedings, is there a role for the prosecutorial associations? Is the prosecutor bound by a duty of discretion even if a press campaign has been started attacking him or her?