Visibility of Justice Allows for Fair Trials

2. October 2013.00:00
Vasvija Vidovic, a long-time lawyer with legal experience before domestic and international institutions, writes about the necessity for publicity of criminal proceedings and denies criticism that witnesses can be influenced in their testimonies by media reports.

This post is also available in: Bosnian

The criminal procedure in Bosnia and Herzegovina is built on the principles of publicity, orality and immediacy. From the provisions of the Criminal Procedure Code of Bosnia and Herzegovina, and also from international documents, it clearly derives that that the publicity of the hearing is one of the basic principles of the criminal procedure.

This principle is primarily contained in Article 6, paragraph 1 of the European Convention on Human Rights, which, according to the Constitution of Bosnia and Herzegovina, has primacy over all legislation and is directly applicable in Bosnia and Herzegovina. 

In the case of Van Meurs vs. The Netherlands, the Commission for Human Rights took the stance that the trial should be public and oral, there should be public access to the trial and that the state is obliged to provide a public trial. The best way to ensure publicity and openness of the proceedings to the public is through the media outlets.

Additionally, the provision of information in connection with court proceedings, especially when it comes to criminal cases, is necessary in order to fulfil the rights of the public to be informed, as is set out in Article 10 of European Convention on Human Rights, which represents one of the fundamental principles of any democratic society, as well as a condition for progress of society and the development of each individual.

Taking into account that the media have a special role in the distribution of information to the public, they must be able to inform regarding the activities of the judicial authorities. In this context, the right of public to obtain information on matters of public interest is particularly important and that includes the right of the media to freely report and comment on the functioning of the criminal justice system.

Verification of Judges

For example, in the case of Prager and Oberschlick vs. Austria, the European Court of Human Rights pointed out that the media is the only means through which public opinion can control and verify whether judges perform their difficult duty in a manner which is primarily appropriate to basic purpose of the mission which is entrusted to them.

The Criminal Procedure Code of Bosnia and Herzegovina has taken the principle of publicity of the proceedings and explicitly stated exceptions, i.e. it elaborated the questions of exclusion of the public from the main hearing. Thus, as a general principle, Article 234 of The Criminal Procedure Code of Bosnia and Herzegovina prescribes that the main trial is public. The term ‘public trial’ implies that the discussion in the courts may be attended by adults, which of course depends on the capacity of the courts themselves and the area available in courtrooms.

When we talk about the public who attend the criminal proceedings, we should distinguish between two variants, the so-called general public, which refers to adults who are not directly interested in the outcome of the criminal proceedings and the so-called partisan public, which refers to persons who are directly interested in the outcome of the criminal proceedings.

This distinction has its consequences regarding the exclusion of the public. Thus, the partisan public cannot be excluded, unless if it is needed to perform some of the disciplinary measures, and the general public may be excluded under precisely defined conditions, which are:

– if it is in the interests of national security;
– if it is necessary to preserve a state, military, official or important business secret;
– maintenance of public order;
– protection of ethics in a democratic society;
– personal and intimate life of the indictee or the injured party;
– protecting the interests of minors
– protecting the interests of witness.

It should be pointed out that the public is always excluded in the case of a minor, regardless whether the one is charged, interrogated as a witness or it is the damaged party during the trial.

A decision regarding the exclusion of the public is brought by the judge or by the Chamber, either Ex Officio or upon the motion of the parties, provided that it is always necessary to preliminarily interrogate the parties. Otherwise, it is the matter of a substantial violation of the criminal procedure.

Information Is the Core of Law

This decision of the judge or the Chamber is in turn made by decision that has to be explained and publicly announced, in each individual case. If the public was unlawfully excluded from the trial, it means that a substantial violation of the criminal proceedings has been committed.

Freedom of public information is at the core of the rights provided by Article 10 of European Convention on Human Rights and in several cases, the European Court of Human Rights has held discussions on issues related to the right of reporting of journalists in criminal proceedings. According to the perception of that court, the public should be informed about criminal proceedings, discreetly, of course, and with all the considerations as it is required for compliance with the presumption of innocence.

Moreover, it is possible to secure the publicity of the trial in the form of a movie or television recording, taking into account that for such a recording, it is needed to obtain prior written approval in accordance with the procedure prescribed by law.

The Committee of Ministers of the Council Europe adopted Recommendation REC(2003) 13, which is directly related to the media distribution of information in connection with criminal proceedings, where, as basic principles, it is accepted that the public should be informed through media regarding the activities of the judicial authorities and police services. It follows that journalists should be free to report and to present comments on the functioning of the judicial and criminal justice system.

The importance of regular information during the criminal proceedings is particularly emphasised, and journalists should not be excluded from the trials, unless it is closed to the public in accordance with Article 6 of the European Convention on Human Rights. In fact, media coverage, in addition that it must be in accordance with established rules, cannot otherwise be limited, unless the main trial is closed to the public, whereas in several cases, the European Court of Human Rights insisted that the right to a public hearing may be restricted only when circumstances decidedly require it.

Furthermore, the right to publicity and the right of information in any case does not prejudice the protection of other persons regarding the right to privacy, protection of witnesses or the fairness of the procedure, given that the judge or the Council may at any time exclude the public from the proceedings if circumstances requires it. In any case, protection measures in terms of a pseudonym can be assigned to a witness. Revealing the identity of a protected witness is a felony and at the beginning of each trial, all persons present in the courtroom are acquainted with this rule. Therefore, reporting on criminal proceedings cannot be restricted for these reasons and especially not for the reason that witnesses are allegedly prepared for trial by media reports, as has been heard recently.

The right to public hearing includes the right of the indictee to require that the public, including the media, is allowed to be present during the court proceedings.

The assumption always goes in favour of requiring of public hearings, and not the opposite.

Specifically, the public nature of the debate offers protection for litigants in secret conducting of justice without public scrutiny. It provides a means to maintain confidence of the public in the enforcement of justice and for the courts itself.

Visibility of justice contributes in ensuring the fairness of the trial, which is the purpose of Article 6. This Article is considered to be of fundamental importance in a democratic society. Public hearings also allow journalists to carry out their vital role as “the Watchful Eye of the Public,” which is protected by Article 10 of European Convention on Human Rights.

Confidence of the Public

It is absolutely clear that the meaning of the provisions of the Criminal Procedure Code of Bosnia and Herzegovina and the articles of the European Convention on Human Rights, but also of the case law of the European Court of Human Rights, particularly in criminal proceedings, is to ensure the publicity of the main trial, so that the trial is conducted in accordance with requirements of fairness and to ensure the confidence of public in the administration of justice and to the courts itself.

Cases that are on trial before the Court of Bosnia and Herzegovina are extremely complex and can cause a lot of attention and public interest. We believe that the right information about these cases should be available to the public at large. This practice is carried out and implemented and the International Criminal Tribunal for the former Yugoslavia (ICTY).

In fact, in order to monitor the work of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Court of Justice and the International Criminal Court, the SENSE news agency, “Sense – Tribunal”, was especially established. On a daily basis, this agency reports on the work of The Tribunal and even directly transmits certain trials, with the aim of informing the public, ensuring a public trial, but also the fairness of the trial.

Ensuring the presence of media representatives at trials also greatly contributes to ensuring the fairness of the trial and also serves to protect basic human rights, the rights of the accused persons, as well as the rights of all interested parties and the general public.

This way, the rights of victims and injured parties in the proceedings are especially protected. The precise elaboration of the exceptions where deviations from the principle of the publicity of procedure are acceptable protects the rights of all participants and interested parties in the procedure, but it also protects it from arbitrary decision-making in excluding the public. All this contributes to the advancement of democracy in society and to its development in that direction.

Vasvija Vidović

This post is also available in: Bosnian