JUDICIAL CHAMBER FOR INFORMATION DISPUTES
UNDER THE PRESIDENT OF THE RUSSIAN FEDERATIONRECOMMENDATION
No. 3 (10), dated 24 December 1997
“On the Application of the Principle of Presumption of Innocence in Journalists’ Activity”
(on an inquiry from the Mass Media Law and Policy Centre)
The Judicial Chamber for Information Disputes under the President of the Russian Federation has received from the Mass Media Law and Policy Centre a letter of inquiry as to whether the principle of presumption of innocence as it is used in law may act as a limit to the professional activity of a journalist who is not an official.
The reason for this inquiry was the fact that the State Duma of the Federal Assembly of the Russian Federation had passed at the first reading the Bill “On Television and Radio Broadcasting”, Paragraph 1 of Article 18 of which lays down that “broadcasters shall be obliged: <…> not to spread any information that may violate a presumption of innocence or predetermine a court decision <…>”.
After examining this inquiry, the Judicial Chamber has come to the following conclusion.
In the Russian legal system, the generally accepted legal principle of presumption of innocence is explicitly stated in Part 1, Article 49 of the Constitution of the Russian Federation.
Under the rule of this article, the accused (i.e. the person charged with an offence by the procedure set out in the Criminal Procedure Code of the RSFSR) is presumed to be innocent until and unless his guilt has been proved under the federal law and adjudged by a valid verdict of a court.
The Judicial Chamber, however, maintains that only those government bodies and government officials that are empowered to impose limitations on the human and civil rights and liberties are responsible for observing the principle of presumption of innocence in the sense set out in the constitutional rule.
Only courts of justice can decide whether anyone guilty of a crime or offence and determine all legal consequences they shall suffer.
Now, where journalists are conducting their own investigations or reporting pre-trial investigation in a criminal case, they are in fact realising their freedom of communication as a constitutional right, on the one hand, and fulfilling their professional duty by informing the public of issues of public interest, on the other hand.
Journalists are not persons empowered to restrict anyone’s rights and liberties. For this reason, opinions of any journalist broadcast on television or radio or published in any periodical cannot, by virtue of the constitutional rule referred to above, legally affect anyone’s right to plead not guilty.
For the same reasons, it seems illegitimate to demand broadcaster “not to spread any information <…> that may predetermine a court decision”. Indeed, only a court of justice can establish anyone’s guilt. But this cannot be taken as a ground for restricting the rights of journalists or any other persons (including representatives of the prosecution and the defence, victims, suspects and others) to expound their views on any aspects of a pre-trial investigation or trial proceedings, except where statements made by any of the aforesaid persons in the media contain signs of any of the offences as provided for in Chapter 31 “Offences against Justice” of the Criminal Code of the Russian Federation.
The Judicial Chamber maintains, then, that the provision of the bill that the rights of journalists to publish and broadcast information must be restricted on the ground that thereby they may violate a presumption of innocence or may predetermine a court decision, is in fact an unjustified attempt to narrow significantly the range of the freedom of communication set down by the Constitution of the Russian Federation.
Applied in practice, a rule worded like this one would in fact amount to a ban on journalist investigations and comment on pre-trial investigations and trial proceedings in cases of significant public interest.
The Judicial Chamber maintains that the whole body of journalists’ responsibilities as established by the law to check the truth of the information they publish or broadcast, respect the right, legitimate interests, honour and dignity of individuals and institutions, and not to use the media for disclosing secrets protected under the law (including the secrets of legal investigation, and secrets of correspondence and telephone conversations) seems sufficient to provide the protection (judicial protection as well) of the rights and legitimate interests of individuals and institutions against possible abuses of the freedom of communication.
Given all this, the Judicial Chamber is addressing the Committee for Information Policy and Communications of the State Duma of the Russian Federation’s Federal Assembly with a recommendation that discussion of the rule in Part 1 Article 18 of the Bill “On Television and Radio Broadcasting” should be resumed, taking into consideration all the arguments suggested herein.
Igor Yeremin,
Deputy Chairman,
Judicial Chamber