Judicial Chamber on Informational Disputes under the President of Russian Federation adopted Recommendation “On application of the principle of presumption of innocence for the journalists’ activity.” The Recommendation is a reply to the inquiry of the Moscow Media Law and Policy Center. The immediate reason for the inquiry was the draft law “On Television and Radio Broadcasting” that passed its first reading in the State Duma (lower house of the parliament) in September 1997, Article 18 of which prohibits broadcasters from disseminating information that violates presumption of innocence.”
The Judicial Chamber has concluded that the principle of presumption of innocence as written in Article 49 of the Constitution of the Russian Federation can only be applied to the governmental bodies and their functionaries that have power to restrict rights and freedoms of a person. Journalists are not among them. Only court can acknowledge someone guilty of a crime with all legal repercussions. As to the journalists, they do investigative reporting or cover criminal investigation as part of their constitutional right of the freedom of information; on the other hand they do their professional duty by informing the audience on circumstances of public interest. Therefore a journalist’s opinion that was expressed in the mass media shall not influence the right of a person to be considered innocent in the legal sense. Thus the draft law is an ungrounded attempt to narrow the limits of the freedom of mass information as set by the Constitution of the Russian Federation.
The Judicial Chamber concludes that the existing legislation on the responsibilities of the journalists is sufficient enough to protect the rights and legal interests of persons from abuse of the freedom of mass information. Therefore the Chamber appealed to the State Duma with a recommendation to review the norm of Article 18 of the Broadcasting Bill. Judicial Chamber on Informational Disputes was created by the Decree of the President of the Russian Federation on December 31, 1993 (# 228). It is a state body that assists the President in realization of his constitutional powers to guarantee the rights, freedoms and lawful interests in the sphere of mass information.
Andrei Richter
The Judicial Chamber for Information Disputes under
the President of the Russian Federation has received from the Mass Media
and Law 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.