1.
“Acquitted. But maybe
still guilty”
Trial by media, presumption of
innocence and fair trial
Avv. Nicola Canestrini
Fair Trials LEAP Annual conference
Sofia, 9 - 10 March 2018

2.
A virulent press campaign
can, however, adversely
affect the fairness of a
trial by influencing public
opinion and, consequently,
jurors called upon to
decide the guilt of an
accused (ECHR, Kuzmin v
Russia, 2010 § 62)

3.
1. Yara Gambirasio Murder CASE:
The fake video
2. Amanda knox case (2007)
a price to pay?
3. Loris Stival Murder
prosecutors’ interview of
a suspect .. on TV

4.
1. Yara Gambirasio Murder CASE:
The fake video

5.
2. Amanda knox case (2007)
A Price to pay?

6.
“The trial had oscillations which
were the result of stunning flaws,
or amnesia, in the investigation
and capable omissions in the
investigative activity”
“The international spotlight on the
case in fact resulted in the
investigation undergoing a sudden
acceleration, that, in the frantic
search for one or more guilty
p a r t i e s t o c o n s i g n t o
international public opinion,
certainly didn’t help the search for
substantial truth”
Italian Supreme Court, ruling of
7 September 2015, n. 36080

7.
3. Loris Stival Murder
prosecutors’ interview of
a suspect .. on TV

8.
“No one can seriously doubt,
however, that uninhibited prejudicial
pretrial publicity may destroy the
fairness of a criminal trial”
U.S. Supreme Court Nebraska Press Assn. v.
Stuart, 427 U.S. 539 (1976)

9.
EU DIRECTIVE
2016/343
ECHR Standard
Fair trial (art. 6)
CORNERSTONE OF FAIR TRIAL
cages in
courtroom
mug shots?
Recomendation Rec
2003(13) Ministers
Committee COE
presumption
of innocence
media trial

10.
Recomendation 2003 Ministers
Committee COE on the
provision of information
through the media in relation
to criminal proceedings
(1) Information of the
public via the media
(2) Presumption of
innocence Respect for the
principle of the
presumption of innocence
is an integral part of the
right to a fair trial.
Accordingly, opinions and
information relating to on-
going criminal
proceedings should only
be communicated or
disseminated through the
media where this does not
prejudice the presumption
of innocence of the
suspect or accused.
(3) Accuracy of information
(9) Right of
correction or
right of reply
(8) Protection
of privacy in
the context of
on-going
criminal
proceedings…

11.
Article 6 §2 cannot prevent the authorities
from informing the public about criminal
investigations in progress, but requires that
they do so “with all the discretion
and circumspection necessary if
the presumption of innocence is
to be respected"
Allenet de Ribemont vs. France, 10 february 1995, 38

12.
The Court recalls that the presumption of innocence
enshrined in Article 6 § 2 is one of the elements of a fair trial.
It will be violated if a statement of a public official
concerning a person charged with a criminal offence
reflects an opinion that he is guilty before he has been
proved so according to law. It suffices, even in the absence of
any formal finding, that there is some reasoning to suggest that
the official regards the accused as guilty .
.. The Court further recalls that it has found a breach of Article
6 § 2 of the Convention when prejudicial statements were made
against an applicant, in the press, prior to his formal finding of
guilt by persons acting as: police agents involved in the
investigation, high-ranking police officers, Ministers, the Prime
Minister, the Chairman of Parliament, the head of the press
service of the Ministry of Internal Affairs and the Prosecutor
General”
ECHR, Mulosami vs Albania, 29864/03, 2013

13.
“Member States shall
ensure that suspects
and accused persons
are presumed
innocent until proven
guilty according to
law”.
(16) The presumption of innocence would be
violated if public statements made by
public authorities, or judicial decisions
other than those on guilt, referred to a
suspect or an accused person as being
guilty, for as long as that person has not
been proved guilty according to law. Such
statements and judicial decisions should not
reflect an opinion that that person is guilty.
Public references to guilt (art .4)
Member States shall take the necessary
measures to ensure that, for as long as a
suspect or an accused person has not been
proved guilty according to law, public
statements made by public authorities (..)
do not refer to that person as being guilty.
EU DIRECTIVE
2016/343

14.
REMEDIES (art .10)
Member States
Member States shall
ensure that suspects
and accused persons
have an effective
remedy if their rights
under this Directive
are breached
deadline: 1 april 2018
REc 2013/13 COE
Principle 11 - Prejudicial pre-
trial publicityWhere the
accused can show that the
provision of information is
highly likely to result, or has
resulted, in a breach of his or
her right to a fair trial, he or
she should have an effective
legal remedy.

15.
in trial
remedies outside trial
ethic rules?
criminalization?
training?
data protection
authotity?
..
retrial?
change of venue?
preliminary ruling to Lux?
compensation?
reduction of conviction?
…

16.
"It is of primary importance that public
statements do not prejudice a defendant’s
right to a fair trial.
The public interest in a fair trial is
fundamental and can override
other important principles such as open
justice and freedom of expression.”
Media Protocol for Prosecutors, Crown Law, July, 1st,
2013 , principle 6

17.
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