The undermining of the presumption of innocence principle through media pre-judgments

The principle of the presumption of innocence is a cornerstone of international and Austrian law.

The principle of the presumption of innocence is a cornerstone of international and Austrian law. It is enshrined in Article 6(2) of the European Convention on Human Rights (EMRK) and Section 8 of the Austrian Code of Criminal Procedure (StPO), stating that every person is considered innocent until proven guilty in a court of law. Unfortunately, in practice, especially in recent months and years, there has been an increasing number of cases where particularly prominent and/or politically exposed individuals are reported in the media as if they were guilty, even before a criminal conviction, often before any charges are even filed. For instance, terms like "perpetrators" are used instead of "alleged perpetrators," which can mislead the general population. This perception is not easily dispelled even in the event of a case being dropped or an acquittal, which is often mentioned in the media in just a brief sentence. Negative media coverage can have severe adverse professional and social consequences for the individuals involved, even if they are ultimately not convicted in court. In the worst cases, especially for prominent individuals, entire livelihoods can be destroyed as a result.

The problem of media pre-judgment begins as early as the investigation phase, which can often last several years, especially in complex white-collar crime cases. It is not unreasonable for the public to have an interest in reporting at this stage, especially when it involves crimes with political connections. However, it should be noted that according to Section 12 of the Austrian Code of Criminal Procedure (StPO), the investigation phase is explicitly non-public. Non-publicity is particularly significant at the beginning of the criminal proceedings because, at this early stage, the suspicion is often unclear, making it crucial to protect the rights of the parties involved. Nevertheless, it is not uncommon for information to leak to the press during the investigation phase, and sometimes even parts of the investigation file are published.

When the media report on pre-trial documents that are supposed to be secret, it typically requires either information coming from the individuals involved (which is rarely in their interest) or leaks from law enforcement authorities. The historical legislator did not anticipate this possibility because there is still a comparatively strict criminal offense that threatens the violation of official secrecy with imprisonment for up to three years (!). It is important to note that the fact that such leaks are usually not provable due to the protection of journalistic sources does not change the illegality and theoretical criminal liability of such leaks. This must be recalled in light of current media practices. Journalists do not have the right to report on non-public pre-trial documents; they only benefit from the practical difficulty of proving such breaches. However, the lack of provability does not imply legality. Appeals to the responsibility of journalists have proven to be ineffective repeatedly. Therefore, legislative measures such as the citation ban, which has proven effective in Germany - contrary to some representations in Austria - are necessary when it comes to providing meaningful and effective protection against pre-judgments that violate the European Convention on Human Rights (ECHR) and infringe upon individuals' rights. In Germany, the existing legal provision sanctions the publication of parts of the investigation file before discussion in a public hearing. Unfortunately, such a regulation does not (yet) exist in Austria in a comparable form.

The publication of parts of the case file is also problematic due to the potential influence it can have on judges and potential witnesses. This concern is reinforced by the existence of Section 23 of the Austrian Media Act (MedienG), which reads as follows:

"Anyone who, in a media outlet, discusses the probable outcome of a criminal proceeding or the value of evidence in a manner that is capable of influencing the outcome of the criminal proceeding during a main trial after the legal effectiveness of the indictment, in proceedings before a single judge of the regional court, or in district court proceedings after the order for the main hearing but before the first-instance judgment, shall be punished by the court with a fine of up to 180 daily rates."

This provision in the Media Act represents the last remnants of the "Lasser Articles," which can be traced back to Josef Lasser, a minister of the monarchy, who was particularly concerned with combating media pre-judgment over 150 years ago. In practice, this provision is ignored, probably also because of its almost laughable penalty. Additionally, it falls short because it does not cover appeal procedures, which can lead to a completely new assessment of the evidence in cases decided by a single judge.

The purpose of this old provision from the core of the Criminal Code is clear: to protect against undue influence on judges, which is understandable considering the significant power that media outlets can wield today. Media reporting cannot only influence the general population but also the judiciary itself. Pre-judgment in the media therefore can, jeopardize a fair trial before impartial judges, especially during the main trial phase.

An additional problem arises from the increased use of live-ticker reporting in high-profile court cases in recent years. In this format, journalists provide ongoing coverage of the proceedings during the trial. This type of reporting is often highly subjective and selective, and sometimes, due to a lack of sufficient legal understanding, it can be simply inaccurate. Through live-ticker reporting, not only can a false image be conveyed to the general public, but theoretically, it can also exert pressure on judges.

Media pre-judgments are, for good reason, explicitly prohibited under media law. Section 7b of the Media Act (MedienG) states that a person who is suspected of an act punishable by judicial penalty but has not been legally convicted, and is nonetheless portrayed in a media outlet as convicted, guilty, or as the perpetrator of the criminal act (rather than just as a suspect), is entitled to compensation for the personal harm suffered from the media owner. Even with the provision of compensation, the disadvantages suffered by a person affected by media pre-judgment in terms of their societal, professional, and in the worst cases, even private life, cannot be fully offset.

People affected by media pre-judgment can also legally defend themselves when criminal or court reporting touches upon unrelated aspects of their highly personal life. In this case, Section 7 of the Media Act (MedienG) comes into play, granting the right to compensation for the suffered harm to one's reputation or dignity.

The issue of media pre-judgment has also been addressed at the international level before the European Court of Human Rights (ECtHR). While the ECtHR recognized that there is a public interest in being informed about criminal proceedings, it also explicitly noted that disclosing the identity of a suspect, especially in the early stages of a criminal proceeding, can be particularly problematic. Therefore, the ECtHR suggested that domestic courts take measures to protect against media pre-judgment and to uphold the presumption of innocence effectively.

The presumption of innocence guaranteed by Article 6(2) of the European Convention on Human Rights (EMRK), which is also constitutionally protected, primarily applies to state authorities. However, according to the jurisprudence of the ECtHR, there is also a responsibility of the state under certain conditions to ensure that criminal proceedings do not take place in an atmosphere of pre-judgment by the media and subsequently by the public.

When, on the occasion of criminal proceedings, demonstrators display gallows and deliberately evoke associations with lynching, they cross boundaries that can no longer be justified by freedom of assembly or freedom of speech. In such cases, it would be the responsibility of the state, in accordance with the jurisprudence of the European Court of Human Rights, to take action against such behavior, as the state is bound by these principles.

Wolfgang Ambros' timeless and brilliant song "Da Hofa" has shown us how easily negative (pre)judgments can be activated in people. It tells the story of someone who is entirely innocent but is simply unpopular and becomes the perfect scapegoat.

Given the significant negative consequences for those affected, an enhancement of protection against media pre-judgment in the Austrian legal system, as advocated by the ECtHR, would certainly be desirable.

In conclusion, it is important to note that the rule of law also protects individuals who have been found guilty and convicted in a legally sound manner against undue infringement of their personal rights. These protections are constitutionally enshrined in Article 8 of the European Convention on Human Rights (EMRK) and Article 7 of the EU Charter of Fundamental Rights ("Respect for Private and Family Life"). This protection begins with a simple legal provision that still stands, which is the criminal liability for the "accusation of a previously adjudicated criminal act." Section 113 of the Criminal Code (StGB) threatens anyone who "accuses another person of a criminal act in a manner perceptible to a third party, for which the penalty has already been executed, or even conditionally remitted or pardoned, or for which the pronouncement of the penalty has been temporarily suspended," with imprisonment for up to three months or a fine of up to 180 daily rates. The fact that many media outlets may not adhere to this provision, perhaps due to the low penalty, does not change the validity and binding nature of this legal norm.

One cannot escape the impression that even the relatively weak regulations aimed at protecting the fundamental rights of individuals affected by criminal proceedings are not taken seriously in legal practice, perhaps even under pressure from the media, and this is happening without any changes made by the democratically elected legislature. Such a development is indeed dangerous and ultimately contributes to the erosion of the rule of law. Efforts must be made to counteract this trend.

If you have any questions, please do not hesitate to contact the KWR white collar crime law team.

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