As the European Court of Human Rights (ECHR) has repeatedly emphasised in its case law on presumption of innocence: the manner in which suspects and accused persons are presented by the authorities to the public or in the courtroom can have adverse consequences on the fairness of a proceeding.

Directive 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings provides two key safeguards regarding how suspects and accused persons are presented in court and to the public:

• Article 4 of the Directive requires Member States to ensure that public statements made by public officials do not refer to a person as being guilty.
• Article 5 requires Members States to ensure that suspects and accused persons are not presented as being guilty, in court or in public, through the use of measures of physical restraint.

The application of these two provisions, while simple in form, is not straightforward in practice. Effective communication with the public on public safety matters is of vital importance in building public trust and in conducting certain types of investigation. Meanwhile, the use of physical restraints can be necessary in certain circumstances. The need for a case-by-case assessment of the circumstances underlying each communication with the media and each use of physical restraint means that, with a few clear exceptions, bright-line rules on issues of presentation of suspects and accused persons by public authorities in court and two the public are not easily derived.

The Directive itself recognizes this tension. Article 19 of the Recitals explains that: “Member States should inform public authorities of the importance of having due regard to the presumption of innocence when providing or divulging information to the media. This should be without prejudice to national law protecting the freedom of press and other media.” Article 20 of the Recitals further explains that: “The competent authorities should abstain from presenting suspects or accused persons as being guilty, in court or in public, through the use of measures of physical restraint, such as handcuffs, glass boxes, cages and leg irons, unless the use of such measures is required for case-specific reasons.”

Objectives

In 2017, Rights International Spain, Hungarian Helsinki Committee, Fair Trials Europe, Aditus (Malta), Human Rights House (Croatia), Mérték (Hungary) and the Vienna University launched a 2-year international research project to contribute to the correct implementation of the Directive. The project aims to reduce the number of instances in which suspects and accused persons are presented in court or to the public, including through the media, in ways that create a perception of guilt.

Specific objectives:

• To provide an overview of the present situation of the application of restraining measures on suspects and accused persons in the Member States and on the extent to which public officials respect the presumption of innocence in their public communications;
• To collect good practices and innovative ideas and provide concrete guidance on how to apply physical restraints on suspects and accused persons in Court and in public and how to communicate with the media about ongoing investigations or prosecutions;
• To sensitize public authorities and the media on the importance of care in the manner in which a suspect or accused person is presented in court or in the media and highlight the ways in which different practices can increase or decrease perceptions of guilt;
• To strengthen the exchange and cooperation between judicial and media experts across the EU on the application of physical restraints and on communication between public authorities and the media.

This project has received the financial support of the Criminal Justice Programe of the European Union. The contents of the publications are the sole responsibility of the authors and organizations and can in no way be taken to reflect the views of the European Comission.