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Seminar for Montenegrin judges and lawyers on

9 March 2015

This seminar is part of a collaborative project to build the capacity of the Montenegrin judiciary to contribute to the rule of law reform in Montenegro as part of its European Union negotiations and integration process.

 

"The presumption of innocence under the European Convention on Human Rights with a focus on the role of the media and public officials"

23 February 2015

Hotel Podgorica


1. Introduction 

On 23 February 2015, the AIRE Centre, in collaboration with the Centre for Democracy and Human Rights (CEDEM), and with the support of the British Embassy in Podgorica, the Konrad-Adenauer-Stiftung foundation, the Organisation for Security and Co-operation in Europe (OSCE) and the Judicial Training Centre of Montenegro, hosted a seminar for judges and lawyers on the presumption of innocence under the European Convention on Human Rights (ECHR) and Montenegrin law, with a focus on the role of the media and public officials. This event was hosted in Podgorica, Montenegro.

This seminar is part of a collaborative project to build the capacity of the Montenegrin judiciary to contribute to the rule of law reform in Montenegro as part of its European Union negotiations and integration process.

The aim of this seminar was to bring together international and national experts to share good practice and discuss recommendations and the legislative reforms necessary to meet the requirements of accession to the European Union (EU).

 

2. Presentations

The event was opened by Mrs. Vesna Medenica, President of the Supreme Court of Montenegro; H.E. Ian Whitting, British Ambassador to Montenegro; H.E. Elisabeth Gudrun Steinacker, German Ambassador to Montenegro; Mr. Thorsten Geissler, Head of the Rule of Law Program South East Europe, Konrad-Adenauer-Stiftung (KAS RLPSEE); Mr. Rob Force, OSCE Programme Manager of Rule of Law and Human Rights; and Mrs. Biljana Braithwaite, Program Manager for Western Balkans, AIRE Centre. The event was moderated by Nenad Koprivica, Executive Director of CEDEM.

Opening remarks emphasised EU accession efforts and efforts of the United Kingdom and Germany to support capacity building programmes that promote the rule of law. The UK Ambassador highlighted the 800th Anniversary of the Magna Carta and its importance to England’s legal culture.

Nuala Mole, Senior Lawyer at the AIRE Centre, spoke about the importance of the presumption of innocence by looking at the case law of the European Court of Human Rights (ECtHR). Local experts and practitioners presented on the Montenegrin law, contributed to the discussion and provided recommendations.

 

3. Discussions and Conclusions

The presumption of innocence begins to apply as soon as a person has been charged. For the protections of Article 6 to apply the individual concerned must either: have been served with an official document charging them with committing an offence; or have their situation has substantially affected by the suspicion that they have committed a criminal offence.[1] Therefore, where an individual is suspected of having committed a criminal offence and is taken to a police station, the protection of Article 6(2) will apply, even before the formal investigation starts.

With regards to the role of the media; it is necessary to ensure that there is no press campaign regarding criminal proceedings otherwise a trial can descend into trial by media rather than trial by institution.  In Montenegro, journalists tend to use quite active language and then attempt to mitigate this by adding a question mark at the end of the statements made – this is not a good policy for ensuring adherence to the presumption of innocence. Questions of how the presumption of innocence interacts with the principle of reporting in all accuracy, e.g. “what should a journalist do if he witnesses a person kill someone and then reports it” where raised and discussed.

The following are some examples of the Courts jurisprudence:

In the case of Matijasevic v. Serbia[2] a Serbian district court decision expressly stated that the applicant had actually committed the criminal offences for which he had been arrested in a detention hearing while his criminal case was still pending. The court stated that the presumption of innocence under Article 6 § 2 would be violated if there were some reasoning suggesting that the court or the official in question regards the accused as guilty, while a premature expression of such an opinion will inevitably violate the presumption of innocence.

In the case of Allenet de Ribemont[3] two public officials stated in a press conference that the applicant had instigated a murder, which the applicant argued violated his presumption of innocence. The Court stated that Article 6 § 2 cannot “prevent the authorities from informing the public about criminal investigates in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected.” As such, the Court found that the unqualified statements of the public officials that referred to the applicant as one of the instigators of the murder violated the presumption of innocence.  

In the case of Allen v. The United Kingdom[4] the Court outlined that one of the general aims of Article 6 § 2 was to protect individuals who had been acquitted of a criminal charge from being treated by public officials and authorities as though they were actually guilty of the offence charged. The Court found that the presumption of innocence was not violated because the language used by the court did not undermine Allen’s acquittal or treat her in a manner inconsistent with her innocence and did not comment on whether the evidence was indicative of her guilt or innocence.

In the case of Daktaras v. Lithuania[5] the applicant complained that the prosecutor in his case had commented that his guilt had been proved before the trial started, breaching the presumption of innocence. The Court observed that the presumption of innocence required public officials to be careful in choosing their language in regard to criminal proceedings where the accused’s guilt had not been established by a competent court. The Court noted that the use of the word “proved” was unfortunate but that the applicant and prosecutor were using the term in reference to the question whether the case-file had disclosed sufficient evidence of the applicant’s guilt to justify proceeding to trial, and as such found no violation of Article 6 § 2.

 

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[1]  See Dewier v Belgium, (Application no. 6903/75)

[2] Matijasevic v. Serbia (Application No. 23037/04)

[3] Allenet De Ribemont v. France (Application No. 15175/89)

[4] Allen v. The United Kingdom (Application No. 25424/09)

[5] Daktaras v. Lithuania (Application No. 42095/98)

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