Balancing exclusivity vs. the need for accuracy.
Everywhere in the world, the media and the judicial and prosecutorial system have regular disagreements about what ought to be public and what not. Usually law regulates the majority of the matters, but there is always room for interpretation and dissatisfaction.
In Kosovo it is no different. The media’s need for exclusivity very often clashes with the system’s need for accuracy. That is not to say that the media does not strive for accuracy, because there are a good number of media outlets in Kosovo that do. But generally the need for exclusivity has proven to be extremely important in the media. That is why we very often witness substantial breaches of law, due to reasons varying from a lack of legal clarity to poor understanding by journalists and media outlets on what they should and should not publish.
The need for clicks often adds to the ambiguity of reporting and its inaccuracies. It is a fact that there are no clear-cut lines of what can and cannot be published for every single issue, but there are also some pretty clear guidelines that we can extract from domestic laws. It is impossible to address everything in one article, so here we will focus on criminal reports, indictments, judgments and court sessions — four of the main outcomes of a prosecutorial/judicial process.
Criminal reports — up to police, persons and public entities
Criminal reports are the first part of the equation. According to the Criminal Procedure Code of Kosovo (Articles 78,79 and 81), criminal reports can be made by public entities, persons (i.e citizens) and the police, and they should all be submitted to the state prosecutor. In reality, most are filed by the police, who put together the criminal report based on information and evidence gathered about a certain person; it is submitted to the state prosecutor along with objects, sketches, photographs, reports obtained, records of any measures and actions undertaken, official notes, statements taken and other materials that might contribute to the effective conduct of proceedings.
While most people know that criminal reports are generally drawn up by police, what many fail to realize is that this is just the very first step in a long process of gathering evidence. The fact that the police have prepared a criminal report on somebody does not always result in an indictment; occasionally the measures and actions undertaken by the police, the evidence, and the information gathered, provide no basis for reasonable suspicion that a criminal offence has been committed, and thereby the criminal report is thrown out.
The most important concept we should bear in mind when it comes to indictments is the presumption of innocence.
When it comes to whether or not criminal reports should be public, Article 83 of the Criminal Procedure Code is very clear when specifying that the police, state prosecutor and other public entities have a duty to proceed cautiously in gathering or supplying information, taking care not to harm the dignity and reputation of the person to whom such information refers.
The media is not mentioned at all in the process of gathering evidence for the criminal report, nor after filing one with the prosecutor, hence bringing us to the conclusion that criminal reports are not public.
Indictments — up to prosecution
The second stage after criminal reports, are indictments. As specified above, criminal reports do not always result in indictments, but those that do are usually followed by additional investigations. Once the prosecutor considers that guilt can be proven beyond reasonable doubt, they raise an indictment.
The whole indicting procedure is very clearly and well explained under chapter XV of the Criminal Procedure Code. The most important concept we should bear in mind when it comes to indictments is the presumption of innocence, which means that the defendant is presumed innocent until proven guilty — even with an indictment.
And here is the phase where the presumption of innocence principle is often forgotten. The indictment is the most sensitive phase of the process, given that it usually raises media attention because that is usually when cases come to light. But the media often has an unfortunate habit in these cases of publishing an indictment against a certain defendant without taking into account the possibility that the defendant is innocent, or at least without making sure they portray that in their outlets.
An excellent example of this can be seen with the death of Hamdi Sopa, who worked in the prime minister’s office. In 2013, following his death, much of Kosovo’s media harassed Sopa’s family for months on end based on an indictment against Sopa’s wife and children, with hundreds of articles written about the case during the time they were being held in pre-trial detention. After expert analysis was conducted by EULEX, which found there were no suspicious circumstances surrounding the death and that the three women were not involved, they were released. However the same media outlets that had covered the case for months on end wrote very little. In fact they wrote so little that it is still very unclear for the public to know what ultimately happened in the case, what expert investigations were conducted, and that the women who were labelled “monsters” by society were completely exonerated.
This case demonstrates the amount of damage that unprofessional reporting can cause, and it also shows that no matter how much time passes, the damage is still there. Unfortunately it is not the only one. That is why journalists should be very careful when reporting about court/prosecution related matters, and should properly value the presumption of innocence.
The inappropriate publishing of indictments is not solely the fault of journalists, but responsibility also lies greatly on the sources from where the indictments are taken.
In order to regulate these mishaps last year the Kosovo Prosecutorial Council drafted and enacted Regulations for Public Communication. The Regulations aim for an informed public but without breaking the law.
While there is nothing specific written in Kosovo’s Criminal Code or Criminal Procedure Code about whether indictments are public or not, drawing on current practice and on the State Prosecutor’s Office media alerts when indictments are raised, it is clear that indictments themselves are not currently a matter of public record — the prosecution publishes only the initials of the names and the details of the alleged offence. It is a fact that once the indictment is raised, it is assumed that the prosecution considers there is proof beyond reasonable doubt, but still the presumption of innocence stands, and we should make sure we bear that in mind and as such report/write accordingly. Whether or not full indictments should be public, is a whole other debate that must be raised properly.
But despite the fact that the State Prosecutor’s Office publishes only the initials, the same does not happen with the media. Often, indictments are published in their entirety before even being seen by defendants. That is wrong on different levels: Firstly, the defendant should be the first person to see the indictment and not hear about it from the media; and secondly, there is a lot of private data in an indictment that should not be made public, such as the indicted person’s ID number, home address and names of certain members of their family.
The inappropriate publishing of indictments is not solely the fault of journalists, but responsibility also lies greatly on the sources from where the indictments are taken — usually lawyers. That is another reason why it is extremely important for a joint system to be put in place by the judiciary, prosecution and media that clarifies the availability of indictments for interested parties.
Judgments — up to the court(s)
When it comes to judgments people are very often confused because the media doesn’t always make a clear distinction between the stages of the judgment that they are reporting on. The court system in Kosovo is comprised of the regular courts (Basic Court, Court of Appeals and Supreme Court) and the Constitutional Court.
The rule of thumb is that judgments generally ought to be public. But there is a difference we should note between judgments — both between the different court levels, and between types of judgments issued at a particular court level.
On the one hand we have the Constitutional Court that always publishes its judgments on its website, thereby making all of them public. But the thing with the Constitutional Court is that its judgments cannot be appealed, and as such are final. That is why publishing them is not only legal but obligatory.
The courts should start functionalizing their websites and use them to publish all judgments, after having redacted private data.
On the other hand we have the regular courts, each of which makes judgments. In this regard not every judgment that these courts take is final, and as such media should be careful in what they publish explicitly.
According to Article 70 of the Criminal Code of Kosovo, the court may order the publication of a judgment, if it determines that publication is in the interests of the public, the injured party or other persons. But Paragraph 5 of the same Article additionally stipulates that the publication of a judgment shall not be ordered if such publication would endanger an official secret, the privacy of persons or the morals of society.
It is unclear what is meant by the “morals of society,” while it is largely self-explanatory what official secrets are; but the majority of breaches are made when it comes to the privacy of persons. And media outlets are not entirely to blame for this, because they are publishing judgments as they get them; they get them either from the court itself or from lawyers, who are not careful enough to tell them not to publish judgements in their entirety, including personal data — as with publishing this information from indictments, it is wrong.
The courts should start functionalizing their websites and use them to publish all judgments, after having redacted private data. In such cases we would achieve much more. All the media would have the same information, and they would all get it from the same source.
Apart from criminal records, indictments and judgments, there is sometimes uncertainty in media circles about whether journalists are allowed to attend court sessions, and to record them.
The Criminal Procedure Code of Kosovo is very clear in this regard as specified in Article 301. Court sessions are open and public; unless the public is explicitly banned for specific reasons specified in Articles 294 and 295. While it is not permitted in some countries, media in Kosovo are also allowed to record in courtrooms under Article 301 (Paragraph 3), unless the judge issues a written reasoned decision that forbids this.
Public interest as an exceptional circumstance
Taking into account everything written above, there is one very important exception to the general stipulations made in the law — public interest.
The Criminal Code of Kosovo defines public interest as applying when “the welfare of the general public outweighs the individual interest.” Black’s Law Dictionary defines it as: “the welfare of the public as compared to the welfare of a private individual or company. All of society has a stake in this interest and the government recognizes the promotion of and protection of the general public.”
The same information that might be relevant and of public interest in some circumstances or at one point in time, might not be considered in the public interest in other circumstances, or at another point in time.
Yet again, the interpretation of what is the public interest varies in accordance with the interests and benefits of reporting. Despite the definitions, it is a notoriously difficult concept to pin down and apply in practice, with frequent debate on the issue throughout the world.
Although having no legal applicability in Kosovo, cases from abroad can help to show how the notion of public interest could be considered. In the UK case of APPGER v ICO and Foreign and Commonwealth Office, the Tribunal endorsed the line that “the public interest should be assessed by reference to the circumstances at or around the time when the request was considered by the public authority.” In other words, when relating this to the media, the same information that might be relevant and of public interest in some circumstances or at one point in time, might not be considered in the public interest in other circumstances, or at another point in time.
Furthermore, it is important to have an internal public interest test where the media outlets consider the arguments in favor of publishing a piece of controversial news and those in favor of not publishing it. This must be done objectively, by noting that there are always arguments to be made on both sides.
What can be done to achieve greater clarity?
It is easy to uphold the stance that things are very confusing and as such it is very difficult to say what should be done to clarify the ambiguities around media reporting of the judicial and prosecutorial systems. But the truth is, there is enough information out there for people who want to read and listen that may just help.
The fix has to start first and foremost with everyone interested familiarizing themselves with the law(s).
Secondly, courts and prosecutors should be consistent and thereby create a system that allows them to be fair and equal to everyone, and uphold the stance that what ought to be public should be public for all, not just certain media outlets or certain journalists. The bringing together of a guiding tool by courts, prosecutors and journalists could help greatly.
Last but not least, all the most serious media outlets have either a legal office or certain legal experts that they hire to clear their articles, news and reports deriving from courts and prosecutors. It would be very helpful if this became a practice in Kosovo as well.
Feature image: Majlinda Hoxha / K2.0.