Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IV. Principles of evidence
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4.11. Legality of evidence (the principle of legality)
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4.11.3. The principle of publicity

4.11.3. The principle of publicity

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An important criterion for the legitimacy of evidence is its verifiability by the public. This is possible through consistent – but not unlimited – enforcement of the principle of publicity. Today, the legal guarantee of publicity is a fundamental principle of modern legislation and law enforcement. However, the classic principle of the public nature of a trial is not the same today as it was in previous centuries, since it is not only the “audience” that can physically observe the proceedings, but also the written press and the electronic media. All the conditions for informing the public are therefore met, but this can have a profound impact on the adjudicatory (evidentiary) activity. According to Hack, this should not determine the court’s conduct of the case, but it should also be borne in mind that public communication can have a significant impact on society’s image of the judiciary and on public confidence in general.1

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I would note that the publicity of the negotiations is also a fundamental requirement for ancillary matters, according to the case law of the Court of Justice. Thus, for example, this forum found a violation of the Convention when the application was limited to the compensation proceedings brought against the accused for 48 hours of unlawful detention, where no public hearing had been held previously.2

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The possible ways of limiting the principle are shaped by the different procedural codes and judicial practice. For example, the Court of Justice has consistently recognised public security interest as a limitation: in such cases, too, appropriate measures must be taken to ensure that the public is adequately informed of the time and place of the hearing and that the procedural steps are accessible to interested parties.3 Nevertheless, Member States may, with valid reservations, choose to exclude public access to certain types of cases altogether.4 If, however, the area of law in question is re-regulated, public trial will once again become the general rule.5

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The imposition of publicity as a general rule is crucial for the promotion of active evidence in trials, for the control of the legality of the proceedings and for the proper informing of society. The historical legal categories of each regulatory model can be distinguished as follows:

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  • in the case of procedural systems based on the principle of client access, the law only allows the presence of the persons sued;
  • for procedural systems based on the principle of public access, the law allows for the presence of anyone.
 

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In Hacker’s words, “the controlling effect of publicity, which is stimulating for the judge and secures the interests of the accused and the defence, is well known. Its greatest advantage is that it convinces the public that the judiciary is seeking substantive justice and that the court is guided by the law alone; its greatest disadvantage is that, if the public is not sufficiently reassured, the public trial can become a school for professional criminals. There are divergent views on the degree of publicity acceptable at certain stages of a criminal trial, especially during the criminal investigation. This then led to differentiating between different degrees of publicity in most places and accepting them differently at different stages of the proceedings.”6

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The International Covenant on Civil and Political Rights states that “the judgment shall be pronounced in public, but access to the courtroom may be refused to the press and public for all or part of the trial, to the extent that this is necessary in a democratic society in the interests of morals, public order or national security, where such restriction is necessary to protect the interests of minors or the privacy of the parties to the proceedings, or where the court considers it absolutely necessary because it considers that there are special circumstances in the case which would prejudice the interests of justice.”7

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On the basis of the above, the case law of the Court of Justice, as a general rule, requires the following:

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  1. negotiations need to be open to the public; the definition of the exclusion rules is made a national competence;
  2. in order to be able to lodge a complaint, applicants must exhaust their domestic remedies;
  3. the right to a public hearing may be waived, either expressly or impliedly;8 in which case there is no violation of the Convention even if this is the only judicial forum in which the proceedings are heard in public;9
  4. the two degrees of publicity (first and second degree) are not necessary (1) if the higher court no longer examines questions of fact; in this case, it is sufficient to create the conditions for “first degree publicity”,10 and (2) if the higher court is entitled in principle to review questions of fact, but in the case in question it actually only deals with questions of law;11
  5. in the case of judgments, the full operative part of the judgment or the substance of the grounds of appeal must be published (full grounds are not required), but this is not necessary if the court of appeal decides on the admissibility or dismissal of the appeal or sets aside the decision appealed against and orders the lower court to start a new trial.12
 

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The Court of Justice, following its case law, has infringed the Convention in the cases below:

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  • the court did hold a public hearing, but (1) it notified the party of this at a time when he was unable to attend,13 (2) the applicant was unable to attend in person because the court held it before the scheduled time,14 or (3) it was not really public, as it was limited to the personal hearing of the accused;15
  • the public delivery of the judgment was not carried out in its entirety;16
  • the case was brought before the court of appeal alone (i.e. previously before administrative bodies), but its proceedings were not public; it is a general requirement that at least one judicial forum must hold a public hearing in a criminal case;17
  • the Supreme Court, exercising its full review jurisdiction, did not hold a public hearing, despite the fact that the possibility of substantial harm to the interests of the person concerned had been raised and that it had issued a judgment of acquittal reversing the previous acquittal.18
 

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The Court of Justice, following its case law, did not infringe the Convention when:

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  • the applicant would have had a substantive right to request a public hearing, but he did not do so because it was rarely held in cases such as his;19
  • the written procedure was also fully capable of clarifying the issues to be decided, and therefore no hearing was held;20
  • the court of appeal did not hold a public hearing in the case in which it convicted the applicant, who had been acquitted of cigarette smuggling at first instance, because the court merely interpreted differently the law which decriminalised certain conduct, which was not a question of fact;21
  • only the court of appeal publicly announced its judgment, but the court of first instance failed to do so;22
  • the review procedure, which was limited to the examination of points of law, was notpublic;23
  • the High Court would have held a hearing on request, but no such request was made.24
 

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Based on the case law known from Hungarian jurisprudence, taking into account that the trial of a serious offence committed by a minor defendant may be of great public interest may mean that it may be necessary to hold a closed trial in order to reduce as far as possible the intimidation and inhibition of the minor.25

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I would like to note that the concept of the public has several layers of meaning. On the one hand, it means that anyone can be present in person at a court hearing (subject to some legal restrictions) and demonstrate by their presence “social control” of the functioning of the courts. At the same time, it is the joint responsibility of the court, the prosecutor and the defence to ensure that there are no persons in the audience who, even by their presence, could influence the direction or outcome of the evidence. Therefore, the right to exclude the public from the hearing and the right to make a motion for exclusion should also be a guarantee in the procedural codes.

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In cases of greater public interest, it would be a mistake to claim that a high level of publicity does not influence the evidence and the style of statements made by the parties. At the same time, I consider it to be of fundamental importance that the procedural acts of the public authorities and the substance of the defence cannot be influenced in any way by the general public perception of the case. Possible media publicity should not, in principle, affect the lawful conduct of the evidentiary procedure or the practice of the authorities.

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High visibility can cause problems, especially for juvenile offenders. The Court has pointed out in a relevant judgment that it is a violation of the Convention when the presence of members of the press and the sight of a courtroom packed to overflowing with members of the public cause such psychological trauma to the accused that they are unable to give adequate instructions to their defence or are not in a position to make statements of the kind they need.26

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However, in national cases, the determining authority (court) often falls into the trap of under-proving or over-proving. In the former case, the courts, in line with public expectations, favour speed over accuracy, leaving the facts established by them unexplored at the investigative stage and unsubstantiated at the judicial stage. The other common error in such cases is procedural irregularities, such as obvious judicial bias, errors in the recording of witness statements, failure to comply with the rules on the mandatory time limits for issuing summonses, etc.

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In the case of providing over-evidence, the courts tend to meet the expectations of the appellate courts and the legal profession by calling more witnesses, experts, etc. than necessary. This can of course lead to prolonged proceedings and unnecessary additional costs.
1 Péter Hack (2011) ibid. 62.:
2 Göc v. Turkey judgment of 11 July 2002, no. 36590/97. In: Grád–Weller (2011) ibid. 310.
3 For example, the Court found a violation of the Convention when the trial was held in a prison remote from a populated area and inaccessible by public transport, but the authorities made no provision in principle for transporting any persons who might be interested. The high travel costs involved were likely to deter members of the public from attending the trial. Hummatov v. Azerbaijan judgment of 29 November 2007, no. 9852/03. In: Grád–Weller ibid. 312.
4 Helle v. Finland judgment of 19 December 1997, Reports 1997-VIII, p. 2911. In: Grád–Weller ibid. 312.
5 Grád-Weller ibid. 312.
6 Hacker Ervin: Alapelvek. [Principles]. In Mihály Tóth (2003) ibid. 48.
7 http://curia.europa.eu/juris/document/document_print.jsf;jsessionid=9ea7d2dc30dde7e9e35aee0a4d6d815189d30306cd09.e34KaxiLc3qMb40Rch0SaxuPb3z0?doclang=HU&text=&pageIndex=0&part=1&mode=DOC&docid=65123&occ=first&dir=&cid=537363
8 Grád–Weller (2011) ibid. 309.
9 Hakansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171-A. In: Grád–Weller ibid. 365.
10 Sutter v. Switzerland judgment of 22 February 1984, Series A no. 74. and Hoppe v. Germany judgment of 5 December 2002, no. 28422/95.
11 Schlumpf c. Suisse arrêt du 8 janvier 2009, No. 29002/06. In: Grád–Weller ibid. 314.
12 Pretto v. Italy judgment of 29 June 1983, Series A. no. 71. In: Grád–Weller ibid. 317.
13 Yakovleg v. Russia judgment of 15 March 2005, no. 72701/01. In: Grád–Weller ibid. 309.
14 This was not remedied by the fact that the prosecutor who brought the appeal on points of law in favour of the applicant was present at the hearing. Andrejeva v. Latvia judgment of 18 February 2009, no. 5570/00. In: Grád–Weller ibid. 310.
15 Moser v. Austria judgment of 21 September 2006, no. 12643/02. In: Grád–Weller ibid. 309.
16 Moser v. Austira judgment of 21 September 2006, no. 12643/02. In: Grád–Weller ibid. 317.
17 Fredin v. Sweden judgment of 23 February 1994, Series A no. 283-A, Baková v. Slovakia judgment of 12 November 2002, no. 47227/99, Malhous v. Czech Republic judgment of 12 July 2001, no. 33071/96, Hellborg v. Sweden judgment of 28 February 2006, no. 47473/99.
18 Botten v. Norway judgment of 19 February 1996, Reports 1996-I, p. 123. In: Grád–Weller ibid. 315.
19 Rolf Gustavson v. Sweden judgment of 1 July 1997, Reports 1997-IV, p. 1149. In: Grád–Weller ibid. 309.
20 Vilho Eskeleinen and Others v. Finland judgment of 19 April 2007, no. 63235/00. In: Grád–Weller ibid. 316.
21 Bazo Gonzales c. Espagne arret du 16 decembre 2008, No. 30643/04. In: Grád–Weller ibid. 316.
22 In the Court’s view, the institution of “social control” was still properly applied. Lamana v. Austria judgment of 10 July 2001, no. 28923/95.
23 Pretto and Others v. Italy judgments of 8 December 1983, Series A no. 71, and Axen v. Germany judgment of 8 December 1983, Series A no. 72. In: Grád–Weller ibid. 312.
24 Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A. In: Grád–Weller ibid. 313.
25 BH 2001/4, p. 315 In Czine–Szabó–Villányi–Baka (2008) ibid. 298.
26 “T. v. United Kingdom”, 16 December 1999. In Czine–Szabó–Villányi–Baka (2008) ibid. 325.
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