CHAPTER II

REVIEW OF RELATED LITERATURE AND STUDIES

This chapter will present significant studies and related literature from
authoritative sources and related data relevant for the study. This would also present
various standpoints to augment the study.

Media in the Justice System

“Give me the liberty to know, to utter, and to argue freely according to conscience, above
all liberties” – John Milton.

Traditionally and constitutionally, the media has no defined role in governance.

It doesn’t have the power to change any decisions made by the various arms of a state––
the legislature, executive and more so with the judiciary.

However, the Media is now considered as a powerful tool for strengthening and
consolidation of democracy in a country and its independence is indicative of the
emancipation of society itself. Its role is constructive and multidimensional and consists
in: information, education, entertainment, prevention and monitoring. As such, it finds
expression in many areas of everyday life: in politics, arts, culture, economy and justice,
and is seen as an open encyclopaedia where all have access. Now, it has wide range of
important roles in a functioning of a society. It amplifies the voice of citizens and
communicates their opinions. It plays a vital role in molding the public opinion and it
is capable of changing the whole viewpoint through which people perceive various
events.

Freedom of media is the freedom of people as they should be informed of public

matters. It is thus needless to emphasis that a free and a healthy press is indispensable
to the functioning of democracy. In a democratic set up there has to be active
participation of people in all affairs of their community and the state. It is their right to
be kept informed about the current political social, economic and cultural life as well as
the burning topics and important issues of the day in order to enable them to consider
forming broad opinion in which they are being managed, tackled and administered by
the government and their functionaries. To achieve this objective people need a clear
and truthful account of events, so that they may form their own opinion and offer their
own comments and viewpoints on such matters and issues and select their future
course of action.

From one side, the media through monitoring, information and mass coverage,
gives people an image of reality in which they live, it reports in real-time political,
social, cultural and criminal events. Furthermore, comparison of opinions and research
of truth often makes media an ally of justice in preventing crime through the
denunciations of violations of officials, their power abuse in the various institutions.

The interaction of the media with the criminal justice system has a significant
impact on the community’s perception of the effectiveness and perpetuation of justice.
The public rely on the media as a means to understand and assess the criminal justice
system and the process contained therewith. Media exposure of crime and crime-related
events can be an effective strategy for crime prevention, and useful tool for raising the
awareness and educating the public about the social problems that are understated or
overlooked. The role of crime prevention can be a source of information on the causes
and trends of crime (Capobianco, 2008).

Various media campaigns on human trafficking, victim support, mobilization for

the safety of women and children in cases of sexual abuse, etc., have contributed to the
successful initiatives for crime prevention, for informing and raising public awareness
about these negative phenomena (Capobianco, 2008). Especially social media is playing
a key role in reporting the crime in connection with sex offenses where victims may be
ashamed or afraid to talk face to face with the authorities (The Australian, 2012).

The media can play a democratic role when it comes to the question of crime
prevention (Pekelsma, 2010). For more information that is made public, the media
educates the population on certain issues, encouraging critical thinking of the
population and promotes the responsibility of institutions, agencies, organizations and
government. Media can enhance supervision or monitoring system for cases of police
abuse and corruption, the judicial system in cases of arbitrary treatment and
discrimination, as well as the education system.
Right to fair trial

Our country has acknowledged that right to fair trial is one of the fundamental
rights of the state. It is one of the hallmark virtues of a civilized country. One aspect of a
fair trial is that no person should be deprived of freedom at the hands of the state
without first having the opportunity to test the allegations and supporting evidence in a
court of law, and then only after being found guilty beyond reasonable doubt. If
defendants are to receive a fair trial, assessments of their guilt or innocence should be
decided in the confines of a controlled courtroom, uncontaminated by the frenzy of a
sensationalistic press barrage.

The right to a fair trial is outlined in the International Covenant on Civil and
Political Rights and as Article 14(1) makes clear an essential aspect of this is a public
hearing:
All persons shall be equal before courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law. The press and the public may be excluded from all or part of a
trial for reasons of morals, public order (ordre public) or national security in a democratic
society, or when the interest of the private lives of the parties so requires, or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice; but any judgment rendered in a criminal case or
in a suit at law shall be made public except where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial disputes or the guardianship
of children.

This article is replicated in a variety of other international instruments to which

Philippines is a party, further entrenching their importance. The Universal Declaration of
Human Rights reinforces the presumption of innocence as well as reinforcing the
principles set forth in the abovementioned articles when it provides in Article 11(1):
Every person charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all the
guarantees necessary for his defence.
As also can be seen within this Article, reference to a public trial is a central
notion in the delivery of justice in a fair and humane manner. In criminal proceedings,
the media plays a vital role in making public trial possible. The idea of a public trial is
one which is found at the core of our common law principles of fair and just criminal
proceeding. It is considered necessary because it allows public and professional scrutiny
of decisions in order to prevent any miscarriage of justice and maintains confidence
amongst the community of the court system’s integrity.

Controversies in media interference.

Media are considered to have a dual character. On one side, the media reports
about violation of human rights, however, on the other side, they make violations of
human rights by spreading untrue allegations or instigating hatred. At the same time,
freedom of expression can be conflicting with other rights such as: the right to a fair
trial, to respect the private life, of conscience and religion etc. which are guaranteed by
the International Covenant on Human Rights, the Constitution or other laws.
Some of the offenses that the media makes frequently in everyday life and which
contradict the principles of criminal law are:

a) Violation of the principle of presumption of innocence

The Constitution of Albania, in article 30, determines that: “"Everyone is
innocent until his guiltiness is not proven by a court’s final decision." (Constitution of
the Republic of Albania, 1998). The right to be presumed innocent is used against the
suspects before the appearance of the criminal charges, before the trial and is kept in
use until the guilt of the accused is confirmed, after the final appeal. Transmission of
information from the media on the offense by linking the personal characteristics of the
individual who presumed or committed the offense, even when this feature does not
determine the qualification of the offense, establishes a practice that indirectly
discriminates against individuals or communities because of these characteristics.
The presumption of innocence is not only a procedural guarantee in criminal
trials, but its role is much wider. It is about the protection of anyone of the treatment of
the bodies and state officials as guilty in committing a criminal offense before such a
thing is verified by the court. Official sources of the Prosecutor General's Office show
that in 5 years, 959 people, a large part of them, arrested by the request of police and
consent of the prosecution have won acquittal by court. They are people who have
appeared in the newspapers and television screens as different perpetrators, people
who are "punished" by the media, in the “language” of the prosecution bodies (police
and prosecutors), who even though win institutional innocence, their public image
remains vulnerable. (Bregu, 2012). The pressure of time and negligence to respect until
the end and fully professional standards and the language used by the media in such
cases, leads us to the problem of violation of the presumption of innocence of citizens
accused for offenses.
b) Freedom of expression and independence of the judiciary
The court must protect the confidentiality, provide information to the media, while the
media should convey professionalism and honesty, without getting into the area that
could be the courts barrier (Haxhaj, 2013). From the interaction of these two rights, in
naturally way the conflict generates (inconsistency in appearance) between the need to
protect the judicial activity to an "unnecessary external influence and protection of the
right of information" (Kasmi, 2013) . The cases when the court holds the hearing behind
closed doors, excluding the media and public participation are provided under Article
340 of the Criminal Procedure Code: “The court decides to hold the court examination
or some of its actions in camera: a) when the publicity may damage the social morality
or may divulge data to be kept secret for the interest of the state, if this is requested by
the competent authority, b) in case of behaviours which impair the normal performance
of the hearing, c) when it is necessary to protect the witnesses or the defendant,ç) when
necessary during the questioning of juveniles (Albania Law No. 7905 , 1995).
Independence in information is- as important as- the independence of the judiciary but
not rarely during their reporting, media deviate from their information mission
(Haxhaj, 2013). The courts are accepted as independent and impartial to ensure the
rights and legal obligations for resolution of the relative differences between subjects,
therefore, the public has respect and trust in the capacity of the courts to fulfill this
function. For this reason, the consequences of an attack (or an apparent attack) on
impartiality can also bring a damage to the authority of the court. What should be
avoided are the opinions especially about Judicial Corps issues that are on a trial and
without completing issuance of a final decision. There were times that the media has
brought opinions of judges on duty, prosecutors on duty, and in media attempt to
analyze rightly an event have come to the wrong conclusions. Also, often we notice that
a judge, head of a justice, thanks to the good image offered by media, reaches career
advancement, or the opposite, the destruction of his career.

c) Publication of sensitive data and confidential aspects of the media

In printed and electronic media often are published pictures of defendants and
juvenile witnesses accused or damaged by different criminal offenses. Such publications
are prohibited by the law. Concretely, article 103 par. 4 of the Criminal Procedure Code
states: “It is prohibited to publish personal details and photographs of minor
defendants and witnesses, accused or injured by the criminal offence. The court may
allow the publication only when the interest of the minor requires so or when the minor
has reached the age of sixteen years” (Albania Law No. 7905 , 1995).
The respect for the provision of the above is very important since disregard this legal
requirement may be associated with adverse effects of psychological character, social
and familiar and also in special cases may violate the right to privacy.
Not rarely, media has been in the focus of criticism as a result of the publication of
detailed data even very sensitive data, such as the contents of messages on mobile and
pictures, tools which should be available by the prosecution and occasionally they are
under investigation. It is worth noting that, under Article 279 of the Criminal Procedure
Code, Investigative actions are generally confidential and only the prosecutor is
allowed to publish them with a reasonable decision.

d) (Do not) Care of media coverage of minors in conflict with criminal justice
The media can often cause a "second victimization" on crime victims or survivors by
increasing their feelings of violation, disruption, and loss of control. Concerns that
victims express about the media include: interviewing survivors in an inadequate time;
and their footage and photographs of the crime scene; full typing the name or address
of the victim; the past investigation of the victim etc. The issue becomes even more
sensitive when children are protagonist. The most recent case was the scandal of Kajtazi
sisters, who poisoned their parents and burned the apartment to escape and search for a
better life. Although underage, media published their personal data such as name, place
of residence and their pictures (Nazarko, 2015).
Journalists should be familiar with specific ethical standards for media reporting
on children, such as ethical guidelines of UNICEF, guidelines and principles of the
International Federation of Journalists, and Reporting and Information Guidelines for
Minors, BBC editorial principles for children (changing the name of the child, visual
blurring the identity of the minor, also the identity of the minor should not be
published as well as the place where they live etc.).

The interest of a state of physical and psychological well-being of an underage

victim is so important that it justifies depriving the press and the public of their
constitutional right to attend trials of criminal cases. For this reason, the court makes a
decision, as appropriate, the development of closed-door trial is necessary to protect the
welfare of minors from media exposure.
Bolivarian Republic of Venezuela, Law on “Protection of Children and
Adolescents” said that: “To ensure respect for the best interest of the child, in case of a
conflict between the rights and interests of a child or adolescent and the rights and
interests of other equally legitimate, the former shall prevail” (Convention on the Rights
of the Child, 2007).
United States in a number of decisions have accepted that the interest of a state in
physical and psychological welfare of an underage victim is so important that justifies
depriving the press and the public of their constitutional right to attend trials of
criminal cases, when the court makes a decision, where appropriate, the development of
closed-door trial is necessary to protect the welfare of minors (Prince v. Massachusetts ,
1944).

Existing Policies

1. Contempt of court

Cases

2. Visconde massacre
3.
Media in the Millennial Era

Thus, 19th century journalism and the audiovisual media of the 20th century do not only
constitute one of the major technical and cultural inventions, they also represent a “magical hub”
that is constantly renewed to forecast human beings, societies and cultures. Although they
embody a “power” by exerting an influence on their various connections with political
authorities and economic forces, they also confront weaknesses because of the technological,
political, cultural and human challenges that are constantly a cause of concern to them in their
constitutive foundation. The media, especially audiovisual media, run in the complexity because
they are, in essence, multidimensional. They seem to take liberties and, sometimes, they can go
too far.