Norman Aas: Punishing journalists surprising in scope of general law
Recent punishments for journalists are surprising in light of general practice as I have always lived in knowing, both as prosecutor general and after, that section 214 of the Code of Criminal Procedure does not provide grounds for fining journalists, Normal Aas writes.
There are three main interests when it comes to disclosing information of criminal proceedings. Firstly, public interests: one precondition for the functioning of democracy is the public's access to information pertaining to all important social events and processes, including crime and criminal proceedings.
Secondly, criminal proceedings interests – investigating crimes and just legal proceedings. And thirdly, interests of persons in proceedings: most people prefer privacy in such matters, while some perceiving it as their 15 minutes of fame is also possible.
These interests are often conflicting. No one group is more important than the others, which is why legal experts say that a sensible balance needs to be found between them. In other words, it is necessary to weigh the various interests to determine whether information can be disclosed and to what extent. Case closed as far as the Constitution is concerned, we could now say.
However, this summary is too vague to be applied to various real-life situations that can arise, especially if the matter at hand concerns punishing someone. That is why rules provided by general law also have a role, next to abstract constitutional principles.
Recent punishments for journalists are surprising in light of general law practice as I have always lived in knowing, both as prosecutor general and after, that section 214 of the Code of Criminal Procedure is not grounds for fining journalists. Based on this, I have written the provision's comments in the annotated edition of the Code of Criminal Procedure.
This interpretation does not claim to be the absolute truth nor does it rule out developments in administration of justice. However, allow me to explain my position.
Firstly, it is important to understand how the provisions came into being. Criminal investigation materials leaking to the press has always been a major problem and not just in Estonia. Among major such scandals was the land swap deals court saga from the previous decade.
I have participated in several official and parliamentary debates on leaks. We held a conference of EU chief prosecutors in Tallinn in 2008 one main topic of which was illegal disclosure of criminal proceedings data and possible countermeasures. No country had a silver bullet to offer.
The prosecution launched several criminal cases to detect leaks during which journalists were questioned as witnesses but refused to give statements on grounds of protection of sources. They included one of the two [Eesti Ekspress] journalists who were recently fined and who has shared their experience via the press.
Amendments to try and plug such leaks, so to speak, have been introduced on several occasions, most recently in 2011 when section 214 of the Code of Criminal Procedure was complemented by providing that persons not directly tied to proceedings can also be punished for disclosing information, in addition to direct participants. Still, the core principle of the provision remained unchanged: that the persons gained access to the information through coming into context with proceedings.
So-called non-parties to proceedings include, for example, bank employees providing investigators with bank statements or impartial observers of investigative activities invited to monitor searches. Information that reaches such parties is controlled by the body conducting proceedings and they can be warned against disclosing any data without permission.
The same amendment pondered to what extent the ban on disclosing proceedings information should apply to the defendant and their counsel. The law was also amended on that front, with the legislator providing that talking to the public and sharing preliminary investigation material with journalists, albeit with certain restrictions, is a valid defense tactic that does not require permission from the prosecution.
However, these discussions did not touch on whether a journalist needs to ask for the prosecutor's permission if they want to publish criminal proceedings data received from sources. This even in cases where the source could be a public official breaking the law or a defense lawyer using dubious tactics. The debate always revolved around whether the person leaking the information in the first place, not the journalist, could be performing punishable actions.
The topic of punishing journalists also fell by the wayside because the European Court of Human Rights had made a judgment during the same period (Stoll vs Switzerland, 69698/01, 25.04.2006) where it found that convicting a journalist, even for publishing an illegally leaked state secret, might not be proportional in terms of a democratic society's interest to support and maintain press freedom.
Even though the Grand Chamber later overturned the decision with twelve votes to five, it was clear that punishing journalists for disclosing criminal proceedings information would be problematic in light of the European Convention on Human Rights.
While approaching the provision merely grammatically, a journalist could indeed be defined as a non-party to proceedings (as could anyone with no official connection to proceedings), I believe that the historical interpretation does not support this conclusion.
The looming debate is, therefore, important not only to strike a balance between different constitutional principles but also to have clarity in terms of whether the provision even applies to journalists.
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Editor: Marcus Turovski