Among the essential characteristics that define the trial, i.e. presence, debate and contradiction; oral conduct, and publicity of the hearing, the latter is not the least important, but shares with the others its essential character. It is perhaps unnecessary to clarify that when the expression "public hearing" is used, we are referring not only to the oral hearing being open to those who wish to be there, but also to all the media loudspeakers, who are the sight and hearing of many other absent citizens who have the right to know the work carried out by the third power that represents them and dispenses justice on their behalf: the Judiciary.
The purpose of these lines is to deal, as the title announces, with the presence of the media, both written and audiovisual, in the courtrooms where trials are heard. With this aim in mind, therefore, we are going to present our arguments in order to elucidate our reasons and reach the conclusions that best suit the proper functioning of law and justice.
The presence of the media in the courtrooms where trials are held is in practice an exception, despite the fact that, as we will demonstrate, it is a right of citizens expressed in the Constitution, in other laws that develop it and in copious jurisprudence. However, it is often postponed or forgotten without arguments, despite the fact that in order to deny it "exceptionally" (arts. 313 and 314 LEC and 680 LECrim) the judge must issue a reasoned order; it is not enough, therefore, for the judge to say "no" to hold a trial behind closed doors or to avoid the presence of the media.
We will therefore begin by looking at a number of precepts that illustrate the issue we need to analyse.
Firstly, Recommendation (2003) 13 of the Committee of Ministers of the Council of Europe on media reporting on criminal proceedings, adopted on 10 July 2003, states in its first principle that the public should be able to receive information on the activities of the judicial authorities... Journalists should therefore be free to report and comment on the functioning of the criminal justice system, subject only to the limitations mentioned in the Recommendation itself. The exceptions and limitations to the right to written or audiovisual information are generally included in Art. 120.1 EC, specified in different laws and reflected in case law. These exceptions are:
- Those which may obstruct evidence or hinder the conduct of the trial.
- Those that violate the secrecy of the file.
- Those that include statements or images of minors.
- Those that may violate or harm honour, honour or dignity (especially sexual offences).
- Those involving danger to victims (e.g. in gender-based violence) or to experts, witnesses and police, and even to defendants.
- Those affecting compulsory anonymity and social reintegration.
- Those containing possibly morbid or indecent images or videos (e.g. where these are to be exhibited as evidence).
- Those relating to order and security, space restrictions or other special circumstances.
- Those that may cause harm to the individuals present in the room for a specific and extraordinary cause.
Civil servants are exempted from these limitations.
Even with the exceptions already listed, but also taking into account all the arguments so far, it follows that public information about the proceedings is of great importance because it affects the right of expression and access to what happens in the courtroom, with the democratic progress that this entails. For this reason, the written and audiovisual media should be allowed to enter the courtroom. The cameras may make some officials or others nervous, but they may come as a relief to judges, magistrates, prosecutors, lawyers and other servants of the law, who will not be harassed into making statements.Moreover, the Agreement of the Plenary of the CGPJ of 5 November 1986 already expressed its concern.
In section I.2, an important distinction is made between: internal publicity (the right of the parties to have equal access to the judicial proceedings) and external publicity, which is transmitted to the outside world and which has to do with people outside the proceedings; this is further divided into immediate external publicity (which refers to the citizens present in the courtroom) and mediate external publicity (which conveys to the rest of the citizens what is happening in the courtroom). And it stresses that not only is the former necessary, but that the latter must also be guaranteed.
This mediated publicity, in addition to satisfying a constitutional right, has regenerative effects, as it acts to prevent crime, spreads knowledge and helps to reinforce awareness of the rules among citizens, giving them confidence and acting as an exemplary agent of their conduct. Furthermore, in section VI of Instruction 3/2005, STC no. 57/2004, of 19 April, emphasises that "the image notably enriches the content of the message aimed at the formation of free public opinion", and "STC no. 57/2004, of 19 April - which is undoubtedly going to assume the role of leading case has strengthened the position in favour of the admission of audio-visual recordings of trials".
In the same sense, the Instruction of the State Attorney General's Office no. 3/2005, "On the relations of the Public Prosecutor's Office with the media", is clear and instructive and provides us with a good part of the foundations of our position on the subject and of the arguments we are going to use.
From other judgments of the Constitutional Court it draws obvious deductions from the general principle set out above: "Freedom of information allows the exercise of other intellectual freedoms...". "The right to information fulfils... the prerequisite for the proper functioning of democratic institutions. For its part, the passive aspect of freedom of information (the freedom to receive it) is a basic element for the free development of the individual, adding that without the aforementioned principles "there is no free society and, therefore, no popular sovereignty" (STC no. 6/1981, 16 March). It reinforces these assertions with a graphic expression taken from the SSTEDH of 25 June 1992 and 29 March 2001: the mass media are the "'watchdog' of citizens' rights and freedoms".
Furthermore, section I.1 of Instruction No. 3/2005 of the State Attorney General's Office makes a general statement describing the evident changes experienced by our society in terms of information, stating that these changes constitute a "core element for the configuration of the Social and Democratic Rule of Law", and supports this assertion in SSTC No. 21/2000, of 31 January; No. 158/2003, of 15 September, and No. 54/2004, of 15 April.
"It is logical, therefore, that the person who is the holder of political power - the sovereign people - should be aware of the way in which the individuals to whom he has entrusted its exercise use, whether they are the legislator, the executive or the judges"; and this is established in section I.1 of the aforementioned Instruction.
The Instruction, in section I.2, continues to limit its first arguments by appealing to the dictates of the Constitution and making extensive use of case law of the Supreme Court and the Constitutional Court, of which we will only cite a few examples: "The publicity of the process is also configured as a fundamental right and this leads to affirming its preferential position in the legal system and, correlatively, to restrictively interpreting the exceptions to the general principle (pro libertateIf justice emanates from the people (art. 117.1 CE), that is to say, from the holder of sovereignty (art. 1.2 EC), its administration by Judges and Magistrates must be so in their direct presence in the form of the public, in the oral hearing, and in that of those who, in the exercise of the right to freely communicate truthful information by any means of dissemination [art. 20.1 d) EC], transmit to all other citizens what happens in the proceedings. This right corresponds to their right to receive the same truthful information, both of which are based on the democratic nature of our constitutional system". "STC 30/82, of 1 June, attributes to the media the role of natural intermediary between the news and those who are not in a position to know it directly".
It includes other assertions taken from the Constitution, since the latter "embraces the principle of publicity both in art. 120.1 ('judicial proceedings shall be public with the exceptions provided for in the procedural laws') and in art. 120.3 ('sentences... shall be pronounced in a public hearing') and in art. 24.2 ('...everyone has the right... to a public trial...')". STC 178/1993, of 31 May, stresses that "it is not possible to deny news interest to facts or events of criminal relevance".
In line with the aforementioned heading, "the right to receive truthful information in relation to judicial matters converges, therefore, with the principle of publicity, enshrined in art. 120.1 EC, radiating effects in a double direction: as the right of the parties to have the trial held before the public and as the right of the public to see how justice is administered" (SSTC 96/1987, 30/1982 and 13/1985). In turn, STC 96/1987 roots the principle of publicity in the Rule of Law. And, further to the declaration of the latter judgement, it also provides doctrine from the ECtHR, "which supports that of the TC in the same sense, highlighting 'the dual purpose of the principle of publicity: on the one hand, to protect the parties from justice being removed from public control and, on the other, to maintain the community's confidence in the Courts, this principle constituting in both senses one of the bases of due process and one of the pillars of the Rule of Law'" (SSTEDH of 8 December 1983 and 26 June 1984, among others).
In cases where there is public interest and the media do not have first-hand information, they do their work by going to the parties or other sources and it is quite possible that their information is not impartial or that parallel trials are organised by the media. which do not respect the presumption of innocence or which cause serious prejudice to any of the parties and other participants in the proceedings; for this reason, the Public Prosecutor's Office or other authorised officials must provide neutral and truthful information, respecting the confidentiality required by law and the secrecy of the proceedings when the investigating judge has so decided; however, privileged information (that which is given only to certain media, ignoring the rest) should be avoided (Principles 4 and 5 of the Recommendation (2003)13). However, at the oral hearing, once the pre-trial phase is over, the media have the right to be present, as dictated by the Constitution and underlined by case law. Moreover, STC 30/1982 of 1 June 1982 adds that they should have a preferential place in the courtroom.
The STC of 19-4-2004 reaffirms the position that we have been upholding in all previous arguments. It settles and puts an end to the previous proceedings: the appeal for protection filed by the Federation of Press Associations against the ruling of the Administrative Chamber of the Supreme Court of 9 July 1999 and against the Supreme Court's Governing Chamber Resolutions of 12 and 25 September 1995, which approved the "Rules on access to the Palace of the Supreme Court", and also against the Resolution of the Plenary Session of the General CGPJ of the Judiciary of 7 February 1996, which had partially upheld the ordinary administrative appeal filed against the Supreme Court's Resolutions.
All the appeals lodged with the different bodies alleged that their right to freedom of information was violated. The CGPJ partially upheld them, but its decision was challenged and appealed by means of two new contentious-administrative appeals before the SC, which rejected them.
The Governing Chamber of the Supreme Court, by agreement of 25 September 1995, had redrafted the "Rules...", slightly modifying the sixth rule, relating to "Access to the Palace by the mass media", which now reads:
"1. Media professionals shall have access to judicial or governmental acts held in public hearings, subject to general security rules. The Government Secretariat shall issue the appropriate accreditation and identification. When the capacity of the room or premises is insufficient to allow access to those who wish to attend an event of the nature mentioned above, media professionals shall have preferential right of access.
- The information that may arise from the acts referred to in the previous paragraph and, in general, from matters within the jurisdiction of the Court, shall be provided by the Technical Office of the Supreme Court and in the corresponding Press Room.
- Photographic, video or television cameras shall not be allowed in the Palace of the Supreme Court, except for the opening of the judicial year, inaugurations and other solemn governmental ceremonies".
The Federation appealed in amparo before the Constitutional Court, focusing on these three points of the sixth rule. The allegations that were presented did not differ substantially from those that we have been describing in this work, even making reference to the doctrine and some articles of the EC that we have cited above and attributing to the Agreements of the Supreme Court's Governing Chamber the violation of the right to information, guaranteed in art. 20.1 d) EC, and arguing that these Agreements do not allow direct information and absolutely prohibit access to the Palace of the Supreme Court with photographic, video or television cameras.
The STC of 19-4-2004 expresses in its legal ground 2 that "...the impeditive nature of the contested rule 'makes it possible to impute directly to it, without the need for any act of application, the harm claimed to have been suffered and, from this point of view, there is nothing to oppose the processing of the present appeal'" (STC 121/1997, of 1 July, FJ 5). And in 3: "This Court has already had the opportunity to rule on the relationship between the right to freely communicate or receive truthful information [art. 20.1 d) EC] and the principle of publicity of judicial proceedings (art. 120.1 EC) ...". And when dealing with the transmission of trials: "This projection can only be effective with the assistance of the media, insofar as their presence allows them to acquire the information at its source and transmit it...". And also in 4: "Public court hearings are therefore a public source of information...".
In the following grounds the judgment mentions some of the exceptions listed above, confirming that security must be guaranteed and adding that possible intimidation of defendants, witnesses, defenders, etc. is a cause for exclusion of the means.
With regard to point 3 of the sixth rule - which is at the heart of the debate - we have already made it very clear, in our lines and in this ruling of the TC that we are analysing, that the written and audiovisual media have the right - and perhaps the duty - to broadcast from the courtrooms where the "rite" of justice is held. Legal ground 7 states that "it is not compatible, therefore, with the current legislation regulating the exercise of freedom of information (art. 20.4 CE) to establish a general prohibition, subject to authorisation in each case, of access by the media to capture and broadcast images to public hearings". On these grounds, the ruling could do no less than re-establish the right that the aforementioned point 3 of the "Norms..." had eliminated, qualifying and denying everything else with its decision.
"The right to written or audiovisual information in the courtroom prevails, this is not an obstacle to the delivery of justice, as the limitations - even if interpreted 'restrictively' - are sufficient and guarantee the proper conduct of the trial, whose 'essential purpose is... the discovery of the procedural truth'".
The only dissenting opinion disagrees, in point 5, with the interpretation of art. 120 EC and maintains that when the Constitution states that judicial proceedings shall be public "it refers to immediate judicial publicity" (we have already specified that immediate publicity means that the public can attend trials). He disagrees with mediated judicial publicity (remember: access of cameras, microphones and other technology to the courtroom). He bases his disagreement on the fact that the latter type of publicity "actively affects the development of the judicial process, modifying its development, and can negatively affect its essential purpose, which is, as I said, the finding of the procedural truth" (point 6). To support this affirmation, which summarises his vote, he resorts above all to comparative law: from the "..." (point 7).contempt of CourtThe Supreme Court affirmed in 1965 (Estes v. Texas) that the "no-fault clause" is a "no-fault clause", whether British or Australian, to the American experience, where "the Supreme Court affirmed in 1965 (Estes v. Texas) that the due process of lawThe Court of Justice of the Federal Republic of Germany also invokes Article 169, paragraph 2, of the 14th Amendment to the Constitution, which prohibits the broadcasting of a sensationalist criminal case on television. He also appeals to the second paragraph of Article 169 of the German Judiciary Act (Gerichtsverfassungsgesetz) and indicates that "the same negative solution applies in Austria, according to paragraph 22 of the Media Law" (point 7). And with regard to Spanish doctrine, it states, referring to the "Normas..." which we have repeatedly cited: "It is perfectly possible, according to our doctrine, to challenge directly in amparo regulatory rules, independently of their acts of application (SSTC 141/1985, of 22 October, FJ 2, 123/1987 of 15 July, FJ 1, 189/1987 of 24 November, FJ 3, among others)".
In short, to end the debate and draw the conclusion, we must refer to the Constitution and the abundant case law provided, where it is abundantly clear that the right to written or audio-visual information in courtrooms prevailsand that this is not an obstacle to the delivery of justice, since the limitations - even if interpreted "restrictively" - are sufficient and guarantee the proper conduct of the trial, whose "essential purpose is... the finding of the procedural truth", indeed.