Trial by media

Did you know that in the year 1994 70% percent of the Rwandan Tutsi population was killed by members of the Hutu majority government?¹ You might think that this genocide would get all the media attention in a country like The United States, but that didn’t happen. All media eyes were on O.J. Simpson, an American football player and actor. He was being suspected of having murdered his ex-girlfriend and her new boyfriend.² Recording trials was new and became very popular during this trial. The citizens of the US eagerly watched the news on Simpson’s fleeing attempt, instead of the Rwandan genocide. Odd, you might think. But this example shows so clearly how a nation loves to condemn a culprit. O.J. Simpson was the talk of the day, and the nation’s opinion influenced the outcome of the trial. This still happens today, a nation sees with anticipation a suspect being prosecuted. Think of Robert M. and Anne Faber’s missing. How does the media attention affect the outcome of the trials these days? What legal basis is there for the use of media and the sentence reduction?

The power of news media

The power of news media cannot be underestimated. You might say that it is a fourth power to the three powers of Montesquieu with his Trias Politica. The effect of the trials being public is that the judges may be influenced by it, biased perhaps. They might feel peer pressure to give a certain sentence, if an entire people urges them to. To what extend is there still a fair trial when such forces are really influencing a verdict?

Another negative side of the publicity is that suspects are recognized, maybe even condemned by citizens. Whether they are guilty or not, they will never live life the way they did before. Is this what a guilty person deserves? As seen in the head kickers case³, sentence reduction can be given in order to balance the punishment the offender has received by the public.

Publicity around a trial

A case can come to the attention of a citizen via different ways, one of them being the realisation of article 6 of the Human Rights Act. This article ensures a fair trial, and one of the means to have this is the trial being open to the public. This entails that the trial can be attended by anyone, and the verdict is published by the Public Prosecution Service.

Another way of publishing a prosecution is through the news. Either to inform a people or to give an inquiry notice. The second way happened in the case beach riots in Hoek van Holland.⁴ The police had released an inquiry notice to find the suspects.

The suspects lawyer said that this was a violation of the suspects private life of article 8 of the Human Rights Act, and thus should lead to a sentence reduction. The court did not agree. The Court concluded that there was a violation of the right to private life, they said however that the use of the media was correct. There was no need for a lower sentence because of a couple of reasons: the crimes had taken place in public and shocked the society, no witnesses had reported themselves, the Ministry did not see other ways to find the suspect and the nature of the charge played a role in this consideration. As you can see the Ministry made a balance of interests, the criminal enforcement on one hand and the private life of the culprits on the other.

“The public responded so strongly against these images that a witch hunt started against the suspects.”

Private life over openness

Sometimes, the right to private life can lead to a reason for the judge to give sentence reduction. In the head kickers case, the court decided some circumstances which should be considered, in order to decide the penalty. In the case, the Ministry had released a video of the suspects kicking the victim in the head, in order to find them. The public responded so strongly against these images that a witch hunt started against the suspects. This caused the right to private life, laid down in article 8 of the Human Rights Act, to have been violated. The court decided that this breach was an irreparable procedural defect and thus should lead to a lower sentence.

An appeal to article 8 can fail on the circumstance that publication of the personal information is a foreseeable consequence of the actions of the person involved, especially when it concerns a criminal offence. Also, it should be taken into account that the proportionality of the Ministry’s actions was not fulfilled according to the court, since they could have released stills of the video as well instead of the entire video in the head kickers case. This would probably have prevented the witch hunt on the suspects.

In the head kickers case the court gave guidelines how to determine whether a perpetrator should receive a lowered sentence. Several factors should be taken into account, among which: the public character of the place of the offence shown on the video; the personal information of the culprit, like his age; whether the suspect is already a renowned person; how recognizable the culprit is on the video; how the video is obtained and released; and the goal of the publication. So, these points are used to determine whether the judge should lean more towards article 6 or 8 of the Human Rights Act.

Have they gone to far?

Who hasn’t seen the documentary about Robert M. these days? Or Making a Murderer on Netflix? Bringing the criminal offenses of such people brings it close to the people at home. But is this too much? Hasn’t it become a game of who did it, safe from the couch at home, or is there still genuine sympathy? What good does it bring to pay so much attention to criminal cases? If, as seen above, the effect of this is that the culprits get sentence reduction, is this the desired effect? Maybe the publicity is even a more effective way to punish the culprits, which is in the end the objective of the judge’s sentence.

With the digitalization in modern days, it is not likely that the attention of the media will ever decrease. Do you think that the media could also be a good influence to a verdict in the future?

Annemieke Maatje

1. http://endgenocide.org/learn/past-genocides/the-rwandan-genocide/
2. Biography.com editors, ‘O.J. Simpson’ (biography.com, 10 November 2017) <https://www.biography.com/people/oj-simpson-9484729> accessed 12 December 2017.

3. HR 13 oktober 2015, ECLI:NL:HR:2015:3024.
4. Hof Den Haag 20 november 2012, ECLI:NL:GHSGR:2012:BY3551.