Fabio Humar: “Everyone wants prompt justice and everyone wants fair justice. The problem is that honoring both is impossible”

Colombia-based criminal-law expert Fabio Humar gives Leaders League his thoughts on how court cases are reported in the social media age, what happens when the court of public opinion overtakes developments in the actual courts, and the vital need to let due process take its course.

Posted mercredi, novembre 8 2023
Fabio Humar: “Everyone wants prompt justice and everyone wants fair justice. The problem is that honoring both is impossible”

Every day it is more common to find that procedural pieces are aired in the public media: witness statements, judges’ official statements, expert opinions, and many other rulings are found on the front pages of the morning tabloids. It is no exaggeration to say that judicial proceedings are also media driven. There is a clear correlation between the two: the media and the courts. They feed into one another – how could it be otherwise in these times of immediacy and 140 characters.

I have not found a precise definition of what is meant by media processes. But, from the common elements of several documents, I have been able to extract that State of opinion is understood as the public validation that is made of certain legal-political events of the nation. It is, in some way, the endorsement by the individuals, the people, the community, of the daily work of the State agencies in the exercise of their functions. In a way, as Uprimny says, it is a hypertrophy of public surveillance over the affairs of the State, with which the same surveillance that the entities carry out among themselves could well be erased in one fell swoop, by way of checks and balances.

The State of opinion, then, would be above the State of law, because, in a way, this logic prevails: the State of law can make mistakes, but public opinion never makes mistakes. That is the beauty of the concept, and also its danger.

On the other hand, I will not dwell too much on the analysis of the concept of the State of law. Suffice to say that what we know as the State of law, its rules and sub-rules, its modes and forms and its guarantees, are what they are today after centuries of evolution and fierce struggles. From the days of beheadings to the modern trial, a long distance has been travelled and multiple battles fought.

The State of Law is, above all, the most efficient and guaranteeing epistemological device to find the truth of a matter. It is possible that its application may not satisfy people, but, by all accounts and from any point of view, it is the formula that best guarantees and best honors the postulates of presumption of innocence, the pro homine clauses, the respect for fundamental rights, as well as the most liberal pillars of any human organization.

The point I want to get at is the recent and increasing suppression of the State of law and its replacement by the State of opinion when it comes to matters dealt with by the Criminal Code. Today, with the accusatory oral criminal system and the consequent entry of cameras into the courtroom, on the one hand, and wall-to-wall social media coverage and live-stream reaction videos, citizens are making snap judgements on the guilt or innocence of a person prosecuted.

And it is not enough, of course, for the State of law, the judicial processes, the due process and the judges to conclude in this or that way. It does not matter anymore, because the crowd has already taken care of passing sentence. And, of course, things get much more difficult when society, on account of a newspaper headline, has condemned the character and, after years, the justice system acquits him. Because of trial by media, I am sorry to say, he will be condemned forever.

In that case, the court of public opinion has issued a sentence, of an unappealable and, even worse, unforgettable nature, because it will remain in the records of search engines for decades. If we add to that the new programs for due diligence and review of compliance lists and programs, things get worse. It is not uncommon, for example, for a lending institution to raise objections because of a judicial annotation of a proceeding that took place in 1997, on a crime of libel and slander, for example, or a petty theft that was repaired by conciliation. However, the annotation in the compliance system jumps out at the viewer with its red lights.

The matter, I believe, has a number of aspects, all of them dangerous, which must be analyzed with caution. The most sensitive of all is the one related to the presumption of innocence and the social and media condemnation. Here are some points on the subject that, of course, are open to debate:

(i) The State of opinion arises so strongly because of the slowness of justice. Human beings crave certainty, soon, and cannot wait for the conclusion of a trial, which may take years. Nobody wants express criminal trials, which are typical of tyrannies, where the most basic guarantees are lacking, but, of course, the judicial delay in Colombia is of such magnitude that the State of opinion has found the most fertile ground of all. A trial in the comfort of the room, and in seconds, is better than a sentence a decade later. There will always be tension between two duties of justice: to be prompt and efficient, on the one hand, and to be fair, on the other. There is a delicate and never-ending fine tuning between these two pillars. Everyone wants prompt justice, as prompt as possible, and everyone wants fair justice, as much as possible. The problem is that honoring both is impossible. One will always be privileged, with the good and the bad that this implies, but as long as judicial delays persist, trial by media will continue. 

(ii) Judicial scandals reinforce the ideals of the State of opinion. Undoubtedly, the very serious corruption scandals that have taken place in the justice system have served to very much forge the idea that opinion is incorruptible and, therefore, the decisions made there are valid. In other words, it has become natural to think that the opinion about the responsibility for a crime, as it is taken by us, ordinary citizens, is the correct one, because we are not corrupt. It is logical to think that if I, sitting on my couch, have not received fine watches to change my mind, I will be able to make an accurate and adequate judgment about someone’s guilt, unlike the magistrates who allow themselves to be bought. Of course, it goes without saying that this way of thinking suffers from several cognitive dissonances, especially those called arbitrary inference and confirmation bias.

(iii) Due process is in the way and is overly guarantee-oriented. Underlying this, in my opinion, is the most dangerous idea: the conception has become widespread that the basic guarantees of individuals, which are activated when criminal proceedings are started, are, in some way, unnecessary gimmicks that should be limited, so that the sentence may get close, as soon as possible, to the verdict that has already been handed down by the State of opinion. This sentiment has already reaped successes and is the gateway to totalitarian regimes. For example, the disappearance of humanist subjects in school and university studies has coincided with the growing outbreaks of neo-Nazi ideologies. The dangerous path has been taken of seeing in the basic conquests of societies, in terms of respect for human rights, a kind of shelter for the weak that must be colonized by technocracy and efficiency.

(iv) Lack of knowledge of opinion makers about legal matters. There is a paradigmatic case in this which is the famous expiration of terms. The vast majority of people, even lawyers who are lay in criminal law, consider that the expiration of terms is equal to the extinctive limitation period of the criminal action. For this reason, very often, the gallery catches fire, because they believe that when the accused achieves the expiration of terms, he/she will go unpunished. Of course, it is not easy to understand that the expiration of terms is configured when a person deprived of liberty, by the simple passage of time, will cease to be so, but will still be linked to the criminal process and may be, in the end, equally convicted. There are those who consider the most basic of guarantees, such as not being imprisoned while being tried, a delaying maneuver. There are other examples of how, from due to media ignorance, the fuse that will later burn in the streets is lit. There is nothing to be done, except demand more rigor in terms of information, and to seek, in some way, that inaccurate or false information be not exempt from responsibility.

(v) A mea culpa: Lawyers, since the implementation of the accusatory system, have gone from the bench and the railing to the monitors and the screens. The temptation is inevitable and, sometimes, the necessity is imperative, because the cases that are being processed in the courts are taken to the media and we must go out to defend the client. Today, for example, most criminal law firms have on their payroll a person in charge of the press and the management of the media. I am sure that this has contributed, to some important extent, to the mediatization of cases. It is also possible that we are providing some clarity on difficult issues, such as those indicated in point (iv). We need to reflect on this.

(vi) Finally, the presumption of innocence and the media conviction: Today, we are all journalists and reporters. From X accounts (formerly Twitter) with millions of followers, any citizen can be put to the scaffold without the rigor of the newsroom and seasoned journalists. There are, of course, media of the "traditional" ones that do not hide their taste for ordeals and quick convictions in the morning hours. The remedy for this: self-regulation, self-censorship and, why not, a kind of legal obligation to cover, even more widely, the outcome of the trial, whenever it is an acquittal. Also, of course, there is the door to civil conviction for damages, which has been little explored in Colombia.

I am not a pessimist, but I do not see it easy to put aside the State of opinion and return to the slow and quiet paths of the State of law. Perhaps peace should start there.