After analysing the concepts of memory, historical truth and legal truth from an epistemological perspective, the author focuses on the problematic relationship between the liberal-democratic constitutions and the so-called memory laws. When such legislative interventions introduce criminal sanctions, they bring with them serious is- sues of compatibility with the guidelines of criminalization in constitutionally oriented criminal law, and seem to be in contrast with the freedom of expression and the constitutional principles of public speech, aimed at defining the procedural conditions of political integration.
The Author depicts the reality of journalism in the field of criminal justice, with particular emphasis on the factors that actually arouse media distortion of crime, by suggesting (more) effective sanctions for wrong exercise of freedom of press and by warning against the pitfalls - more or less - hidden in the Bills currently before Parliament.
The relationships between freedom of information and fair course of justice, with particular regard to criminal trial, are issues nowadays more and more relevant, due to degenerative phenomena of "trial by media". Constitutional studies need a clear consideration of the need to make balance between principles and involved values, as proved by the difficulty of writing a proper "Charter of relationships between judiciary and media". In this sense, the analysis of the decisions of the Italian Constitutional Court and the European Court of Human Rights offers many insights – even when it is necessary to innovate legislation. The recent European Directive (EU) 2016/343, which should be implemented within 1 June 2018, acknowledges several orientations coming from case-law of ECHR and confirms an extensive interpretation of the 'presumption of innocence', shifting-away from mere procedural safeguard to constitutional freedom, i.e. as right to be considered innocent unless guilty is legally proven.
The present article is aimed at assessing a number of key judgments delivered by the European Court of Human Rights which touch upon the relationship between criminal proceedings and the media. On the one hand, it will identify which rights are affected, while on the other hand it will explore the manner in which such rights may enter into conflict with other rights or collective interests. Particular emphasis is placed on how the Court conducts the balancing exercise between the different interests at stake in the following areas: statements to the press and press conferences held by public officials with regard to pending criminal proceedings; the release to the press, by public authorities, of images of individuals under investigation; leaks concerning investigation activities.
The article provides a critical illustration of the rules governing the confidentiality and limits of the publication of criminal proceedings. Recognition is conducted in the light of the problems that the Italian experience has now emerged. The delicate problems associated with the interplay of interests at stake (individual confidentiality, protection of inquiry, procedural fairness) make up the plot. The final paragraph is devoted to a synthetic design of imaginable solutions by trying to overcome the current, unsatisfactory practices.
The ineffectiveness that characterizes the current legal protection of the confidentiality of the investigation seems to be a consequence, not of the defect of the tools in use, but rather of the transformation that involves the implicatede interests: the right of information aimed at a democratic control over the judiciary is destined to prevail over the public and the private interests affected by the investigations. Since a balance between right to information and right to reputation can only be achieved case by case, the main issues are related to the breach of the confidentiality due to the activity of the “custodians”, which needs to be prevented not only - and not so much - by increasing the penalties, but also and more realistically by impeding ambiguous relations between the judiciary and the press. Therefore, the press should be allowed to freely access to acts no longer covered by the secret, with benefits for the journalistic activity itself, as regards the respect of the limitation of “procedural truth”.
The paper deals with the matter of corporate liability (d. lgs. 231/2001) in the field of journalistic activity. Once examined the issues linked to the criteria set in order to ascribe the offense to the journalist, it is underlined the question of compatibility between the freedom of information and the preventive “compliance” that establishes the guiltiness of the body.
At the heart of the phenomenon at this point known as “mass media trial” there is the clash, difficult to overcome, between conflicting rights: on the one side the right of information on criminal matters, and, on the other, the different rights of the people subjected to it (privacy, presumption of innocence), in addition to more general interests to the impartiality of the trial. In this paper we present some restorative measures that should be granted to the people that are subjected to “mass media trial”, both in the case in which they are convicted and in the case in which they are acquitted: in the first case, we suppose in the first place a deserved mitigation of the punishment, that acknowledges the double “legal suffering” endured in the “parallel proceeding” occurred on television and newspapers; in the second case, we advance the introduction of correction obligations that the judge should impose to the media, starting with the obligation to publish the judgment of acquittal, in addition to restorative/ compensatory measures at the expense of the State.
The topic of the problematic relationship between criminal justice and mass media is certainly not only typical of the Italian legal system. In the following paper we try then to look at this topic in a comparative perspective, by analyzing the legal sources, the caselaw and the legal scholarship. The analyses is limited to some key civil law legal system – France, Spain and Germany – and especially to the substantive criminal law aspects, in particular the criminal responsibility of the journalists in cases of violation of the investigative secret and on the criminal restorative measures in cases of “mass media trial”.
The paper is based on the work of the research group led by the Department of Legal Studies of the University of Florence on the topic of "Criminal Justice and Journalistic Activities" and it is aimed at summarizing the main issues related to the many interests involved and their possible balancing. Based on the assumption that it is necessary to overcome the contradiction between the existing, but totally ineffective, laws and a situation of pain for many interests, especially private ones, attempts are made to identify some possible lines in order to reform or to rethink the system.