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 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.
Starting from a strict interpretation of the meaning of trial by media and from the assumption that we are in the presence of a pathology of the press in dealing with legal matters, we have tried to ascertain whether the existing legislation, both at a national and at a supranational level – specifically the criminal law on defamation and illegal processing of personal data – is sufficient in itself to set a barrier to the widespread phenomenon of trials by media. The answer to this question seems to be affermative, especially when we refer to the secondary national legislation (selfregulation codes): however, on the operational level, this legislation has so far met several obstacles that could be overcome if the institutions were to give proper attention to this problem.
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.
In the enabling act about interceptions, contained in the Orlando legal reform, the Parliament has drawn some well-structured legislative parameters in order to protect privacy in the best possible way. These parameters are inspired on the guidelines made by the public prosecutors’ offices. The cross-reference to the enabling act and the circulars allows to highlight some of the main issues. The lawmaker has to take care of these problems in order to avoid inconsistencies and constitutional doubts. In particular, the choice to entrust to the public prosecutor (and, firstly, to the police) the selection of conversations to record can penalize the defensive needs; moreover, this choice, without trial sanctions, can make the need to protect privacy useless. After the dialogue between the public prosecutor and the police, the recorded and cutted off conversations could remain; their potential and unlawful publication lacks of a suitable sanction.
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.
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.
This article analyses the dynamics relating to the use of tools proper of the criminal law proceedings for different objectives such as the prevention of the commission of certain types of crimes, with a main focus on the regulation of preventive wiretapping.
Acts of terrorism use the intricate and widespread network of information communicated through computer systems as an important source: the control and management of this flow of communication is, therefore, an essential prerequisite in the fight against the terroristic phenomenon and in the field of investigations within the criminal law process. In this context, we see the use of investigative tools such as IT sensors risk placing a considerable strain on an individual’s right to privacy, due to their markedly invasive power. Most European countries have, therefore, found themselves coping with the challenge of balancing between the effectiveness of certain technologies and the traditional protection of fundamental freedoms; an unequalled heritage of Western legal culture. Italy is not exempt from this challenge. In this brief article, I seek to re-evaluate, especially in light of a recent judgment from the Joint Divisions of the Court of Cassation, the national situation while also taking into consideration the solutions adopted in other European Union countries.