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 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”.
Protection Under Criminal Law of the Confidentiality of the Investigation: for a Democratic Control over the Judiciary
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 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.