Justice short-circuited because the memorandum submitted to the Constitutional Court appears inconsistent with the guidelines of Parliament and the European Court of Human Rights.
April was to be the month of the eagerly awaited decision on the constitutional legitimacy of article 595 of the penal code and article 13 of the Press law n. 47 of 1948. The part where these rules still provide for prison sentences for the offence of libel which, if committed through the medium of the press, becomes a serious problem for the journalist profession, was to be subject to scrutiny.
The issue is strategic and has been debated for many years. Since 2001, in fact, there has been a series of various bills that expressly provided for the abolition of prison for defamation, but, unfortunately, none of them has ever managed to become law.
The European Court of Human Rights in Strasbourg, for its part, since 1996 (with the Cumpana and Mazare v. Romania judgment) has called on Member States to remove the provisions for imprisonment of journalists because they conflict with Article 10 of the European Convention of Human Rights.
Subsequently in Strasbourg there was the Belpietro ruling of 2013 and most recently the Sallusti ruling of the 7th March 2019. These two last pronouncements, once again, have condemned Italy for violation of Article 10 of the ECHR. Despite the unequivocal and constant European jurisprudence, always critical of Italian legislative provision for the imprisonment of journalists, the Italian parliament has never managed to approve a law repealing those rules.
At the end of 2018, first the Court of Salerno and then that of Modugno-Bari referred the question of constitutionality to the Supreme Court which, before ruling, should have heard the involved parties in the public hearing of April 21st 2020.
The National Council of the Order of Journalists, which also intervened in the question of legitimacy, did not, however, consent to the chamber’s proposed limited treatment, in the present circumstances, of the matter, considering the participation of the parties necessary and therefore insisting on the maintenance of the principle according to which the matter, when the health emergency finally ends, must deserve a debate in the context of a public hearing.
For completeness it should be remembered that the lawyer of the SUGC, the Union of Journalists of Campania, who raised the matter before the Court of Salerno, had expressed consent to the forsaking renunciation of public discussion, as well as the State Attorney who with a brief memorandum surprised everyone by asking that the question of the constitutional illegitimacy of the rules that impose prison sentences for journalists is declared inadmissible and in any case unfounded. With this thereby defending the maintenance of the status quo which provides for a sentence of up to six years of imprisonment for a journalist convicted of the crime of defamation in the press aggravated by the reference to a specific case.
And it is precisely the position unexpectedly assumed by the State Attorney which prompted the National Order to provoke a challenge within government institutions.
In fact, it is necessary to understand what the position of the Italian State actually is, given the clear inconsistency that emerges from the defensive memorandum filed by the State Attorney with respect to the previous legislative initiatives taken in relation to the abolition of prison for journalists. This challenge, for all too obvious reasons, cannot take place in this historic moment.
Independent of the heated controversy that has arisen between the Order and SUGC on whether or not to postpone the hearing, which effectively risks postponing sine die a fundamental decision for the freedom of information, I believe that the position taken by the State Attorney, with all due respect, now appears to be anachronistic with respect to the evolution of European jurisprudence on the issue.
Already with the Pecorella-Costa bill presented on the May 8th 2008, prison for journalists was expected to be abolished and so also with the various subsequent bills all sunk, but all united by the political will to change the sentencing regime for defamation in the press.
One has, therefore, to wonder why the State Attorney has embarked on the path of legal regression, taking a position that appears indifferent not only to the will of the Italian Parliament, but also to the recent governments in office, to the entire public opinion (just think of the breadth of support received for the Sallusti case) and, above all, indifferent to the constant calls from the ECHR.
To understand in concrete terms, the legal contrast between the Italian norms that envisage prison for journalists and Article 10 of the ECHR, perhaps there are no better words than those expressed by the ECHR in the judgement on Cumpana and Mazare v. Romania in 1996, where it said, in effect, that “the deterrent effect that the fear of sanctions of this type [i.e., imprisonment.] has upon journalists to exercise their freedom of expression is evident and harmful to society as a whole. The Court considers that a prison sentence imposed for an offence committed in the press is compatible with the freedom of journalistic expression enshrined in Art. 10 only in exceptional circumstances, in particular when other fundamental rights are seriously infringed, as in the case, for example, of the dissemination of a hate speech or incitement to violence “.
In all other cases, however, when dealing with real and true journalism, regardless of how serious defamation is, a prison sentence should never find a place in legal measures.
Lawyer Andrea Di Pietro – coordinator of the Free Legal Aid Office for Ossigeno per l’Informazione (Oxygen for Information).