OSSIGENO – 25th September 2020 – It is the first sentence of its kind after the decision of the Constitutional Court in June 2020 to give Parliament one year in which to legislate reform
by Pierluigi Franz – For the first time after the interlocutory decision of the Constitutional Court on June 26th, 2020, the Supreme Court of Cassation (Corte Suprema di Cassazione) annulled the 8-month prison sentence without parole imposed on a Calabrian journalist for defamation. The decision no. 26509 of the 22nd September 2020 of the 5th Criminal Section of the Supreme Court of Cassation (download here the sentence) is of particular importance pending discussion in the Italian Senate of the bill on this matter already approved by the Senate Justice Commission.
The protagonist of the story is the journalist from Cosenza, Gabriele Carchidi, chief editor of the online newspaper Iacchite.com, who boasts a record that is difficult to match. He has in fact been subjected to 179 trials for libel so far and has already been convicted 17 times in the first grade to prison terms for a total of 8 and a half years in prison (101 months), without a suspended sentence.
The details were revealed by Ossigeno per l’informazione (Oxygen for Information) during a conference on impunity promoted in the Italian Senate on the 25th October 2019 (see the details here). Carchidi did not go to prison because the appeal processes and appeals to the Supreme Court of Cassation are still on-going.
And in precisely one of these trials on the 9th July 2020 his defence lawyer Nicola Mondelli, invoked the application of the judgments of the European Court for Human Rights which, starting from the 17th December 2004 (Cumpănă and Mazăre v. Romania) have consistently restricted the possibility of imprisonment for defamation to completely exceptional cases involving an incitement to violence or conveying hateful messages. . The Supreme Court of Cassation accepted these arguments and annulled the sentence of 8 months imprisonment by sending back the procedural file again to the Court of Appeal of Catanzaro, which will have to amend the sanction.
The Supreme Court, presided over by Maria Vessichelli, took particular note of the recent decision no. 132 with which the Supreme Court judges three months ago postponed their definitive sentence to June 2021 to give the Italian Parliament time to finally enact a comprehensive reform of defamation law that has been expected for more than 40 years. As is known, the Constitutional Court, in an atmosphere of ”loyal institutional collaboration” , called for the provision of non-custodial penal sanctions, civil remedies and adequate remedies in general (such as, above all, the obligation to rectify) and effective disciplinary measures.
According to the robed eminences of the Palazzo di Giustizia in Piazza Cavour, it is evident that the decision of the Constitutional Court in Piazza del Quirinale “provides a degree of clarification of great importance, which cannot be neglected in the perspective of an interpretation oriented both constitutionally and by convention to the theme of sanctions instigated by the applicant.
According to the direction indicated by the regulatory and jurisprudential framework invoked by the Constitutional Court and pending the decisions of the Parliament and of those, if any, of the Constitutional Court itself, the choice to apply a prison sentence can only follow the assessment of the extent of the defamatory conduct of which the accused is charged. This is in order to assess the presence – or not – of the “exceptional gravity” as outlined by the above. In the presence of exceptional gravity the application of a prison sentence would be allowed. If this is the evaluation that has to be made, it is evident that it is a decision which, since it implies judgments concerning the merit of the ruling, belongs to the trial judge who will have to decide whether the merit of the prison sentence, which is not conditionally suspended, derives from the classification of the news disclosed by the published articles and deemed defamatory of exceptional gravity for which imprisonment could still be applied ”. PLF