The memorandum of the State Attorney filed with the Constitutional Court suggests that it must permit two exceptions to the Italian Constitution in the application of the penalty of imprisonment to those guilty of libel.
Now we know that the Italian government does not disdain the idea of seeing some journalists end up in prison. We know, or rather we deduce/infer it because the State Attorney, called to represent the position of the State before the Constitutional Court, adopted this position, in black and white, in the “defensive brief” which he submitted on March 31st 2020 to the Consulta (the Italian Supreme Court or Constitutional Court) .
In that memorandum, the State Advocate upholds the constitutional legitimacy of the rules that provide for imprisonment for journalists convicted of defamation with the aggravating circumstance of using the media and referring to a specific case.
Is this, therefore, the position of the Italian government under prime minister Conte on a highly sensitive matter? This is what the president of the Order of Journalists, Carlo Verna, asked Conte without getting a reply. We will wait to see if this silence is a sign of embarrassment or of consent. It is essential to know the attitude of the President of the Council of Ministers on a matter so important for a democratic state. The procedure before the Constitutional Court, when it takes place, will provide an additional opportunity to change or confirm this position and will tell us what is the basis of the constitutional objection in terms of law and consistency with the Treaties signed by Italy.
The government has been forced to come out into the open (adopting this position in contrast with what other previous governments have claimed) because two judgments linked to constitutional legitimacy raised by the judges of Salerno and Modugno-Bari are pending before their learned colleagues.
The rulings on which the Court’s judgment is requested are Article 595 of the 1930 Penal Code, which in the third paragraph provides for a maximum sentence of three years (or a fine of up to 50 thousand euro) for the crime of libel and Article 13 of the 1948 press law which provides for prison terms of up to six years (plus a fine of up to €50,000) if the same offence is aggravated by the reference to a specific case. These rules are 90 and 72 years old but still in force. The Italian Parliament has been trying (or pretends to be trying) to repeal it at each legislature, starting from 2001.
Public hearings were scheduled for April 21st and 22nd. On the 21st the question of constitutional legitimacy will be raised – at the request of the defence counsel of the accused – by the judge of the court of Salerno, before which a lawsuit is pending against journalists Pasquale Napolitano (defamation in the press aggravated by the reference to a specific incident, and Antonio Sasso (neglect of oversight).
The presidency of the Constitutional Court – considering the current health emergency – had proposed the possibility of discussing the case in the council chamber, without the intervention of the parties. This is possible if all the parties agree. The local Union of Journalists of Campania and the presidency of the Council of Ministers, represented by the State Attorney, were favourable. Instead, the National Council of the Order of Journalists opposed this and its president justified this decision with the need for public discussion in the presence of the parties considering the importance of the matter. The opposition of the Order has led to a postponement to a date still to be set. The postponement and the legitimate diversity of positions generated strong controversies in the world of journalism but the news did not appear in the newspapers which – with rare exceptions – do not pay any attention to these problems that affect the freedom of information.
When the Constitutional Court returns to discuss the issue raised by the judge of Salerno, will we be able to listen – and even to watch in streaming? Prison or no prison? Now the government must clarify – with what arguments will the Italian government support publicly the thesis that journalists can / must end up in prison? And when the Senate decides to return to deal with the proposed bill that, among other things, abolishes imprisonment for journalists, it will be interesting to observe what position the government will take publicly (Prime Minister, Minister of Justice, and the under-secretary for publishing). GFM