The legislative decree on the so-called presumption of innocence continues to raise concerns, especially among magistrates and journalists. Approved at the end of 2021, it transposes a European directive and introduces some rules into our legal system that limit the communication of magistrates during preliminary investigations.
At this stage, the only one who can keep in touch with the press, according to that decree, is the chief prosecutor, who can disclose information on ongoing investigations only through public press conferences and press releases, in the event that he believes that this is the case. “Necessary for the continuation of the investigation” or that there are “specific reasons of public interest”.
Furthermore, in giving information to the press, the magistrate must respect the principle of presumption of innocence and therefore must not use sentences that portray the suspect as already guilty. Finally, it is forbidden to use suggestive names for investigations. Enough, therefore, with names such as Angels and demons, as happened for the Bibbiano investigation, or the capital Mafia as it was for the investigation of Roman crime.
These new rules will now be strengthened by the innovations contained in the bill for the reform of the judiciary to be approved on June 15 by the Senate, according to which their violation will constitute a disciplinary offense against the magistrate.
The danger of a gag
The legislative decree has raised a lot of criticism. The main one is that these rules constitute a gag for journalists, who will no longer be able to confront the magistrates on ongoing investigations. Furthermore, the decree entrusts the chief prosecutor with a task that is not his: the evaluation of the public interest of a news, which should be a prerogative of journalists certainly not of prosecutors. The fear is that in this way many news will no longer be brought to the attention and therefore subjected to the control of public opinion, with the risk of abuse and opacity.
The criticisms have a foundation. The legislative decree, in fact, allows magistrates to evade the questions of journalists, opposing them with silence on the course of the investigations, thus not allowing the verification of the news. Furthermore, it improperly entrusts to the magistrates themselves the assessment of the so-called newsworthiness of the facts, in short, whether certain events and circumstances are to be considered news or not.
Yet it is necessary to ask how these new strict rules have come about. And, above all, if this legislative decree, beyond the facade, will really solve the problem for which it was written: that of the so-called media pillory for the accused and for the suspects awaiting trial.
At best the attention of the newspapers could shift from the investigation to the trial
This legislative decree was in fact created to put a stop to the excessive mediatization of the investigations in the preliminary phase, in which the process has not yet begun and no evidence has been established. Over the last few years, in fact, the leading role of some prosecutors has produced the effect of fueling trials in the press and the public pillory of the suspects, already considered as guilty. A recent and striking case was that of the investigation into the collapse of the Mottarone cable car, in which the magistrate in charge of the investigations gave interviews and statements to the main newspapers, anticipating the possible outcome of the investigation and arguing with the choices of the judge for the preliminary investigations.
The question is: will silencing the magistrates really solve the problem of the media process, improving the quality of judicial journalism? It is difficult to be categorical, but the answer is that the effect will probably not be achieved and for two reasons.
The first is the risk that everything will become even more opaque: if before the magistrate was quoted by the journalist to confirm a news, now the risk is to transform him into an anonymous source. Information that should remain secret, or that is mere investigative hypotheses (which does not come only from sources inside the prosecutors), will continue to circulate, but this will happen in an even less verifiable way.
The second is to put in the hands of a small group of magistrates at the top of the offices the power to decide what to disclose publicly and what not. With the possibility of very different practices from power of attorney to power of attorney, given the great discretion left by the concept (certainly not legal) of “reasons of public interest”.
The balance between accusation and defense
The new rules, however, also offer a glimmer of optimism. From the Mani Pulite investigation onwards, judicial journalism has crushed the activity of the prosecutors, transforming magistrates into privileged sources. Thus a short circuit was created: some prosecutors gained great popularity, the press ended up engulfed by easy scoops in the investigation phase, forgetting the process that should ascertain the truth. With one result: it was the citizens who paid for it, waiting for justice. This decree, in the best of hypotheses and holding firm the critical points highlighted up to now, could bring journalistic attention back to the trial, rebalancing the relationship between prosecution and defense in the media.
This article appeared in number 31 of the Essential, on page 4.