Author: Lawyer Enrico Germano
The presumption of innocence is a neuralgic legal principle according to which a defendant is not considered guilty until proven otherwise. It has been adopted by most Western countries and beyond, and is enshrined in Article 11 of the Universal Declaration of Human Rights of 10 December 1948, as well as in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (ECHR) and Article 48 of the Charter of Fundamental Rights of the European Union (CFR), also known in French as le Traité de Nice, first proclaimed on 7 December 2000.
With the Italian Legislative Decree No. 188 of 8 November 2021,1 which entered into force on 14 December 2021, neighbouring Italy adapted its national legislation to the Directive 2016/343 dated March 9th 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings 2 3.
The topic of media justice and trail by media is highly topical not only in Italy but in every European country, including Switzerland, which is not part of the European Union. The central aspect of the Italian legislative decree revolves around the problems connected with the circulation in the media of information concerning criminal proceedings and ongoing investigations.
To this end, Article 2 of the aforementioned Legislative Decree provides that “it is forbidden for public authorities to publicly name the person under investigation or the accused until guilt has been established by an irrevocable judgement or a pre-trial judgment imposing fine in lieu of custodial punishment”. In fact, Article 3 adds that the dissemination of news may take place “exclusively by means of official releases or, in cases of particular public relevance of the facts, by means of a press conference. The decision to hold a press conference shall be taken by a reasoned act concerning the specific reasons of public interest that justify it”.
In a country like Italy, where trials often take place in the press or on television broadcasts instead of courtrooms, it is a considerable step forward, also from a cultural or sociological point of view, to protect the professional and personal reputation of the accused, resulting in a greater risk of lawsuits for journalists. Among other things, Article 47 of the Charter of Fundamental Rights of the European Union recalls the right to an effective remedy and to a fair trial, while its Article 48, on the presumption of innocence and rights of defence, states that “everyone who has been charged shall be presumed innocent until proved guilty according to law. Respect for the rights of the defence of anyone who has been charged shall be guaranteed”.
This principle does not only exist in Western countries, but is also found, for example, in the Islamic Republic of Iran, where Article 37 of its Constitution 4 states, “innocence is the basic principle No person is considered legally guilty, except in cases where his guilt is established in a competent court.” Also in the Russian Federation, Article 49 of the Constitution states, “everyone accused of committing a crime shall be considered innocent until his guilt is proved according to the rules fixed by the federal law and confirmed by the sentence of a court which has come into legal force”. Furthermore, Article 49 also states “the accused shall not be obliged to prove his innocence” and “unremovable doubts about the guilt of a person shall be interpreted in favour of the accused”.5
In Switzerland, Article 32 of the Federal Constitution of the Swiss Confederation states, “every person is presumed innocent until they have been found guilty by a legally enforceable judgment”. Article 10 of the Swiss Code of Criminal Procedure also states, “every person is presumed to be innocent until they have been convicted in a judgment that is final and legally binding”.
In 2017, the Federal Supreme Court 6 – Switzerland’s highest judicial court based in Lausanne – ruled in favour of Zurich multimillionaire Carl Hirschmann – whose family is considered among the richest in Switzerland, with assets estimated at 1.25 billion Swiss francs – who was the subject of a media campaign that was deemed damaging to his personal rights in connection with his arrest for unlawful sexual acts committed in 2009. The Federal Supreme Court held that “the press disclosed certain information to the public by the press, with extreme interference, and ridiculed Mr Hirschmann in the eyes of readers without any overriding public interest to justify their action”.7
1Supplemento ordinario alla “Gazzetta Ufficiale italiana„ n. 284 del 29 novembre 2021 – Serie generale
6ATF 143 III 297 | TF, 09.06.17, 5A_256/2016