We discuss the exemplary press release by Parma prosecutor Alfonso D’Avino on the case of the newborns found murdered in Traversetolo with professor and lawyer Vittorio Manes, full professor of Criminal Law at the University of Bologna, whose book Media Justice. The perverse effects on fundamental rights and fair trials (Il Mulino, 2022) was defined by D’Avino himself as enlightening regarding the devastating effects caused by the media trial “parallel to the judicial one”.
Finally a prosecutor who denounces the negative consequences of the media trial. In the face, moreover, of a serious and horrifying crime.
I find the press release from the Parma prosecutor, Dr. D’Avino, truly appreciable, both for the particular authoritativeness of the source and for the contextual circumstances, given the gravity of the affair and the difficulty of stemming the growing requests for information: it demonstrates a rare sensitivity for the values at stake, and for the devastating consequences that media overexposure can have on investigations and, above all, on the fundamental rights of the people involved.
Have you also noticed, from some of the prosecutor’s expressions, that he is aware of being “disconcerting” with respect to the now inevitable expectations of public opinion?
Of course, it is a surprising and disconcerting statement, as you define it, compared to expectations, because for their part newspapers and the media are demanding, understandably, the right to report the news. But the duty to inform and the right of citizens to be informed are not absolute values, in the presence of which the other values, equally important, that are on the other side of the scale can be forgotten and trampled upon: otherwise the former become tyrannical rights, and the latter are reduced to paper guarantees, or simple paper rules.
Among the opposing values, as the press release highlights, the presumption of innocence stands out, a principle and value that risks being annihilated by the media spectacularization of investigations, transforming the suspect into a presumed guilty party, or into a guilty party awaiting trial.
A representation that in cases of very serious crimes such as the one we are talking about ends up transforming the suspect into a real monster in the eyes of public opinion, irremediably destroying his public and private image: if this is the case, the particular caution that inspired the initiative of the Parma prosecutor, aimed at avoiding producing information effects that, due to the position of the subjects involved, would be substantially irreversible, must be shared and appreciated all the more.
It is also interesting that D’Avino cites your book, Professor: the prosecutor thus seems to recognize that the function of a magistrate is not “omnipotent”, and that it is important to take into account the contributions offered by other jurists.
Beyond the personal quote, it is certainly appreciable that a magistrate engages with the opinions of experts and scholars, of the “doctrine”, because only from consideration, respect and critical comparison with the positions of others can a common sensitivity for the values at stake develop. Moreover, it should be clear that all the actors who participate in or observe the criminal trial contribute equally to the administration of justice, regardless of their membership in the judiciary, the forum or the academy: that is, to have the awareness that justice, as Balzac wrote, essentially depends on the actions of all the protagonists of that judicial play that is the trial. This means that the dialogue between the different actors, within the “community of interpreters”, is a necessary, essential method to identify problems and to trace possible solutions.
The initiative of the prosecutor D’Avino seems to confirm how appropriate it was to implement the EU directive on the presumption of innocence.
The implementation of the European directive on the strengthening of the presumption of innocence was a first step, significant but certainly not decisive, and like all regulatory measures it presents critical issues and margins for improvement. However, it has highlighted the urgency of the problem, starting a “prophylaxis” that still needs to be fully developed, also and above all on a cultural level: and also from this angle I think the press release is appreciable, because it tries to promote a different cultural attitude, “sensitive” to the values at stake.
The press release ends by announcing that “a file has been opened for a possible violation of the secrecy of the investigation.” This is also an isolated initiative, because, although secrecy is violated in other Prosecutor’s Offices, the leak of information is never investigated.
True. Sanctioning repression, in my opinion, is never a convincing solution, but a prohibition systematically left without sanction undermines the very credibility of the precept, generating the belief that it is substantially “admitted” to violate the secrecy of the investigation, with strongly negative effects on the effectiveness of the investigations themselves.
In your opinion, what needs to be done to reverse the course of a parallel media trial in which the press and the judiciary share responsibility?
It is a complex problem, which has a cultural dimension first and foremost, and as such I do not believe that there is any therapeutic measure, or any legislative solution, that can resolve it: what is needed instead is a different sensitivity and a renewed awareness, on the part of all actors, of the extreme vulnerability and “perishability” of values such as the presumption of innocence or respect for private and family life, and everyone should contribute to rights-sensitive, sensitive, attentive and respectful information of the rights at stake. Why, for example, not think of a path of specialized training and “professionalization” for journalists who deal with judicial news? And a system of incentives, or disincentives, for newspapers or media that demonstrate that they always offer judicial information that respects the values at stake, avoiding sensationalist tones, expressions or adjectives that are guilt-inducing, forms of spectacularization that are both gratuitous and prejudicial to those involved?
It must also be admitted, however, and various news stories confirm this, that, as you write, “when the lawyer lends himself to this game (the media trial, ed.) he does so at his own risk and peril, because it is difficult for him to govern the currents of opinion that swirl in the media vortex, where the step from the Elysian Fields to the marshes of the Styx can be truly short…”.
This is the temptation that a lawyer can fall into when he gives in to the lure of seeking visibility, without realizing that the media torrent always risks overwhelming those who feed it and perhaps think they can govern it, ending up instead also prejudicing the position of their client. It is always better to stick to sober and essential communication, and only where this is truly necessary to direct correct information on the evolution of the case or to correct any distorted and prejudicial news for the client.