Council of Ministers

Publication ban extended to all personal pre-trial measures

Final go-ahead for the legislative decree by the government. Preclusion does not only concern custody orders

by Giovanni Negri

10 December 2024

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Key points

Precautionary measures
Sanctions

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Tighter clampdown, broader ban. The final version, and the final one since it is the second reading, of the legislative decree on the prohibition of publication of judicial acts, approved on 9 December by the Council of Ministers, accepted, albeit partially, the requests made by the House and Senate in two photocopy opinions, widening the area of publication non-publication.

If initially, in fact, the prohibition of publication, whether in full or even in extracts, concerned thecustodial custody orders, now the preclusion extends to all precautionary measures of a personal nature. This is a difference of no small importance, since it poses a problem of compliance with the specific delegation criterion contained in the EU delegation law, which, in the only specific criterion to be observed, referred only to pre-trial detention orders. To be verified, therefore, is whether the measure does not risk being targeted by questions of constitutional legitimacy for excess of delegation.

Now, on a technical level, on the other hand, custodial orders are exclusively, as the Criminal Chambers have recalled (moreover, they are perplexed about the extension precisely on the point of compliance with the delegation: "given the stringent content of the principle enunciated by the delegating law, it does not seem, however, that the critical profiles outlined above can be resolved here, without incurring potential profiles of unconstitutionality due to excess of delegation") at a hearing in Parliament: custodial custody in prison, custody in an institution with mitigated custody for mother prisoners, custody in a place of care and house arrest. The final text of the decree opens the prohibition for numerous other measures.

The precautionary measures

Thus, the catalogue of coercive personal precautionary measures other than custodial ones includes the prohibition of expatriation, the obligation to report to the judicial police, the removal from the family home, the prohibition to approach places frequented by the offended person, the prohibition and obligation to stay.

The prohibition will also include interdictory personal precautionary measures: suspension from exercising parental authority, suspension from exercising a public office or service, temporary prohibition from contracting with the public administration and temporary prohibition from exercising certain professional or entrepreneurial activities.

The measure thus turns the clock back to the situation before the 2017 Orlando reform, when the exception to the publication ban was introduced for all custody orders, without exception.

Now the logic of the Ministry of Justice was, evidently, to consider the need to strengthen the principle of the presumption of innocence, extending it further to all personal precautionary measures. Identical, in fact, is the foundation constituted by the protection of the suspect in his public representation and the need not to create unequal treatment between fundamentally equal situations.

However, precautionary measures of a real nature, such as seizure, are excluded. The publication ban then remains in force until the end of the investigation or preliminary hearing.

Sanctions

Inevitable, on the other hand, but from the point of view of respecting the delegated power, it would have appeared an even more disruptive forcing, was the other request from Parliament, in favour of a tightening of sanctions for non-compliance with the ban. An increase in the penalties that should have remained confined to the pecuniary side only, without in any case ever envisaging imprisonment, and yet hit both journalists and publishers, through the addition of the offence to the list of predicate offences provided for in Decree 231.

The issue, however, remains on the table and, in all likelihood, can be addressed when the examination of the defamation reform will resume after the budget law, where already last spring amendments for a tightening also on the prison level came from the majority.