Reporting on a pending case and commenting on it are in principle permitted. Article 3 of Law No. 5187 provides that press freedom includes the rights to acquire and disseminate information, to criticise and to comment. What the Law closes off is much narrower: statements aimed at influencing the outcome of proceedings.
The provision that draws the line: Article 288
“A person who, with the aim of unlawfully influencing a person performing a judicial function, an expert or a witness so that they take an unlawful decision, perform an unlawful act or make a statement contrary to the truth in a case being heard or an investigation being carried out, makes a public oral or written statement shall be punished with a judicial fine of not less than fifty days.”
The article in its present form was amended by Article 93 of Law No. 6352 of 2 July 2012. The earlier text contained a wider prohibition; the current text ties the offence to the aim of influencing.
The elements of the offence
| Element | Meaning |
|---|---|
| A case being heard or an investigation being carried out | The offence cannot be committed in relation to a concluded file |
| Addressee: a person performing a judicial function, an expert or a witness | A statement addressed to the parties or to the public is not the addressee of this article |
| Aim: securing an unlawful decision or act, or a statement contrary to the truth | Mere criticism or assessment is not enough |
| A public oral or written statement | A statement made through publication is public |
The difference between comment and influence
| Permitted | Risky |
|---|---|
| Discussing the legal issue in the file | Using language that dictates how the judge should decide |
| Criticising the reasoning of a decision | Calling on a witness to change their evidence |
| Criticising the length and conduct of proceedings | Targeting an expert to make them change their report |
| Including expert opinion | A campaign-style series of reports dictating the outcome |
A court may impose a publication ban
Article 187/3 of the Criminal Procedure Code confers a specific power for public hearings: “Where the content of a public hearing is such as to affect national security or public morals, or to touch the reputation, honour and rights of persons, or to incite the commission of an offence, the court shall, in order to prevent this and to the extent necessary, prohibit the publication of part or all of the content of the hearing and shall pronounce its decision in the public hearing.”
For closed hearings the prohibition arises from the Law and requires no decision: under Article 187/2 “the content of a closed hearing may not be published by any means of communication”.
The protective provision
Article 285/6 of the Criminal Code preserves the space for journalism: “Making the investigation and prosecution proceedings the subject of news without exceeding the limits of reporting shall not constitute an offence.” The last sentence of Article 218 is to the same effect: “expressions of opinion that do not exceed the limits of reporting and are made for the purpose of criticism shall not constitute an offence”.
The filing deadline runs too
A criminal case brought against you over a report on a pending case is itself subject to a time limit. Under Article 26 of Law No. 5187, as a condition of prosecution, criminal cases concerning offences committed through printed works or online news sites must be brought within four months for daily periodicals and online news sites, and six months for other printed works.
Investigation confidentiality is covered in the confidentiality guide and publication bans in the publication ban guide.