Confidentiality of the investigation is a rule of criminal procedure and the limit journalism most often runs into. It rests on two statutes: the procedural rule in Article 157 of the Criminal Procedure Code, the criminal norm in Article 285 of the Criminal Code.
The procedural rule: Article 157 CPC
“Save where the Law provides otherwise, and provided that no harm is caused to the rights of the defence, procedural acts in the investigation stage are confidential.”
Three details matter. Confidentiality (1) is specific to the investigation stage — in the prosecution stage the rule is that hearings are public (Article 182/1). (2) It attaches to procedural acts, not to the incident itself. (3) It may not harm the rights of the defence.
The criminal norm: Article 285
Article 285/1: “A person who publicly breaches the confidentiality of an investigation shall be punished with imprisonment from one to three years or a judicial fine.” But the paragraph requires an additional condition; one of two alternatives must be present:
| Sub-para. | Condition |
|---|---|
| a | That, through disclosure of the content of an act carried out during the investigation stage, the right to benefit from the presumption of innocence, or the confidentiality of communications or of private life, is infringed |
| b | That the disclosure concerning the content of an act carried out during the investigation stage is capable of preventing the emergence of the material truth |
Those additional conditions were introduced by Article 92 of Law No. 6352 of 2 July 2012. Not every disclosure is therefore automatically an offence; the disclosure must be capable of producing one of those results.
The other paragraphs
| Para. | Content | Penalty |
|---|---|---|
| Art. 285/2 | Breaching the confidentiality of decisions that must be kept confidential from persons who are parties to the investigation, and of acts carried out in consequence of them | 1–3 years’ imprisonment or a judicial fine |
| Art. 285/3 | Publicly breaching the confidentiality of statements or images made at a hearing that must be, or has been ordered to be, held in closed session | As under the first paragraph |
| Art. 285/4 | Commission of the offence by a public official abusing the convenience afforded by their office | The sentence is increased by up to one half |
| Art. 285/5 | Publishing images of persons in a manner leading to their being perceived as guilty | 6 months to 2 years’ imprisonment |
| Art. 285/6 | Making investigation and prosecution proceedings the subject of news without exceeding the limits of reporting | Not an offence |
Statutory confidentiality and a restriction order
Two concepts are often conflated. Statutory confidentiality exists automatically in every investigation under Article 157 CPC. A restriction order is a separate decision within the framework of Article 153 CPC limiting defence counsel’s power to examine the file. What matters for the press is whether the conditions required by Article 285 of the Criminal Code are satisfied.
What you can report
- Statements made publicly by the authorities
- That steps such as apprehension, custody or arrest have taken place
- The general course of the incident and its social dimension
- The stage of the proceedings and the hearing calendar
- What passes at a public hearing, where no publication ban is in force
What you should not report
- Records of statements, autopsy reports, site inspection records and communications interception records from the investigation file
- Measures not yet taken and information about planned operations
- The identity of witnesses and information relating to their protection
- Images and descriptions presenting a person as guilty
- The content of a closed hearing (CPC, Art. 187/2)
Publishing indictments is covered in the indictment guide and leaked documents in the leaked documents guide.