Interview by Sergio Centofanti for Vatican Radio
One of the debated aspects in regard to the trial underway in the Vatican, on the publication of illicit reserved documents, has to do with the call to judgment of two journalists and the question if this is contrary to respect for the principle of freedom of the press. We spoke about it with a distinguished jurist, Professor Cesare Mirabelli, former Judge of the Italian Constitutional Court for several years and President of the same Court, and now General Counselor of Vatican City State.
–Q: Professor Mirabelli, does the trial in the Vatican, which sees among the accused journalists Nuzzi and Fittipaldi, put in doubt in some way the freedom of the press?
–Mirabelli: I don’t think so. In any case, freedom of the press is guaranteed. The judgment that must be given is if these documents were acquired in a correct way; if they are things stemming from an offense, if their is participation of the journalists in the illegal removal – I am about to say “criminal”
–Q: The deputy
–Mirabelli: Of course, if this constitutes an offense, this offense can be punished. This does not mean that there is a prohibition or a limitation to investigative journalism, which has a positivity because in brings to light criticisms that exist and informs public opinion under this aspect. However, investigative journalism does not mean the acquisition of documents with acts or commissions of offenses to proceed to publish information.
–Q: In Italy there are also limits to the publication of news …
–Mirabelli: Freedom of the press certainly includes freedom to manifest thought, freedom to express judgments, to publish minutes or documents, but there can be limits when this has to do, for instance, with the security of the State or other elements that refer to reserved minutes or documents. Therefore, the limit to freedom does not mean to infringe on the freedom to inform. There is an element that regards the way with which the documentation is acquired – as in this case – or also the nature of some information that remains reserved.
–Q: There are those who assert that these two journalists are being unjustly tried, against articles 21 and 51 of the Italian Constitution, which safeguard the freedom of the press and of the journalist that exercises the right to the newspaper story …
–Mirabelli: Two Italian Constitutional norms are invoked: in reality, it is necessary to consider that we find ourselves in another State, Vatican City State with its own laws and principles. And yet, the same principles of freedom of manifestation of thought and of information are autonomously present in the in the Vatican regulations: one certainly cannot refer to articles of the Italian Constitution, but the freedom of expression is also guaranteed in Vatican City State on the basis of its own principles. This does not mean that, in fact, there cannot be a penal sanction when there is an inappropriate use of freedom: for instance, if in the press the honor of other persons is offended or if slanderous positions are assumed or if altogether slanderous news is published, certainly criminally pursuable: then we are outside the exercise of the freedom of the press and of the freedom to manifest one’s opinion.
–Q: The Vatican regulations guarantee the right to manifest one’s thought ….
–Mirabelli: I reiterate, in fact, yes! In this trial there is no desire to contradict this right, but to prosecute an offense that is foreseen by Vatican criminal law. This law does not have a singular content, because much legislation provides for sanctions when documents are removed that regard the life of the State or that the regulations have in some way the duty to protect.
–Q: A trial, therefore, which is held within a State of law …
–Mirabelli: There is a court that judges in a trial in which the contradiction between the parties is guaranteed; it is a public trial in which there is then a third judge in regard to the accusation and the defense, and accusation and defense each present their own proofs which are evaluated by the court. Therefore, I think that all the guarantees exist for a just trial: a just trial that has to do, first of all, with an accusation of an offense, of an event that constitutes an offense, with a guarantee that one would say “of tight legality,” namely the fact that it constitutes in offense is foreseen, it is punished by an prior law in regard to the deed committed. The guarantee that must be ensured is the non- retroactivity of the criminal law: in this case, we do not have a retroactive criminal law that punishes these deeds asserted to be committed. At present we are in the presence of an accusation on the part of a public Ministry, as happens in every regulation, and of a defense that will express itself in the trial.
–Q: Some have spoken about an inquisitorial mechanism behind which is the Zanardelli Code of 1889 …
–Mirabelli: This makes me smile, because for long it has been said that the Zanardelli Code has a liberal approach in relation to the Rocco Code, to the Fascist authoritarian Code that, although purified of some offenses, is still present in the Italian Regulation.
–Q: There are those who have theorized about the offense of reception of stolen goods …
–Mirabelli: The offense of stolen goods exists when things are acquired for profit, knowing that this things come from a crime. This can also be verified; in this case I think it is about an offense probably committed on Italian territory, even if the problems of territoriality are put in a different way: there are offenses for which one can be prosecuted even if committed abroad, when they touch the interest of the State, be they committed by a citizen or also if committed by a foreigner.
–Q: The fact was contested of not being able to be defended by trustworthy lawyers …
–Mirabelli: Here, perhaps, an aspect must be specified. In every Regulation, naturally, the technical defense must be ensured, and the technical defense is ensured either by choosing one’s own lawyer – a trustworthy lawyer – or through the appointment of an office defender, but the defender must be a defender that is registered in proper lists or rolls, in Italy we would say of the Order of Lawyers — and in Vatican City State, in the Order — we use this term – of the Lawyers that are inscribed in the Rolls of that State, in that Regulation. Therefore, it is not that one can be admitted to the defense who is not inscribed in those Rolls or is not admitted previously by the same court to defend himself, as in every Regulation.
–Q: This trial isn’t a sentence, it is an assessment of facts …
–Mirabelli: Every trial tends to this: it begins with an imputation, an accusation, there is a debate to assess if the deeds were committed and if there is the responsibility of the accused. The trial isn’t secret: it is a public trial; we are all following it. Only at the end will there be a sentence, namely a motivated assessment; a sentence that will have a motivation and will express the reasons why there is criminal responsibility and therefore a condemnation, or there is no criminal responsibility and therefore there will be an acquittal.
[Original text: Italian]
[Translation by ZENIT]