“The criminal penalty imposed on the applicant was, by its nature and severity, manifestly disproportionate.” Those words, from the European Court of Human Rights in Sallusti v Italy, delivered on 7 March 2019, remain one of the clearest indictments of the way the Italian legal system has treated, and continues to treat, journalists.
The Court accepted that the articles published by Libero had contained false and damaging claims, affecting a minor, her family and the magistrate involved. The legal problem, however, was different: Italy had responded with a custodial sentence. For an offence arising from journalistic work, such a sanction can be compatible with the Convention only in exceptional circumstances, such as hate speech or incitement to violence. In Sallusti’s case, the Court made clear that no such circumstances existed.
The case of the thirteen-year-old girl
The case began in February 2007. Alessandro Sallusti was then editor-in-chief of Libero, a national daily newspaper with a significant circulation. On 17 February, La Stampa published the story of a thirteen-year-old girl from Turin who had terminated a pregnancy. In the first press account, the girl was presented as having been forced to have an abortion by her parents and by the guardianship judge who had authorised the procedure. That same day, however, this version of events was contradicted by several sources: news agencies, television bulletins and newspapers clarified that there was no evidence of pressure on the minor and that the decision had been taken by the girl herself.
The articles in Libero
The following day, 18 February 2007, Libero published two articles. The first, signed under the pseudonym “Dreyfus”, carried a headline that would become central to the trial: “The judge orders the abortion. The law is stronger than life.” The second, signed by the journalist Andrea Monticone, referred to a thirteen-year-old girl “forced to have an abortion by parents and judge”. According to the findings of the Italian courts, later examined by the European Court, the two articles repeated a version of events that had already been denied the previous day.
The role of the guardianship judge
The girl, whose name rightly remains confidential, was a thirteen-year-old in a complex family and personal situation. The case file describes a minor who had arrived in Italy years earlier, had difficult relations with her father and did not wish to inform him of the pregnancy. It was precisely the lack of paternal consent that made the intervention of the guardianship judge necessary.
The magistrate did not order the abortion. According to the first-instance judgment, after hearing the minor alone in order to verify that her wishes were genuine, the judge authorised the girl to decide for herself whether to terminate the pregnancy, in accordance with the procedures laid down by law.
The magistrate and the institutional short circuit
The magistrate was Giuseppe Cocilovo, a guardianship judge at the Court of Turin. On 27 April 2007, he filed a defamation complaint before the Court of Milan against Sallusti and Monticone, arguing that the articles had gravely damaged his reputation.
The institutional dynamic is the most politically delicate aspect of the case: a magistrate brings a defamation complaint; other magistrates hear the case; the Court of Cassation, in upholding the sentence, also stresses that the false information had damaged the reputation of G.C., identified in the European judgment as “a magistrate”. This is where the short circuit appears: the judiciary, called upon to protect the reputation of one of its own members, ended up using against a newspaper editor the most severe instrument available, the deprivation of personal liberty.
The first conviction
The first conviction came on 26 January 2009. The Court of Milan found Sallusti guilty of failure to exercise editorial control over Monticone’s article and of aggravated defamation for the article signed “Dreyfus”, which was attributed to the editor-in-chief. At first instance, the penalty was financial: a fine of €5,000, together with €10,000 in damages and costs. The Court held that the articles contained false information and had seriously harmed the reputation of the complainant.
From a fine to prison
On appeal, the case took a far more serious turn. On 17 June 2011, the Milan Court of Appeal partly amended the judgment and increased the sentence to one year and two months in prison, confirming the €5,000 fine and raising the civil damages to €30,000. The Court considered the first-instance penalty too lenient, in view of the seriousness of the offence and the previous convictions relied upon against Sallusti. In September 2012, the Court of Cassation upheld the conviction.
At that point, the case became a press freedom case. The court responsible for sentence enforcement ordered Sallusti to serve his sentence under house arrest. The journalist remained there for twenty-one days, from 30 November to 21 December 2012. Only the intervention of the President of the Republic, Giorgio Napolitano, prevented the detention from continuing: the remainder of the sentence was commuted into a fine of €15,532.
The chilling effect on newsrooms
Seven years later, the European Court intervened on the central issue: imprisonment. The Strasbourg judges held that a custodial sentence for an offence connected with the media may be compatible with Article 10 of the Convention only in exceptional cases. In Sallusti’s case, they held that the imposition of a custodial sentence “was not justified”. The Court added that such a sanction, by its very nature, inevitably produces a “chilling effect”. In other words, prison does not affect only the person convicted; it sends a message to every other journalist.
The right to report under pressure
This is why the judgment goes beyond Sallusti. It concerns Italy and the very idea of protecting journalistic work. The right to report is meaningful only if journalists can be held accountable for their mistakes through proportionate means: corrections, damages and civil sanctions compatible with a liberal democracy. When an error, even a serious one, can lead to the deprivation of personal liberty, the system does not protect information: it places it under threat.
The same applies to vexatious lawsuits, used not to obtain justice but to wear down those who write, forcing them to lose time, money and energy, and discouraging them from continuing their work. A legal system that tolerates this instrumental use of proceedings leaves journalists exposed to a form of judicial pressure that begins to take effect long before any judgment is delivered.
The problem becomes even more serious when the authorities called upon to protect those who inform fail to intervene, or end up enabling plainly abusive initiatives. The police and the judiciary should guarantee the exercise of the right to report, not become instruments of intimidation or persecution. When that happens, press freedom remains formally proclaimed but becomes fragile in daily practice.
Digital surveillance and official inertia
In recent years, the picture has also worsened on the front of digital surveillance. The Paragon case, with Italian journalists and activists identified as targets of government-grade spyware, has opened another wound in the relationship between the State, power and information. In a democracy, even the credible suspicion that intrusive surveillance tools may have been used against journalists should trigger an immediate, transparent and rigorous institutional response. In Italy, however, this episode too has revealed troubling inertia.
The damages awarded against Italy
Strasbourg unanimously found that Italy had violated Article 10 of the Convention. The State was ordered to pay Sallusti €12,000 in respect of non-pecuniary damage and €5,000 for costs and expenses. The total sum of €17,000 is not the decisive point of the case. The political and legal significance lies elsewhere: a journalist in Italy was sentenced to prison, spent twenty-one days under house arrest, and only a discretionary act by the Head of State prevented the custodial sentence from continuing.
An incomplete reform
The Italian Constitutional Court later intervened in 2021, declaring unconstitutional the provision that made imprisonment mandatory for press defamation aggravated by the attribution of a specific fact. The broader issue, however, remains open: custodial sentences have not disappeared entirely from the defamation system, because they may still survive in cases considered exceptional. It is the sign of a legal system that has corrected part of the problem without fully resolving the relationship between criminal justice and press freedom.
An uncomfortable lesson
The Sallusti case therefore remains an uncomfortable lesson. The articles in Libero were deemed false and defamatory. The minor, her family and the magistrate were entitled to protection. Yet Italy’s response exceeded the limit permitted in a liberal democracy. When the judiciary protects a magistrate through a conviction that leads a journalist to house arrest, the issue is no longer only the reputation of a person who has been defamed. It concerns the relationship between judicial power, the press and the freedom to inform.
S.F.
Silere non possum