1. Key facts of the case
On Monday November 3, 2014, the body of a man was found lying on the ground in contrada Squarcia, in the countryside around Francofonte, a town of around 12 000 inhabitants in the province of Syracuse, killed by 27 stab wounds. The victim, a 67-year-old pensioner, Antonino Barbaro (from here on AB), was stabbed several times in various body parts, but the fatal one probably cut his jugular vein. The victim was found by the owner of the vineyard where the murder took place.
The death was traced back to the previous day, 2 November, the day on which the Christian church celebrates its dead faithful.
For about two years, investigations were carried out by the Carabinieri of Francofonte. On September 20, 2016, in the presence of national TV cameras, two local fishermen, Antonino Giaccotto (from here on AG) and Giancarlo Giaccotto (from here on GG), owners of the building where AB lived, were arrested. The two were arrested on a pre-trial detention order. They were detained for 130 days. Following the arrest, local and national newspapers reported the case as solved.
The arrest was, however, vitiated by a circumstantial and cursory investigation, as revealed later in the case. When the investigations were transferred from the local carabinieri to the carabinieri of Augusta and to the RIS (Scientific Investigations Department) of Messina, the accusatory framework deteriorated quickly, leading first to the release of the suspects and then to the request for dismissal by the Prosecutor.
The murder remains without a culprit to this day.
2. Applicable law
Antonino e Giancarlo Giaccotto were investigated and detained in pre-trial detention, for:
• Voluntary murder (ex art. 575 CP) aggravated by futile motives and cruelty.
The Prosecutor Vincenzo Nitti later requested the case to be dismissed by the competent GIP. No trial was therefore held.
3. Criminal proceedings
The investigation, which began on November 3, 2014, was initially carried out by the carabinieri of Francofonte, coordinated by Prosecutor Caterina Aloisi.
In this first phase, the investigators worked by collecting summary testimonies from several subjects. Among them, AG and GG were interrogated on 10 and 11 December 2014. They made statements about their relationship with the victim and their movements around the time of the murder. For two years, the investigations were conducted without any news; until 13 September 2016, when the GIP of the Court of Syracuse, Giuseppe Tripi, issued an order for pre-trial detention for AG and GG, which was executed – in the presence of the cameras of a national channel – on 20 September 2016. On October 6, 2016, the suspects filed an application to Court that carries out the judicial review of a person’s deprivation of liberty, that denied the request for release on October 11, 2016.
Following more in-depth investigations, carried out with the involvement of scientific police departments, the suspects requested to be interrogated, which took place on November 7, 2016. On November 14, 2016, were notified to the suspects the order to replace pre-trial detention with house arrest.
On January 27, 2017, the house arrest was replaced by a ban on expatriation, which was subsequently lifted on May 16, 2017. On December 11, 2017, Prosecutor Vincenzo Nitti requested the case to be dismissed. Request accepted by the GIP on July 5, 2019.
From the very first moment, the evidence framework against the suspects was particularly weak, since it was based solely on the correspondence between some tyre tracks found at the scene of the crime and the tyres mounted on the suspects’ car, and on some discordant testimonies and ambiguous environmental interceptions.
When the investigation was transferred from the local Carabinieri to the Augusta (SR) company and, above all, following their delegation to carry out more detailed investigations to the RIS of Messina, the evidence framework which had been supported up to that moment was discarded.
The RIS did not find any traces of blood in the suspects’ car and established that the DNA found under AB’s fingernails did not match the sample taken by the suspects. Further investigations revealed the brothers’ alibi: they claimed to have gone to the Francofonte’s cemetery to visit their dead relatives (as it was the day of the celebration) and to have continued their journey to Vizzini (CT). The alibi was confirmed not only by the cells tapped by the suspects’ telephones (which are compatible with both Francofonte’s cemetery and the place of the crime) but also by the deposition of a witness (who claims to have seen them at the cemetery) and by the GPS installed in the suspects’ car (which shows that the brothers went immediately to Vizzini).
Despite that, the cursory investigation against them cost AG and GG 130 days of detention.
4. Disclosure of information
No official information has been released on this case. No official press release has been made on police’s social channels. No press conference has been called by the Prosecutor’s Office of Syracuse, which was responsible for the case.
5. Media coverage
The case was not widely covered at national level. However, it is examined because it condenses many of the problems of the mediatization of the trial, of the anticipation of the trial, even in a case that is not destined to go to trial.
Therefore, it could represent an ideltypus, the measuring stick of how superficiality in reporting some news – long away from the right to information – has a huge impact on the lives of some individuals.
In this case, a double information track can be observed: only one television show reported the news at national level and many local newspapers gave the information in the same definitive and accusatory tone.
The Giaccotto brothers’ media exposure began and culminated at the same time: their arrest. No articles were written, or reports filmed before it, no rectification by any TV program took place after the case was dismissed.
To examine the case with analytical precision, we would like to start with an element that might appear marginal in the complex of the “media trial”, but which intersects inextricably with the theme of the right to be forgotten, which will be discussed later. We are talking about the publication, mostly on internet sites, of the mugshots of the suspects.
The internal rules governing this issue are constantly evolving, given the changing nature of the concept of privacy in contemporary societies and the relevant European regulations.
In this respect, we would like to recall the GDPR’s first paragraph: “The protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union (the ‘Charter’) and Article 16(1) of the Treaty on the Functioning of the European Union (TFEU) provide that everyone has the right to the protection of personal data concerning him or her”.
The ECHR has also expressed its views on this matter, in Judgment No 50774/99 of January 11, 2005 (Sciacca vs Italy). On that occasion, the Court wondered about a possible violation of Article 8 of the Convention, which requires that: “Everyone has the right to respect for his private and family life” and “there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
Then, the Court identified a violation of Convention’s Article 8 in the disclosure of a mugshot by the police to the press as an unjustified interference with the right to respect for private life, since it was not necessary for the development of the investigation.
In addition to that, the Article 8 of the Journalist code of conduct prescribes not to provide “images or photographs of persons involved in incidents that are damaging to the dignity of the portrayed person” that are not strictly essential for the purpose of reporting. In case of mugshot that are instrumental to police investigation, the disclosure is allowed.
The issue is recognized as a concern at all levels and has been the subject of several circulars, for instance from the Ministry of the Interior, the Italian Data Protection Authority, even the Naples Prosecutor’s Office. In particular, the Italian Data Protection Authority has repeatedly stated that the “disclosure of mugshots, not justified by proven police’s need, constitutes an illicit processing of personal data”. Furthermore, the Ministry of the Interior pointed out that the practice of police offices publishing mugshots is aggravated by the circulation of the pictures on the web, ultimately leading to a sort of “permanent filing”, recommending strict compliance with the legislation.
In Giaccotto brothers’ case, we can reasonably speak of permanent filing, since many websites – including that of the most widely circulated local newspaper, “La Sicilia” – still show mugshots of the two brothers.
Focusing on the articles, one can see a homogeneous culpability bias in their redaction. Just two headlines, among many others, are worth mentioning: the local edition of the newspaper La Repubblica headlined: “Syracuse, they killed defaulting tenant with 27 stab wounds, two brothers arrested”; or SiracusaNews: “Francofonte, they killed a 67-year-old man with 27 stab wounds for 700 euro: Carabinieri arrest the perpetrators of the murder”.
The various articles were published simultaneously on September 21, 2016, the day after the brothers’ arrest.
On September 23, 2016, a report on the murder of AB was aired on the show “Quarto Grado”, which had 1172000 average viewers that evening. The presenter introduces the show with this question: “can one be killed for unpaid rent?”. The report lasts just under ten minutes and is dominated by a dichotomous and antagonistic construction of the protagonists: on the one hand, the human victim, an elderly man who, given the meagerness of his pension, did what he could to supplement his income by selling sultanas and small objects; on the other hand, the inhuman perpetrators, stingy landlords, never satisfied with vile money.
The show underlines how it was an anonymous e-mail that gave impetus to their investigation, in which the case was described in great detail; Without ignoring the importance of the right to reporting and the anonymity of journalistic sources, one could hypothesize – considering the events that will be described below – that this e-mail might have come from “institutional” environments in the broadest sense or as sometimes happens, from local newspapers.
The report goes on indicating the brothers’ personal details and photographs and claiming how “suspicion immediately fell on the landlords”. Their reconstruction appears to be conclusive, and one wonders how they could be aware of the following information3: the brothers, who are fishermen, with the boat’s engine in need of repair, allegedly asked AB to pay the rent arrears; for a total of €700. They would go to AB’s home where they would find the companion who, when asked where AB was, suddenly became “frightened” and could do no more than “give in and confess”. The report continues in convulsive manner, with the sentence: “When heard by the carabinieri, the two brothers deny, scream and shout, contradicted by at least two people and other witnesses, and the phone records that tell a different story”. The portrayal of class conflict, the construction of a clash of identities – the brothers’ bossy obnoxiousness opposed to AB’s docile nature as a common man – immediately becomes clear: the brothers would leave the flat to go and “confront AB and talk like men for those 700 euros. A treasure they don’t want to give up for anything in the world”. It can be seen that this dualism arbitrarily assigns to the brothers the luciferous sin of cupiditas, that is, “greed, avarice, the intense desire for wealth and power over another person”4.
In a rare display of guarantism, the journalist reports that Francofonte’s carabinieri operated ‘without scientific evidence’; but it would be illusory to claim that this was designed to defend the rights of the suspects. The assertion is meant to be an exaltation of investigative inventiveness and creativity: the carabinieri allegedly invented a ruse to “break” a witness by telling him that they had found a tyre track compatible with his car at the scene of the crime. This witness, a cousin of AG and GG, intercepted, expresses himself in these terms with his mother: “Giancarlo told me that they killed him; they killed him, and I had nothing to do with it!”. Thus, the accusatory framework of the media trial is re-established.
There was a pause in the investigations, which were resumed – according to the presenter – without the knowledge of the TV program; and it is not clear why they should be aware of this, if not through communications from persons or institutions directly involved in the affair.
The climax of the report is reached at the end of the first part: “Quarto Grado” witnesses – obviously, by chance – the brothers’ arrest live.
The reporter claims to have searched for the fishermen in order to talk to them, and to have found them after “days of observation” in Augusta. Continuing with a rhetorical reference to the soon to be denied freedom, we move from images of boat’s docking in the harbor, followed by the words: “the last trip out to sea, because on the way back they are arrested in front of our eyes”. And it really seems an incredible coincidence; an arrest made live on TV, executed a week after the GIP had issued the pre-trial detention order.
The first part of the report ends with the crew following the police cars, which are travelling with their sirens blaring, towards the station.
The cameras cut to the presenter who, before showing the second part of the report, asserts with moralizing intent: “AB was killed for €700, it’s really outrageous”.
The second part of the report is the interview that took place a few minutes before the arrest. AG initially responds very calmly, stating what has subsequently been proven to be the judicial truth. The interviewer presses AG with tendentious and conjectural questions, aimed at describing the suspect as violent and unscrupulous; we can mention: “and that two other people claim that they were beaten by you because they did not pay the rent is a coincidence?” or: “everybody says: they were looking for him and wanted to beat him up”; and again: “is everybody’s conscience OK?”. Despite the empathy towards the victim shown by AG during the interview, the provocation of the interviewer knowingly rages. It is necessary to underline that all the reporter’s assumptions turned out not to correspond to the reality of the facts. The cameras move to the studio for the last time, where the presenter concludes by saying: “let me express my appreciation to the Sicilian investigators who did not let this story fall into silence, which concerned an old, simple person who was killed for €700 of unpaid rents”.
The doubts about the presence of the cameras at the time of the arrest are also raised by the prosecutor who, during some of the brothers’ interrogations, dwells at length on those moments, asking numerous questions and stating that it seemed rather strange to him that journalists were “randomly” present.
It is not clear, and it has not been established if and who informed the journalists, but one fact can be reported: immediately after the interrogation, the prosecutor shifted the responsibility for the investigation from Francofonte’s Carabinieri to Augusta’s.
The case encompasses many of the common defects of judicial reporting in our country: the first, and the main one, is the substantial failure to comply with the precept of paragraph 2 of Article 27 of the Constitution (“the accused is not considered guilty until final conviction”) and all the subordinate normative sources already mentioned.
Not only that, but there is a lack of certain requirements indicated by the Court of Cassation (judgment 5259/84) as exemptions from the offence of defamation, in particular the civil form of the statement of facts and their assessment. The Court held that a particularly strict assessment of the requirement of presumption of innocence is required to consider the cause of justification to be operative. Specific attention is also paid by the jurisprudence on television journalism, which considers the journalistic continence requirement satisfied where, during a television report, the presenter merely listens and asks questions without adding personal comments and opinions. As has been attempted to show, this is not the case.
Not only jurisprudence addressed this issue, but also the abovementioned Journalists’ code of conduct. In paragraph 4 of Article 8, it prescribes to the journalists in television broadcasts to “respect the adversarial principle, ensuring the presence and equal opportunity in the dialectical confrontation between the subjects who support them – in any case different from the parties confronting each other in the trial – guaranteeing the principle of good faith and continence in the correct reconstruction of events”.
This precept is far from being applied in this case: the various procedural stages have been confused, the adversarial principle has not been respected, and the presumption of innocence of the suspects has been disregarded.
As mentioned above, the case was dismissed without a hearing. After a change in the legal position of a person, a rectification of information is required by law. The paragraph 1 of Article 8 of Journalists’ code of conduct prescribes: “In the event of an acquittal, the journalist always gives appropriate prominence and updates previous news, in particular for online publications”. This is reaffirmed by the first paragraph of Article 9, that claims that the journalist should “rectify, even in the absence of a specific request, with timely and appropriate emphasis, information which after its disclosure has proved to be inaccurate or erroneous”.
No newspaper or TV show considered necessary to correct the information, even after the Giaccotto brothers had requested it. A complaint for defamation by the press is pending, so we do not intend to replace the competent judges.
It can be assumed that the analytical interest of the case does not lie in media overexposure, but in an idealtypical representation of reality: because one can well imagine that there may exist many cases similar to the one reported.
Ultimately, it can be said that the mechanism of the absence of the presumption of innocence in relation to suspects (whatever the underlying reason), added to a failure to rectify a changed legal status (or a partial, incomplete rectification or rectification with a different emphasis from an arrest or conviction), generates what has been defined as a permanent filing; a stigma that an individual who finds himself, perhaps by chance, perhaps by mistake, involved in a criminal case must carry with him for the rest of his life.
6. Public reactions to the case
Given the relative “normality” of the case, i.e. a murder that took place in a remote province, the victim being an elderly man with no particular characteristics, and the alleged perpetrators being men who were well integrated into the community – or at least not marginalized – there was no social mobilization or obvious signs of popular indignation.
Here, however, we want to shift the focus on the social subtext, in other words on the small events that may be overlooked by most, but which have an enormous influence on an individual’s life.
As previously mentioned, there has been no rectification of the information by the media; although one can probably assume that in the Giaccotto brothers’ close family or community circle a factual truth has been re-established, the same cannot be said for society as a whole.
The brothers themselves, in their request for compensation for unjust pre-trial detention, state how: “This sad judicial incident has blocked [the brothers’] every prospect and has thrown all members of [their] families into the deepest prostration, who, in addition to the suffering caused by the unjust detention of their relative, have suffered the mockery of being marginalized by the social body”.
In the context of this work, it is not possible to analyze the social reasons of marginalization; however, it is possible to indicate another fundamental problem of general order: the non-respect of the right to be forgotten.
Whether it is more appropriate to define it as “the right of an individual to be forgotten, or rather, not to be remembered for facts that have been reported in the past” or as “the right not to be indefinitely exposed to further damage that the repeated publication of a news item may cause to honor and reputation” remains an open question.
The Court of Cassation has expressed its opinion on the right to be forgotten, saying that “the disclosure of personal vicissitudes now forgotten by the public is justified by the right to report only if recently occurred events’ that are directly connected with those facts, renewing their topicality”.
The contraction of this right afflicts many individuals subjected even to criminal proceedings, the media echo of which continues to resound due to the search engines’ indexing. Recently, jurisprudence has established the duty of a search engine to remove from its results links to sites that are considered by the interested parties to infringe their right to be forgotten.
Despite that, even today, if you want to search for Giaccotto brothers on a search engine, you will still find newspaper headlines about their arrest as the first results.
One might wonder why legislation concerning the presumption of innocence, rectification of information and the right to be forgotten is systematically infringed.
As this is a sensitive, controversial, and urgent issue, a number of proposals have been made: some considered undesirable, such as the tightening of penalties or the introduction of new offences; others linked to disciplinary sanctions but considered difficult to implement.
Several commentators have recommended effective “reputational sanctions” for those who violate these rules. Luigi Ferrarella proposed the obligatory publication in a prominent place of criminal convictions, judgments of civil damages, disciplinary sanctions and measures of the Italian Data Protection Authority resulting from unlawful treatment of the news.
These publications could be included on a special page that would be linked to by a flashing pop-up on the newspapers’ home pages.
This mechanism, and we refer to the inclusion of a pop-up, could be fruitfully transposed to the correction of an outdated article.
Sources: Where not explicitly mentioned in the text, we refer to: Giaccotto brothers’ request for compensation for unjust pre-trial detention, request for dismissal of the case by the Prosecutor’s Office of Syracuse.
Sources
Albano, Armando, Diffusione di immagini di persone coinvolte in attività di polizia (1^ parte), Poliziamoderna, 9 December 2020.
La Sicilia, Francofonte, omicidio Barbaro, due arresti dei Cc, 21 September 2016.
La Republica, Palermo, Siracusa, uccisero affittuario moroso con 27 coltellate: arrestati due fratelli, 21 September 2016.
Siracusa News, Francofonte, Avevano ucciso un 67enne con 27 coltellate per 700 euro: i Carabinieri arrestano gli autori dell’omicidio, 21 September 2016.
Mediasetplay, Puntata del 23 settembre, 23 September 2016.
Wikipedia, Ottava edizione (2016-2017).
Zimbardo, P., The Lucifer Effect, Italian edition, Raffaello Cortina Editore, 2008, p. 662.
Iaselli, Michele, Diritto all’oblio, Altalex, 6 april 2018.
Franceschelli, Massimo, Diritto all’oblio, sì alla deindicizzazione ma rimane l’archivio giornalistico, Altalex, 9 July 2020.
Ferrarella, Luigi, The “Loop-de-Loop”: Criminal Justice and Mass Media, Legislation and Practice, Giustizia penale e informazione giudiziaria, V. 3, 2017.
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