Lawyers
II. RELEVANT DOMESTIC LAW 31. Article 595 of the Criminal Code provides for the offence of defamation. The relevant parts of that Article read as follows : “ Anyone who ..., in communication with more than one person, offends against the reputation of another, shall be punished by one year ’ s imprisonment or by a fine of up to EUR 1, 032. Defamation which consists in imputing a particular fact shall be punished by up to two years ’ imprisonment or by a fine of up to EUR 2, 065. Defamation which is disseminated by the press or any other form of publicity, or in a public document, shall be punished by imprisonment of between six months and three years or by a fine of at least EUR 516. In the event of defamation against a member of a political, administrative or judicial authority, or one of its representations ..., the sentences shall be increased. ” 32. Legislative Decree no. 274 of 28 August 2000 ( Article 4 § 1 ( a)) gave jurisdiction to the Justice of the Peace in matters of defamation, among others. Article 52 § 2 ( a) reads as follows : “ In respect of ... offences within the jurisdiction of the Justice of the Peace, the sentences shall be converted as follows : ( a) where the offence is punished by a sentence [ of imprisonment ] as an alternative to that of [ a fine ], a pecuniary sanction ... of between 500, 000 and 5,000, 000 lira shall be applied; if the custodial sentence is higher than a maximum of six months, the applicable sanction shall be the above-mentioned fine, or home detention of between six and thirty days, or a period of community service of between ten days and three months; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 33. The applicant argued that his conviction for defamation had breached Article 10 of the Convention, which reads as follows : “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 34. The Government challenged that argument. A. Admissibility 35. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions ( a) The applicant 36. The applicant submitted that he had been convicted on account of a letter in which he had set out his thoughts on the different ways of interpreting and exercising the duties of a judge. His assessments had not been interpreted in line with their real meaning and had been connected to a subject, X, who was not the actual target. According to the applicant, there was no evidence that he intended to impugn the reputation and integrity of X. Moreover, the anomaly in the Italian justice system whereby judges were not de facto accountable for their conduct had been underlined by many European decisions, by books and by websites. It was the court system as a whole, and not X, which had been the target of the applicant ’ s criticism. 37. The applicant further observed that Genoa District Court had given him a custodial sentence not prescribed by law, and that although he had no criminal record he had not been granted general mitigating circumstances ( attenuanti generiche ). The applicant alleged that he had sent his circular letter to a number of judges at Lucca District Court solely to avoid undermining the reciprocal relationships of friendship and esteem between him and those judges, and to protect himself against any distortion of the content of his letter to the CSM. He also stated that the conduct of X, who had refused any attempt to reach a friendly settlement to the dispute, had been driven by feelings of animosity towards him. ( b) The Government 38. The Government took the view that the interference with the applicant ’ s right to freedom of expression pursued the legitimate aims of the protection of the “reputation or rights of others” and of the “authority and impartiality of the judiciary”. They argued that it was also necessary in a democratic society, because the expressions used by the applicant in his circular letter had been offensive and had sought to denigrate X, who had been accused, in substance, of deliberately and knowingly taking an unfair decision, and of being arrogant, lacking in commitment and indifferent. X had thus been portrayed negatively and as a judge who showed total disregard for the fundamental ethical principles of his profession. 39. In the Government ’ s opinion, the applicant ’ s attitude could not be justified in the light of the judicial disagreement which lay behind his animosity towards X. In addition, the Court of Appeal had acknowledged the existence of mitigating circumstances in the applicant ’ s favour and reduced the amount of the sanction imposed on him at first instance. 40. In the light of the foregoing, the Government took the view that in sentencing the applicant, the domestic courts, which were better placed than the international court to assess the facts and the necessity of the interference, had not overstepped their margin of appreciation in such matters. If there had been a violation of the Convention, it had been committed by the applicant, who had unduly impugned the reputation of X, protected as it was by Article 8. 2. The Court ’ s assessment ( a) Whether there has been an interference 41. It is not in dispute between the parties that the applicant ’ s conviction constituted an interference with his right to freedom of expression under Article 10 § 1 of the Convention ( see, mutatis mutandis, Belpietro v. Italy, no. 43612/10, § 43, 24 September 2013). ( b) Whether the interference was justified : “prescribed by law” and “legitimate aim” 42. An interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve the relevant aim or aims ( see Pedersen and Baadsgaard v. Denmark, no. 49017/99, § 67, ECHR 2004-XI, and Ricci v. Italy, no. 30210/06, § 43, 8 October 2013 ). 43. It is not in dispute that the interference was prescribed by law, namely by Article 595 of the Criminal Code ( see paragraph 31 above ) and Article 52 § 2 ( a) of Legislative Decree no. 274 of 2000 ( see paragraph 32 above ). The applicant ’ s conviction pursued the legitimate aim of protecting the reputation and rights of another, in this case those of X ( see, mutatis mutandis, Nikula v. Finland, no. 31611/96, § 38, ECHR 2002-II; Perna v. Italy [GC], no. 48898/99, § 42, ECHR 2003-V; Ormanni v. Italy, no. 30278/04, § 57, 17 July 2007; and Belpietro, cited above, § 45). It also had the aim of “maintaining the authority and impartiality of the judiciary”, of which X, a judge, was a member ( see, for example and mutatis mutandis, Kyprianou v. Cyprus [GC], no. 73797/01, § 168, ECHR 2005-XIII; Foglia v. Switzerland, no. 35865/04, § 83, 13 December 2007; July and SARL Libération v. France, no. 20893/03, § 59, ECHR 2008; and Di Giovanni v. Italy, no. 51160/06, § 74, 9 July 2013 ). 44. It remains to be ascertained whether the interference was “necessary in a democratic society”. ( c) “Necessary in a democratic society” ( i ) General principles 45. In order to determine whether the interference was “necessary in a democratic society”, the Court must ascertain whether it met a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “ restriction ” is reconcilable with freedom of expression as protected by Article 10 ( see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I; Association Ekin v. France, no. 39288/98, § 56, ECHR 2001 ‑ VIII; and Stoll v. Switzerland [GC], no. 69698/01, § 101, ECHR 2007-V). 46. The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they have delivered pursuant to their power of appreciation ( see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is limited to ascertaining whether the respondent State has exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the remarks held against the applicant and the context in which they were written ( see News Verlags GmbH & Co. KG v. Austria, no. 31457/96, § 52, ECHR 2000-I). 47. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference are “relevant and sufficient” and whether the interference was “proportionate to the legitimate aims pursued” ( see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In so doing, the Court has to satisfy itself that the national authorities, basing their decisions on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 ( see, among many other authorities, Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997-VII; De Diego Nafría v. Spain, no. 46833/99, § 34, 14 March 2002; and Pedersen and Baadsgaard, cited above, § 70). 48. In order to assess the justification for a given statement, it is necessary to distinguish between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof ( see Oberschlick v. Austria ( no. 2), 1 July 1997, § 33, Reports 1997-IV) and in such cases a requirement to provide proof is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 ( see Morice v. France [GC], no. 29369/10, § 155, ECHR 2015). The characterisation of remarks as statements of fact and value judgments falls primarily within the ambit of the margin of appreciation afforded to national authorities, in particular the domestic courts ( see Prager and Oberschlick v. Austria, 26 April 1995, § 36, Series A no. 313). However, even where a statement amounts to a value judgment, it must have a sufficient factual basis to support it, otherwise it may be excessive ( see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II, and Ormanni, cited above, § 64). 49. In addition, the existence of procedural safeguards for the benefit of a defendant in defamation proceedings is among the factors to be taken into account in assessing the proportionality of an interference under Article 10. In particular, it is important for the defendant to be afforded a realistic chance to prove that there was a sufficient factual basis for his allegations ( see, inter alia, Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005-II; Hasan Yazıcı v. Turkey, no. 40877/07, § 54, 15 April 2014; and Morice, cited above, § 155). 50. A particular aspect of the present case is that, at the material time, the applicant was a lawyer and his dispute with X had arisen in the context of his professional activity. In its Nikula judgment ( cited above, § 45; see also Steur v. the Netherlands, no. 39657/98, § 36, ECHR 2003-XI, and Fuchs v. Germany (dec.), nos. 29222/11 and 64345/11, § 39, 27 January 2015), the Court summarised as follows the specific principles applicable to the legal professions : “The Court reiterates that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar. Moreover, the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence. Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein (see Schöpfer v. Switzerland, judgment of 20 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1052-53, §§ 29-30, with further references).” 51. In addition, in the case of Morice ( cited above, §§ 134 and 139), the Court observed that: ( a) lawyers are entitled to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds in order to protect the judiciary from gratuitous and unfounded attacks, which may be driven solely by a wish or strategy to ensure that the judicial debate is pursued in the media or to settle a score with the judges handling a particular case; ( b) lawyers cannot make remarks that are so serious that they overstep the permissible expression of comments without a sound factual basis; and ( c) remarks by lawyers must be assessed in their general context, in particular to ascertain whether they can be regarded as misleading or as a gratuitous personal attack, and to ensure that the expressions used had a sufficiently close connection with the facts of the case. 52. It is also necessary to take into account that the defamed party, X, was a serving member of the judiciary. According to the Court ’ s case-law, the limits of acceptable criticism may in some circumstances be wider with regard to judges acting in their official capacity than to ordinary citizens ( see Morice, cited above, § 131). However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to criticism of their actions. Civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks. It may therefore prove necessary to protect them from offensive and abusive verbal attacks in the course of their duties ( see Janowski, cited above, § 33, and Nikula, cited above, § 48). 53. It should lastly be reiterated that the nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of an interference ( see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I; and Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 113-115, ECHR 2004-XI). ( ii ) Application of those principles to the present case 54. The Court notes at the outset that the applicant argued, both before it ( see paragraph 36 above ) and before the domestic courts ( see paragraph 19 above ), that the criticisms in his circular letter were not directed at X but at the Italian judicial system as a whole. The Court cannot agree with this argument. It observes in this connection that the letter in question ( see paragraph 7 above ) contained express references to the letter that the applicant had sent to the CSM to complain about the conduct of X, and that passages from that letter had been quoted in extenso. In addition, the applicant summed up the main aspects of the judicial dispute in the context of which, according to him, X had taken unfair decisions, of which the reasons were briefly set out. 55. The applicant ’ s circular letter was divided into two parts : the first part contained an account of the decisions taken in the partition procedure; the second contained considerations on behaviour from which judges should refrain and its consequences. In the Court ’ s view, even though the second part of the letter was drafted in the form of “general considerations”, it can be interpreted only as a criticism of the conduct of the judge, X, who, without being expressly mentioned is the protagonist in the account which constituted the “premise” of the applicant ’ s observations and assessments. 56. In those circumstances, the Court shares the findings of the District Court and the Genoa Court of Appeal ( see paragraphs 16 and 23 above ) according to which X was certainly the subject of the grievances set out in the circular letter. It remains to be determined whether the remarks in question overstepped the bounds of admissible criticism in a democratic society. 57. It can be seen from the text of the circular letter ( see paragraph 7 above ), that in substance the applicant reproached X on two accounts : ( a) for taking unfair and arbitrary decisions, and ( b) for being a “biased” judge and for having “wilfully made mistakes, by malicious intent, serious misconduct or negligence”. 58. In the Court ’ s view, the first criticism amounts to a value judgment as to the nature and legal basis of the decisions taken by X. As indicated in paragraph 48 above, according to the Court ’ s case-law the truth of such opinions is not susceptible of proof. Moreover, they had a certain factual basis. In particular, the applicant had been the representative of one of the parties to judicial proceedings for the partition of an inheritance. In the context of those proceedings, the applicant had on a number of occasions sought to have the sale of a flat suspended, and his requests had been dismissed by X on the basis of reasoning which, according to the applicant ’ s subjective opinion, was erroneous and contrary to the law. 59. The Court, therefore, cannot consider the first criticism to be excessive ( see, mutatis mutandis, Morice, cited above, §§ 156- 61, where the Court found that criticisms made by the lawyer acting for the civil party about the conduct of the investigating judges during the judicial investigation were value judgments with a sufficient factual basis ). 60. The same cannot be said, however, when it comes to the second criticism, namely that X was a “biased” judge who had “wilfully made mistakes, by malicious intent, serious misconduct or negligence”. This criticism implied that X had disregarded the ethical obligations inherent in the duty of a judge, or even that she had committed a criminal offence. The adoption by a judge of a deliberately erroneous decision could constitute an abuse of authority. In any event, the circular letter alleged that X did not have the qualities of impartiality, independence or objectivity – qualities which characterise the exercise of judicial activity. However, the applicant never sought to prove the veracity of the conduct attributed to X and adduced no evidence to show any malicious intent in the decisions that he contested. In the Court ’ s view, his allegations of misconduct on the part of X were based only on the fact that the judge had dismissed the claims he had submitted in the interest of his clients ( contrast Morice, cited above, §§ 156- 61). It is also noteworthy that the applicant, who had referred a complaint against judge X ( see paragraph 6 above ), sent out his circular letter without waiting for the outcome of the CSM proceedings. 61. In defending himself before the domestic courts, the applicant merely argued that his criticisms had not been directed at X in person ( see, mutatis mutandis, Perna, cited above, §§ 44-47, and Fuchs, decision cited above, § 41; see also, by contrast, Nikula, cited above, § 51, where the Court observed that the applicant ’ s criticisms had only concerned the manner in which a public prosecutor had discharged his duties in a given court case, and not any professional or other qualities of the prosecutor in question). The Court, however, has already dismissed that argument ( see paragraphs 54-56 above ). 62. The Court also takes account of the context in which the circular letter was written and distributed. In this connection it would first note that the applicant ’ s criticisms were not made at the hearing or in the course of the judicial proceedings for the partition of an inheritance. In that sense the present case can be distinguished from Nikula, cited above ( see, in particular, paragraph 52), where the Court found a violation of Article 10 of the Convention. 63. The Court further observes that, outside the judicial procedure, the applicant sent his circular letter to X in person ( see paragraph 13 above ) and to many other judges at the Lucca District Court ( see paragraph 6 above ). As the Genoa Court of Appeal rightly observed ( see paragraph 27 above ), the distribution of the letter within a small community, such as that of a local court, would inevitably harm the reputation and professional image of the judge concerned. 64. Lastly, the Court notes that, while it is true that at first instance the applicant was given a custodial sentence, without the benefit of mitigating circumstances in view of his clean criminal record, that sanction was replaced on appeal by a small fine of EUR 400, which, moreover, was declared fully discharged ( see paragraph 22 above ). In addition, that mitigation was applied by the judges at second instance ( see paragraph 26 above ) and the amount of the compensation awarded to X ( EUR 15, 000) cannot be regarded as excessive. 65. The Court would further observe that, in cases such as the present one, which call for a fair balance to be struck between the right to respect for private life and the right to freedom of expression, it takes the view that the adjudication of the application should not in principle vary depending on whether it has been lodged under Article 8 by the person criticised or under Article 10 by the author of the criticism. The two rights merit, in principle, equal respect ( see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Accordingly, the margin of appreciation should, in principle, be the same in both cases. If the striking of a balance by the domestic courts is consistent with the criteria established by the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts ( see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011, and MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 8 January 2011). In the Court ’ s view, there are no such reasons in the present case ( see, mutatis mutandis, Di Giovanni, cited above, § 82). 66. Having regard to the foregoing, the Court finds that the applicant ’ s conviction for the defamatory remarks contained in the circular letter and the sanction imposed on him were not disproportionate to the legitimate aims pursued and that the grounds given by the national courts were relevant and sufficient for the purposes of justifying those measures. The interference with the applicant ’ s right to freedom of expression was “necessary in a democratic society” in order to protect the reputation of others and to maintain the authority and impartiality of the judiciary within the meaning of Article 10 § 2. 67. It follows that there has been no violation of Article 10.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It found in particular that one of the two criticisms levelled against Judge X by the applicant had implied that the former had disregarded his ethical obligations as a judge or had even committed a criminal offence. However, the applicant had not sought to establish the truth of his allegations of wrongful conduct. The Court considered that his conviction could reasonably be considered necessary in a democratic society in order to protect the reputation of others and maintain the authority and impartiality of the judiciary.