CEDH · CASELAW;CLIN;ENG — 30 juin 2015

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Italy - 39294/09 Judgment 30.6.2015 [Section IV] Article 10 Article 10-1 Freedom of expression Lawyer’s conviction for defamatory remarks against a judge made in a letter sent to several judges of the same court: no violation Facts – In 2001 the applicant, who was a lawyer at the time, wrote to the Supreme Council of the Judiciary complaining of the conduct of Judge X of the Lucca District Court. He subsequently sent a “circular letter” to several judges of the same court reproducing the content of the first letter, but without referring to Judge X by name. The first part of the circular letter gave details of the decisions adopted by the judge in question in the context of a set of inheritance proceedings, while the second part dealt with what the applicant deemed to be unacceptable conduct on the part of judges, including “wilfully committing errors with malice or gross negligence or through lack of commitment”. Judge X lodged a complaint against the applicant for defamation. In 2005 the District Court sentenced the applicant to four months’ imprisonment for defamation and insult. It considered that the applicant had overstepped the limits of his right to criticise by alleging that Judge X had committed errors “wilfully”; this constituted a serious affront to the honour of the judge in question. In the District Court’s view, there was no doubt that Judge X had been the subject of the accusations contained in the circular letter. The applicant appealed. In 2007 the Court of Appeal replaced the custodial sentence imposed on the applicant by a fine of EUR 400. The applicant was also ordered to pay EUR 15,000 to Judge X in respect of non-pecuniary damage. In 2008 the Court of Cassation dismissed an appeal on points of law by the applicant. Law – Article 10: The issue in the present case concerned remarks made by a lawyer outside the courtroom, as in the case of Morice v.   France ([GC], 29369/10, 23   April 2015, Information Note   184 ). The Court could not accept the applicant’s argument that the criticisms contained in his circular letter had not been directed against Judge X, but against the Italian judicial system in general. The letter in question had contained whole passages taken from the letter which the applicant had written to the Supreme Council of the Judiciary complaining about Judge X’s conduct, and had summarised the main points of the judicial dispute in the context of which, according to the applicant, Judge X had made unjust decisions. Although the second part of the letter had been written in the form of “general considerations” concerning conduct that was unacceptable for judges, it could not fail to be interpreted as criticism of the behaviour of Judge X, in view of the first part of the letter, which had contained details of the decisions adopted in the inheritance proceedings. The Court therefore sought to ascertain whether the complaints concerning Judge X had overstepped the limits of permissible criticism in a democratic society. The first criticism of the judge made by the applicant, namely that he had adopted unjust and arbitrary decisions, had not amounted to excessive criticism since the remarks constituted value judgments, the truth of which, according to the Court’s case-law, was not susceptible of proof. This criticism had had some factual basis, given that the applicant had represented one of the parties to the inheritance proceedings in question. However, the second criticism, to the effect that the judge was “biased” and had committed errors “wilfully ... with malice or gross negligence or through lack of commitment”, implied that Judge X had disregarded his ethical obligations as a judge or had even committed a criminal offence (the adoption by a judge of a decision he or she knew to be erroneous could constitute an abuse of official authority). In any event, the circular letter had denied that Judge X possessed the qualities of impartiality, independence and objectivity which characterised the exercise of judicial functions. The applicant had not sought at any stage to prove the reality of the specific conduct of which he accused Judge X and had not produced any evidence demonstrating an element of malice in the decisions of which he complained. In the Court’s view, his allegations of wrongful conduct on the part of Judge X had been based solely on the fact that the judge had rejected the applicant’s claims in the interests of his clients. Moreover, the applicant had sent the letter without awaiting the outcome of the case he had brought against Judge X before the Supreme Council of the Judiciary. The applicant’s criticisms had not been made at the hearing or in the context of the inheritance proceedings before the courts, a fact which distinguished the present case from that of Nikula v.   Finland (31611/96, 21   March 2002, Information Note   40 ). The letter had been sent to Judge X and numerous judges of the Lucca District Court in a context unrelated to any step in the proceedings; this had been bound to undermine Judge X’s reputation and professional image. Lastly, the custodial sentence originally imposed on the applicant had been replaced on appeal by a small fine of EUR 400 which, moreover, had been waived. Similarly, the amount of compensation awarded to Judge X (EUR 15,000) could not be regarded as excessive. The applicant’s conviction for the defamatory remarks made in his circular letter, and the penalty imposed on him, had therefore not been disproportionate to the legitimate aims pursued, namely to protect the reputation of others and maintain the authority and impartiality of the judiciary. The reasons given by the Italian courts had been relevant and sufficient to justify such measures. Conclusion : no violation (five votes to two).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes