CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 25 juillet 2001

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s7ED160F0 { text-decoration:none } .s48F8B750 { font-size:8pt; display:none } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sD227234A { margin-top:0pt; margin-bottom:6pt; text-align:justify } .sAE2C6750 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .s5CB67CBD { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .sFE576133 { margin-top:6pt; margin-bottom:0pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA101A847 { font-family:Arial; font-size:11pt; font-weight:bold } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s23A41E03 { width:36pt; display:inline-block }   EUROPEAN COURT OF HUMAN RIGHTS [Note1]     560   25.07.2001   Press release issued by the Registrar   JUDGMENT IN THE CASE OF PERNA v. ITALY   The European Court of Human Rights today notified in writing a judgment [1] in the case of Perna v. Italy (application no. 48898/99).   The Court held unanimously that there had been no violation of Article 6 §§ 1 and 3 (d) of the European Convention on Human Rights (right to a fair trial). However, it held, likewise unanimously, that there had been a violation of Article 10 of the Convention (freedom of expression) on account of the applicant’s conviction for alleging, by means of a symbolic expression, that a senior Italian judicial officer had sworn an oath of obedience to the former Italian Communist Party.   Under Article 41 of the Convention (just satisfaction), the Court awarded the applicant 9 million Italian lire for costs and expenses and held that the finding of a violation in itself constituted just satisfaction for any non-pecuniary damage the applicant might have suffered.   1.     Principal facts   The applicant, Giancarlo Perna, an Italian national, was born in 1940 and lives in Rome.   On 21 November 1993 the applicant, who is a journalist, published in the Italian daily newspaper Il Giornale an article about a judicial officer, Mr G. Caselli, who was at that time the Public Prosecutor in Palermo. The article was entitled “Caselli, the judge with the white tuft” ( Caselli, il ciuffo bianco della giustizia ) and bore the sub-title “Catholic schooling, communist militancy – like his friend Violante...” ( Scuola dai preti , militanza communista come l’amico Violante... ).   The article first contained a criticism of Mr Caselli’s political militancy, which the applicant had expressed in the following form of words: “... At university, [Caselli] moved towards the PCI [the Italian Communist Party], the party which exalts the frustrated. When he entered the State Legal Service he swore a threefold oath of obedience – to God, to the Law and to via Botteghe Oscure [formerly the headquarters of the PCI, now those of the PDS – the Democratic Party of the Left]. And [Caselli] became the judge he has remained for the last thirty years – pious, stern and partisan...” (... All’università si agganció al Pci, il partito che esalta I frustrati. Quando fu ammesso in magistratura, fece un triplo giuramento di obbedienza. A dio, alla Legge, a Botteghe Oscure. E Giancarlo divenne il giudice che é da trent’anni: pio, severo e partigiano... ). The article went on to make factual allegations against Mr Caselli, who was accused of taking part in a plan to gain control of the public prosecutors’ offices in various Italian cities and of using the criminal-turned-informer ( pentito ) T. Buscetta to charge Mr G. Andreotti, a very well known Italian statesman, with aiding and abetting a mafia-type organisation ( appoggio esterno alla mafia ), in the full knowledge that he would eventually have to discontinue the case for lack of evidence, a fact which, according to the applicant, confirmed that the proceedings had been brought with the sole aim of destroying the political career of Mr   Andreotti (who had in the meantime been acquitted at first instance).   On 10 January 1996, following a complaint for defamation lodged by Mr Caselli, the Monza District Court found the applicant and his co-accused (the then manager of Il Giornale , Mr   I.   Montanelli) guilty of aggravated defamation. The applicant appealed and again asked, among other requests, for evidence to be taken from the complainant and a number of journalists and Italian politicians who, like Mr Caselli, had been militant members of the former Communist party, and for certain press articles to be added to the file.   In a judgment of 28 October 1997 the Milan Court of Appeal gave judgment against the applicant, giving separate rulings on the two crucial parts of the offending article. It held in the first place that the sentence concerning the oath of obedience was defamatory because, while it had a symbolic value, it indicated dependence on political instructions, which was inconceivable for persons who, on being admitted to judicial office, had to swear an oath of obedience (not a symbolic one but a real one) to the law and nothing but the law. With regard to the remainder of the article, the Court of Appeal held that the accusations concerning Mr   Caselli’s participation in an alleged plan to gain control of the public prosecutors’ offices of various cities and his ulterior motives for using the pentito Buscetta were very serious and highly defamatory in that they were not backed up by any evidence. It further rejected the applicant’s arguments relating to the evidence he had sought to adduce (cross-examination of the complainant, evidence to be taken from certain witnesses and certain articles to be added to the file) on the ground that Mr Caselli’s political leanings, the friendship between Caselli and Mr L. Violante and the use of Buscetta, a pentito paid by the State, in the proceedings against Mr Andreotti, were undisputed facts and therefore did not have to be proved.   In a judgment of 9 October 1998, deposited with the registry on 3   December 1998, the Court of Cassation upheld the Court of Appeal’s decision.   2.     Procedure and composition of the Court   The application was lodged on 22 March 1999 and declared admissible by the Court (Second Section) on 14 December 2000.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Benedetto Conforti (Italian), Giovanni Bonello (Maltese), Viera Strážnická (Slovakian), Marc Fischbach (Luxemburger), Margarita Tsatsa-Nikolovska (FYROMacedonia), Egils Levits (Latvian), judges ,   and also Erik Fribergh , Section Registrar .   3.     Summary of the judgment   Complaints   The applicant in substance raised two complaints. In the first place, he complained of an infringement of his right to defend himself, since the Italian courts had refused throughout the proceedings to admit the evidence he had sought to adduce, including cross-examination of the complainant, in breach of Article 6 §§ 1 and 3 (d). He further alleged a violation of Article 10 both on account of the Italian courts’ decision on the merits and on account of the restrictions on his defence rights as previously alleged.   Decision of the Court   Alleged violation of Article 6 §§ 1 and 3 (d)   The Court observed that as a general rule it was for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants sought to adduce. Consequently, it was not sufficient for an accused to complain that he was not permitted to examine certain witnesses; he also had to support his request to call witnesses by explaining the importance of doing so and it had to be necessary for the court to take evidence from the witnesses concerned in order to be able to establish the true facts. That principle also applied to the examination of the complainant in a defamation case.   The examination, requested by the applicant, of Mr Vertone and Mr Ferrara, both political comrades of Mr Caselli during the 1970s in Turin, essentially concerned the complainant’s political militancy. But throughout the proceedings the Italian courts had consistently held that his militancy had been established, and the same was true of the friendship between Caselli and Violante, Buscetta’s co-operation with the judicial authorities and the fact that the latter, as a pentito , was paid by the State. On the other hand, the applicant had not named any other witness capable of giving evidence about the crucial facts alleged in his article, namely that Mr Caselli had taken part in a plan to gain control of the public prosecutors’ offices in various cities and had used Buscetta to destroy Mr Andreotti’s political career. The Court therefore considered that the applicant had not explained how evidence from the witnesses he wished to call could have contributed any new information whatsoever to the proceedings. The same was true of the press articles which the applicant had asked to be added to the file and which also essentially referred to the complainant’s political militancy.   As regards examination of Mr Caselli, since the Italian courts had held that his political militancy and his relations with Buscetta, a pentito paid by the State, had been established, any evidence he could have given could only have been relevant to the accusations that he had taken part in a plan to gain control of the public prosecutors’ offices in various cities and that he had had an ulterior motive in using Buscetta. These, however, were accusations which the complainant had contested in his complaint alleging defamation. Consequently, it was hard to see what evidence capable of helping the courts to establish the truth could have been provided by examination of the complainant, other than a repetition of his rejection of the allegations against him en bloc .   It would have been a different matter if the applicant had adduced witness statements or other evidence in support of these contested allegations because the complainant would then have been obliged to reply, not – or not only – to the applicant’s allegations as such, but also and above all to the supporting evidence. There had therefore been no violation of Article 6 §§ 1 and 3 (d) of the Convention.   Alleged violation of Article 10 of the Convention   The Court noted that the Court of Appeal, in convicting the applicant, had given separate rulings on each of the two crucial parts of the article complained of. Consequently, it decided to examine separately, in the light of the requirements of Article 10 of the Convention, each of the two branches of the applicant’s conviction.   (a )     The sentence relating to the “oath of obedience”   The Court observed that a careful distinction had to be made between facts and value-judgments. The existence of facts could be demonstrated, whereas the truth of value-judgments was not susceptible of proof. The Court took the view that the sentence in question was essentially symbolic in content and amounted to the expression of a critical opinion about Mr Caselli’s political militancy as a member of the former Communist Party. Moreover, the Court of Appeal itself had accepted that it was a sentence with a symbolic meaning. Admittedly, to repeat the terms used by the Court of Appeal, such an expression indicated dependence on the instructions of a political party. However, this was precisely the tenor of the criticism directed at the complainant.   The criticism directed at the complainant had a factual basis which was not disputed, namely Mr Caselli’s political militancy as a member of the Communist Party. While it was true that judicial officers had to be protected against unfounded attacks, especially in view of the fact that they were subject to a duty of discretion that precluded them from replying, the press was nevertheless one of the means by which politicians and public opinion could verify that judges were discharging their heavy responsibilities in a manner that was in conformity with the aim which was the basis of the task entrusted to them. By acting as a militant member of a political party, of whatever tendency, a judicial officer imperilled the image of impartiality and independence that justice had to show at all times. Where a judicial officer was an active political militant, his unconditional protection against attacks in the press was scarcely justified by the need to maintain the public confidence which the judiciary needed in order to be able to function properly, seeing that it was precisely such political militancy which was likely to undermine that confidence. By such conduct, a judicial officer inevitably exposed himself to criticism in the press, which might rightly see the independence and impartiality of the State Legal Service as a major concern of public interest.   As to the terms chosen by the applicant, use of the symbolic image of the “oath of obedience” was admittedly hard-hitting, but the Court observed in that connection that journalistic freedom also covered possible recourse to a degree of exaggeration, or even provocation. Moreover, while the Court did not have to approve the polemical and even aggressive tone used by journalists, Article 10 protected not only the substance of the ideas and information expressed, but also the form in which they were conveyed. The open and even ostentatious nature of the complainant’s political militancy also had to be taken into account.   (b)     The factual allegations made against the complainant   The Court considered on the other hand that the applicant’s assertions about Mr Caselli’s participation in an alleged strategy of gaining control of the public prosecutors’ offices in a number of cities and his use of the pentito Buscetta in order to prosecute Mr Andreotti quite obviously amounted to the attribution of specific acts to the complainant. They were therefore not covered by the protection of Article 10 unless they had a factual basis, especially considering the seriousness of such accusations. But the article in question did not mention any evidence or cite any source of information capable of corroborating these allegations. Furthermore, during the trial the applicant had not adduced any precise evidence in support of these assertions of fact.   (c)     Conclusion   The Court accordingly concluded that while the applicant’s conviction appeared to have been founded on relevant and sufficient reasons with regard to the allegations concerning the complainant’s participation in a plan to gain control of the public prosecutors’ offices of several cities and the real reasons for using the pentito Buscetta, given that these were allegations of fact which had not been backed up and could not be founded on the complainant’s political militancy alone, it did not appear to have been justified with regard to the sentence concerning the “oath of obedience”, which constituted a critical opinion which, though couched in hard-hitting, provocative language, was nevertheless based on a solid factual basis, uncontestably related to a matter of public interest, on account of the concern that a judicial officer’s political militancy might prompt, and should therefore have enjoyed the protection of Article 10 with regard to the form of words used also.   In that connection, the Court observed that in view of the fundamental importance of freedom of expression in a democratic society, in reviewing the decisions given by domestic courts by virtue of their power of appreciation it had to ensure that sanctions against the press were strictly proportionate and prompted by assertions which did indeed overstep the limits of acceptable criticism, while safeguarding assertions which might and therefore must enjoy the protection of Article 10. There had accordingly been a violation of Article 10 in so far as the applicant was convicted partly on account of the sentence relating to the “oath of obedience”.   Judge Conforti, joined by Judge Levits, expressed a concurring opinion, which is annexed to the judgment.   * * *   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court.   In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment.   If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final.   Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer the case to the Grand Chamber. [Note1]   Press release for individual judgments. To be saved in t:\gen\press\Court\eng\Judgments\Grand Chamber or Chamber\ and given case name and language (e.g. Buscarini Eng).