Peruzzi v Italy - 39294/09 [2015] ECHR 629On 30 June 2015 the European Court of Human Rights approved a decision of the Italian Supreme Court which held that a letter composed by an Italian lawyer
Peruzzi v Italy - 39294/09 [2015] ECHR 629
On 30 June 2015 the European Court of Human Rights approved a decision of the Italian Supreme Court which held that a letter composed by an Italian lawyer sent to the Consiglio Superiore della Magistratura ("CSM", the Supreme Judicial Council) and a selection of District judges contained defamatory remarks about a particular judge. The ECHR held that although the decision of the national court interfered with the lawyer's Article 10 right to freedom of expression under the European Convention on Human Rights, this interference was just and proportionate.
Background
In 2001 the applicant was a practising lawyer (the "Applicant") in Lucca, Italy who, following a disappointing judgment for one of his clients, wrote a letter to the CSM regarding the behaviour of one of the judges in the Lucca District Court. The Applicant then circulated a copy of this letter to a number of other judges within the District Court. The judge in question ("Judge X") was never explicitly mentioned in the letter.
The first part of the letter's contents contained a summary of facts of an inheritance case involving the Applicant's client. The second part of the letter then criticised the judging profession as a whole.
In 2003 Judge X brought a defamation claim (which holds both criminal and civil sanctions in Italy) against the Applicant on the basis that the statements in the letter were damaging to his reputation. In 2005 a Court of First Instance found that the Applicant had exceeded the limits of freedom of expression and sentenced the Applicant to four months imprisonment, payment of Judge X's costs and civil damages in the amount of 15,000 EUR.
The Applicant appealed the decision, and in March 2007 the Court of Appeal reduced the penalty (but upheld the decision). The custodial sentence was removed and replaced with a fine of 400 EUR, but the costs order and civil damages remained the same.
In November 2008, the Supreme Court reaffirmed the Court of Appeal's decision. This led to the Applicant to filing a claim under Article 10 of the European Convention on Human Rights
Judgment
The ECHR acknowledged that the Applicant's Article 10 right to freedom of expression had been interfered with and that this was not a point of contention. The question was whether the interference was just, proportionate and necessary in a democratic society and whether the statements made by the Applicant fulfilled the justification criteria of maintaining the authority and impartiality of the judiciary.
The ECHR considered the statements made by Judge X and stated that it needed to determine whether the criticisms were considered factual declarations or value judgments. The ECHR stated that taking the Applicant's criticisms as contained in the letter could be broken down into two allegations, (i) that Judge X made arbitrary, unjust decisions and (ii) that Judge X was biased and made mistakes voluntarily with wilful intent or gross negligence or due to lack of commitment.
With respect to the first allegation, the ECHR found that it was a genuine belief held by the Applicant following repeated dealings with Judge X regarding his client. Therefore, interference by the state with regards to this allegation was not found to be just or necessary in a democratic society. This finding was in line with the reasoning in Lingens v Austria, whereby opinions cannot be the subject of proof.
However, state interference with the Applicant's second allegation was considered to be justified and necessary to maintain the authority and impartiality of the judiciary. The ECHR said that the Applicant's accusation against Judge X was not only about professional and ethical misconduct, but also potentially about criminal acts with no attempt at proving the factual content of his statements. The basis of the allegation was purely founded on the circumstances by which Judge X had rejected the Applicant's case. Further, the ECHR noted that the letter was circulated to the District judges even before the CSM could have instigated any investigation into Judge X's conduct if warranted.
With regards to the sanctions that had been handed down to the Applicant, the ECHR commented on proportionality, acknowledging that the custodial sentence at First Instance did seem harsh, but the ECHR did not find that the subsequent sanction upheld by the Supreme Court was excessive.
Comment
The dissenting opinion of two of the judges in this case provides an interesting viewpoint on the target audience of the Applicant's allegations. The dissenting judges observed that there are multiple factors to consider when looking at the restriction of an individual's freedom of expression.
In this case, the nature of the targeted audience was not the public at large; it was a sampling of judges. The dissenting judges noted that judges are very circumspect when it comes to assessing statements devoid of sufficient evidence and also they are accustomed to receiving complaints from dissatisfied litigants or their lawyers. Most often the appreciable effect of these complaints on a magistrate's image is zero.
The dissenting judgment concludes that by upholding the state's interference of freedom of expression in this case, instead of protecting the authority and impartiality of the judiciary, it is actually producing the opposite effect.
Neither the majority nor the dissent gave any substantive consideration to the criminal element of the Italian court's sentence, particularly whether the four-month custodial sentence (initially handed out by the Court of First Instance) was proportionate. It appears that the ECHR still regards criminal sanctions as within the margin of appreciation when interference with Article 10 rights occurs in certain circumstances. It appears that the decisive factor in these circumstances was that the defamed individual was a judge. However, the ECHR did not offer significant analysis on why the defamation of a judge should potentially carry criminal sanctions as opposed to the defamation of other public servicemen and women such as politicians.
On 30 June 2015 the European Court of Human Rights approved a decision of the Italian Supreme Court which held that a letter composed by an Italian lawyer sent to the Consiglio Superiore della Magistratura ("CSM", the Supreme Judicial Council) and a selection of District judges contained defamatory remarks about a particular judge. The ECHR held that although the decision of the national court interfered with the lawyer's Article 10 right to freedom of expression under the European Convention on Human Rights, this interference was just and proportionate.
Background
In 2001 the applicant was a practising lawyer (the "Applicant") in Lucca, Italy who, following a disappointing judgment for one of his clients, wrote a letter to the CSM regarding the behaviour of one of the judges in the Lucca District Court. The Applicant then circulated a copy of this letter to a number of other judges within the District Court. The judge in question ("Judge X") was never explicitly mentioned in the letter.
The first part of the letter's contents contained a summary of facts of an inheritance case involving the Applicant's client. The second part of the letter then criticised the judging profession as a whole.
In 2003 Judge X brought a defamation claim (which holds both criminal and civil sanctions in Italy) against the Applicant on the basis that the statements in the letter were damaging to his reputation. In 2005 a Court of First Instance found that the Applicant had exceeded the limits of freedom of expression and sentenced the Applicant to four months imprisonment, payment of Judge X's costs and civil damages in the amount of 15,000 EUR.
The Applicant appealed the decision, and in March 2007 the Court of Appeal reduced the penalty (but upheld the decision). The custodial sentence was removed and replaced with a fine of 400 EUR, but the costs order and civil damages remained the same.
In November 2008, the Supreme Court reaffirmed the Court of Appeal's decision. This led to the Applicant to filing a claim under Article 10 of the European Convention on Human Rights
Judgment
The ECHR acknowledged that the Applicant's Article 10 right to freedom of expression had been interfered with and that this was not a point of contention. The question was whether the interference was just, proportionate and necessary in a democratic society and whether the statements made by the Applicant fulfilled the justification criteria of maintaining the authority and impartiality of the judiciary.
The ECHR considered the statements made by Judge X and stated that it needed to determine whether the criticisms were considered factual declarations or value judgments. The ECHR stated that taking the Applicant's criticisms as contained in the letter could be broken down into two allegations, (i) that Judge X made arbitrary, unjust decisions and (ii) that Judge X was biased and made mistakes voluntarily with wilful intent or gross negligence or due to lack of commitment.
With respect to the first allegation, the ECHR found that it was a genuine belief held by the Applicant following repeated dealings with Judge X regarding his client. Therefore, interference by the state with regards to this allegation was not found to be just or necessary in a democratic society. This finding was in line with the reasoning in Lingens v Austria, whereby opinions cannot be the subject of proof.
However, state interference with the Applicant's second allegation was considered to be justified and necessary to maintain the authority and impartiality of the judiciary. The ECHR said that the Applicant's accusation against Judge X was not only about professional and ethical misconduct, but also potentially about criminal acts with no attempt at proving the factual content of his statements. The basis of the allegation was purely founded on the circumstances by which Judge X had rejected the Applicant's case. Further, the ECHR noted that the letter was circulated to the District judges even before the CSM could have instigated any investigation into Judge X's conduct if warranted.
With regards to the sanctions that had been handed down to the Applicant, the ECHR commented on proportionality, acknowledging that the custodial sentence at First Instance did seem harsh, but the ECHR did not find that the subsequent sanction upheld by the Supreme Court was excessive.
Comment
The dissenting opinion of two of the judges in this case provides an interesting viewpoint on the target audience of the Applicant's allegations. The dissenting judges observed that there are multiple factors to consider when looking at the restriction of an individual's freedom of expression.
In this case, the nature of the targeted audience was not the public at large; it was a sampling of judges. The dissenting judges noted that judges are very circumspect when it comes to assessing statements devoid of sufficient evidence and also they are accustomed to receiving complaints from dissatisfied litigants or their lawyers. Most often the appreciable effect of these complaints on a magistrate's image is zero.
The dissenting judgment concludes that by upholding the state's interference of freedom of expression in this case, instead of protecting the authority and impartiality of the judiciary, it is actually producing the opposite effect.
Neither the majority nor the dissent gave any substantive consideration to the criminal element of the Italian court's sentence, particularly whether the four-month custodial sentence (initially handed out by the Court of First Instance) was proportionate. It appears that the ECHR still regards criminal sanctions as within the margin of appreciation when interference with Article 10 rights occurs in certain circumstances. It appears that the decisive factor in these circumstances was that the defamed individual was a judge. However, the ECHR did not offer significant analysis on why the defamation of a judge should potentially carry criminal sanctions as opposed to the defamation of other public servicemen and women such as politicians.