Freedom of Expression and Association; Disciplinary proceedings

Sezione disciplinare del Consiglio Superiore della Magistratura

Disciplinary chamber of the Supreme Judicial Council

31/2016

9 February 2016

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No follow up

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Disciplinary proceedings against a magistrate who, during a public event, made statements against another judge of his office capable to harm his honour and reputation

Limitations to the freedom of expression of magistrates; balance between freedom of expression and the offence of defamation against another judge.

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No interim relief

Article 1, 2 and 4 of Legislative Decree No. 109 of 2006; Article 5 of Legislative Decree No. 106 of 2006, Article 21 of the Italian Constitution

During a public meeting held in October 2012, Mr. T.G., judge at the Court of Taranto made a series of statements, later reported by a newspaper, regarding the ongoing criminal case concerning the ILVA plant in Taranto and, in particular, the seizure orders issued by a magistrate of his own office and subject to his supervision. He claimed, inter alia, that the colleague magistrate took judicial measures out of “lack of balance” and a “strong mania of protagonism”, behind which lied personal interests, especially in the political career.
In 2014 the disciplinary section of the CSM found the judge T.G. guilty of the disciplinary offense under Articles 1(1) and 2(1)(d) of Legislative Decree n. 109/2006 – that is, serious misconduct towards the magistrates of his office in violation of the duties of fairness, discretion and balance – and sanctioned with admonition. He was instead acquitted of the disciplinary offense referred to in Article 4(1)(d) of Legislative Decree n 109/2006, namely, the offending the honour and reputation of another magistrate. In a nutshell, the disciplinary section had found that the facts amounted to the offense of serious misconduct against other magistrates but not to the offense of defamation against a colleague. However, the case was appealed before the Court of Cassation which quashed the decision and sent it back to the disciplinary section in a different composition. The Court of Cassation considered that the sanction of the admonition was too light and that there were flaws in the grounds of the judgment concerning the offence of defamation.

The disciplinary section reached a different solution from that of its first judgment and found inapplicable the exemption of the right to criticise, with the result that the conduct of judge T.G. amount to the crime of defamation and the related disciplinary offense under Articles 1(1), 2(1)(d) and 4(1)(d) of Legislative Decree Feb. 23, 2006, no. 109. The disciplinary section stressed that, even though Article 21 of the Italian Constitution and Article 10 ECHR are primarily aimed at guaranteeing the freedom of those expression that shock, shake or disturb, the limits to the right to criticize judicial institutions are much broader where the critique concerns criminal proceedings of public relevance.
The disciplinary section considered that the conduct of judge T.G. went beyond the limits of the right to criticize, especially since they were directed against a colleague from the same office. Although the right to criticize results in a subjective criticism, the latter must be based on a fact that corresponds to an at least reasonably putative truth in light of relevant sources or objective circumstances. Instead, the statements made by judge TG were completely detached from any technical evaluation and appeared the expression of personal disdain. Accordingly, such statements were likely to harm the honour and reputation of the colleague concerned.
In this regard, the disciplinary section of the CSM found no contradiction between the above findings and the case law of the ECtHR. It referred to the judgments in Oberschlick v. Austria, Jerusalem v. Austria, and Peruzzi v. Italy. In those occasions, the ECtHR distinguished between statements of fact and value judgments, since the  requirement to prove the truth can be fulfilled only by the former, but also stressed that even a value judgement must be supported by a sufficient factual basis without which it would be excessive.

The EU Charter was not invoked.

he disciplinary chamber of the CSM cited only Article 10 ECHR but not the Charter as EU law was not applicable to the case.

Consistent interpretation with the ECHR

The disciplinary section of the CSM does not engage in horizontal interaction, neither with other national judgments, nor with a foreign court.

The disciplinary chamber of the CSM referred to the case law of the Italian Court of Cassation concerning the limitations to the right to criticize (Court of Cassation, V criminal section, n. 3047/11 and Court of Cassation, III civil section n 617513/2011), on the fact that Article 21 of the Italian Constitution and Article 10 ECHR are primarily aimed at guaranteeing the freedom of those expression that shock, shake or disturb (Court of Cassation, V criminal section, n. 25138/2007); the protection of reputation of magistrates (Court of Cassation, V criminal section, n. 5638/2015), the offence of defamation (Court of Cassation, V criminal section, n. 7715/2014 and n 47973/2014).
Furthermore, the disciplinary chamber referred to the case law of the European Court of Human Rights regarding the protection of freedom of expression enshrined in Article 10 ECHR. First, it cited the ECtHR judgment in Oberschlick v. Austria, where a distinction was drawn between a statement of facts and value-judgments since only the existence of facts can be demonstrated, while the truth of value judgments is not susceptible of proof. Second, the disciplinary chamber referred to the ECtHR judgments in Jerusalem v. Austria and Peruzzi v. Italy where the ECtHR found that even in case of value judgments, the relevant statement must be based on a sufficient factual since even a value judgment without any factual basis to support it may be excessive.

The scope (presumably) pursued by the national court when using judicial interaction techniques was to find support in the case law of the ECtHR in order to strike the right balance between the freedom of expression and the offence of defamation.

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The Disciplinary Chamber quoted the ECtHR judgment in Oberschlick v. Austria, Jerusalem v. Austria, and Peruzzi v. Italy. See point 6.3.

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The national court took into account the case law of the Court of Cassation on the right to criticize, freedom of expression of judges and the protection of reputation of magistrates. See point 6.3 above.

The judgment is the follow-up of an appeal before the Court of Cassation which had referred the case back to the disciplinary chamber in a different composition.

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Judgment is not publicly accessible online.

Martina Coli, University of Florence