Information Note on the Court’s case-law No. 96
April 2007
Esposito v. Italy (dec.) - 34971/02
Decision 5.4.2007 [Section III]
Article 6
Civil proceedings
Article 6-1
Access to court
Immunity from suit of members of the Judicial Service Commission in respect of opinions expressed in the exercise of their duties: inadmissible
The applicant is a judge who was the subject of an automatic transfer to a different post by the Judicial Service Commission (“the Commission”). During the procedure, two members of the Commission made a number of statements which the applicant considered to be defamatory. At the request of several members of the Commission, it was decided to publish a record of the transfer procedure in the Commission’s official bulletin. The applicant appealed against this decision before the regional administrative court, which ordered that its execution be stayed. An appeal was lodged against the court’s decision. The applicant alleged that his transfer had been reported by the Televideo service of the State channel Rai, by a large number of privately owned television stations and in the press. He applied to the court seeking compensation from the two members of the Commission concerned, alleging that the statements they had made during the transfer procedure had sullied his honour and infringed his right to a good reputation. The two members in question argued that they should enjoy immunity under a Law which stipulated that members of the Judicial Service Commission could not be prosecuted for opinions expressed in the exercise of their duties. The applicant replied that the immunity clause in question applied only in the context of criminal proceedings. The court rejected the applicant’s claim for compensation. Referring to a judgment of the Constitutional Court, it considered that the immunity in question should apply to civil and disciplinary proceedings as well as to criminal proceedings, in order to shield members of the Judicial Service Commission from interference in the exercise of their duties. A subsequent appeal by the applicant was dismissed, except in respect of one of the members of the Commission whose remarks, in the appeal court’s view, had gone beyond what was normal in such a situation, and who was ordered to pay compensation. The member in question lodged an appeal on points of law, arguing that the immunity clause covered any statement made within the Judicial Service Commission. For his part, the applicant lodged an appeal directed against the two Commission members. Before the Court of Cassation, the applicant requested three of the judges to withdraw from the case on account of their links with one of the Commission’s members. The applicant’s lawyer requested that the case be examined by the plenary Court of Cassation. He also requested the President to ensure, in the interests of impartiality, that the panel was made up of judges who had had no links of any kind with the Commission member or with his own client. The request was rejected. The applicant invited two judges of the plenary court panel to withdraw on account of their links with the member of the Judicial Service Commission. If they did not withdraw, his request was to be regarded as an application for their removal. He noted that one of the judges had not withdrawn. However, the plenary court rejected his application for removal. The applicant then requested that this decision be set aside on account of a breach of the rules of procedure. He again asked the judge to withdraw, given that he was now the President of the Division in which the Commission member sat, but to no avail. The Court of Cassation held a plenary hearing at which it allowed the appeal lodged by the Commission member. It dismissed the applicant’s appeals on the ground that the guarantees laid down by the law were broader in scope than had been maintained by the applicant, extending to the sphere of civil liability in cases concerning expressions of opinion linked directly to a vote conducted in the course of the Commission’s work and relating to the subject under discussion. The part of the judgment concerning the member of the Judicial Service Commission was quashed and remitted to a different division of the Court of Appeal.
Inadmissible under Article 6(1) with regard to the judges’ immunity – The defamation proceedings and the judges’ immunity came within the sphere of civil rights and obligations. The applicant had, in substance, been deprived of the opportunity of obtaining any form of redress for the damage he alleged. It followed that an assessment as to whether the statements made by the two members of the Judicial Service Commission were truthful or defamatory had either not been carried out by the lower courts or had been set aside by the Court of Cassation. The latter had held that such an assessment was legitimate only if the preliminary question whether the impugned remarks had been relevant to the debate in the Judicial Service Commission was answered in the negative. In the Court’s view, the judgment of the Court of Cassation could not be compared to a decision on the applicant’s right to protection of his reputation, and the Court could not consider a degree of access which was limited to the possibility of putting a preliminary question sufficient to ensure the applicant’s right of access to a court. Accordingly, there had been interference with his right of access to a court. The immunity conferred on the judges had a legal basis, which stipulated that members of the Judicial Service Commission could not be punished for opinions expressed in the course of their duties and relating to the subject under discussion. The relevant legislation had in principle been accessible to the applicant. However, the applicant objected to the interpretation of the provision in question by the Court of Cassation sitting in plenary. He alleged that the phrase “may not be punished” constituted an exemption from criminal liability which was confined to the criminal sphere and should not have been applied in the context of the civil proceedings to which he had been a party. The Court observed that the plenary Court of Cassation had interpreted the scope of the law more widely than the applicant had, taking the view in particular that the guarantees contained in the provision in question would be rendered meaningless if the members of the Judicial Service Commission were exposed to civil liability when acting in an official capacity. Such an interpretation did not manifestly run counter to the legislation concerned and the aim which it pursued, and could not be said to be arbitrary. The interference in question was provided for by domestic law as interpreted by the highest court in Italy. The authors of the Constitution had intended the Judicial Service Commission to act, among other things, as a guarantor of the autonomy and independence of the judiciary. Hence, there was an arguable need to allow its members freedom of expression and to prevent partisan complaints from interfering with the exercise of the Commission’s functions. In the circumstances, the Court considered that the immunity of Commission members pursued legitimate aims, namely to protect free debate within the Commission and uphold the system of separation of powers enshrined in the Constitution. Whether the guarantees and immunities enjoyed by the members of the Commission were justified had to be assessed in the light of that institution’s role and functions. The role of the Commission as guarantor of the autonomy and independence of the judiciary could call for enhanced protection of the right to freedom of expression of its members in relation to remarks made during meetings. The immunity in question in the present case was absolute in nature and had been applied in both the criminal and civil spheres. However, it applied only to statements made by members of the Commission in the exercise of their duties and in relation to the subject under discussion. It was therefore aimed at protecting the interests of the Judicial Service Commission as a body rather than those of its individual members. The remarks at issue had not been made public. As to the applicant’s allegation that his automatic transfer had been reported in the media, the Court observed that the information conveyed to the public had related not to the allegedly defamatory remarks but to the objective fact of the judge’s transfer, which was not as such the subject of the present application. The application of a rule conferring absolute immunity on members of the Judicial Service Commission could not be considered to exceed the margin of appreciation enjoyed by the State in limiting the individual’s right of access to a court. Hence, the fair balance which had to be struck in the matter between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights had not been upset: manifestly ill-founded.
Inadmissible under Article 6(1) with regard to the existence of an impartial tribunal – From a subjective viewpoint, individual judges were assumed to be impartial unless it was proven otherwise. There was nothing in the instant case to suggest any prejudice or bias on the part of the Division President of the Court of Cassation. The question whether the applicant’s fears could be considered to be objectively justified was also crucial. The applicant’s fear of impartiality was based on two circumstances: the fact that the Division President worked in the same place as the judge who was the defendant in the civil proceedings, and the fact that a Division President who had withdrawn was replaced not by another Division President but by a substitute judge. On that basis, the applicant’s fears could not be said to be objectively justified. In particular, the Court noted that the evidence before it did not demonstrate that there had been any personal ties of friendship between the judge and the Division President going beyond the strictly professional sphere. The sole fact that a judge had or had once had professional dealings with one of the parties to the proceedings did not in itself give rise to a conflict of interest such as to justify the judge’s withdrawal from the case. The Division President had not been subordinate to the judge and had not been susceptible to any pressure arising out of a hierarchical relationship between them. Furthermore, there was no objective reason to doubt that the judge whose removal the applicant sought did not regard the oath he had sworn on taking office as taking precedence over any social commitments. Finally, with regard to the replacement of the Division President by a substitute judge, the Court considered that this fact did not give rise to any objectively justified doubts as to the impartiality of the court in question: manifestly ill-founded.
Inadmissible under Article 8 (inability to obtain redress for the allegedly defamatory remarks made within the Judicial Service Commission) – The essential questions raised by the applicant’s procedural complaint under Article 6(1) of the Convention as to whether the impugned rules pursued a legitimate aim and were proportionate were the same as those raised by the substantive complaint concerning the right to respect for private life guaranteed by Article 8: manifestly ill‑founded.
Inadmissible under Article 13 – The same considerations as to the facts which had led the Court to reject the applicant’s complaints under Articles 6(1) and 8 prompted it to conclude that the applicant did not have an arguable complaint under Article 13: incompatible ratione materiae.
Inadmissible under Article 14 – The applicant had not demonstrated that he had been treated differently compared with other persons in a comparable situation. The immunity conferred on members of the Judicial Service Commission in respect of opinions expressed in the exercise of their duties and relating to the subject under discussion was in accordance with the law, pursued legitimate aims and was proportionate to those aims. There had thus been objective and reasonable grounds for the situation complained of by the applicant: manifestly ill-founded.
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This summary by the Registry does not bind the Court.
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