Information Note on the Court’s case-law No. 53
May 2003
Perna v. Italy [GC] - 48898/99
Judgment 6.5.2003 [GC]
Article 10
Article 10-1
Freedom of expression
Conviction of journalist for defamation of prosecutor by alleging abuse of position for political ends: no violation
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Refusal to admit evidence requested by the accused in a defamation case: no violation
Facts: The applicant, Giancarlo Perna, is an Italian journalist, who was born in 1940 and lives in Rome. On 21 November 1993 he published in the Italian daily newspaper Il Giornale an article about a judicial officer, Mr Giancarlo Caselli, who was at that time the Public Prosecutor in Palermo. The article was entitled “Caselli, the judge with the white quiff” (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, referring to “a threefold oath of obedience – to God, to the Law and to via Botteghe Oscure [formerly the headquarters of the Italian Communist Party, now those of the Democratic Party of the Left]” (un triplo giuramento di obbedienza. A Dio, alla Legge, a Botteghe Oscure). It then accused Mr Caselli of taking part in a plan to gain control of the public prosecutors’ offices in all Italian cities and of using the criminal-turned-informer (pentito) T. Buscetta in an attempt to destroy the political career of Mr Giulio Andreotti, a former Italian prime minister, by charging him 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. On 10 January 1996, following a complaint for defamation lodged by Mr Caselli, the Monza District Court found the applicant and the then manager of the newspaper guilty of aggravated defamation. They were sentenced to fines of 1,500,000 and 1,000,000 Italian lire (ITL) respectively (about 775 and 515 euros) and ordered to pay damages and costs in the sum of ITL 60,000,000 (about 31,000 euros), reimburse the complainant’s costs and publish the judgment. Mr Perna appealed. The Milan Court of Appeal gave judgment against the applicant on 28 October 1997. It held that the passage concerning the oath of obedience was defamatory because it indicated dependence on the instructions of a political party. With regard to the remainder of the article, it held that the allegations concerning Mr Caselli’s conduct in the performance of his duties as a member of the State legal service were very serious and highly defamatory in that they were not backed up by any evidence. It further held that it was not necessary to consider the evidence the applicant had sought to adduce because his remarks about Mr Caselli’s political allegiance and the use of a pentito in the proceedings against Mr Andreotti were not defamatory and therefore had no bearing on the proceedings. The Court of Cassation upheld the Court of Appeal’s decision.
Law
Article 6 § 1 and § 3 (d) – The Court observed that the admissibility of evidence was primarily a matter for regulation by national law; its task under the Convention was to ascertain whether the proceedings as a whole, including the way in which evidence was taken, had been fair. It noted that the evidence the applicant had wished to adduce, by producing two press articles and obtaining the examination of Mr Caselli, had been intended to prove the truth of statements which had had no defamatory import according to the courts which had tried the case. The Court agreed with those courts that the evidence concerned would not have been capable of establishing that Mr Caselli had failed to observe the principles of impartiality, independence and objectivity inherent in his duties as an officer of the State legal service. The applicant had not tried to prove the truth of his allegations; on the contrary, he had argued that he had expressed critical judgments which there was no need to prove. Accordingly, the proceedings complained of could not be considered unfair on account of the way the evidence had been taken.
Conclusion: no violation (unanimously)
Article 10 – The applicant’s conviction for defamation had incontestably amounted to interference with his right to freedom of expression. That interference, which was prescribed by the provisions of the Criminal Code and the Press Act of 8 February 1948, had pursued a legitimate aim, namely the protection of the reputation and rights of others. As to whether the interference was necessary in a democratic society, the Court had to determine whether the national authorities had made proper use of their power of discretion in convicting the applicant of defamation. The Court observed that it was important not to lose sight of the article’s overall content and its very essence. The applicant had not confined his remarks to the assertion that Mr Caselli harboured or had manifested political beliefs which cast doubt on his impartiality in the performance of his duties. As the domestic courts had rightly noted, it was apparent from the whole article that its author sought to convey to the public the following clear and unambiguous message: that Mr Caselli had knowingly committed an abuse of authority by taking part in a plan by the Italian Communist Party to gain control of public prosecutors’ offices in Italy. In that context, even phrases like the one relating to the “oath of obedience” took on a meaning which was anything but symbolic. Moreover, as the Court had already found, at no time had the applicant tried to prove the truth of his allegations; on the contrary, he had argued that he had expressed critical judgments which there was no need to prove. That being so, the Court considered that the applicant’s conviction for defamation and the sentence imposed on him had not been disproportionate to the legitimate aim pursued, and that the reasons given by the Italian courts in justification of those measures had been relevant and sufficient. The interference with the right to freedom of expression could therefore reasonably be regarded as necessary in a democratic society.
Conclusion: no violation (16 votes to 1).
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This summary by the Registry does not bind the Court.
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