Issued on 30th June 2015, the European Court of Human Rights has handed down a judgement in Peruzzi v Italy (App no 39294/09), a case concerning the criminal conviction of Mr Peruzzi, a disgruntled lawyer who made a complaint to the Superior Counsel of the Italian Judiciary about the conduct of a District Court judge at a trial. He subsequently wrote and circulated an open letter to members of that District Court concerning the conduct of the judge (omitting his name), as well as criticising the judiciary more generally.
Article 10(2) of the ECHR allows restrictions to be placed on freedom of expression in a number of enumerated situations, provided that those restrictions are prescribed by law, pursue a legitimate aim, and are necessary in a democratic society.
As the subject of the statements was a member of the judiciary, the justification given for restricting the speech in question was twofold: the State claimed it was necessary for the protection of the reputation of the judge in question, as well as for “maintaining the authority and impartiality of the judiciary.”
Defamation rules have, until now, primarily been analysed under the justification of protecting the reputation of others. When defamatory statements concern false allegations – questions of fact – Contracting States are given a broad margin to restrict expression. Restrictions on the expression of value-judgments have a much narrower margin of appreciation. The requirement to make a “careful distinction” between facts and value-judgments has been long-established in ECHR jurisprudence, deriving from the very first ECHR defamation case, Lingens v Austria (para. 21).
The attachment of the second grounds for restriction, particularly in use as a justification for a criminal sanction, is what marks out this case as particularly important. The existing rules regarding the restriction of defamatory speech on the grounds of maintaining the authority and impartiality of the judiciary are derived from two cases: Nikula v Finlandand Morice v France. The precedent in Nikula establishes a lawyer’s freedom to criticise the conduct of a public prosecutor in court, in the course of defending their client. In that particular case, a violation of Article 10 was found on the grounds that the independence of a lawyer is an important aspect of the functioning of the justice system. Morice concerns statements made by a lawyer in the French daily newspaper Le Monde which contained the text of a letter sent by Morice to the Minister of Justice seeking an administrative investigation against two judges. The criminal sanction was found to be a justifiable restriction by the Chamber, but this was overturned as disproportionate by the Grand Chamber on 23 April 2015.
There is therefore an important question as to when, and on what grounds, the defamation of an individual judge can and should be found to undermine the authority and impartiality of the judiciary. The proportionality of criminal sanctions in defamation cases is also relevant, as well as the appropriate consideration to be given to the circumstances of the case; in particular, the issue of whether a defamatory statement is more or less harmful where the audience consists of professional colleagues rather than the general public.
Held (by majority of five to two): There was no violation of Article 10, both grounds accepted by the ECHR by a majority.
Mr Peruzzi was a lawyer in Lucca, Italy, at the time of the events in 2001. In September 2001, Mr Peruzzi wrote to the Superior Counsel of the Judiciary in which he complained about the behaviour of a District Court judge in Lucca (Judge X). He then circulated an open letter to several judges of the Lucca court, which reproduced the content of the first letter but without naming the judge in question.
He was charged with both criminal defamation and insult. He was sentenced by a Genoa court to four months in prison, reimbursement of €2000 legal costs and a provisional deposit of €15000, which would be fixed in a separate civil procedure. The applicant then appealed this domestically. The Court of Appeal of Genoa declared that it was not possible to prosecute the offence of insult in the absence of a complaint. The sentence for criminal defamation was reduced to a fine of €400. The award of €15000 for moral damages was upheld.
The applicant appealed this on a point of law on the grounds that his Article 10 rights were violated by the conviction.
The Court considered that the issue of whether the criticism was directed at Judge X or the judiciary more generally was determined at trial, and therefore proceeded to analyse whether the complaints in the letter went beyond the limits of permissible criticism in a democratic society. (para. 56)
The Court deemed that the conviction pursued the legitimate aim of protection of the reputation or rights of others, as well as that of maintaining the authority and impartiality of the judiciary. The analysis of whether the conviction was necessary in a democratic society dealt with two complaints in turn: first, the complaint that Judge X made “unjust and arbitrary decisions”, and second that he was biased and made mistakes “wilfully, with intent or gross negligence or due to lack of commitment” (para. 57). The first complaint was held to be a value-judgment, and therefore a restriction on this speech was considered by the Court to be unnecessary (para. 58). This follows the reasoning in Lingens v Austria that value-judgments are afforded a much higher level of protection, due to the fact that they cannot be the subject of proof.
The second complaint, by contrast, was deemed to be an accusation against Judge X of a deliberate disregard of his ethical obligations as a judge, and potentially even a criminal accusation. Mr Peruzzi had not demonstrated any evidence of bad faith or malice on the part of Judge X.
In addition to this, the context in which the circular letter was written and disseminated was considered by the Court. The complaint was not made in the context of the judicial procedure which was at issue, but after the fact, which distinguishes it from Nikula v Finland. Neither, however, was the statement made public in a major newspaper as in Morice v France. It was distributed both to Judge X himself and his colleagues. The Court found that the distribution of such a letter in a small community such as that of a local court “could only” damage his reputation.
With regard to the proportionality of the sentence, the Court acknowledged that the first instance court had given a particularly harsh custodial sentence, in spite of the fact that Mr Peruzzi had no criminal record. However, the Court also noted that this was replaced on appeal with a small fine which was, in any case, declared fully recovered (para. 22). It is unclear whether the Court would have been willing to uphold the restriction on freedom of expression had a custodial sentence been at issue.
The appeal was permitted unanimously. The judgment that there was no violation of Article 10 was decided with a 5-2 margin. The dissenting judges in the case, Judges Wojtyczek and Grozev, issued a separate judgment. This focuses on the audience of the statement. They note that “judges are accustomed to receiving complaints, sometimes aggressive, from the litigants dissatisfied with court decisions or by their lawyers” and that most often, “the real effect of these complaints for the reputation of the magistrates in question is zero” (Dissent, para. 5). For this reason, they object to the idea that the judgment is necessary for the maintenance of the authority of the judiciary in Italy, and note that it could indeed produce the opposite effect to that intended (Dissent, para. 7).
It is interesting that the Court did not follow the analysis of the Grand Chamber in Morice v France, which overruled the Chamber’s original finding of no violation of Article 10 in that case on 23rd April 2015. In the Grand Chamber’s judgment, five factors were considered to be relevant in analysing a lawyer’s freedom of expression concerning the defamation of a judge.
First, the applicant’s standing as a lawyer is relevant. In both cases, the statement in question was not in the context of a trial, and not made in order to defend a client. The Court here distinguished Nikula v Finland on these grounds. However, it was also noted that the statements were made against the prosecutor and not the judge, court or judiciary as a whole. As it was determined that the defamation related to the judge individually, this is not a convincing distinction to make. Defamation of individual judges by individual lawyers should not be held to undermine the authority of the judiciary any more than the defamation by a defence lawyer of an individual prosecutor.
The second part of the analysis which the Grand Chamber enumerated in Morice is whether the statements contributed to a debate on a matter of public importance. This is a somewhat complicated point with regard to the statements made by Mr Peruzzi. The statements were made to colleagues of Judge X about his conduct. However, by bringing in the issue of the authority and impartiality of the judiciary, the majority acknowledges that there is a public interest element to this. This should mean a higher threshold for restriction of speech in this context.
Third, the nature of the remarks as value-judgments is important. The fact that this was found not to be the case with regard the second part of the statement is worthy of analysis in light of the recent ruling in Morice. The statement at issue in Morice was that conduct of the judges in question was “completely at odds with the principles of impartiality and fairness.” Much emphasis was placed on the use of the word “wilfully” in this case – however, consideration should also be given to the phrase “or lack of commitment” (para. 57), which is far more characteristic of a value-judgment regarding Judge X’s character than a factual accusation of misconduct. The operative here is “or” rather than “and”, which shows an intention not to assert bad faith or wilfulness as a factual matter, but rather to speculate open-endedly about the mind-set of Judge X.
The fourth issue to be looked at by the Court in analysing defamation of judges by lawyers,is the specific circumstances of the case. This makes the question of determining the audience crucial. Whether critiquing someone’s professional conduct to their peers should be considered “only able to damage” a person’s reputation as the majority decided (para. 63), or “zero” real impact as the dissent suggests is hugely important (para. 5 dissent). This cannot be glossed over as the Chamber has done in this judgment. The Court here seems to suggest that an allegation of bias or misconduct against a particular judge – unless in the context of judicial review – can be treated as a criminal act. This could potentially have a chilling effect on legitimate criticism of a professional in the judiciary. The dissenting judges point out that to restrict professional criticism based on the behaviour of individual judges could have the effect of undermining rather than upholding the authority and impartiality of the judiciary as a whole. This is why it is particularly important to distinguish criticism of judges from attacks on the judiciary, as well as to question who the audience of the statement is. Public confidence in the judiciary is important for maintaining the rule of law. This is what justifies the inclusion of the restriction in Article 10(2). A challenge to the “authority and impartiality of judiciary” through criticism of an individual judge must be such as to undermine public confidence in the institution as a whole. It is difficult to see how this could be the case in a statement made exclusively to the judiciary.
The final issue to be considered is the proportionality of the sanctions imposed. This goes to the question of the continued legitimacy of criminal defamation laws. The judgment here justifies what amounts to a minimal criminal sanction, a €400 fine to be considered fully recovered (para. 22). However, there is virtually no discussion (either by the majority or the dissenting judges) of the trial court’s four-month custodial sentence, nor the reason this case would merit a criminal prosecution at all. The fact that the Court failed to condemn the excessiveness of criminal sanctions generally, and custodial sanctions specifically, suggests to ECHR Contracting States that such sentences are condoned where the statements concern criticism of judges’ conduct.
The Court gave no substantive analysis regarding the internal conflict inherent in the public interest element of maintaining the authority and impartiality of the judiciary; nor did it take into account the specific circumstances of the case as being similar to Morice. The Grand Chamber in Morice considered that Mr Morice’s statements were not based on personal animosity, but intended to reveal “serious shortcomings in the justice system” and considered this to be a matter of public interest and therefore deserving of greater, not lesser, protection under Article 10. The judgment of the Court here contradicts that.
The exacerbating factor here, which justifies a criminal rather than a civil sanction, seems to have been that the victim of the defamation was a judge. Much more clarity and reasoning is needed with regard to how and why the defamation of judges should be distinguished from ‘ordinary’ defamation. Given that politicians and other public figures generally receive lesser protections in their professional capacity, the use of criminal sanctions for the protection of the reputation of individual judges is unjustifiable. There is an inherent tension between what is proportionate regarding conflict between the rights of two individuals – which, by nature, suggests civil defamation – and treating a defamatory statement identifying an individual judge as a criminal attack on judicial impartiality.
It is clear that the Court, though wary of excessive criminal sanctions, continues to consider the existence of criminal defamation laws as within the margin of appreciation for Contracting States. This should be treated as any other civil defamation case. The payment of damages should be considered sufficient. The trial court’s use of a custodial sentence should, in particular, be decisively condemned as incompatible with Article 10.