In the Chamber judgment in Peruzzi v Italy ( ECHR 629, only in French) handed down on 30 June 2015, the Court of Human Rights dismissed an application under Article 10 by a lawyer who had been convicted of criminal defamation of a judge. The decision is a surprising and retrograde one in the light of the recent Grand Chamber decision in Morice v France (see the Inforrm case comment).
Mr Peruzzi was a lawyer in Lucca, Italy. In September 2001, he 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 followed this with a circular letter to several judges of the Lucca court which reproduced the content of the first letter but without naming the judge in question.
As a result Mr Peruzzi 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.
He appealed to the Court of Appeal of Genoa which 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.
Mr Peruzzi complained that this conviction was a violation of his Article 10 rights.
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. ()
The Court said that the conviction pursued the legitimate aim of the protection for the reputation or rights of others, as well as for 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 held 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 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 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 objected to the idea that conviction was 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 23 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 factor 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 acknowledged that there is a public interest element to this defamation beyond the specific reputation of the judge. This should mean a higher, not lower, threshold for restriction of speech in this context.
Third, the nature of the impugned remarks as being 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 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 suggestive 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 mindset of Judge X.
The fourth issue to be looked at by the Court in analysing defamation by lawyers of judges, 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, or “zero” real impact as the dissent suggests is hugely important. 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. It is difficult to see how the authority of the judiciary can be undermined 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 heart 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 dissent of the trial court’s four-month custodial sentence, nor the reason this case merits 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 Contracting States that such sentences are condoned where the statements concern criticism of judges’ conduct.
The Court gave no substantive analysis regarding the contradictory nature of the public interest consideration inherent in 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 being 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 under any circumstance.
Joseph Williams is a Law Programme Intern at Article 19
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