Diritto Penale

Il Caso.it, Sez. Giurisprudenza, 21416 - pubb. 22/03/2019

La CEDU sanziona l’Italia che ha aver inflitto la pena del carcere per la diffamazione a mezzo stampa (caso Sallusti)

Corte Europea dei Diritti dell'Uomo, 07 Marzo 2019. Est. Campos.

(c) “Necessary in a democratic society”

(i) General principles

51. The general principles concerning the necessity of an interference with freedom of expression are summarised in the cases of Morice v. France [GC], no. 29369/10, §§ 124-139, ECHR 2015 and Belpietro (cited above, §§ 47-54).

52. In particular, the Court points out that the test of “necessity in a democratic society” requires it to determine whether the interference complained of corresponded to a “pressing social need”, whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the sanction imposed was “proportionate to the legitimate aim pursued” (see Belpietro, cited above, §§ 49-50).

(ii) Application of the above principles to the present case

53. In the instant case the national courts found that the content of the articles had led to misinformation of the public, having given false information despite the clarifications disseminated the day prior to their publication. In addition, in the courts’ view, the applicant had seriously tarnished G.C.’s honour and his right to privacy, as well as that of all those involved.

54. The Court sees no reason to depart from the above findings.

55. In particular, it cannot consider arbitrary or manifestly erroneous the assessment carried out by the national authorities, according to which the articles published by the applicant had attributed behaviour to G.C. involving a misuse of his official powers. Moreover, the Court observes that the case involved a minor and also contained defamatory statements against the parents and the doctors.

56. In addition, the Court agrees with the Government that the applicant failed to observe the ethics of journalism by reporting information without first checking its veracity.

57. Furthermore, the Court points out, as it has previously held (see Belpietro, cited above, §§ 58-59), that the head of a newspaper cannot be exempted from his duty to exercise control over the articles published therein and bears responsibility for their content.

58. In the light of the foregoing considerations, and having regard to the margin of appreciation left to the Contracting States in such matters, the Court finds that the domestic authorities were entitled to consider it necessary to restrict the exercise of the applicant’s right to freedom of expression and that his conviction for defamation and omesso controllo accordingly met a “pressing social need”. What remains to be determined is whether the interference at issue was proportionate to the legitimate aim pursued, in view of the sanctions imposed.

59. Although sentencing is in principle a matter for the national courts, the Court considers the imposition of a custodial sentence for a media-related offence, albeit suspended, compatible with journalists’ freedom of expression as guaranteed by Article 10 of the Convention can only be in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence (see, Cumpãnã and Mazãre v. Romania, [GC], no. 33348/96, § 115, ECHR 2004-XI). In this connection, the Court notes the recent legislative initiatives by the Italian authorities aimed, in line with the recent rulings of the Court against Italy, at limiting the use of criminal sanctions for defamation, and introducing, as a notable positive step, the removal of imprisonment as a sanction for defamation (see paragraph 29).

60. In the present case, unlike in Belpietro and Ricci (Ricci v. Italy, no. 30210/06, §§ 59-61, 8 October 2013), the applicant, in addition to being ordered to pay compensation to the magistrate concerned, actually spent twenty-one days under house arrest before the intervention of the President of the Italian Republic (see paragraphs 21-24 above).

61. In this connection, it may be relevant to note that in two similar cases (see Belpietro, cited above, §§ 61-63, and Ricci, cited above, §§ 59-61) the imposition of a custodial sentence (although suspended) led the Court to find a violation of Article 10. In particular, in Belpietro, the applicant, the then editor-in-chief of the newspaper Il Giornale, had been accused of defamation for omitting to exercise the necessary control over an article published by another person in the newspaper. On that occasion the Court held that a prison sentence could only be justified if there were exceptional circumstances, that not being the case since it concerned a lack of control in connection with defamation.

62. The Court considers that, in the circumstances of the instant case, there was no justification for the imposition of a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect (see, mutatis mutandis, Kapsis and Danikas v. Greece, no. 52137/12, § 40, 19 January 2017). The fact that the applicant’s prison sentence was suspended does not alter that conclusion, considering that the individual commutation of a prison sentence into a fine is a measure subject to the discretionary power of the President of the Italian Republic. Furthermore, while such an act of clemency dispenses convicted persons from having to serve their sentence, it does not expunge their conviction (see paragraph 26 above; see also Cumpãnã and Mazãre v. Romania, cited above, § 116, and Marchenko v. Ukraine, no. 4063/04, § 52, 19 February 2009).

63. The foregoing considerations are sufficient to enable the Court to conclude that the criminal sanction imposed on the applicant was manifestly disproportionate in its nature and severity to the legitimate aim invoked.

64. The Court concludes that the domestic courts in the instant case went beyond what would have amounted to a “necessary” restriction on the applicant’s freedom of expression. The interference was thus not “necessary in a democratic society”.

65. Accordingly, there has been a violation of Article 10 of the Convention. (Redazione IL CASO.it) (riproduzione riservata)

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