JUDGMENT
Marinoni v. Italy 18.11.2021 (app. no. 27801/12)
see here
SUMMARY
The case concerned a finding of civil liability against the author of a book on account of two sets of
remarks deemed by the Italian courts to be defamatory. The book included a reconstruction of the
events preceding the summary execution of 43 captured soldiers of the Italian Social Republic (an
episode known as the “strage di Rovetta”). The historical account was overlaid with the author’s
private and personal recollections centred on his family life. The applicant was acquitted in the
criminal proceedings at first instance but was found civilly liable following an appeal by the civil
parties.
The Court held that the domestic courts had not used language liable to cast doubt on the
applicant’s acquittal at first instance, and that the judgments of the Court of Appeal and the Court of
Cassation did not disclose any breach of his right to be presumed innocent.
In the Court’s view, the interference with the applicant’s freedom of expression had not been
disproportionate and the finding of civil liability against him did not disclose any appearance of a
violation of Article 10 of the Convention. It observed in particular that the book, which combined the
author’s personal recollections with material obtained through his research in the archives, fell into
a specific category of historical research known as “microhistory”. The domestic courts had taken
this aspect into consideration in their assessment of the book. As to the two sets of remarks, the
Court found that the first was not justified in the public interest and that the second did not add
anything to the reconstruction of events surrounding the “strage di Rovetta”.
Relying on Article 6 § 2 (presumption of innocence), the applicant alleged a breach of his right to be
presumed innocent.
Under Article 10 (freedom of expression), he argued that the decisions of the domestic courts
finding him civilly liable had infringed his right to freedom of expression, and in particular his right to
report and comment on historical events.
PROVISIONS
Article 6 par.2
Article 10
PRINCIPAL FACTS
The applicant, Nazareno Marinoni, is an Italian national who was born in 1938 and lives in Albinea
(Italy). He is the author of a book entitled The Courtyard Terrace. The events of 28 April 1945 in
Rovetta: a child’s recollections, published in 2005.
In his book the applicant, who was six years old at the time of the events, recounted his childhood
and the events of the weeks leading up to the fall of the Italian Social Republic (RSI), the State
established by the Italian fascists in central and northern Italy between September 1943 and April
1945. In particular, the book contained a reconstruction of the events preceding the summary
execution of 43 RSI prisoners (an episode known as the “strage di Rovetta”). The historical account
was overlaid with private and personal recollections centred on the author’s family life. The book
devoted a number of pages to the tensions between the author’s relatives and family M., who lived in a part of the family house. The conflict stemmed from the differing political views of the applicant’s family, who were anti-fascist, and family M., who supported the fascist regime.
Some of the remarks made by the applicant in referring to the members of family M. were perceived
as defamatory by their heirs, who lodged a criminal complaint.
In 2007, following summary proceedings, the judge acquitted the applicant, finding that the offence
was not punishable. The judge held that the remarks complained of, although “objectively
defamatory”, were not punishable since they had been made by the applicant in the exercise of his
right to report and comment on historical events, a circumstance which exempted him from
responsibility under the Criminal Code. The civil parties appealed.
In 2010 the Court of Appeal ordered the applicant to pay a total of 16,000 euros in damages to the
civil parties (Mr and Ms M.’s heirs). The court took the view that two sets of remarks used in the
book were defamatory. The applicant appealed on points of law, without success.
THE DECISION OF THE COURT…
Article 6 § 2 (presumption of innocence)
The Court noted that the criminal proceedings had not ended with the applicant’s acquittal at first
instance, as the civil parties had lodged an appeal with the criminal courts seeking compensation for
the damage they had allegedly sustained. Under domestic law, the decision had not become final
and binding between the civil parties and the person being investigated in connection with the civil
aspects of the offence.
The Court added that the Court of Appeal had confined its assessment to the constituent elements
of the criminal offence, which had inevitably been the same as those examined at first instance,
before finding, in accordance with the rules on civil liability, that the applicant was civilly liable and
was thus required to compensate the civil parties for the damage sustained. The same observation
applied to the Court of Cassation proceedings.
Thus, the Court found that the domestic courts had not used language liable to cast doubt on the
applicant’s acquittal. Consequently, it held that the judgments given by the Court of Appeal and the Court of Cassation did not disclose any breach of the applicant’s right to be presumed innocent following his acquittal in the criminal proceedings. There had therefore been no violation of Article 6
§ 2 of the Convention.
Article 10 (freedom of expression)
The finding of civil liability against the applicant amounted to interference with the exercise of his
right to freedom of expression. The interference had been prescribed by law and had been aimed at
the “protection of the reputation or rights of others”.
The Court noted that the book in question, which combined the author’s personal recollections with
material obtained through his research in the archives, fell into a specific category of historical
research known as “microhistory”. The main aim of microhistory was to reconstruct experiences that
other historiographical approaches overlooked, by focusing on local history and first-hand accounts.
The domestic courts had taken this aspect into consideration in their assessment of the applicant’s
book.
The Court considered that the book could, to a large extent, be said to concern a historical debate.
According to the Court’s settled case-law, it was an integral part of freedom of expression to seek
historical truth, and a debate on the causes of acts which might amount to war crimes or crimes
against humanity should be able to take place freely.
More specifically, the Court considered that the historical nature of the book lay in the passages
dealing with the reconstruction of the Rovetta massacre, which, the author argued, had violated the
principles of international humanitarian law, and with the activities of resistance groups in the towns
and villages around Rovetta during the months preceding the fall of the fascist regime.
Nevertheless, the Court observed that the book had a dual, somewhat “hybrid”, character. The
historical part per se, which dealt with a matter of public interest entitled to heightened protection
under Article 10 of the Convention, was overlaid with the applicant’s personal account based on his
childhood memories and his views on the people in and around his family home. Among these, the
book described Mr and Ms M. (S.M. and G.G.) and the relationship between the couple and the
author’s family, which had been a source of tension and some bitter verbal exchanges.
Two sets of remarks had been deemed defamatory by the domestic courts: the description of S.M.
as G.G.’s “puppet husband”, and a remark holding G.G. responsible for adding the name of the
applicant’s grandfather to the list of persons to be arrested and shot as reprisals for a possible attack
against the German occupying forces.
With regard to the former, the Court had taken the view that the expression in question, read in
context and as part of the overall account, had not been justified by any public interest but on the
contrary had concerned S.M.’s private sphere.
As to the latter, the Court noted at the outset that in identifying G.G. as the person responsible for
the decision in question, the applicant had attributed responsibility to her for a specific and
particularly heinous act. In the Court’s view, the assertion that G.G. had been involved in drawing up
the list of hostages to be shot was not mere speculation but a specific statement of fact capable of
being substantiated by relevant evidence.
The Court considered that, within the framework of the book’s view of history, that assertion did not
add anything to the reconstruction of the events surrounding the “strage di Rovetta”, but on the
contrary was unconnected to the fresh historical elements which the applicant, to his credit, had
identified and made available to the public.
As to the balance to be struck between the right to freedom of expression and protection of
personality, the Court considered that the act which G.G. was alleged to have committed, giving
effect to the “Kesserling proclamation”, undoubtedly portrayed her personality in a very negative light. In the Court’s view, it was in the context of this claim, damaging to the couple’s reputation, that the description of her husband as a puppet (fantoccio – a pejorative term used to refer to
someone lacking character and free will) was to be read.
In any event, the Court observed that the applicant had not produced any information, either in the
book or during the proceedings, enabling the truth of the allegations to be established, as indeed
pointed out by the Court of Appeal in its meticulous analysis of the book. The Court therefore saw
no reason to depart from the assessment of the case made by the domestic courts.
As to the consequences of the order against the applicant to pay compensation to the civil parties,
the Court noted at the outset that the applicant had not addressed this point in his observations.
Furthermore, the Court of Appeal, in determining the amount of damages, had taken into account
the limited circulation of the book and the length of time that had elapsed between the events
described (1945) and publication of the memoir (2005). Hence, the Court considered that the
amount to be paid to the civil parties did not appear disproportionate, especially in view of the
seriousness of the claims made concerning G.G.
In sum, the interference with the applicant’s freedom of expression had not been disproportionate
in the present case and the finding of civil liability against him did not disclose any appearance of a
breach of Article 10 of the Convention. There had therefore been no violation of that provision.
Separate opinion
Judge Wojtyczek expressed a concurring opinion which is annexed to the judgment.
Civil liability of a history book author for defamatory comments. No violation of the presumption of innocence, nor the freedom of expression
JUDGMENT
Marinoni v. Italy 18.11.2021 (app. no. 27801/12)
see here
SUMMARY
The case concerned a finding of civil liability against the author of a book on account of two sets of
remarks deemed by the Italian courts to be defamatory. The book included a reconstruction of the
events preceding the summary execution of 43 captured soldiers of the Italian Social Republic (an
episode known as the “strage di Rovetta”). The historical account was overlaid with the author’s
private and personal recollections centred on his family life. The applicant was acquitted in the
criminal proceedings at first instance but was found civilly liable following an appeal by the civil
parties.
The Court held that the domestic courts had not used language liable to cast doubt on the
applicant’s acquittal at first instance, and that the judgments of the Court of Appeal and the Court of
Cassation did not disclose any breach of his right to be presumed innocent.
In the Court’s view, the interference with the applicant’s freedom of expression had not been
disproportionate and the finding of civil liability against him did not disclose any appearance of a
violation of Article 10 of the Convention. It observed in particular that the book, which combined the
author’s personal recollections with material obtained through his research in the archives, fell into
a specific category of historical research known as “microhistory”. The domestic courts had taken
this aspect into consideration in their assessment of the book. As to the two sets of remarks, the
Court found that the first was not justified in the public interest and that the second did not add
anything to the reconstruction of events surrounding the “strage di Rovetta”.
Relying on Article 6 § 2 (presumption of innocence), the applicant alleged a breach of his right to be
presumed innocent.
Under Article 10 (freedom of expression), he argued that the decisions of the domestic courts
finding him civilly liable had infringed his right to freedom of expression, and in particular his right to
report and comment on historical events.
PROVISIONS
Article 6 par.2
Article 10
PRINCIPAL FACTS
The applicant, Nazareno Marinoni, is an Italian national who was born in 1938 and lives in Albinea
(Italy). He is the author of a book entitled The Courtyard Terrace. The events of 28 April 1945 in
Rovetta: a child’s recollections, published in 2005.
In his book the applicant, who was six years old at the time of the events, recounted his childhood
and the events of the weeks leading up to the fall of the Italian Social Republic (RSI), the State
established by the Italian fascists in central and northern Italy between September 1943 and April
1945. In particular, the book contained a reconstruction of the events preceding the summary
execution of 43 RSI prisoners (an episode known as the “strage di Rovetta”). The historical account
was overlaid with private and personal recollections centred on the author’s family life. The book
devoted a number of pages to the tensions between the author’s relatives and family M., who lived in a part of the family house. The conflict stemmed from the differing political views of the applicant’s family, who were anti-fascist, and family M., who supported the fascist regime.
Some of the remarks made by the applicant in referring to the members of family M. were perceived
as defamatory by their heirs, who lodged a criminal complaint.
In 2007, following summary proceedings, the judge acquitted the applicant, finding that the offence
was not punishable. The judge held that the remarks complained of, although “objectively
defamatory”, were not punishable since they had been made by the applicant in the exercise of his
right to report and comment on historical events, a circumstance which exempted him from
responsibility under the Criminal Code. The civil parties appealed.
In 2010 the Court of Appeal ordered the applicant to pay a total of 16,000 euros in damages to the
civil parties (Mr and Ms M.’s heirs). The court took the view that two sets of remarks used in the
book were defamatory. The applicant appealed on points of law, without success.
THE DECISION OF THE COURT…
Article 6 § 2 (presumption of innocence)
The Court noted that the criminal proceedings had not ended with the applicant’s acquittal at first
instance, as the civil parties had lodged an appeal with the criminal courts seeking compensation for
the damage they had allegedly sustained. Under domestic law, the decision had not become final
and binding between the civil parties and the person being investigated in connection with the civil
aspects of the offence.
The Court added that the Court of Appeal had confined its assessment to the constituent elements
of the criminal offence, which had inevitably been the same as those examined at first instance,
before finding, in accordance with the rules on civil liability, that the applicant was civilly liable and
was thus required to compensate the civil parties for the damage sustained. The same observation
applied to the Court of Cassation proceedings.
Thus, the Court found that the domestic courts had not used language liable to cast doubt on the
applicant’s acquittal. Consequently, it held that the judgments given by the Court of Appeal and the Court of Cassation did not disclose any breach of the applicant’s right to be presumed innocent following his acquittal in the criminal proceedings. There had therefore been no violation of Article 6
§ 2 of the Convention.
Article 10 (freedom of expression)
The finding of civil liability against the applicant amounted to interference with the exercise of his
right to freedom of expression. The interference had been prescribed by law and had been aimed at
the “protection of the reputation or rights of others”.
The Court noted that the book in question, which combined the author’s personal recollections with
material obtained through his research in the archives, fell into a specific category of historical
research known as “microhistory”. The main aim of microhistory was to reconstruct experiences that
other historiographical approaches overlooked, by focusing on local history and first-hand accounts.
The domestic courts had taken this aspect into consideration in their assessment of the applicant’s
book.
The Court considered that the book could, to a large extent, be said to concern a historical debate.
According to the Court’s settled case-law, it was an integral part of freedom of expression to seek
historical truth, and a debate on the causes of acts which might amount to war crimes or crimes
against humanity should be able to take place freely.
More specifically, the Court considered that the historical nature of the book lay in the passages
dealing with the reconstruction of the Rovetta massacre, which, the author argued, had violated the
principles of international humanitarian law, and with the activities of resistance groups in the towns
and villages around Rovetta during the months preceding the fall of the fascist regime.
Nevertheless, the Court observed that the book had a dual, somewhat “hybrid”, character. The
historical part per se, which dealt with a matter of public interest entitled to heightened protection
under Article 10 of the Convention, was overlaid with the applicant’s personal account based on his
childhood memories and his views on the people in and around his family home. Among these, the
book described Mr and Ms M. (S.M. and G.G.) and the relationship between the couple and the
author’s family, which had been a source of tension and some bitter verbal exchanges.
Two sets of remarks had been deemed defamatory by the domestic courts: the description of S.M.
as G.G.’s “puppet husband”, and a remark holding G.G. responsible for adding the name of the
applicant’s grandfather to the list of persons to be arrested and shot as reprisals for a possible attack
against the German occupying forces.
With regard to the former, the Court had taken the view that the expression in question, read in
context and as part of the overall account, had not been justified by any public interest but on the
contrary had concerned S.M.’s private sphere.
As to the latter, the Court noted at the outset that in identifying G.G. as the person responsible for
the decision in question, the applicant had attributed responsibility to her for a specific and
particularly heinous act. In the Court’s view, the assertion that G.G. had been involved in drawing up
the list of hostages to be shot was not mere speculation but a specific statement of fact capable of
being substantiated by relevant evidence.
The Court considered that, within the framework of the book’s view of history, that assertion did not
add anything to the reconstruction of the events surrounding the “strage di Rovetta”, but on the
contrary was unconnected to the fresh historical elements which the applicant, to his credit, had
identified and made available to the public.
As to the balance to be struck between the right to freedom of expression and protection of
personality, the Court considered that the act which G.G. was alleged to have committed, giving
effect to the “Kesserling proclamation”, undoubtedly portrayed her personality in a very negative light. In the Court’s view, it was in the context of this claim, damaging to the couple’s reputation, that the description of her husband as a puppet (fantoccio – a pejorative term used to refer to
someone lacking character and free will) was to be read.
In any event, the Court observed that the applicant had not produced any information, either in the
book or during the proceedings, enabling the truth of the allegations to be established, as indeed
pointed out by the Court of Appeal in its meticulous analysis of the book. The Court therefore saw
no reason to depart from the assessment of the case made by the domestic courts.
As to the consequences of the order against the applicant to pay compensation to the civil parties,
the Court noted at the outset that the applicant had not addressed this point in his observations.
Furthermore, the Court of Appeal, in determining the amount of damages, had taken into account
the limited circulation of the book and the length of time that had elapsed between the events
described (1945) and publication of the memoir (2005). Hence, the Court considered that the
amount to be paid to the civil parties did not appear disproportionate, especially in view of the
seriousness of the claims made concerning G.G.
In sum, the interference with the applicant’s freedom of expression had not been disproportionate
in the present case and the finding of civil liability against him did not disclose any appearance of a
breach of Article 10 of the Convention. There had therefore been no violation of that provision.
Separate opinion
Judge Wojtyczek expressed a concurring opinion which is annexed to the judgment.