The sentencing of a newspaper editor to a prison sentence for defamation of a judge was “manifestly disproportionate” by violating freedom of expression

JUDGMENT

Sallusti v. Italy  07.03.2019 (no. 22350/13)

see here

SUMMARY

Prison sentence of a famous Italian editor-in-chief of for articles published in his newspaper. The national courts found that these articles had falsely reported that a 13-year-old girl had been forced to perform an abortion by her parents and the custodian judge, despite the earlier explanations in the press that the girl itself wanted the abortion. The Court considered that the applicant had offended the honor, reputation and privacy of the girl, his parents and the judge, but the imposition of a criminal sentence was manifestly disproportionate and can not be described as a ‘necessary’ restriction on the applicant’s fundamental right freedom of expression. Infringement of Article 10 of the ECHR.

PRINCIPAL FACTS 

The applicant, Alessandro Sallusti, is an Italian national who was born in 1957 and lives in Carate Urio
(Como) (Italy).

In 2007 Mr Sallusti was editor-in-chief of the Libero newspaper. In February that year Libero
published two articles stating that a 13-year-old girl had been forced to have an abortion by her
parents and a guardianship judge. Other media had covered the incident the previous day but they
had ultimately reported that she had not been forced into the abortion but had wanted it herself.
In April 2007 the guardianship judge filed a criminal complaint of defamation against Mr Sallusti. He
was found guilty in January 2009 of failure by a newspaper editor-in-chief to control what had been
published (omesso controllo sul contenuto dell’articolo diffamatorio) in relation to one of the articles
and of aggravated defamation with regard to the other. He was fined, ordered to pay damages and
costs and to publish the court’s judgment.

On appeal, the penalty was increased in June 2011 to one year and two months’ imprisonment and
the damages were tripled to 30,000 euros. The Court of Cassation upheld the custodial sentence in
September 2012, however, the court executing the sentence let him serve it under house arrest.
In December 2012 Italy’s President, referring in his decision to criticism by the European Court of
Human Rights of custodial penalties for journalists, commuted the applicant’s sentence into a fine.
He had by that time spent 21 days under house arrest.

THE DECISION OF THE COURT 

There was no dispute that Mr Sallusti’s conviction had constituted an interference with his right to
freedom of expression and that it had been prescribed by law, namely Articles 57 and 595 of the
Criminal Code and section 13 of the Press Act.

The Court accepted that that interference had been intended to protect the reputation and rights of
the 13-year old girl and her parents as well as those of the guardianship judge.

The Court also agreed with the national courts’ findings that the articles under Mr Sallusti’s control
had given false information, despite the clarifications reported the day before. He had thus seriously
tarnished the honour and privacy rights of all those involved.

Imposing a criminal sanction had, however, been manifestly disproportionate. There had been no
justification for imposing a prison sentence. Even though it had been commuted into a fine, that
measure had been subject to the discretion of Italy’s President. In any case, even if Mr Sallusti had
been dispensed from serving his sentence, his conviction had not been expunged.

The courts had thus gone beyond what would have amounted to a “necessary” restriction on

Mr Sallusti’s freedom of expression, in violation of Article 10 of the Convention.

The Court nonetheless pointed out that positive steps had been taken in Italy recently, such as
limiting the use of criminal sanctions for defamation and introducing the removal of imprisonment
as a sanction for defamation.

Just satisfaction (Article 41)

The Court held that Italy was to pay Mr Sallusti 12,000 euros (EUR) in respect of non-pecuniary
damage and EUR 5,000 in respect of costs and expenses(echrcaselaw.com editing). 


ECHRCaseLaw

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