FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43525/98 by Leonardo GAUDIO against Italy

The European Court of Human Rights ( First Section) , sitting on 21 February 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 27 May 1998 and registered on 21 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Leonardo Gaudio, is an Italian national, who was born in 1951 and lives in Bari. He is represented before the Court by Mr A. Amenduni, a lawyer practising in Bari.

The facts of the case, as submitted by the applicant , may be summarised as follows.

The applicant is the manager of the Italian monthly newspaper Il Gazzettino di Adelfia .

In December 1990 an article was published about Mr F.B., who was the mayor of Adelfia until August 1988. It was entitled “Mayor [F.]B. seeks reimbursement on the basis of false invoices” (“ Il Sindaco [F.]B. chiede rimborsi con fatture false”) . In the article the applicant expressed himself as follows:

“The Adelfia Council settled some entertainment expenses incurred on 4 September of the same year [ 1988 ] by the then mayor, the socialist F.B., on the occasion of the passing through Adelfia of the long-distance runner L. M. Two invoices do not correspond to the day of the celebration. (...) The first invoice is dated 7 August 1988. (...) If the celebration was held on 4 September only, how is it possible that the ceremony had taken place some months in advance and on different days?”

“ Il Comune di Adelfia liquidava alcune spese di rappresentanza sostenute il 4 Settembre dello stesso anno [1988] dall’allora Sindaco , il socialista F.B., in occasione del passaggio da Adelfia del podista L.M. Due fatture non trovano alcun riscontro con il giorno in cui si e’ svolta la manifestazione (...) La prima fattura porta la data del 7 Agosto 1988 (...) Se la manifestazione si e’ svolta nella sola giornata del 4 settembre , com’e ’ possibile che i convenevoli sono stati consumati con alcuni mesi di anticipo ed in giorni differenti ?”.

Copies of the invoices were also published.

In 1988, the Adelfia City Council had been dissolved by a judgment of the Regional Administrative Court. On 5 August 1988 a Government Commissioner had been appointed and on 8 August 1988 Mr F.B., the mayor, had handed over to him.

On 24 September 1991, acting on a complaint by Mr F.B., the judge responsible for preliminary investigations committed the applicant for trial. He was accused of defamation.

On 31 January 1992 the District Court found the accused guilty of defamation within the meaning of Article 595 of the Criminal Code, granting mitigating circumstances. It sentenced the applicant to a fine of 800,000 Italian lire (ITL) and ordered him to pay costs and damages to be determined in separate proceedings. The court held that the defamatory nature of the article was evidenced principally by the fact that the applicant had associated the mayor’s name with a request for reimbursement of false invoices without the necessary checks of the truth of the events. In particular, the court noted that the applicant had only verified that Mr F.B. was Adelfia’s mayor at the time of the issue of the invoices and that if he had ascertained the truth more fully, the applicant would have noticed the errors in the Government Commissioner’s deliberation of 25 November 1988. In fact, the latter had wrongly linked both the invoices of 22 June 1988 and 7 August 1988 to the passing through of the long-distance runner on 4 September 1988. In reality that event had taken place on 7 August 1988 and the invoice of 22 June 1988 had been issued for a mineral-water supply to the City Council. The court held that the defamatory nature of the article was also evidenced by the fact that the article had been published more than two years after the event. The court added that the invoices could be not considered false because they had been issued for services which had really been provided. The court concluded that the applicant was not entitled to assert the right to report current events ( diritto di cronaca ) and comment on them ( diritto di critica ) because, in the absence of the truth of the facts and of their objective reference, the article appeared to be the result of a specific intention to muckrake in respect of a particular person with a defamatory aim.

The applicant appealed. Relying on the right to report current events and to comment on them, he submitted that the divulgation of the news was justified by the public interest in knowing how the Adelfia City Council was spending public money. He alleged that the article also contained a putative truth ( putativamente vera ) because he had examined the Government Commissioner’s deliberation and the enclosed documents. Consequently, he had acted in good faith in relation to the inexactitudes he was accused of.

Evidence was heard from the applicant who declared that before publication he had telephoned the long-distance runner who told him that he had not taken part in any celebration on 7 August 1988 because he had left Adelfia the day before.

In a judgment of 11 March 1996 the Court of Appeal acquitted the applicant because the facts did not amount to a crime. The court confirmed that the invoices could not be considered false because they had been issued for services which had genuinely been carried out. Nevertheless, it held that the applicant’s doubts and considerations about irregularities in the proceedings had been justified by adequate evidential support, namely the Government Commissioner’s deliberation, that is, a public document. Consequently the court held that the applicant had sufficiently ascertained the facts before publication and concluded that he had been acted in good faith about the inexactitudes he was accused of.

The General Prosecutor and Mr F.B. lodged an application with the Court of Cassation .

In a judgment of 10 October 1996 the Court of Cassation overturned the judgment of the Court of Appeal of 11 March 1996 and remitted the case to another division of the same court to re-examine it. The Court of Cassation held that the grounds of the Court of Appeal’s judgment of 11 March 1996 were affected by flawed logic, because it had confirmed that the invoices could not be considered false, but held that the applicant had sufficiently ascertained the facts before publication. The court alleged that the applicant, as the manager of the newspaper, could not have been unaware that on 4 September 1988, when the long-distance runner was passing through, Mr F.B. was no longer mayor, that the entertainment expenses could not be attributed to him and that the invoice expenses were genuine and not to be linked with the celebrations of 4 September 1988.

In a judgment of 27 June 1997 the Court of Appeal re-examined the case,  upheld the District Court’s judgment of 31 January 1992 and awarded costs against the applicant. The court held that the absence of good faith was evidenced first by the fact that the title of the article associated the mayor’s name with a request for reimbursement of false invoices; second by the fact that the applicant, as the manager of the newspaper, could not have been unaware of the political events in Adelfia and, in particular, that Mr F.B. was no longer the mayor at the time of the celebrations of 7 August 1988; and finally, by the fact that the applicant had stated that Mr F.B. had asked for reimbursements regardless of the fact that Mr F.B.’s name was written neither on the invoices nor in the Government Commissioner’s deliberation.

The applicant lodged an application with the Court of Cassation . First, he stressed an error in the Court of Cassation’s judgment of 10 October 1996 in relation to the date on which the long-distance runner had been passing through (it was on 7 August 1988 and not on 4 September 1988). He also stressed an error in the Court of Appeal’s judgment of  27 June 1997 which had stated that on 7 August 1988 Mr F.B. was no longer the mayor, whereas he had given the court the documentary evidence that Mr F.B. had handed over to the Government Commissioner on 8 August 1988. In relation to the accusations of defamation, the applicant alleged that he had noticed the error in the Government Commissioner’s deliberation about the date of the long-distance runner celebrations and about the City Council session of 22 June 1988 which the supply of mineral-water was destined to, because on that date no session had taken place. The applicant also alleged that before publication he had telephoned the long-distance runner who told him that he had never taken part in the celebration of 7 August 1988 because he had left Adelfia the day before. Finally, the applicant held that his aim was not to defame anyone, but to inform readers how public money was being spent by public authorities.

In a judgment of 27 November 1997, deposited with the registry on 18 February 1998, the Court of Cassation dismissed the application and upheld the Court of Appeal’s decision of  26 June 1996. The court held that the applicant’s allegations were irrelevant because he had not, in any case, given evidence that the invoices were false and that they had to be attributed to Mr F.B. Consequently, the court declared the appeal inadmissible and sentenced the applicant to a fine of  ITL 1,000,000 and awarded costs against him.

COMPLAINTS

1. The applicant complained under Article 10 § 1 of the Convention, of a violation of his right to freedom of expression as a result of the sentence passed by the Italian courts. He also referred to Article 6 § 1 of the Convention complaining of an unfair trial as the Italian courts did not acknowledge that, on the basis of the admitted documents, he was perfectly entitled to suspect that Mr F.B. had sought reimbursement of false invoices.

2. Finally, the applicant complained, under Article 6 § 1 of the Convention, about the length of the criminal proceedings.

THE LAW

1. The applicant complained under Article 10 of the Convention that the sentence passed by the Italian courts violated his right to freedom of expression.

Article 10 of the Convention provides as follows:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States form requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subjected to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

The applicant also referred to Article 6 § 1 of the Convention and complained that his trial was unfair because the Italian courts did not acknowledge that, on the basis of the admitted documents, he was perfectly entitled to suspect that Mr F.B. had sought reimbursement of false invoices. The Court considers that this complaint is an aspect of the complaint under Article 10 of the Convention insofar as it regards the reasons invoked by the national authorities to justify the applicant’s conviction for defamation. However, no separate issue arises in this regard under Article 6 § 1 of the Convention.

The Court finds first that the applicant’s conviction for defamation constitutes an interference with the exercise of his freedom of expression. Such interference is in breach of Article 10 of the Convention, unless it is prescribed by law and it is necessary in a democratic society for one of the aims mentioned in paragraph 2 of this provision.

In this respect the Court first notes that the applicant’s conviction for defamation was based on section 595 of the Criminal Code and therefore prescribed by Italian law.

The Court considers that the interference was aimed at protecting “the reputation or rights of others”, namely the major of Adelfia , which is a legitimate aim under Article 10 § 2 of the Convention.

As to the question whether the interference at issue was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention, the Court recalls that the “necessity” for any restriction on freedom of expression implies the existence of a “pressing social need” which must be convincingly established primarily by the national authorities. In making their assessment, they enjoy a certain margin of appreciation (see Eur . Court HR, Worm v. Austria judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, pp. 1550,1551, § 47).

The Court also recalls that the task of the Convention organs, in exercising their supervisory function, is not to take the place of the national authorities but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In so doing, the Convention organs must look at the “interference” complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”(see Eur . Court HR, Worm v. Austria, cited above, § 47).

Factors to be analysed in this respect, in the case of a journalist convicted for defamation, may include the seriousness and the breadth of the accusations made by the journalist, the question whether there had been adequate previous research and factual basis for the accusations, the journalist’s good faith and respect for the ethics of journalism (see Eur . Court HR, Prager and Oberschlick v. Austria judgment of 26 April 1995, Series A no. 313, p.18, § 37).

The Court observes that, in the article at issue, the applicant referred to a serious accusation in respect of Mr F.B., that is, an alleged request for reimbursement on the basis of allegedly false invoices. The Court recalls that the attribution of specific acts is not covered by the protection of Article 10 unless it has a factual basis, especially considering the seriousness of such accusations. As a matter of fact, these were allegations of fact susceptible of proof (see Nilsen and Johnsen v. Norway , no. 23118/93, § 49, to be published in the official reports of the Court’s judgments and decisions).

The Court considers that the reasons adduced by the national authorities to justify the conviction of the applicant appear to be relevant and sufficient insofar as they considered that the applicant had not undertaken adequate previous research before the publication of the article. In this respect, the Court notes that the applicant did not produce any evidence that the facts given in the article were true and, in particular, that the invoices were false and that they had to be attributed to Mr F.B. (see, mutatis mutandis , Dalban v. Romania , no. 28114/95, ECHR 1999-VI, p. 221, § 50).

In these circumstances, the applicant’s conviction for defamation can be regarded as “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. Consequently this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant further complained, under Article 6 § 1 of the Convention, about the length of the criminal proceedings.

Article 6 § 1 of the Convention provides, insofar as relevant:

“In the determination (...) of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (...)”.

The Court notes that the applicant failed to make use of the remedy  introduced by Law n° 89 of 24 March 2001 and therefore did not exhaust domestic remedies available under Italian law (see Brusco v. Italy , no.69789/01 of 6 September 2001).

It follows that this part of the application must be rejected for failure to exhaust domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President