DISSENTING OPINION OF JUDGE CONFORTI

( Translation )

Annexed to the Chamber’s judgment is a separate opinion in which I criticised the approach followed by the majority, particularly the fact that they considered the complaint about the procedural aspect separately from the complaint under Article 10. I would have preferred an overall approach focused on Article 10. The Grand Chamber has now endorsed the Chamber’s approach and, like the Chamber, has held that the proceedings were not conducted in a manner incompatible with the principles laid down in Article 6. Moreover, it did not agree with the Chamber on the Article 10 issue, since it found that Article 10 had not been breached. For my part, I can only repeat the opinion I expressed in connection with the Chamber’s judgment.

In my view, the issues raised in cases of this type are still Article 10 issues even where the procedure followed is concerned; and what can normally be tolerated from the point of view of due process according to the fair-trial rules laid down in Article 6 may not be acceptable when it is a matter of verifying whether an interference with freedom of expression is “necessary in a democratic society”. In the present case the courts refused all requests for permission to adduce evidence and, what to my mind is exceptionally serious, refused to take evidence from the complainant, who could have and should have been examined by the applicant’s counsel. It is not right to speculate beforehand about what the result of such an examination might be.

In the trial of a journalist for defamation of a judicial officer in the public prosecution service, the conduct of the domestic courts, whether intentional or not, gives the clear impression of intimidation, which cannot be tolerated in the light of the Court’s case-law on restrictions of the freedom of the press. Indeed, the Italian courts acted very speedily in determining the charges against the applicant in less than four years, at three levels of jurisdiction. However, that circumstance too, although praiseworthy from the point of view of the reasonable length of judicial proceedings, cannot fail to reinforce – in a country condemned many times for the length of its proceedings – the impression I mentioned above.

That is why I consider that there has been a violation of Article 10.

In expressing my opinion, I do not need to emphasise the importance I attach to the freedom of the press. In that connection it is striking how many actions are brought by judicial officers against journalists in Italy and how large are the sums awarded by the Italian courts in damages, as the Press Association complained in 1999 (see Ordine dei giornalisti, Tutela della reputazione e libertà di stampa, Contenuti e riflessioni sul Convegno di Roma Citazioni e miliardi , Rome, 1999).

As freedom of the press is my only concern, I regret that I have had to express my opinion in a case which involves a judicial officer – the third-party intervener – whom every Italian citizen must admire for risking his life in the fight against the Mafia.