JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK AND GROZEV

(Translation)

1. We cannot agree with the view expressed by the majority that there has been no violation of Article 10 of the Convention in the present case.

2. The applicant submitted his complaint alleging a violation of his freedom of expression in the context of a conflict between the rights of two individuals, namely between his own freedom of expression and the right of another person to the protection of his reputation. Moreover, the majority have emphasised the fact that the interference with the applicant ’ s freedom of expression sought to “maintain the authority and impartiality of the judiciary”, of which X was a member.

There is no doubt that the need to protect the reputation of others justifies certain restrictions on freedom of expression. A person ’ s reputation must be protected effectively and any damage caused to it must entail a sanction . In situations of conflict between rights , the national authorities must carefully weigh up the rights in question and seek solutions whereby the rights are upheld to the highest degree possible. In any event, as the majority have observed, any interference with a right must always be justified by relevant and serious reasons, and remain proportionate to the aim pursued .

3. In its case-law the Court has identified a certain number of factors which must be analysed in order to determine whether a restriction on freedom of expression is justified ( see, in particular, Von Hannover v . Germany ( no. 2) [GC], nos. 40660/08 and 60641/08, §§ 109-113, ECHR 2012, and Axel Springer AG v . Germany [GC], no. 39954/08, §§ 89-95, 7 February 2012). Among these factors can be mentioned in particular : the question whether the remarks in question contribute to a public debate ; the content, form and consequences of the remarks ; the conduct of the person affected ; and the severity of the sanction impos ed .

In the present case, the reasoning of the judicial decisions delivered in Italy appears not to have taken those various factors into account . The Italian courts confined themselves to establishing that the applicant had actually made the offending remarks , that those remarks had been disseminated among the judges of the court in question , and that they were directed at a particular judge in that court . They further took the view that the remarks had overstepped the permissible limits . But no analysis of the relevant circumstances, as identified in the Court ’ s case-law, was carried out . The m e thodolog y applied by the domestic courts does not meet the requirements of A rticle 10 of the Convention, as interpreted by the Court . In particular, the reasons given by the national courts cannot be regarded as satisfactory in terms of the requirement to give relevant and serious reasons in order to justify any interference with the right to freedom of expression .

4. In assessing restrictions on freedom of expression , it is necessary to pay particular attention to the content of the impugned remarks and especially to consider whether the person concerned was mentioned by name and whether any conduct likely to damage his or her reputation was clearly attributed to that person . While a false insinuation may have extremely serious consequences for the reputation of the individual concerned, the fact that he or she is not expressly named may nevertheless, in certain situations, limit the effects of the remarks .

In examining the compatibilit y of an interference with the requirements of A rticle 10 § 2 of the Convention, it is also necessary to determine the actual cons e quences of the remarks . To that end one must take account of the type of readership or audience for which the remarks are intended , and in particular the number and profession of the addressees . We observe that the domestic courts did not take these factors into consideration, even though they were crucial for the examination of the case . We also regret that the majority paid no heed to these questions.

5. We would observe that, in the present case, the applicant decided not to mention the judge expressly by name , leaving a certain ambiguity about the identity of the person concerned . Moreover, the conduct imputed to judge X was presented as follows : “wilfully mak[ing] mistakes, by malicious intent, serious misconduct or negligence” . The remarks combined observation of certain facts and subjective assessment of those facts . The way in which the applicant expressed his remarks somewhat lessened their forcefulness .

We would also note that the impugned remarks were addressed to a restricted and specific readership , consisting only of judges . The general public w ere not informed of the content of the all e gations disseminated to those judges . In that context , there are three major points to be highlighted . Firstly, the various professional groups are often bound together by a corporatist spirit and solidarity , thus affecting the way they perceive criticisms against their members . Secondly , judges are naturally very wary about remarks that are not supported by convincing evidence . Thirdly , judges are used to receiving complaints – sometimes very aggressive ones – from individuals who are unhappy with judicial decisions, or indeed from their lawyers . In most cases such complaints have no concrete i mpact on the image of the judge thus criticised . These various factors related to the specificity of the readership considerably lessen the consequences of the applicant ’ s remarks . It is questionable whether his letter had a real impact on the image of the judge concerned among that judge ’ s colleagues .

6. Criminal proceedings were brought against the applicant and he was sentenced to a fine of 400 euros for committing a criminal offence . In addition, the domestic courts awarded the complainant judge 15 , 000 euros in damages , which is a significant sum . In our view, having regard to the nature of the remarks made and the specificity of the very limited readership , the sanction applied , seen in the whole context , is manifestly disproportionate in the circumstances of the case .

7. The majority justify the interference with the applicant ’ s freedom of expression not only by the need to protect a person ’ s re putation but also by the need to maintain the authority of the judiciary . In this perspective , the interference in question was supposed to contribu te to protecting the authority of the justice system in Italy . In our opinion, on this point, given the specific aspects of the case mentioned above , the interference with the applicant ’ s freedom of expression is likely to have quite the opposite effect .