CONCURRING OPINION OF JUDGE CONFORTI, JOINED BY JUDGE LEVITS

( Translation )

I agree with the finding of a violation of Article 10 of the Convention, but for different reasons than those given in the judgment.

The majority clearly separated the applicant’s complaint concerning the procedure before the Italian courts, which it considered exclusively under Article 6, from his complaint concerning the substantive guarantees of freedom of expression, which it examined from the standpoint of Article 10.

In my opinion, on the contrary, 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 to hear evidence from the complainant, who could have been cross-examined by the applicant’s counsel, and rejected all requests to adduce written evidence. In a trial for defamation by a journalist of a judicial officer in the public prosecution service, such conduct, 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. The Italian courts did indeed act 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 accept the applicant’s arguments, in which he insisted on the need to assess the procedure from the standpoint of Article 10, and I consider that there has been a violation of that provision.