The applicant, Mr Antonio Esposito, is an Italian national who was born in 1940 and lives in Rome. He was represented before the Court by Mr P. Cerruti, a lawyer practising in Naples. The Italian Government (“the Government”) were represented by their Agent, Mr I.M. Braguglia, and their co-Agent, Mr F. Crisafulli.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings for the applicant’s compulsory transfer
The applicant, a judge, is currently a member of the Court of Cassation (Second Criminal Division).
The facts of the present case concern proceedings for the applicant’s compulsory transfer on the ground of “environmental incompatibility” (incompatibilità ambientale), instituted by the National Council of the Judiciary (“the NCJ”) at a time when the applicant held office in another court. In the course of the proceedings, two members of the NCJ (A. and C.) made a number of statements which the applicant considered defamatory. At the end of his term as a member of the NCJ, A. was appointed as a judge of the Court of Cassation (Third Civil Division).
The proceedings ended with a decision by the NCJ to transfer the applicant.
The applicant subsequently applied to the Regional Administrative Court (“the RAC”), which set aside the decision on 27 March 1996, holding in particular that the statements in issue concerned “new information” of which the applicant should have made aware beforehand in order to have the opportunity to make submissions in reply. The NCJ did not appeal against that judgment, which became final.
In response to a request by certain members of the NCJ, it was decided to publish the documents relating to the transfer proceedings in the NCJ’s official bulletin. The applicant challenged that decision in the RAC, which ordered a stay of its execution. An appeal was lodged against the RAC’s order. The parties have not informed the Court of the outcome of those proceedings.
In addition, on the basis of the documents relating to his compulsory transfer, the applicant was accused of corruption and abuse of office. On 9 February 1996 the proceedings concerning those accusations were discontinued by order of the Naples investigating judge (giudice per le indagini preliminari). Two sets of disciplinary proceedings were instituted in respect of the same allegations. In two decisions delivered on 18 February 1997 and 2 October 1998 the disciplinary section of the NCJ ruled that there was no case to answer.
The applicant himself subsequently requested a transfer. He was moved to the Court of Cassation.
According to the applicant, the initial decision to transfer him was reported by the State broadcaster Rai’s Televideo teletext channel, by a large number of privately owned television channels and in the press.
2. The applicant’s civil claim for compensation
On 26 April 1995 the applicant brought a claim for compensation against A., C., V. and M. in the Rome District Court, alleging that the statements they had made to the NCJ during the transfer proceedings had damaged his honour and infringed his right to protection of his reputation.
While the case was being prepared for hearing, A. and C. objected that they should enjoy immunity under section 32 bis of Law 195/1958, introduced by section 5 of Law no. 1 of 3 January 1981. By virtue of that provision, members of the NCJ cannot be prosecuted for opinions expressed in the performance of their duties (see “Relevant domestic law and practice” below). The applicant submitted in reply that the immunity clause in question applied only in the context of criminal proceedings.
On 6 November 1995 the judge responsible for preparing the case referred the matter to the bench and invited the parties to make their final submissions.
On 22 December 1995 the Rome District Court held a hearing at which the parties made their final submissions. Judgment was then reserved.
In a judgment deposited with the registry on 15 January 1997 the District Court dismissed the applicant’s claim for compensation.
Referring to judgment no. 148/1983 of the Constitutional Court, it held that it would have been illogical to grant immunity from criminal prosecution for certain acts while retaining the possibility of civil proceedings in respect of the same conduct. It took the view that the immunity in question should apply to civil and disciplinary proceedings as well as to criminal proceedings, so that members of the NCJ could remain free from interference in performing their duties.
In conclusion, the Rome District Court found that A. and C. should enjoy immunity; it therefore held that the applicant’s requests for investigative measures should not be granted. It also dismissed the compensation claim against V. and M.
3. The appeal proceedings
The applicant appealed against that judgment. He argued, in particular, that during its scrutiny of the Bill introducing section 32 bis of the Law cited above, Parliament had replaced the wording “cannot be prosecuted” (non sono perseguibili) with “cannot be punished” (non sono punibili).
In a judgment of 4 April 2000 the Rome Court of Appeal dismissed the applicant’s appeal in so far as it was directed against C. and allowed it in so far as it concerned the statements by A.
It held that the immunity provided for in section 32 bis should be limited to the expression of opinions relating to “the exercise of the powers and duties of members of the NCJ”. Whereas C. had expressed opinions while remaining within the scope of his duties, A.’s comments had gone beyond what was normal in a situation of that kind. The Court of Appeal ordered A., V. and M. to pay the applicant compensation.
4. Proceedings in the Court of Cassation
A. appealed on points of law to the Court of Cassation, arguing that the immunity provided for in section 32 bis covered any statement made within the NCJ. The applicant lodged a cross-appeal against A. and an appeal on points of law against C.
(a) Challenges by the applicant
The case was set down for hearing before a five-member bench of the Second Civil Division of the Court of Cassation. On 12 February 2001 the applicant asked for three of the judges to withdraw on account of their links with A.
On the same day, counsel for the applicant asked for the case to be heard by the combined divisions of the Court of Cassation (Articles 374 and 376 of the Code of Civil Procedure).
The President of the Court of Cassation allowed the request. Counsel for the applicant then asked the President to ensure that, in the interests of impartiality, the bench of the combined divisions was made up of judges “who have had no dealings of any kind with A. (or, of course, with [his own client])”.
On 9 July 2001 the applicant’s lawyers complained to the President that the composition of the bench did not comply with the rules on representation of the presidents of the different divisions.
On 10 July 2001 the applicant requested two of the judges on the bench of the combined divisions to withdraw on account of their links with A. He added that, if they did not do so, his request was to be treated as an application for the removal of the judges in question.
On 16 November 2001 the applicant observed that one of the two judges (Ca.) had not withdrawn. He therefore asked for a decision on his application for that judge’s removal.
In a decision of 22 November 2001 the combined divisions dismissed his application.
On 10 December 2001 the applicant applied for that decision to be set aside, arguing that it breached certain procedural rules.
On 7 January 2002 counsel for the applicant likewise applied for the decision to be set aside in so far as it concerned the order for his client to pay costs.
On 15 January 2002 the applicant again requested Ca. to withdraw on the ground that he was now president of the division of which A. was a member. His request was unsuccessful.
(b) Examination of the appeals
On 17 January 2002 the combined divisions held a hearing. In a judgment adopted that day and deposited with the registry on 11 March 2002 they allowed A.’s appeal but dismissed the applicant’s cross-appeal against A. and his appeal against C.
The Court of Cassation outlined the following legal principle:
“The guarantee laid down in section 5 of Law no. 1/1981 has a broader scope than the applicant maintained, extending to the sphere of civil liability in cases concerning the expression of an opinion directly linked to a vote taking place in the course of the NCJ’s work and relating to the subject under discussion. This guarantee would be devoid of purpose if members of the NCJ, who are exempted from all criminal liability, were on the other hand exposed to the risk of civil proceedings for activities involving the performance of the duties assigned to them; this would have a serious effect on their function itself.”
The combined divisions went on to examine the Court of Appeal’s reasoning as to A.’s liability. They decided to quash that part of the judgment, remitting the case to a different division of the Rome Court of Appeal.
However, they upheld the Court of Appeal’s judgment in so far as it dismissed the applicant’s claims against C. In accordance with the law, the part of the Court of Appeal’s judgment that was not quashed became final immediately.
In respect of the part of the judgment that was quashed, the parties had one year and forty-five days from the date on which the Court of Cassation’s judgment had been deposited to institute proceedings in the Court of Appeal. However, none of the parties availed themselves of this option. Accordingly, on 27 April 2003 the Court of Cassation’s judgment became final in so far as it allowed the appeal by A.
B. Relevant domestic law and practice
1. The Constitution
Article 104 § 1 of the Constitution provides that the judiciary constitutes “a branch that is autonomous and independent of all other powers”. By Article 105, the NCJ has jurisdiction over “appointments, assignments and transfers, promotions and disciplinary measures concerning judges”. The NCJ is presided over by the President of Italy; the President of the Court of Cassation and Principal State Counsel at that court are ex officio members. Two-thirds of the other members are elected by all the ordinary judges “from among the [judges] belonging to the various categories”, and one-third by Parliament. The last-mentioned group, known as “lay members” of the NCJ, are elected from among university law professors and practising lawyers with at least fifteen years’ experience. Members are elected for a four-year term and cannot be immediately re-elected. During their term of office they may not be registered on professional rolls, or be members of Parliament or a regional council (Article 104 §§ 2, 3, 4, 6 and 7 of the Constitution).
Article 107 §§ 1, 2 and 3 of the Constitution reads as follows:
“Members of the judiciary may not be removed from office (sono inamovibili). They may not be dismissed or suspended from office or assigned to other courts or functions except by a decision of the National Council of the Judiciary, taken either on the grounds and with the guarantees for the defence set forth in the [law on] the judiciary or with their own consent.
The Minister of Justice has the power to initiate (promuovere) disciplinary proceedings.
Judges may be distinguished from one another only by their different functions.
Article 110 provides that, without prejudice to the powers of the NCJ, the organisation and functioning of services relating to justice are the responsibility of the Minister of Justice.
2. Law no. 1 of 3 January 1981
Law no. 1 of 3 January 1981 amended Law no. 195 of 24 March 1958 on the establishment and operation of the NCJ. Thus, section 5 of the 1981 Law added a new section 32 bis to the 1958 Law, worded as follows:
“Members of the National Council of the Judiciary cannot be punished for opinions expressed in the performance of their duties in connection with the subject under discussion.”
On 31 January 1983 the Rome District Court objected that section 5 of Law no. 1/1981 was unconstitutional in that it exempted members of the NCJ from any criminal liability for abuses of authority committed in the performance of their duties. In judgment no. 148 of 2 June 1983 the Constitutional Court dismissed the plea of unconstitutionality as being ill-founded. It observed in particular that the provision in issue was favourable to defendants in that it guaranteed members of the NCJ a “reinforced right” to freedom of expression in the performance of their duties. The immunity it established was different from parliamentary immunity, since members of parliament “[could] not be prosecuted” for their opinions, whereas members of the NCJ “[could] not be punished”. Accordingly, they could not escape the jurisdiction of the criminal courts, which could assess whether the conduct complained of had exceeded the limits laid down in section 5 cited above, namely whether or not it concerned “the subject under discussion”. Lastly, the granting of immunity to the NCJ’s members was justified by its position and its functions as the body guaranteeing the autonomy and independence of the judiciary.
3. Law no. 511/1946
Law no. 511/1946 lays down “guarantees relating to the judiciary”. It provides, as a general rule, for the irremovability of judges with a view to preserving their independence. It remains possible, however, to order the compulsory transfer of judges who are in a position of “environmental incompatibility” or who, “for any reason, even through no fault of their own, are unable to perform their duties in their current post with the requisite independence and impartiality”.
1. Relying on Article 6 § 1 of the Convention, the applicant complained of an infringement of his right of access to a court.
2. He further complained that his inability to obtain compensation for allegedly insulting statements made within the NCJ amounted to a violation of his right to respect for his private and family life as guaranteed by Article 8 of the Convention.
3. Relying on Article 13 of the Convention, the applicant also complained that Italian law did not afford him an effective remedy in respect of his complaints under Articles 6 and 8.
4. In addition, he alleged that the combined divisions of the Court of Cassation did not constitute an “impartial tribunal” within the meaning of Article 6 § 1 of the Convention.
5. Lastly, relying on Article 14 of the Convention, the applicant submitted that the immunity granted to members of the NCJ was discriminatory.
A. Complaints under Article 6 § 1 of the Convention (access to a court)
The applicant submitted that the decision to grant A. and C. immunity under section 32 bis of Law no. 195/1958 had breached his right of access to a court. He relied on Article 6 § 1 of the Convention, the relevant parts of which provide:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal ...”
1. Objection of failure to exhaust domestic remedies
The Government raised a preliminary objection of failure to exhaust domestic remedies on the ground that, following the Court of Cassation’s judgment of 17 January 2002, the applicant had not applied to resume the proceedings in the Court of Appeal. In that connection they pointed out that the Court of Cassation had explained that the court dealing with the case should ascertain whether the expression of opinions by members of the NCJ was connected to the subject under discussion and to a particular vote. The Court of Cassation had also criticised the approach pursued by the Court of Appeal, which had not carried out this prior check but had examined from the outset whether the statements in issue were truthful or defamatory.
The Government added that, although the Court of Cassation had acknowledged that section 32 bis of Law no. 195/1958 was applicable to a civil claim for compensation, it had dismissed the “extreme” argument by the defence that any statement made in the course of a session of the NCJ was ipso facto covered by immunity. Accordingly, the Government argued, had the proceedings in the Court of Appeal been resumed, they would not have been manifestly bound to fail.
The applicant disputed the Government’s arguments. He observed firstly that the Court of Cassation’s judgment of 17 January 2002 was final in so far as it concerned his claim against C. The proceedings could have been resumed only in relation to A.
He further noted that the combined divisions of the Court of Cassation had pointed out that the court examining the merits of the case did not have jurisdiction to rule on the content of the statements in question and whether they were truthful or defamatory. He submitted that this procedural bar had prevented him from securing protection of his right to honour and obtaining redress for the damage he had sustained. In the Court of Cassation’s opinion, members of the NCJ should enjoy immunity even if it had been established that their statements were false and offensive. Furthermore, the combined divisions had stated that the court to which the case was remitted should take account of the fact that “the subject under discussion was Mr Esposito’s transfer on the ground of environmental incompatibility”. The applicant thus inferred that all his attempts to prove that the matters related by A. had no connection with the subject under discussion had been rejected by the Court of Cassation. In his view, that bore out A.’s argument that in compulsory transfer proceedings, the discussion necessarily concerned the events that gave rise to the proceedings, so that any considerations as to the character of the judge in question were relevant.
The applicant submitted that only A. would have had an interest in resuming the proceedings in the Court of Appeal with a view to gaining the moral satisfaction of an acknowledgment that his statements were lawful and the reimbursement of his legal costs. He contended that, in his case, the resumed proceedings would have had no reasonable prospects of success.
The Court does not consider it necessary to rule on the Government’s objection. Even assuming that domestic remedies have been exhausted, this complaint is in any event inadmissible for the reasons set out below (see, mutatis mutandis, M.D.U. v. Italy (dec.), no. 58540/00, 28 January 2003).
2. Merits of the complaint
(a) The parties’ submissions
(i) The Government
The Government submitted that the question whether the statements by A. and C. were defamatory and had had an undue influence on the procedure for the applicant’s compulsory transfer was not for the Court to determine but should be left to the assessment of the national authorities. They added that the applicant’s transfer had been revoked by the administrative courts and that his claims had therefore been fully satisfied in that respect.
As to the domestic courts’ interpretation of section 32 bis of Law no. 195/1958, which the applicant had challenged by arguing that the immunity laid down in that provision should apply in criminal proceedings alone, the Government submitted that the interference in issue had had a basis in law and that the Court should confine itself to examining whether the relevant domestic provisions had been interpreted in a manner that was not manifestly erroneous, illogical or arbitrary, without conducting a detailed hermeneutic analysis of national legislation.
They accordingly asked the Court to accept as a starting-point that Italian law exempted members of the NCJ from all liability (criminal, civil and administrative) for statements made in the performance of their duties. In any event, the Court of Cassation’s interpretation was based on an “undeniable logic”: since the NCJ was by its very nature required to make assessments, in some cases severe, on judges and their conduct, its members had to be protected from the threat of any individual court action; this also served to guarantee the free, open and constructive nature of debates. Furthermore, the Court had itself considerably broadened the Convention concept of “criminal”, and an order to pay a substantial sum in compensation could be regarded as a “penalty” that was no less severe in practice than a suspended fine, the likely outcome of the institution of criminal proceedings for acts such as those in issue in the present case.
The Government also pointed out that in the context of the NCJ, a compulsory transfer was not a disciplinary measure and was not a sanction imposed on a judge. Its sole purpose was to preserve the prestige of the judiciary and public confidence in the administration of justice. However, in order to protect the image and the private and professional life of the judge concerned, compulsory transfers took place after a “quasi-judicial” procedure: the judge was the subject of a formal allegation and had the right to a hearing and to be assisted by counsel. During discussions within the NCJ, all members could express their opinions, although the judge in question had to be informed of those opinions. Failure to comply with that requirement was what had led the RAC to revoke the applicant’s compulsory transfer.
The first issue to determine, as the Court of Cassation had emphasised, was whether the statements in question were relevant to the ongoing debate within the NCJ. Any assessment of whether they were truthful or defamatory could not be made until a later stage, and only if the above question was answered in the negative. The purpose of the immunity was to afford protection to statements which in other circumstances could give rise to a form of liability.
In the Government’s submission, any expression of thought – relating to facts or opinions – that was intended to give a professional picture of a person who was the subject of a compulsory transfer procedure was in principle relevant to debates within the NCJ and should be protected through exemption from liability for the person expressing the thought. The Government submitted that if the Court considered that principle to be in compliance with the Convention, it was not required to assess the seriousness of the statements in issue.
They requested the Court to apply, by analogy, the principles established in relation to parliamentary immunity in A. v. the United Kingdom (no. 35373/97, ECHR 2002-X) and Cordova v. Italy (nos. 1 and 2) (nos. 40877/98 and 45649/99 respectively, ECHR 2003-I). The reasons for granting immunity to members of the NCJ were the same. Furthermore, Law no. 1 of 3 January 1981 was also designed to preserve the separation of powers.
In that connection the Government observed that the NCJ was a body provided for in the Constitution and was independent of the traditional powers (legislature, executive and judiciary). Since its duties were directly linked to ensuring the independence of the national legal service, the NCJ performed a crucial role in a democratic society and its independence, even from the judiciary, should be preserved.
In the instant case it was not disputed that A. and C. had made the comments in issue on the NCJ’s premises in the course of one of its sessions. They had therefore been acting in the performance of their duties. In that respect the case differed from the Cordova cases cited above.
Furthermore, the statements in question had not been released outside the NCJ’s premises, since their publication in the body’s official bulletin – whose readership was in any event limited – had been halted. In that respect the case differed from A. v. the United Kingdom.
Referring to Ashingdane v. the United Kingdom (28 May 1985, Series A no. 93) and Fayed v. the United Kingdom (21 September 1994, Series A no. 294-B), the Government further pointed out that the Court had found that certain legislative provisions that protected ordinary staff members of administrative authorities were compatible with the Convention. In the latter case immunity had been granted to ad hoc inspectors appointed by the Secretary of State to conduct an administrative investigation; their status was the same as, or even inferior to, that of members of the NCJ. Furthermore, like Mr Fayed, the applicant in the present case held a public position and was therefore different from a private individual.
Lastly, the applicant had not been refused access to the courts in relation to all the defendants. Two of them had even been ordered to pay damages for harming his reputation. As honour was a fundamentally non-pecuniary asset, the Government concluded that it was questionable whether the applicant was a “victim”.
(ii) The applicant
The applicant disputed the Government’s arguments. He contended that the procedure for his compulsory transfer had been marked by a significant number of irregularities, by leaks of information and by a desire to “persecute” him; all these factors showed that he could claim, on arguable grounds, to be entitled to a civil right to compensation. He further observed that all the criminal or disciplinary proceedings instituted against him had been discontinued. In addition, the clearly defamatory nature of the statements in issue was a factor to take into consideration in assessing the proportionality of the interference with his exercise of his right of access to a court.
The Court of Cassation, in an unforeseeable departure from precedent, had gone against the letter of the law in granting absolute immunity to members of the NCJ for any statements made in the performance of their duties in connection with the subject under discussion.
The legislation had provided only for a “ground for non-punishment” (causa di non punibilità), which was clearly limited to the criminal sphere. The clause in question was apparent both from the wording of section 5 of Law no. 1/1981 and from the drafting history. The wording “cannot be prosecuted” (non possono essere perseguiti), which had appeared in the first draft of the Act, had been replaced by “cannot be punished” (non sono punibili). That conclusion was borne out by legal experts and by the case-law prior to the combined divisions’ judgment. In that connection, the applicant noted that in judgment no. 148/1983 the Constitutional Court had described the scenario envisaged in section 5 as a “specific [and] strictly delimited ground for non-punishment” and as a “ground for non-punishment carefully delimited by Parliament with the precise and explicit intention of preventing the safeguard from being transformed into an instrument of abuse”.
The combined divisions’ decision had therefore breached the principle of legal certainty and the rule that provisions restricting fundamental rights were to be strictly construed. The Court of Cassation had granted members of the NCJ an immunity equivalent to, or even greater than, that afforded by Article 68 of the Constitution to members of Parliament. Yet the NCJ did not represent the people and did not have Parliament’s constitutional function. Accordingly, the principles established in relation to parliamentary immunity were not applicable by analogy to the NCJ.
The applicant added that parliamentary immunity was subject to prior scrutiny coupled with a procedure that provided for a resolution by a legislative chamber and the possibility for the court considering the case to refer a conflict between State powers to the Constitutional Court. The same could not be said of the immunity granted to members of the NCJ, who had carte blanche to proffer insults and make false statements. As a result, victims were denied the right of access to a court to protect their professional reputation and dignity, and members of the NCJ were granted a privilege that was unjustified and unacceptable in a democratic society.
The applicant further pointed out that the NCJ was an administrative and not a constitutional body. Under Italian law, immunities should be provided for only in the Constitution or in a constitutional Act and should apply to members of constitutional bodies alone. However, the immunity granted to members of the NCJ had been introduced by means of an ordinary law and was not provided for in any other European country.
As to the Government’s argument that the purpose of the immunity was to guarantee the independence of the judiciary, the applicant submitted that when the NCJ dealt with disciplinary matters, the utmost discretion was necessary in order to preserve the image of impartial judges that members of that body were under a duty to convey. The same was true of a judge’s transfer on the ground of environmental incompatibility, seeing that the transfer procedure was judicial in nature and was accompanied by a set of safeguards. However, the principle of “the utmost discretion” was contradicted by the possibility enjoyed by members of the NCJ – and not provided for by law – of expressing views and making statements on a vote.
Lastly, the applicant argued that protection of the freedom of expression of members of the NCJ could not justify denying access to a court.
(b) The Court’s assessment
The Court considers that this complaint raises the question whether the applicant was able to exercise his right of access to a court under Article 6 of the Convention (see Golder v. the United Kingdom, 21 February 1975, §§ 35-36, Series A no. 18; Cordova (nos. 1 and 2), cited above, § 47 and § 48 respectively; and De Jorio v. Italy, no. 73936/01, § 40, 3 June 2004).
(i) Whether there was interference with the applicant’s right of access to a court
The Court reiterates that, according to its case-law, Article 6 § 1 secures the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Osman v. the United Kingdom, 28 October 1998, § 136, Reports of Judgments and Decisions 1998-VIII). This right extends only to disputes (“contestations”) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law (see, among other authorities, James and Others v. the United Kingdom, 21 February 1986, § 81, Series A no. 98, and Powell and Rayner v. the United Kingdom, 21 February 1990, § 36, Series A no. 172).
In the present case the Court notes that the applicant, considering himself to have been defamed by the statements made by A., C. and two others, brought civil proceedings for defamation by lodging a claim for compensation with the Rome District Court. Accordingly, those proceedings concerned a civil right – namely the right to protection of his reputation – to which the applicant could, on arguable grounds, claim to be entitled (see Cordova (nos. 1 and 2), cited above, § 49 and § 50 respectively, and De Jorio, cited above, § 42).
The Court further notes that in their judgment of 17 January 2002 the combined divisions of the Court of Cassation expounded the legal principle that the immunity provided for in section 5 of Law no. 1/1981 also covered the sphere of civil liability in relation to the expression of an opinion that was directly linked to a vote in the course of the NCJ’s work and was relevant to the subject under discussion. In accordance with that principle, they quashed the Rome Court of Appeal’s judgment in so far as it had ordered A. to pay compensation to the applicant, and upheld that court’s decision in so far as it had found that C.’s statements had been made in the performance of his duties and could not be challenged in the ordinary courts. In respect of A. and C., the applicant was deprived in substance of the possibility of securing any form of reparation for the damage he alleged.
It follows that an assessment of whether the statements made by the two members of the NCJ were truthful or defamatory was either not carried out by the lower courts or was set aside by the Court of Cassation, which held that such an assessment was legitimate only if the preliminary question whether the statements in issue were relevant to the discussion within the NCJ was answered in the negative.
The Court of Cassation’s judgment cannot be likened to a decision on the applicant’s right to protection of his reputation, and the Court cannot find that a degree of access limited to the right to ask a preliminary question was sufficient to secure the applicant’s “right to a court”, having regard to the principle of the rule of law in a democratic society (see Cordova (nos. 1 and 2), cited above, § 52 and § 53 respectively; De Jorio, cited above, § 53; and, mutatis mutandis, Waite and Kennedy v. Germany [GC], no. 26083/94, § 58, ECHR 1999-I). In this connection, it should be reiterated that for the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his rights (see Ielo v. Italy, no. 23053/02, § 44, 6 December 2005, and Bellet v. France, 4 December 1995, § 36, Series A no. 333-B).
In these circumstances, the Court considers that there has been an interference with the applicant’s right of access to a court (see, mutatis mutandis, Cordova (nos. 1 and 2), cited above, §§ 52-53 and §§ 53-54 respectively; De Jorio, cited above, §§ 45-47; and Ielo, cited above, § 45), and this was not disputed by the Government.
The Court reiterates that the right to a court, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see, among other authorities, Levages Prestations Services v. France, 23 October 1996, § 40, Reports 1996-V). However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired. Furthermore, they will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among many other authorities, Khalfaoui v. France, no. 34791/97, §§ 35-36, ECHR 1999-IX, and Papon v. France, no. 54210/00, § 90, ECHR 2002-VII; see also the recapitulation of the relevant principles in Fayed, cited above, § 65).
(ii) Whether the interference was in accordance with the law
In the instant case the immunity conferred on A. and C. had a legal basis, namely section 5 of Law no. 1 of 3 January 1981, which inserted section 32 bis into Law no. 195/1958. The provision in question states that members of the NCJ “cannot be punished for opinions expressed in the performance of their duties in connection with the subject under discussion”. There is no evidence to suggest that the law in question was not accessible to the applicant, who, moreover, did not dispute that A. and C. were members of the NCJ and had made the statements in issue in the course of debates on his compulsory transfer. However, the applicant challenged the interpretation of the relevant provision by the combined divisions of the Court of Cassation. He alleged, in particular, that the phrase “cannot be punished” constituted a “ground for non-punishment” which was confined to the criminal sphere and should not have been applied in the context of the civil proceedings to which he had been a party.
The Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 33, Reports 1998-I, and Pérez de Rada Cavanilles v. Spain, 28 October 1998, § 43, Reports 1998-VIII). The Court’s role is confined to ascertaining whether the effects of such interpretation are compatible with the Convention (see Cordova (no. 1), cited above, § 57, and Kaufmann v. Italy, no. 14021/02, § 33, 19 May 2005). Without reviewing the relevant law and practice in abstracto, it must determine whether the manner in which they affected the applicant gave rise to a violation of the Convention (see, mutatis mutandis, Padovani v. Italy, 26 February 1993, § 24, Series A no. 257-B, and Ielo, cited above, § 55).
It is therefore not the Court’s task to carry out a detailed analysis of the domestic statutory instrument and its drafting history. The Court will confine itself to observing that the combined divisions of the Court of Cassation interpreted the scope of section 5 of Law no. 1/1981 more broadly than the applicant did, in particular taking the view that the guarantee set forth in that provision would be rendered meaningless if members of the NCJ could incur civil liability when acting in an official capacity.
The Court considers that such an interpretation does not manifestly contradict the wording and intention of the relevant legislation and cannot be considered arbitrary. It therefore concludes that the interference in issue was in accordance with domestic law as interpreted by the Italian Court of Cassation.
It remains to be determined whether the interference pursued a legitimate aim and was proportionate to it.
(iii) Aim of the interference
The Court notes firstly that the NCJ is a body provided for by the Constitution, which, in substance, divides powers in the justice sector between the NCJ and the Minister of Justice. In conferring on the NCJ the task of deciding on appointments, assignments and transfers, promotions and disciplinary measures concerning judges, the Constitution intended the NCJ to serve, among other things, as a guarantor of the autonomy and independence of the judiciary. In this connection, it should be noted that the NCJ is mainly composed of members elected by judges themselves from among those belonging to the judiciary. Whereas disciplinary proceedings against judges may be initiated by the Minister of Justice, and thus by a representative of the executive, the final decision on whether a judge should be disciplined, placed on leave of absence, suspended from office or transferred is solely the responsibility of the NCJ.
In the light of the foregoing, the Court considers that the NCJ guarantees, in a democratic society, the division of State power in the judicial sphere and the independence of the judiciary. It may therefore be necessary to allow its members freedom of expression and to ensure that partisan prosecutions cannot interfere with the performance of their duties. In these circumstances, the Court considers that the immunity established by Law no. 1/1981 pursued the legitimate aims of preserving free debate within the NCJ and upholding the system of separation of powers enshrined in the Constitution.
(iv) Proportionality of the interference
The Court observes that it has had occasion to determine the proportionality of interferences relating to parliamentary immunity (see the general principles set out in Cordova (nos. 1 and 2), cited above, §§ 57-61 and §§ 58-62 respectively) and to the immunity enjoyed by States (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI) and their officials (see Fayed, cited above).
It notes, however, that the NCJ is not a parliamentary body and that its members are not directly elected by the people. Nevertheless, the NCJ fulfils an essential role for the distribution of powers in the Italian legal and constitutional system. Accordingly, whether the guarantees and immunities enjoyed by its members are justified must be assessed in the light of its role and functions. As the Constitutional Court stated in judgment no. 148/1983, the NCJ serves to guarantee the autonomy and independence of the judiciary. This status may require enhanced protection of its members’ right to freedom of expression in relation to comments made at its meetings.
The immunity in question in the instant case is absolute in nature and has been applied in both the criminal and civil spheres. The broader an immunity, the more compelling its justification must be in order that it can be said to be compatible with the Convention. However, when it comes to examining the proportionality of an immunity, its absolute nature cannot be decisive (see, mutatis mutandis and in relation to parliamentary immunity, A. v. the United Kingdom, cited above, §§ 78 and 83).
The Court observes in particular that the immunity enjoyed by members of the NCJ applies only to statements made in the performance of their duties in connection with the subject under discussion. There is no immunity protecting comments made outside the scope of those duties or without any connection with matters within the NCJ’s sphere of competence. The absolute immunity enjoyed by the NCJ’s members is therefore designed to protect the interests of the NCJ as a whole rather than those of its individual members (see, mutatis mutandis, A. v. the United Kingdom, cited above, § 85). In the instant case the statements by A. and C. were made at a session of the NCJ dealing with the applicant’s compulsory transfer. The Court observes that, following the Court of Cassation’s judgment of 17 January 2002, the applicant did not seek to resume the proceedings and to submit the argument that the statements in question were irrelevant to the subject under discussion.
The Court also notes that the statements in question were not released to the public, since the RAC ordered the suspension of their publication in the NCJ’s official bulletin, which, moreover, has a very limited readership. As to the applicant’s allegation that his compulsory transfer was reported by the State broadcaster Rai’s Televideo teletext channel, by a large number of privately owned television channels and in the press, it should be noted that the information conveyed to the public related not to the allegedly defamatory statements but to the objective fact of the transfer, which is not as such the subject of the present application. The Court considers that all these factors are of relevance to the question of the proportionality of the immunity enjoyed by A. and C. However, it does not consider it necessary to examine whether the comments by A. and C. were defamatory. That is an issue which, in the absence of immunity, would have been for the ordinary courts to determine.
Having regard to all the circumstances of this case, the Court concludes that the application of a rule conferring absolute immunity on members of the NCJ cannot be said to exceed the margin of appreciation enjoyed by States in limiting an individual’s right of access to a court, and that the fair balance which should be struck in the matter between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights was not upset.
Accordingly, there is no appearance of a violation of Article 6 § 1 on account of the immunity enjoyed by A. and C. in the present case.
It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Complaint under Article 8 of the Convention
The applicant alleged a violation of his right to respect for his private life. He relied on Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The parties’ submissions
(a) The Government
The Government submitted that the only risk of interference in the applicant’s private life could have resulted from his compulsory transfer. However, that measure, which was in accordance with the law and pursued a legitimate aim to which it was proportionate, had been revoked by the administrative courts before it had been implemented. Since as a result he had not suffered any practical consequences, the applicant could not claim to be a “victim”.
In so far as the complaint concerned the statements by members of the NCJ, the Government reiterated their observations under Article 6 of the Convention and submitted that if the restrictions on the applicant’s right of access to a court were held to be justified and proportionate, no violation of Article 8 could be found.
They added that the statements in question had not been released outside the premises of the NCJ, had not been given any undue publicity and had therefore not interfered with the applicant’s private life. Even assuming that, as the applicant maintained, news about his case had featured in the press and on certain local radio and television stations, this had been instigated not by the authorities but by the media, who in doing so had satisfied the requirement to ensure freedom of expression on a matter of public interest, namely the professional reputation of a senior member of the judiciary. In any event, subsequent court decisions, which the applicant could have disseminated had he wished to, had fully restored his honour.
The Government submitted, lastly, that the very existence of disciplinary bodies meant that unflattering allegations could be made in the course of proceedings before such bodies. They argued that the NCJ had been entitled to gather and examine all the evidence necessary for an assessment of the applicant’s character. The truthfulness and relevance of the assessments made were not matters to be judged by the Court; they would, on the other hand, have been examined in the Court of Appeal had the applicant applied to resume the proceedings. In any event, the statements in issue should be regarded a priori as having been closely linked to the question whether the applicant satisfied the requirements for continuing to perform his duties within the court to which he was assigned.
(b) The applicant
The applicant submitted that the right to honour and to a good reputation formed part of the notion of “private life” enshrined in Article 8 of the Convention. The interference with those rights in his case had resulted not from his compulsory transfer as such but from the statements by A. and C.
The applicant added that the interference in question had not been in accordance with the law, since the law made no mention of the possibility for members of the NCJ to express views and make statements on a vote. Furthermore, the fact that the judge against whom such statements were made was unable to reply to them breached the principles of a fair trial.
Lastly, the applicant pointed out that only the RAC’s intervention had prevented the statements impugning his honour from being published in the NCJ’s bulletin. His compulsory transfer, however, had been reported by the State broadcaster Rai’s Televideo teletext channel, by a large number of privately owned television channels and in the press.
2. The Court’s assessment
The Court considers that the central issues raised by the applicant’s procedural complaint under Article 6 § 1 of the Convention as to whether the impugned rules pursued a legitimate aim and were proportionate are the same as those raised by his substantive complaint concerning the right to respect for private life under Article 8 (see Fayed, cited above, § 67).
It therefore follows from the Court’s conclusion on that aspect of the applicant’s Article 6 § 1 complaint that there is no appearance of a violation of Article 8 of the Convention (see A. v. the United Kingdom, cited above, §§ 65, 102 and 103).
It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Complaint under Article 13 of the Convention
The applicant submitted that he had not had an effective remedy available in respect of his allegation that the statements by A. and C. were defamatory. He relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government submitted firstly that Article 13 was not applicable as no “arguable complaint” had been raised by the applicant under Article 8 of the Convention. Furthermore, where, as in the instant case, an issue of access to a court arose, the requirements of Article 13 were subsumed by those of Article 6. Accordingly, those two Articles could not be relied on in conjunction with each other.
The Government further observed that the applicant’s case concerned judicial decisions given in proceedings which had reached the highest national court and in which he had been able to submit arguments under domestic legislation and the Convention. They contended that, as a result, he could not demand an additional level of jurisdiction.
The applicant observed that no appeal lay against the judgment of the combined divisions of the Court of Cassation and argued that a finding of a violation of Articles 6 and 8 of the Convention could not “absorb” his grievances under Article 13.
The Court reiterates its case-law to the effect that Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, 24 April 1988, § 52, Series A no. 131).
In the present case the Court has found that the applicant’s grievances under the “substantive” provisions of Article 6 § 1 and Article 8 of the Convention are manifestly ill-founded. Rejection of a complaint as manifestly ill-founded amounts to a conclusion that there is not even a prima facie case against the respondent State (see Airey v. Ireland, 9 October 1979, § 18, Series A no. 32). This does not mean, however, that the Court must hold a claim to be excluded from the operation of Article 13 if it has previously declared it manifestly ill-founded under the substantive provision (see Al-Shari and Others v. Italy (dec.), no. 57/03, 5 July 2005, and also, mutatis mutandis, Boyle and Rice, cited above, § 54).
The Court does not consider that it should give an abstract definition of the notion of arguability. Rather, it must be determined, in the light of the particular facts and the nature of the legal issue or issues raised, whether each individual claim of a violation forming the basis of a complaint under Article 13 was arguable (see Boyle and Rice, cited above, § 55).
The same considerations as to the facts which prompted the Court to dismiss the applicant’s complaints under the substantive provisions lead it to conclude under Article 13 that the complaints were not arguable (see, among many other authorities, Walter v. Italy (dec.), no. 18059/06, 11 July 2006, and Al-Shari and Others, cited above). Article 13 is therefore not applicable in the instant case.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
D. Complaint under Article 6 § 1 of the Convention (impartial tribunal)
The applicant submitted that, in view of the relationship between Ca. and A. (the former had been president of the division of the Court of Cassation of which the latter had been a member), the combined divisions of the Court of Cassation could not be regarded as an “impartial tribunal” within the meaning of Article 6 § 1 of the Convention.
1. The parties’ submissions
(a) The Government
The Government pointed out in the first place that the Code of Civil Procedure provided for distinct grounds for the compulsory or optional withdrawal of judges. Only the grounds for compulsory withdrawal were capable of forming a basis for a challenge. The fact that one of the two judges challenged by the applicant had stood down, perhaps for reasons of expediency constituting optional grounds for withdrawal, did not prove that his allegations were well-founded.
The Government further submitted that the applicant had not produced any evidence casting doubt on Ca.’s personal impartiality and that his concerns were not objectively justified. The mere fact of being the president of a division of the Court of Cassation was not sufficient to create a strong personal link with each of the many judges in that division. Furthermore, the bench of the combined divisions was composed of nine judges from the civil or criminal divisions. Doubts as to the impartiality of one of the judges would not be sufficient to warrant a serious concern that the court as a whole might not be impartial, especially in a context in which the Court of Cassation was called upon to consider a general point of law and not the merits of the case.
The Government asserted that taking the applicant’s reasoning to an extreme would produce the (unreasonable) conclusion that no judges of the Court of Cassation could be impartial when ruling on a dispute between two of their colleagues, of equal rank and with a similar degree of experience and renown, with whom they had worked at some time or other in their career.
Lastly, the Court of Cassation’s judgment had not been unfavourable to the applicant. On the contrary, it had left him with some prospect of success, in particular by affording him the opportunity to prove that the statements in issue had not been relevant to the subject under discussion within the NCJ.
(b) The applicant
The applicant disputed the Government’s arguments. He submitted, firstly, that he had notified the President of the Court of Cassation of the delicate nature of his case by pointing out that it concerned A., a judge who: (a) had been a member of the NCJ; (b) was currently a member of the Third Division of the Court of Cassation; (c) had been seconded to the Constitutional Court for several years; (d) had formerly been a member of the First Civil Division of the Rome District Court; and (e) was a prominent representative of one of the “movements” within the judges’ association. Furthermore, certain irregularities had been observed in the proceedings in the Court of Cassation. For all those reasons, the applicant had requested that his case be considered by judges with no links either to him or to A.
Yet several of the judges on the bench of the combined divisions had been close friends of A. or had sat in the same division as him, and four of them had stood down as a result. However, Ca., the President of the Third Civil Division of the Court of Cassation, of which A. was a member, had not done so. The applicant submitted on that account that there was an appearance of a lack of impartiality whenever a division president was called upon to consider the case of a colleague from the same division.
In addition, the applicant pointed out that following Ca.’s appointment as first vice-president of the Court of Cassation in June 2004, A. had immediately (on 5 July 2004) been assigned the role of deputy secretary general “in order to be able to cooperate with the vice-president”.
The applicant also submitted that a division president who had stood down because of his friendship with A. should have been replaced by another division president. However, the president in question had been replaced by a substitute judge, which had also affected the combined divisions’ impartiality.
The applicant contended, lastly, that the Court of Cassation’s judgment had been wholly unfavourable to him. He pointed out in that connection that: (a) his appeal against C. and his cross-appeal against A. had been dismissed; (b) A.’s appeal had been allowed; (c) the decision ordering A. to pay him damages had been quashed; and (d) a legal principle diametrically opposed to his submissions had been upheld.
2. The Court’s assessment
The Court reiterates that the existence of impartiality must be determined according to a subjective test, that is, on the basis of the personal conviction and behaviour of a particular judge in a given case, and also according to an objective test, that is, ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among many other authorities, Thomann v. Switzerland, 10 June 1996, § 30, Reports 1996-III).
As regards the subjective test, the Court reaffirms that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Cianetti v. Italy, no. 55634/00, § 37, 22 April 2004, and Padovani, cited above, § 26). It notes that there is no evidence in the present case to indicate any prejudice or bias on the part of Judge Ca.
Under the objective test, it must be determined whether, irrespective of the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality (see Cianetti, cited above, § 38). In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII). It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the applicant is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see Ferrantelli and Santangelo v. Italy, 7 August 1996, § 58, Reports 1996-III; Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000-XII); and Morel v. France, no. 34130/96, §42, ECHR 2000-VI).
The Court notes that the applicant’s fear of a lack of impartiality was based on two considerations: firstly, the fact that Ca. was president of the division of the Court of Cassation of which A., the applicant’s opponent in the proceedings, was a member, and, secondly, the fact that a division president who had withdrawn was replaced not by another division president but by a substitute judge.
The Court accepts that those factors may have occasioned misgivings on the applicant’s part, but it cannot regard his concerns as objectively justified. In particular, it notes that the evidence before it does not show that there were any personal ties of friendship between A. and Ca. going beyond the strictly professional sphere. The mere fact that a judge has or has had professional dealings with one of the parties to the proceedings cannot in itself give rise to a conflict of interests justifying the withdrawal of the judge in question (see, mutatis mutandis, Hajdučeková v. Slovakia (dec.), no. 47806/99, 8 October 2002).
It should also be noted that in the present case Ca. was not subordinate to A. and was not susceptible to any pressure arising out of a hierarchical relationship between them. Furthermore, the appointment – as submitted by the applicant – of A. as deputy secretary general, notably in order to cooperate with Ca., who had taken up the post of first vice-president of the Court of Cassation, did not occur until July 2004, nearly two years and six months after the delivery of the combined divisions’ judgment (17 January 2002). That fact cannot therefore be said to have had any impact on the applicant’s case. In addition, there is no objective reason to doubt that the judge challenged by the applicant regarded the oath he had sworn on taking office as taking precedence over any social commitments (see, mutatis mutandis, Salaman v. the United Kingdom (dec.), no. 43505/98, 15 June 2000, and M.D.U. v. Italy, cited above).
Lastly, as regards the replacement of a division president by a substitute judge, the Court considers that that fact cannot give rise to any objectively justified doubts as to the impartiality of the court in question.
In the light of the foregoing, the Court concludes that the situation complained of by the applicant cannot in itself be taken as justifying doubts about the impartiality of the combined divisions of the Court of Cassation that delivered the judgment of 17 January 2002.
It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
E. Complaint under Article 14 of the Convention
The applicant lastly complained that on account of the immunity granted to them, the members of the NCJ had enjoyed a broader freedom of expression than other individuals. He relied on Article 14 of the Convention, which reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government submitted in the first place that the objective difference between discharging and not discharging certain functions was sufficient to justify a difference in treatment. In their submission, a complaint such as the one brought by the applicant could be raised only by a person who, having made the same allegedly insulting statements without being a member of the NCJ and thus without enjoying any immunity, had suffered adverse legal consequences. That had not been the case of the applicant, who had therefore not suffered any discrimination. Nor could he plead on behalf of hypothetical victims of unequal treatment.
The Government further argued that if the Court found that the right of access to a court had not been infringed, no separate issue would arise under Article 14. If it found a violation of Article 6, the special position of members of the NCJ would be sufficient to justify a difference in treatment.
The applicant pointed out that his complaint concerned the discrimination he had suffered in comparison with victims of similar insults. He further submitted that there had been an unjustified difference in treatment in respect of similar situations, since the members of the disciplinary bodies of the Consiglio di Stato, the Court of Audit and the RACs did not enjoy the same immunity as members of the NCJ.
The Court refers to its case-law to the effect that in prohibiting discrimination, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV).
In the present case the applicant has not shown that he was treated differently from other persons in a similar situation.
In any event, and even assuming that there has been a difference in treatment, the Court observes that it has already found, under Article 6 § 1 of the Convention, that the immunity conferred on members of the NCJ in respect of opinions “expressed in the performance of their duties in connection with the subject under discussion” was in accordance with the law, pursued legitimate aims and was proportionate to them. The situation complained of by the applicant was therefore justified by objective and reasonable grounds.
Accordingly, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to declare the application inadmissible as a whole.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
ANTONIO ESPOSITO v. ITALY DECISION
ANTONIO ESPOSITO v. ITALY DECISION