ESPOSITO v. ITALY
Inadmissible
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. The facts of the case, as submitted by the parties, may be summarised as follows. 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. 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. 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. 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. 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. 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. 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. 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. 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”.