GAUDIO v. ITALY
Inadmissible
Christos Rozakis
The applicant, Mr Leonardo Gaudio, is an Italian national, who was born in 1951 and lives in Bari. He is represented before the Court by Mr A. Amenduni, a lawyer practising in Bari. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is the manager of the Italian monthly newspaper Il Gazzettino di Adelfia. In December 1990 an article was published about Mr F.B., who was the mayor of Adelfia until August 1988. It was entitled “Mayor [F.]B. seeks reimbursement on the basis of false invoices” (“Il Sindaco [F.]B. chiede rimborsi con fatture false”). In the article the applicant expressed himself as follows: “The Adelfia Council settled some entertainment expenses incurred on 4 September of the same year [1988] by the then mayor, the socialist F.B., on the occasion of the passing through Adelfia of the long-distance runner L. M. Two invoices do not correspond to the day of the celebration. (...) The first invoice is dated 7 August 1988. (...) If the celebration was held on 4 September only, how is it possible that the ceremony had taken place some months in advance and on different days?” “Il Comune di Adelfia liquidava alcune spese di rappresentanza sostenute il 4 Settembre dello stesso anno [1988] dall’allora Sindaco, il socialista F.B., in occasione del passaggio da Adelfia del podista L.M. Due fatture non trovano alcun riscontro con il giorno in cui si e’ svolta la manifestazione (...) La prima fattura porta la data del 7 Agosto 1988 (...) Se la manifestazione si e’ svolta nella sola giornata del 4 settembre, com’e’ possibile che i convenevoli sono stati consumati con alcuni mesi di anticipo ed in giorni differenti?”. Copies of the invoices were also published. In 1988, the Adelfia City Council had been dissolved by a judgment of the Regional Administrative Court. On 5 August 1988 a Government Commissioner had been appointed and on 8 August 1988 Mr F.B., the mayor, had handed over to him. On 24 September 1991, acting on a complaint by Mr F.B., the judge responsible for preliminary investigations committed the applicant for trial. He was accused of defamation. On 31 January 1992 the District Court found the accused guilty of defamation within the meaning of Article 595 of the Criminal Code, granting mitigating circumstances. It sentenced the applicant to a fine of 800,000 Italian lire (ITL) and ordered him to pay costs and damages to be determined in separate proceedings. The court held that the defamatory nature of the article was evidenced principally by the fact that the applicant had associated the mayor’s name with a request for reimbursement of false invoices without the necessary checks of the truth of the events. In particular, the court noted that the applicant had only verified that Mr F.B. was Adelfia’s mayor at the time of the issue of the invoices and that if he had ascertained the truth more fully, the applicant would have noticed the errors in the Government Commissioner’s deliberation of 25 November 1988. In fact, the latter had wrongly linked both the invoices of 22 June 1988 and 7 August 1988 to the passing through of the long-distance runner on 4 September 1988. In reality that event had taken place on 7 August 1988 and the invoice of 22 June 1988 had been issued for a mineral-water supply to the City Council. The court held that the defamatory nature of the article was also evidenced by the fact that the article had been published more than two years after the event. The court added that the invoices could be not considered false because they had been issued for services which had really been provided. The court concluded that the applicant was not entitled to assert the right to report current events (diritto di cronaca) and comment on them (diritto di critica) because, in the absence of the truth of the facts and of their objective reference, the article appeared to be the result of a specific intention to muckrake in respect of a particular person with a defamatory aim. The applicant appealed. Relying on the right to report current events and to comment on them, he submitted that the divulgation of the news was justified by the public interest in knowing how the Adelfia City Council was spending public money. He alleged that the article also contained a putative truth (putativamente vera) because he had examined the Government Commissioner’s deliberation and the enclosed documents. Consequently, he had acted in good faith in relation to the inexactitudes he was accused of. Evidence was heard from the applicant who declared that before publication he had telephoned the long-distance runner who told him that he had not taken part in any celebration on 7 August 1988 because he had left Adelfia the day before. In a judgment of 11 March 1996 the Court of Appeal acquitted the applicant because the facts did not amount to a crime. The court confirmed that the invoices could not be considered false because they had been issued for services which had genuinely been carried out. Nevertheless, it held that the applicant’s doubts and considerations about irregularities in the proceedings had been justified by adequate evidential support, namely the Government Commissioner’s deliberation, that is, a public document. Consequently the court held that the applicant had sufficiently ascertained the facts before publication and concluded that he had been acted in good faith about the inexactitudes he was accused of. The General Prosecutor and Mr F.B. lodged an application with the Court of Cassation. In a judgment of 10 October 1996 the Court of Cassation overturned the judgment of the Court of Appeal of 11 March 1996 and remitted the case to another division of the same court to re-examine it. The Court of Cassation held that the grounds of the Court of Appeal’s judgment of 11 March 1996 were affected by flawed logic, because it had confirmed that the invoices could not be considered false, but held that the applicant had sufficiently ascertained the facts before publication. The court alleged that the applicant, as the manager of the newspaper, could not have been unaware that on 4 September 1988, when the long-distance runner was passing through, Mr F.B. was no longer mayor, that the entertainment expenses could not be attributed to him and that the invoice expenses were genuine and not to be linked with the celebrations of 4 September 1988. In a judgment of 27 June 1997 the Court of Appeal re-examined the case, upheld the District Court’s judgment of 31 January 1992 and awarded costs against the applicant. The court held that the absence of good faith was evidenced first by the fact that the title of the article associated the mayor’s name with a request for reimbursement of false invoices; second by the fact that the applicant, as the manager of the newspaper, could not have been unaware of the political events in Adelfia and, in particular, that Mr F.B. was no longer the mayor at the time of the celebrations of 7 August 1988; and finally, by the fact that the applicant had stated that Mr F.B. had asked for reimbursements regardless of the fact that Mr F.B.’s name was written neither on the invoices nor in the Government Commissioner’s deliberation. The applicant lodged an application with the Court of Cassation. First, he stressed an error in the Court of Cassation’s judgment of 10 October 1996 in relation to the date on which the long-distance runner had been passing through (it was on 7 August 1988 and not on 4 September 1988). He also stressed an error in the Court of Appeal’s judgment of 27 June 1997 which had stated that on 7 August 1988 Mr F.B. was no longer the mayor, whereas he had given the court the documentary evidence that Mr F.B. had handed over to the Government Commissioner on 8 August 1988. In relation to the accusations of defamation, the applicant alleged that he had noticed the error in the Government Commissioner’s deliberation about the date of the long-distance runner celebrations and about the City Council session of 22 June 1988 which the supply of mineral-water was destined to, because on that date no session had taken place. The applicant also alleged that before publication he had telephoned the long-distance runner who told him that he had never taken part in the celebration of 7 August 1988 because he had left Adelfia the day before. Finally, the applicant held that his aim was not to defame anyone, but to inform readers how public money was being spent by public authorities. In a judgment of 27 November 1997, deposited with the registry on 18 February 1998, the Court of Cassation dismissed the application and upheld the Court of Appeal’s decision of 26 June 1996. The court held that the applicant’s allegations were irrelevant because he had not, in any case, given evidence that the invoices were false and that they had to be attributed to Mr F.B. Consequently, the court declared the appeal inadmissible and sentenced the applicant to a fine of ITL 1,000,000 and awarded costs against him.