X v. SAN MARINO
Inadmissible
Aleš Pejchal;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano
1. The applicant, Mr X is a San Marinese national, who was born in 1963 and lives in Fiorentino. He was represented before the Court by Mr F. Cocco, a lawyer practising in Rimini, Italy. 3. On an unspecified date the applicant, a police superintendent, lodged a criminal complaint for defamation against a newspaper and a journalist, as well as GF the elected chief of the administrative district of Fiorentino (Capitano di Castello) (who had given an interview to the newspaper), in connection with press articles which were published on 20, 23 and 25 February 2012. The articles claimed that, inter alia, a policeman (a title presumably traceable to the applicant) was fraudulently obtaining benefits from the State, including the use of a State apartment, despite it being needed by other persons. 4. Subsequent to the articles, the administrative body in question removed the apartment from the applicant’s possession. According to the applicant, the articles questioned his morality – they cast doubts over whether rent and service charges had been paid, hypothesised as to whether other benefits were also being enjoyed by the applicant, and posed questions regarding the possibility of the applicant’s involvement in other minor fraud infractions, even though, according to the applicant, such infractions were common in lease contracts. The last article also focused on the applicant’s profession and, in his view, was written in a manner intended to bring him into disrepute. Moreover, it was not based on the truth in so far as no substantiation was given to the allegations that the applicant was not wanted for the post of commander of the police brigade; or that that there had been friction between him and the citizens of Fiorentino; or that some persons had in fact complained about the applicant, as had been claimed by GF in the interview. 5. Prior to this last article and following the first two articles the applicant had written to various media outlets with a statement in his defence clarifying his situation. He also clarified the situation regarding the apartment that was the subject of the articles, which was in his possession by title of lease. The entirety of the applicant’s statement was published, together with comments by the journalist who authored the press articles, in the third above-mentioned article. 6. Criminal proceedings no.175/2012 were instituted against the abovementioned persons and testimony was heard from the applicant, the journalist and other witnesses. 7. On 31 January 2013 the investigating judge (Commissario della Legge, hereinafter “the Commissario”) requested that criminal proceedings no.175/2012 be archived. The Commissario recalled the importance of freedom of expression, noting that this was not however unlimited and could be curtailed in view of the dignity, honour and reputation of other persons. Having regard to the principles derived from the right to freedom of expression, the articles complained of were not offensive, and thus could not be subject to criminal liability. 8. The Commissario considered that neither the title (“A Fiorentino abita l’ultimo giapponese” – “The last Japanese living in Fiorentino”) nor the content of the first article contained any criminally relevant statement. The applicant had confirmed that, as mentioned in the beginning of the article, he had lived in an apartment provided by the State situated in the cultural centre (centro sociale) of Fiorentino. The Fiorentino authorities (through GF) had also confirmed that an application had been lodged to regain possession of the property (as mentioned in the central part of the article). As to the questions posed in the last part of the article (namely, concerning the rent of the apartment and the fact that a family was living in a cultural centre built for other purposes, and so forth), the subject matter was one of public interest and the formulation of the questions appeared to be correct and did not exceed the limits of the exercise of journalistic functions. The same was valid for the second article (called “Appartamenti dello Stato, per i cittadini bisogna vederci chiaro” – “Clarification needed for the citizens on State-owned apartments”) which reconstructed the historical context in the eighties, explaining the existence of an anti-drug unit and an anti-drug squad, and reiterated the content of the previous article. Nor was the third article, which contained an interview with GF, as well as the applicant’s letter and a comment by the journalist and a third person, subject to any criminal liability. The article had not related to “eviction” as mentioned by the applicant, but correctly to the authorities’ decision to have the apartment reassigned to someone else, a procedure which did not require the intervention of the applicant. Similarly the applicant’s confused challenge to a reference to an anti-drug dog could not be upheld since the comment – to the effect that it had made sense for the applicant to benefit from the use of the apartment at the time when a canine squad existed, but no longer now that the squad had been disbanded – reflected reality and was a reserved statement. Lastly, the adjective sbroccato (a person who lost it), which was today a term of general use (sdoganato) could not be considered defamatory, as the term was not offensive or intimidating. Any other considerations put forward by the applicant appeared to refer to disagreements within the police department, which even if they were true do not appear to be relevant to the present case. 9. The Commissario considered that as the information was true and in the general interest, the articles fell within the legitimate exercise of the right to information. Moreover, the applicant had been given a right of reply, and a faithful reproduction of his statement had been published in its entirety. 10. The Commissario considered that a balance had to be reached between both constitutionally guaranteed rights, specifically, on the one hand that of the honour, reputation and dignity of the individual, and on the other that of freedom of expression and of the press to impart information and for persons to receive information. “Justification” was the crux of the right to report news, thus abstract “defamatory” statements made within the requisite limits were licit and part and parcel of freedom of expression as long as they did not exceed the requisite limits and thus amount to abuse. The balance between the right to respect for the dignity, honour and privacy of the individual and that of freedom of expression was not subject to precise definition, even more so given that that freedom of expression may take various forms – including rapidly developing trends or changes in language – which remain in any event subjective. Indeed, according to domestic case-law, it was a priori impossible to dictate the general limits between what was licit and what was not. 11. In the light of such principles, the Commissario considered that in the present case the articles had been justified in order to impart information on a matter of public interest, specifically in reference to a policeman, the use of public property and the involvement of the authorities. They had not been intended to offend anyone’s honour. The content of the articles did not overstep the limits of free speech, and the sole fact that the articles may have inconvenienced the applicant did not suffice to make them amount to a criminal act of defamation (the sole matter subject to the court’s jurisdiction). 12. The Attorney General agreed and on 14 February 2013 the Commissario ordered that criminal proceedings no.175/2012 be archived on the basis of the above-mentioned reasoning, noting that there were no elements to issue a bill of indictment. 13. The applicant challenged that decision (opposizione) on 21 March 2013. 14. By a decision of 3 May 2013 notified on 27 May 2013 the judge of criminal appeals ordered that criminal proceedings no.175/2012 be archived, and rejected the applicant’s objection as manifestly ill-founded. The judge noted that the applicant had reiterated his arguments without referring to the reasons given by the first-instance court, and ignoring the fact that the allegations made by the accused had been substantiated by documentary evidence. Further, the judge stated that the three impugned articles had not offended the applicant’s reputation. They questioned the use of State apartments without attributing to the applicant any particular untoward behaviour. They contained whole truths and, although the articles were written as a form of criticism, the applicant had had a right – which he made use of – to defend himself in the press. Lastly, GF had provided a copy of his correspondence with the authorities which related to the use of the apartment in question and in respect of which he had given an interview which had then been published. Thus, his actions had not been a gratuitous accusation but a supply of correct information concerning the applicant’s activity and functions.