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The sentences must be respected, but they can be criticized: the European Court of Human Rights says so

With all the evil you can think of Salvini or with all the good you may want him, his indictment for the "kidnapping" of migrants cannot leave you indifferent. If anything, open-mouthed and speechless: a Minister of the Interior of the Republic sent to trial for having been a Minister (that is, defending national borders) had never been seen. And we hope you will never see it again. But this is not what we intend to discuss. That is, we do not want to deal with the criticisms of the indictment verdict, but rather with the right to make them, those criticisms. And also of the "extent" to which this is permitted. Especially in a country like ours, where the mantra according to which "sentences are respected, not commented on" is a kind of dogma.

Well, there is good news about it. And good news in the matter of free expression of thought is a very rare thing in times when article 21 of the Supreme Charter is worth less than any Dpcm. Such news is a bit like that of the famous man who bites the dog. So it is absolutely necessary to take this into account. What are we talking about? Of a judgment of 9 March of the European Court of Human Rights in Strasbourg, made on appeals no. 36.537 / 15 and 36.539 / 15. The story arises from the decision of a Spanish municipality to deny the right to mining to a company specializing in the sector.

The latter challenges the denial and wins the case both at first instance and on appeal, before the High Court of Aragon, based on an expert opinion carried out by the judicial appointed consultants. However, the dire outcome for environmentalists is heavily criticized by two members of an Iberian non-governmental organization through an open letter to the press. The prosecutor then opens a proceeding (for insults against the magistrates) which ended with the condemnation of the activists to a fine of 5,400.00 euros each. The Constitutional Court confirms the sentence, but the irreducible champions of the environment do not take it for granted and take the case before the European Court for Human Rights.

A fundamental incident: in the trial it was not only the right to freely and publicly reveal one's opinions at stake, but also the right to criticize the judiciary. Because the open letter of the exponents of the environmental movement had not spared heavy thrusts to the content of the pronouncement, but not even to its drafters. Ergo, there was something more at stake than the very important issue of freedom of speech and of the press; that is to say, the right to criticize one of the most powerful castes in each state: that of the magistrates. Well, the Court of Justice agreed with the green champions opposed to mining on the basis of a basic principle: in a "sensitive" and "interesting" context, such as that of jurisprudence on issues of public interest, the degree of tolerance for raw and direct language, if not hostile, must be particularly high.

In short, it is necessary to take into account the collective resonance, and the general involvement, aroused by the decisions of the judicial offices on certain issues deeply felt by public opinion. Non-profit organizations, according to the Strasbourg magistrates, should be considered as (also) the watchdogs of democracy: a bit like the free press of the good old days. And, therefore, citizens engaged in "civic" battles must enjoy – if not really immunity – at least a particularly intense protection on the constitutional level as regards the possibility of externalizing their ideas without the fear of incurring sanctions .

While, on the other hand, and symmetrically, the judges cannot consider themselves as a Power above all relief and criticism: a sort of untouchable planet of the Justice Universe. Instead, as they are often presented, and perceived, even by us. In conclusion, the Court sentenced the Spanish State to compensate the applicants for pecuniary damage, non-pecuniary damage and expenses. At this point, at least four considerations arise.

First consideration: the sentence has the merit of making us remember how freedom of speech is guaranteed not only by the aforementioned article 21 of the Italian Constitution ("Everyone has the right to freely express their thoughts with speech, writing and any other means of dissemination The press cannot be subject to authorization or censorship "), but also by art. 10 of the European Convention on Human Rights of 1950 (which protects the "freedom to receive or communicate information or ideas without any interference by public authorities and without frontier consideration").

Second consideration: this right can certainly be balanced and balanced by other rights, interests and needs (protection of collective health, public order, national security, individual honor and reputation), but not beyond a given limit; exceeded which, to all intents and purposes, enters the territory pertaining to regimes and dictatorships.

Third consideration: the judiciary can and must be the object of criticism, like any other state power, at least if the legal system to which it belongs is deemed to be "democratic". Indeed, the judges must have a "resilience" to the criticisms greater than the private citizen provided that, of course, they do not overflow into injury.

Fourth consideration: look at what the European Court defines as the “ chilling effect ”; that is, the danger connected with the penal sanctions applied in the field of fundamental rights. The higher these sanctions are, the more they can generate a deterrent effect: that is to say, insufflating in the social body, and also in individual citizens, the reluctance to express one's opinion in order not to incur the feared punishments. Mind you: for the Strasbourg judges this unwanted side effect (and, paradoxically, self-censorship) can occur even if the penalties are only pecuniary. And even if, as in the case above, they have a relatively low value.

Which leads us to have two moderate hopes for the future.

First of all, this "jurisprudence" can and must also influence the debate on the obscene DDL Scalfarotto-Zan. And this is due to the fact that one of the deadliest repercussions of this liberticidal proposal will be precisely the chilling effect against which the European Court has warned us. Many commentators will begin to impose the nibble on their own when they are tempted to say very natural, and very right things, on the subject of "gender" or in defense of the natural family protected by the Constitution.

In secundis, we hope that the ruling of the European judges can contribute to scratching one of the most frustrated and unacceptable clichés in the legal field, but also in the political or, if you prefer, in legal politics: that according to which sentences are not commented upon, but are respect. If anything, the sentences are respected, but they can and must be commented on. Faced with the mother of all freedom (freedom of expression), there must no longer be children and stepchildren.

Francesco Carraro

www.francescocarraro.com


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The article The sentences must be respected, but they can be criticized: the European Court of Human Rights says so comes from ScenariEconomici.it .


This is a machine translation of a post published on Scenari Economici at the URL https://scenarieconomici.it/le-sentenze-si-devono-rispettare-ma-si-possono-criticare-lo-dice-la-corte-europea-dei-diritti-delluomo/ on Sun, 18 Apr 2021 10:52:00 +0000.