It is not religious hatred to judicially label Jehovah's Witnesses as a sect

Conviction for defamation aggravated by religious hatred for the lawyer who, in his defence briefs, labelled the Jehovah's Witnesses as a sect planning to steal the assets of family members who do not belong to the same group. The expressions, although, defamatory, are not criminally punishable if the phrases are linked to the cause. The Cassazione thus rejected the appeal by the Christian Congregation of Jehovah's Witnesses and one of their faithful who was separating from her husband, confirming the verdict of the Court of Appeal that, in line with the Tribunal, had declared not punishable - on the basis of Article 598 of the Penal Code, which exculpates offences contained in the pleadings - for the crime ofdefamation aggravated by religious hate speech, committed by the woman's husband's lawyer through the expressions contained in the pleadings.

The judges on the merits had ascertained the detrimental value of the expressions used by the defendant in the court documents, however, considering that they 'directly and immediately concerned the subject of the dispute in which they were uttered'. It was therefore considered irrelevant that the offences also referred to the Christian Congregation of the Jehovah's Witnesses, a subject extraneous to the trials in the context of which they had been uttered. For the territorial court, the incriminated expressions did not integrate the contested aggravating circumstance neither as 'hate speech', nor as incitement to violence. And, similarly, he had ruled out slanderousness, given the generic content of the defence writings, which were useful in the civil lawsuit for the division of real estate co-owned with the former spouse and in the one concerning the cessation of the civil effects of marriage. In the judges' sights had ended up the allegations that the ex-spouse was a member of a religious group "that plans to steal the assets of family members who do not belong to the same group, and that she had destroyed the lives of her spouse and family because of her religious faith".

The Supreme Court recalls that "the reason for judicial immunity is to be found in the need to ensure the freedom of defence and to guarantee the debate of the contending parties, even in the case of an unnecessary offence, but one that fits into the defence system of proceedings with an instrumental function". Nor can the jurisprudence of the European Court of Human Rights on the subject of religious hatred be invoked.

The European jurisprudence, on the subject of so-called hate speech, and the jurisprudence of legitimacy relating to the aggravating circumstance of the purpose of discrimination or ethnic, racial or religious hatred, referred to by the civil parties - specifies the Supreme Court - cannot be extended to the case examined. This is because 'these rulings,' the judgement states, 'concern the different issue of the limits to the right to manifest thought, and specifically to the right of criticism in relation to offensive expressions inciting discrimination or intolerance and, more generally, to the possibility of excluding their anti-juridical nature, whereas, instead, in the case of Article 598 of the Criminal Code, this anti-juridical nature remains firm'. In the opinion of the Court of Cassation, it is therefore "reasonable to conclude that only the judge of the case in which the offensive phrases were written or uttered can assess, at the conclusion of the judgement, whether the justification of those offences should also exclude the compensability of the non-asset damage possibly suffered by the person to whom they were addressed".