Che materia stai cercando?

Caso Al Adsani

La dispensa si riferisce alle lezioni di Diritto Processuale Civile I, tenute dal Prof. Giorgio Costantino nell'anno accademico 2011.
Il documento riporta il testo in inglese della sentenza della Corte europea dei Diritti dell'Uomo relativa al c.d. Caso Al Adsani.... Vedi di più

Esame di Diritto Processuale Civile I docente Prof. G. Costantino

Anteprima

ESTRATTO DOCUMENTO

Solon Housing Association (South-West) Ltd. purchased 50 Concorde Drive in my constituency in the early 1990s ...

and in early 1994 it moved in as the new tenants [the applicant] and her two children, who are now aged three and six.

Her brother, currently in prison, also gives 50 Concorde Drive as his permanent address. ...

The Government's own Green Paper, 'Anti-Social Behaviour on Council Estates', published in April 1995, noted:

'Such behaviour manifests itself in many different ways and at varying levels of intensity. This can include vandalism,

noise, verbal and physical abuse, threats of violence, racial harassment, damage to property, trespass, nuisance from

dogs, car repairs on the street, joyriding, domestic violence, drugs and other criminal activities such as burglary.'

Inevitably, the majority – if not all – of these activities have been forced on the neighbours of 50 Concorde Drive

during the tenancy of that property and the garage further up the street that goes with it, by [the applicant], her children

and their juvenile visitors, who seem strangely reluctant to attend school during normal hours, and even more adult

visitors who come to the house at all times of the day and night, frequently gaining entry by unorthodox means such as

the bathroom window. Indeed, it is fair to say that there have been times when occupation of the house by the visitors

has been more frequent than that of [the applicant].

So far as the garages grouped further along Concorde Drive are concerned – one of the garages automatically comes

with the tenancy of No. 50 – complaints consist of numerous youths hanging around, vandalising cars, climbing on and

damaging the garage roofs, under the apparent leadership, or at least the spirited concurrence of the [applicant's]

family, adult and children, which makes improvement of those garages by other owners a complete waste of time.

More seriously, arson inside the garage belonging to No. 50, and the regular destruction of its doors, have led other

legitimate users of the garage to park their vehicles elsewhere for safety reasons.

But it is the conduct of [the applicant] and her circle which gives most cause for concern. Its impact on their immediate

neighbours extends to perhaps a dozen houses on either side. Since the matter was first drawn to my attention in 1994,

I have received reports of threats against other children; of fighting in the house, the garden and the street outside; of

people coming and going 24 hours a day – in particular, a series of men late at night; of rubbish and stolen cars

dumped nearby; of glass strewn in the road in the presence of [the applicant] and regular visitors; of alleged drug

activity; and of all the other common regular annoyances to neighbours that are associated with a house of this type.”

14. The applicant denies the truth of the majority of the allegations. The MP has never tried to

communicate with her regarding the complaints made about her by her neighbours and has never

attempted to verify the accuracy of his comments made in his speech either before or after the debate.

Shortly before the debate, the MP issued a press release to several newspapers, including the Bristol-

based Evening Post and the national Daily Express. The press release was subject to an embargo

prohibiting disclosure until the precise time when the speech commenced. The contents of the press

release were substantially the same as those of the MP's speech. The following day, both newspapers

carried articles consisting of purported extracts of the speech, although these were based upon the press

release. Both articles included photographs of the applicant and mentioned her name and address. The

main headline in the Evening Post was:

“MP Attacks 'Neighbours From Hell'”.

In the Daily Express the headline was:

“MP names nightmare neighbour”.

15. The applicant was approached by journalists and television reporters asking for her response to

the MP's allegations and her comments were summarised in each newspaper the same day, although

they were not given as much prominence.

16. The applicant subsequently received hate-mail addressed to her at 50 Concorde Drive. One letter

stated that she should “be in houses with your own kind, not in amongst decent owners”. Another letter

stated: 4 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici

“You silly black bitch, I am just writing to let you know that if you do not stop your black nigger wogs nuisance, I

will personally sort you and your smelly jungle bunny kids out.”

17. The applicant was also stopped in the street, spat at and abused by strangers as “the neighbour

from hell”.

18. On 7 August 1996 a report was prepared for the SHA by a group which monitors racial harassment

and attacks. The report found that “it has now come to the point where [the applicant] has been put in

considerable danger as a result of her name being released to the public”. The report recommended that

the applicant be re-housed as a matter of urgency. She was re-housed in October 1996 and her children

were obliged to change schools.

19. On 2 August 1996 the applicant wrote through her solicitors to the MP outlining her complaints

and seeking his comments thereon. The letter was referred to the Office of the Parliamentary Speaker

by the MP. The Speaker's representative replied to the MP on 12 August 1996 to the effect that the

MP's remarks were protected by absolute parliamentary privilege:

“Subject to the rules of order in debate, Members may state whatever they think fit in debate, however offensive it

may be to the feelings or injurious to the character of individuals, and they are protected by this privilege from any

action for libel, as well as from any other molestation.”

This letter was copied and forwarded to the applicant's solicitors in September 1996.

20. Also on 2 August 1996, the applicant's solicitors wrote to the then Prime Minister, Mr John Major,

asking that, as leader of the political party to which Mr Stern belonged, he investigate the applicant's

complaints and take appropriate action. The Prime Minister's office replied on 6 August 1996, stating

that: “It is a matter for individual Members of Parliament to decide how they deal with their constituents and it is not for

the Prime Minister to comment. There is a strict Parliamentary convention that Members of Parliament do not

intervene in the affairs of other Members' constituencies and this applies equally to the Prime Minister.”

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Privilege

21. Words spoken by MPs in the course of debates in the House of Commons are protected by

absolute privilege. This is provided by Article 9 of the Bill of Rights 1689, which states:

“... the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in a

court or place out of Parlyament”.

22. The effect of this privilege was described by Lord Chief Justice Cockburn in the case of Ex

parte Watson (1869) QB 573 at 576:

“It is clear that statements made by Members of either House of Parliament in their places in the House, though they

might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however

injurious they might be to the interest of a third party”.

23. Statements made by MPs outside the Houses of Parliament are subject to the ordinary laws of

defamation and breach of confidence, save where they are protected by qualified privilege.

24. The question whether or not qualified privilege applies to statements made in any given political

5 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici

context turns upon the public interest. In the case of Reynolds v. Times Newspapers Ltd [2001] 2 AC

127, which concerned allegations made in the British press about an Irish political crisis in 1994, Lord

Nicholls of Birkenhead stated in the House of Lords, at page 204:

“The common law should not develop 'political information' as a new 'subject matter' category of qualified privilege,

whereby the publication of all such information would attract qualified privilege, whatever the circumstances. That

would not provide adequate protection for reputation. Moreover, it would be unsound in principle to distinguish

political discussion from discussion of other matters of serious political concern. The elasticity of the common law

principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the

case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of

expression by the media on all matters of public concern.

Depending on the circumstances, the matters to be taken into account include the following. The comments are

illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed

and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the

subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct

knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to

verify the information. 5. The status of the information. The allegations may have already been the subject of an

investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7.

Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed.

An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side

of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt

allegations as statements of fact. 10. The circumstances of the publication, including the timing.”

25. Press coverage, to the extent that it fairly and accurately reports parliamentary debates, is

generally protected by a form of qualified privilege which is lost only if the publisher has acted

“maliciously”. “Malice”, for this purpose, is established where the report concerned is published for

improper motives or with “reckless indifference” to the truth. A failure to make proper enquiries is not

sufficient in itself to establish malice, but it may be evidence from which malice (in the sense of

reckless indifference to the truth) can reasonably be inferred.

26. MPs can waive the absolute immunity which they enjoy in Parliament as a result of section 13 of

the Defamation Act 1996, which provides:

“(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation

proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any

enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or

place out of Parliament.

(2) Where a person waives that protection –

(a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or

statements, submissions, comments or findings being made about his conduct, and

(b) none of those things shall be regarded as infringing the privilege of either House of Parliament.

(3) The waiver by one person of that protection does not affect its operation in relation to another person who has not

waived it.

(4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who

has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for

the purposes of or incidental to, any proceedings in Parliament”.

27. General control is exercised over debates by the Speaker of each House of Parliament. Each

House has its own mechanisms for disciplining Members who deliberately make false statements in the

course of debates. Deliberately misleading statements are punishable by Parliament as a contempt.

Alternatively, as the Parliamentary Select Committee on Procedure (1988-89) has observed:

6 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici

“... there already exists a wide range of avenues which can be pursued by an aggrieved person who wishes to correct

or rebut remarks made about him in the House. He can approach his Member of Parliament with a view to his tabling

an Early Day Motion, or an amendment where appropriate; there may be cases which can be raised through Questions

if some ministerial responsibility can be established; he can petition the House, through a Member; and he can

approach directly the Member who made the allegations in the hope of persuading him that they are unfounded and

that a retraction would be justified. We believe that in these circumstances, the House would not expect a rigid

adherence to the convention that one Member does not take up a case brought by the constituent of another,

particularly if the latter was the source of the statement complained of, and so long as the courtesies of proper

notification were observed.”

B. Legal aid, “Green Form” assistance and conditional fees

28. Under Schedule 2, Part II of the Legal Aid Act 1988, “[p]roceedings wholly or partly in respect

of defamation” are excepted from the scope of the civil legal aid scheme.

29. ”Green Form” assistance is available to potential litigants with insufficient means in order to allow

them to receive two hours' free legal advice from a solicitor in cases of alleged defamation. The time

can be extended upon application.

30. Under section 58 of the Courts and Legal Services Act 1990, solicitors may enter into conditional

fee agreements in respect of any type of proceedings specified in an Order made by the Lord

Chancellor. A conditional fee agreement is defined under that section as an agreement in writing

between a solicitor and his client which provides that the solicitor's fees and expenses, or any part of

them, are to be payable only in specified circumstances. The Conditional Fee Agreements Order 1998

(Statutory Instrument 1860 of 1998) permitted conditional fee agreements in relation to “all

proceedings”. The Order entered into force on 30 July 1998. A conditional fee agreement cannot

prevent an unsuccessful litigant from being potentially liable to pay all or part of his opponent's costs in

connection with the proceedings.

C. Limitation period

31. The limitation period applicable to defamation proceedings in respect of statements made in

July 1996 was three years pursuant to section 4A of the Limitation Act 1980, as inserted by section

57(2) of the Administration of Justice Act 1985.

D. Report of the Joint Committee on Parliamentary Privilege

32. A Joint Committee of both Houses of Parliament was set up in July 1997 and tasked with

reviewing the law of parliamentary privilege. The Committee received written and oral evidence from a

wide variety of sources from within the United Kingdom and abroad and held fourteen sessions of

evidence in public. Its report was published in March 1999. Chapter 2 sets out its conclusions on

parliamentary immunity:

“38. The immunity is wide. Statements made in Parliament may not even be used to support a cause of action

arising out of Parliament, as where a plaintiff suing a member for an alleged libel on television was not permitted to

rely on statements made by the member in the House of Commons as proof of malice. The immunity is also absolute: it

7 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici

is not excluded by the presence of malice or fraudulent purpose. Article 9 protects the member who knows what he is

saying is untrue as much as the member who acts honestly and responsibly. ... In more precise legal language, it

protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or

incidental to, any proceedings in Parliament.

39. A comparable principle exists in court proceedings. Statements made by a judge or advocate or witness in the

course of court proceedings enjoy absolute privilege at common law against claims for defamation. The rationale in the

two cases is the same. The public interest in the freedom of speech in the proceedings, whether parliamentary or

judicial, is of a high order. It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of

those who participate in the proceedings even though the price is that a person may be defamed unjustly and left

without a remedy.

40. It follows that we do not agree with those who have suggested that members of Parliament do not need any greater

protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government.

Unlike members of Parliament, local councillors are liable in defamation if they speak maliciously. We consider it of

utmost importance that there should be a national public forum where all manner of persons, irrespective of their

power or wealth, can be criticised. Members should not be exposed to the risk of being brought before the courts to

defend what they said in Parliament. Abuse of parliamentary freedom of speech is a matter for internal self-regulation

by Parliament, not a matter for investigation and regulation by the courts. The legal immunity principle is as important

today as ever. The courts have a duty not to erode this essential constitutional principle.”

III. THE COUNCIL OF EUROPE AND THE EUROPEAN UNION

33. Article 40 of the Statute of the Council of Europe provides:

“a. The Council of Europe, representatives of members and the Secretariat shall enjoy in the territories of its

members such privileges and immunities as are reasonably necessary for the fulfilment of their functions. These

immunities shall include immunity for all representatives to the Parliamentary Assembly from arrest and all legal

proceedings in the territories of all members, in respect of words spoken and votes cast in the debates of the Assembly

or its committees or commissions.

b. The members undertake as soon as possible to enter into agreement for the purpose of fulfilling the provisions of

paragraph a above. For this purpose the Committee of Ministers shall recommend to the governments of members the

acceptance of an agreement defining the privileges and immunities to be granted in the territories of all members. In

addition, a special agreement shall be concluded with the Government of the French Republic defining the privileges

and immunities which the Council shall enjoy at its seat.”

34. In pursuance of paragraph b above, the Member States, on 2 September 1949, entered into the

General Agreement on Privileges and Immunities of the Council of Europe. This provides, as relevant,

as follows:

“Article 14

Representatives to the Parliamentary Assembly and their substitutes shall be immune from all official interrogation and

from arrest and from all legal proceedings in respect of words spoken or votes cast by them in the exercise of their

functions.

Article 15

During the sessions of the Parliamentary Assembly, the Representatives to the Assembly and their substitutes, whether

they be members of Parliament or not, shall enjoy:

a. on their national territory, the immunities accorded in those countries to members of Parliament;

b. on the territory of all other member States, exemption from arrest and prosecution. ...”

35. Article 5 of the Protocol to the General Agreement on Privileges and Immunities of the Council

of Europe provides: 8 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici

“Privileges, immunities and facilities are accorded to the representatives of members not for the personal benefit of

the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with the

Council of Europe. Consequently, a member has not only the right but the duty to waive the immunity of its

representative in any case where, in the opinion of the member, the immunity would impede the course of justice and it

can be waived without prejudice to the purpose for which the immunity is accorded.”

36. Article 9 of the Protocol on the Privileges and Immunities of the European Communities,

adopted in accordance with Article 28 of the Treaty establishing a Single Council and a Single

Commission of the European Communities, provides:

“Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in

respect of opinions expressed or votes cast by them in the performance of their duties.”

IV. THIRD-PARTY INTERVENTIONS

A. The Austrian Government

37. Under Article 57 paragraph 1 of the Federal Constitutional Law members of Nationalrat (the

lower house of Parliament) could never be held liable for votes cast in the exercise of their functions or

on the ground of oral or written statements made in the course of their functions – so-called

“professional immunity”. In these matters, members enjoy immunity from criminal, civil and

administrative proceedings. The President however may require a member to keep to the subject or call

the member to order if he/she violates the decency and dignity of the House or makes defamatory

statements (s.102 of the Standing Orders Act).

38. Under Article 57 paragraph 3, criminal prosecution and civil proceedings against an MP could be

taken without the consent of the Nationalrat only where it is “manifestly not connected with the

political activity of the member in question” – so-called “non-professional immunity”. MPs may

therefore be subject to civil proceedings, the issue of whether the matter has no manifestly connection

with their duties being determined by the prosecuting authorities. Where the authority considers that

that connection is manifest or unclear, it must seek the consent of the Nationalrat. Where the MP

concerned or one third of the members of the Immunity Committee require it, consent must also be

asked of the Nationalrat. According to the prevailing view, this level of immunity merely prevents

legal action for a limited period of time, proceedings becoming possible once the MP loses his/her

immunity status.

39. The Government emphasised that these provisions had strong historical continuity in their legal

system, serving to guarantee the protection of MPs in their political activity, in particular their freedom

to vote and state their views.

B. The Belgian Government

40. Articles 58 and 59 of the Belgian Constitution prohibit proceedings against a member of the

federal chambers of Parliament concerning the expression of opinion or votes cast. Save in the case of

“flagrant délit”, no member of chamber could be summoned before a court or arrested during a

parliamentary session unless the Chamber has given consent. This immunity, even against acts

9 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici

infringing the rights of citizens, is regarded in domestic law and practice as an essential guarantee for

the functioning of the legislature and its absolute nature as essential to the efficacy of that guarantee.

Private rights have to be regarded as ceding to the overriding public interest.

C. The Dutch Government

41. The Dutch Government drew attention to Article 71 of the Dutch Constitution, which confers

upon members of the Senate and House of Representatives of the States General an immunity from

every category of legal proceedings.

42. They pointed out that the right to parliamentary immunity in the Netherlands is not absolute. The

Rules of Procedure of both the Senate and the House of Representatives cover cases in which an MP

abuses the protection afforded by Article 71. The President in each Chamber may admonish any

member who violates the Rules of Procedure and then offer the member concerned a chance to retract

the offending remark. If the member refuses to make a retraction, or persists in violating the Rules of

Procedure, the President may forbid him or her from speaking further or from attending the rest of the

sitting or further sittings the same day. Similar immunities and disciplinary procedures apply at the

provincial and municipal level.

43. The Dutch Government submitted that parliamentary immunity is indispensable to the operation of

democracy and that to give the judiciary authority over what MPs say in their deliberations would

represent an unacceptable infringement of the separation of powers.

D. The Finnish Government

44. According to section 30(1) of the Constitution (1999), an MP shall not be prevented from

carrying out his or her duties as a representative. Section 30(2) provides that an MP cannot be charged

in a court of law or be deprived of liberty owing to opinions expressed by the representative in

Parliament or owing to conduct in the consideration of a matter, unless Parliament gives consent by a

majority of five sixths of the votes cast. The provisions concerning parliamentary privilege and

immunities have a long tradition in the work of Parliament, dating back to 1723. The only restriction on

the exercise of the freedom of expression of a representative is the requirement in section 31(2) that a

representative conduct himself or herself with decorum and not act offensively towards another person.

If a representative breaches this condition, the Speaker may issue a warning or prohibit the

representative from continuing to talk. Parliament may caution a representative who has repeatedly

breached the order or suspend him or her for a maximum of two weeks.

45. A waiver of immunity may be requested by any person having the right to prosecute or to request

prosecution. The Speaker examines whether the party has such a right and whether the intended

prosecution concerns the MP's official actions. Parliament decides on such a request in ordinary session

and the decisive question is whether the intended prosecution is of such a nature that there is a public or

private interest to refer the matter to a court of law. In most cases, the Parliament has deemed such

requests manifestly ill-founded and rejected them. In no case based on alleged damage to another

person's reputation or allegedly incorrect information given by an MP has a prosecution been

authorised. 10 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici

46. The Government considered that freedom of speech and the general freedom to act were essential

for the performance of the duties of an MP.

E. The French Government

47. The provisions in the French system which protect the representatives of the people in the

performance of their functions date back to 1789, deriving from respect for the expression of the will of

the people and the necessity in a democratic state for elected representatives to exercise their mandate

freely without fear of legal action or interference from either the executive or the judiciary. The

immunity bestowed is absolute in that it covers all acts carried out by MPs in the exercise of their

functions regarding criminal and civil liability and permanent since it continues after expiry of their

mandates. The immunity is not concerned with the private interests of the MP but with the function that

he or she exercises. Thus, it cannot be waived by an individual MP.

48. However, the immunity conferred is strictly interpreted and does not extend to acts outside the

exercise of the MP's mandate, including speech in a private capacity within the Assembly or statements

in press articles in so far as these did not repeat statements made during an Assembly debate.

Parliamentary immunity carries with it a requirement of discretion (“devoir de réserve”) and

unacceptable forms of expression may be subject to internal admonition.

F. The Irish Government

49. The Irish Government submitted that parliamentary immunity has developed throughout the

world not as a constraint upon the rights of the citizen, but as a fundamental liberty. They argued that a

cursory consideration of the history of the principle, its widespread domestic and international

constitutional entrenchment and the case-law of the Court all suggest that parliamentary immunity is

protected by the Convention. They supported this argument by reference to the preamble to the

Convention.

50. The Irish Government pointed to, inter alia, Articles 15.10 and 15.13 of the 1937 Constitution of

Ireland, which provide:

“[15.10] Each House shall make its own rules and standing orders, with power to attach penalties for their

infringement, and shall have power to ensure freedom of debate, ...

[15.13] The Members of each House of the Oireachtas [Parliament] ... shall not, in respect of any utterance in either

House, be amenable to any court or any authority other than the House itself.”

51. Article 40.3.2 of the Constitution expressly recognises, and imposes upon the State, an

obligation to defend and vindicate the citizen's right to his or her good name. However, the Irish

Government indicated that there is no absolute right to reputation or protection from defamatory

utterances under Irish law.

52. They drew attention also to the privileges and immunities enjoyed by Representatives to the

Parliamentary Assembly of the Council of Europe and Members of the European Parliament (see

paragraphs 33-36 above). They submitted that it was difficult to see how such immunities could be

consistent with the Convention if the conferring by individual States of similar immunities in respect of

their own Parliaments itself violated the Convention.

11 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici

53. The Irish Government argued that the importance of the legitimate objectives pursued by

parliamentary immunity was difficult to overstate and that it was for the national authorities to seek to

balance the right of individual citizens to a good name with the right of free parliamentary expression.

In reviewing the proportionality of the balance struck, they said that the Court must have regard to the

fact that States were in principle better placed than an international court to evaluate local needs and

conditions.

G. The Italian Government

54. The Italian Government pointed out that parliamentary privilege is recognised by a large

number of democratic countries across Europe and the rest of the world, including Italy, together with

international bodies such as the Council of Europe and the European Union. They submitted that such a

privilege is a fundamental aspect of the separation of powers and the rule of law, both of which are

political traditions upon which the Convention and the Council of Europe were founded.

55. They stated that, notwithstanding a recent revision in Italy of the rules of parliamentary privileges

and immunities, the protection of free speech in Parliament against interference by the courts has never

been questioned there and continues to be considered essential to parliamentary government. In the

event of any dispute between Parliament and the judiciary as to the application of a privilege, it is a

“neutral” authority, in the form of the Italian Constitutional Court, which has the final decision. That

court is made up of fifteen judges, five of whom have been appointed by each of the Parliament, the

supreme courts and the President of the Republic.

56. The Italian Government submitted that parliamentary privilege pursues its legitimate aim in a

proportionate manner, particularly since its scope is limited to parliamentary activity. They argued that

MPs would not be able to speak their mind freely in Parliament in the absence of an absolute immunity.

H. The Norwegian Government

57. There is no general provision granting members of the national assembly (the Storting)

immunity from judicial processes. However, Article 66 of the Constitution confers immunity in two

limited situations. Members cannot be arrested on the way to or from the assembly (unless apprehended

in “public crimes”) and cannot be called to account outside the meetings of the assembly for opinions

expressed there. This immunity comprises both criminal and civil liability, and extends even to speech

where it is alleged that the member has intentionally expressed untruths or where the member has

expressed himself or herself on a subject unconnected with the issue under debate. An individual

member cannot waive the immunity. The absolute nature of the immunity is regarded as necessary to

prevent undermining the general purpose of the provision, which is to guarantee the unfettered

exchange of information and ideas in the assembly, being considered indispensable in the Norwegian

democratic system.

58. However, a member may be held accountable within the assembly, improper or insulting behaviour

being prohibited and subject to the potential sanction of a warning from the President of the Assembly

or exclusion by the Assembly from the right to speak or participate in the proceedings for the rest of the

day. 12 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

A. Parliamentary Privilege

59. The applicant complained that the absolute nature of the privilege which protected the MP's

statements about her in Parliament violated her right of access to court under Article 6 § 1 of the

Convention.

Article 6 § 1 provides (as relevant):

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law.”

1. Applicability of Article 6 § 1

60. The Government argued that the substantive content of the civil right to reputation in domestic

law was delimited by the rules of parliamentary privilege, and that a person whose reputation was

damaged by a parliamentary speech therefore had no actionable claim so as to engage the procedural

safeguards of Article 6 § 1 of the Convention.

61. The applicant argued that the absolute immunity which MPs enjoy from legal action in respect of

words spoken in parliamentary proceedings was an aspect of procedural law which fell within the

scope of Article 6 § 1.

62. The Court recalls that in Agee v. the United Kingdom (no. 7729/76, Commission decision of 17

December 1976, Decisions and Reports (DR) 7, p. 164) the Commission considered that the applicant

did not have any right under United Kingdom law to the protection of his reputation in so far as it

might be affected by statements made in Parliament. As a result, it stated that Article 6 § 1 did not

guarantee a right to bring defamation proceedings in respect of such statements and concluded that the

applicant's complaint about his inability to do so was incompatible ratione materiae with the

Convention.

63. However, the Court has subsequently established that whether a person has an actionable domestic

claim so as to engage Article 6 § 1 may depend not only on the substantive content of the relevant civil

right, as defined under national law, but also on the existence of procedural bars preventing or limiting

the possibilities of bringing potential claims to court. In the latter kind of case, Article 6 § 1 may be

applicable. Certainly the Convention enforcement bodies may not create by way of interpretation of

Article 6 § 1 a substantive civil right which has no legal basis in the State concerned. However, it

would not be consistent with the rule of law in a democratic society, or with the basic principle

underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for

adjudication – if a State could, without restraint or control by the Convention enforcement bodies,

remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil

liability on large groups or categories of persons (see Fayed v. the United Kingdom, judgment of 21

September 1994, Series A no. 294-B, § 65; Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 47,

ECHR 2001-XI). 13 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici

64. In the present case, the Court observes that Article 9 of the Bill of Rights is framed not in terms of

a substantive defence to civil claims, but rather in terms of a procedural bar to the determination by a

court of any claim which derives from words spoken in Parliament.

65. However, the Court considers it unnecessary to settle the precise nature of the privilege at issue for

the purposes of Article 6 § 1, since it is devoid of significance in the particular circumstances. This is

because the central issues of legitimate aim and proportionality which arise under the applicant's

procedural complaint under Article 6 § 1 of the Convention are the same as those arising in relation to

the applicant's substantive complaint going to the right to respect for private life under Article 8 (see

the above-mentioned Fayed case, § 67).

The Court will therefore proceed on the basis that Article 6 § 1 is applicable to the facts of this case.

2. Compliance with Article 6 § 1

66. The Government regarded it as a fundamental constitutional principle that statements made in

Parliament should be protected by absolute privilege. They stated that such a privilege served the dual

public interests of free speech in Parliament and the separation of powers. They indicated that such

legitimate aims were of sufficient importance to outweigh any harm to the rights of individuals which

might result from words spoken in Parliament. Absolute privilege was designed not to protect

individual members, but Parliament as a whole, and operated only where it was strictly necessary,

namely within Parliament itself. They drew attention also to the fact that Parliament had its own

internal mechanisms for disciplining an MP who deliberately made a false statement during a debate.

67. The Government submitted that all Contracting States to the Convention, together with most other

democracies, have some system of parliamentary immunity, although the precise features of such

systems vary, showing that it was a virtually universal principle. They referred also to the immunity

enjoyed by members of various international institutions, including the Parliamentary Assembly of the

Council of Europe and the European Parliament (see paragraphs 33-36 above).

68. The Government highlighted the conclusions reached by the recent review of parliamentary

privilege by a Joint Committee of the House of Commons and House of Lords in support of retaining

the rule of absolute parliamentary immunity (see paragraph 32 above).

69. In all the circumstances, the Government argued that the rule of absolute parliamentary immunity

was justified in principle in the public interest. They maintained that, once such a justification was

recognised, there was no basis for distinguishing between the facts of individual cases.

70. The Government contrasted the absolute immunity enjoyed by MPs in Parliament with the

qualified immunity enjoyed by the press when reporting parliamentary proceedings. They indicated

that the public interest in free reporting of such proceedings was not considered strong enough to

justify absolute privilege, and so the domestic law had qualified the privilege by requiring the publisher

to report in a “fair and accurate” manner and without improper motive.

71. The applicant argued that Article 9 of the Bill of Rights left her unable to bring domestic

proceedings in respect of both the defamatory and the true elements of the MP's parliamentary speech.

She highlighted the fact that, under the Defamation Act 1996, MPs could effectively waive

Parliamentary immunity where it suited them to do so by having evidence relating to statements made

in Parliament admitted to court in litigation which they had initiated. Although she accepted that

parliamentary privilege pursued the legitimate aims of free debate and regulation of the relationship

14 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici

between legislature and judiciary, she submitted that it did so in a disproportionate manner. She

contended that the broader an immunity, the more compelling must be its justification, and that an

absolute immunity such as that enjoyed by MPs must be subjected to the most rigorous scrutiny. Thus,

she argued that the proportionality of the immunity could only be determined in the light of the facts of

her case. She drew attention to the severity of the allegations made in the MP's speech and his repeated

reference to the applicant's name and address, both of which she claimed were unnecessary in the

context of a debate about municipal housing policy. She also pointed to the consequences of the

allegations for both her and her children, which she said were utterly predictable. The Government had

failed convincingly to establish why a lesser form of protection than absolute privilege could not meet

the needs of a democratic society, in particular why it is necessary to protect those MPs who on rare

occasion speak maliciously making gravely damaging statements.

72. The applicant submitted that the parliamentary avenues of redress identified by the Government

did not offer access to an independent court and failed to provide her with any effective remedy. She

contrasted the position in Parliament with that in other democratic institutions in the United Kingdom

such as local councils, where only qualified privilege applied. She argued that the parallel drawn

between national Parliaments and international bodies such as the Council of Europe was inexact. As

regards the position in Europe generally, she noted that in many countries immunity could be lifted or

did not extend to defamatory remarks or insults. In her view, freedom of speech in Parliament must, as

in the local government and other contexts, carry with it duties and responsibilities, as confirmed by

Article 10 § 2 of the Convention.

73. The Court recalls that the right of access to court constitutes an element which is inherent in the

right to a fair hearing under Article 6 § 1 of the Convention (see, among other authorities, Golder v. the

United Kingdom, judgment of 21 February 1975, Series A no. 18, § 36).

74. However, the right of access to court is not absolute, but may be subject to limitations. These are

permitted by implication since the right of access by its very nature calls for regulation by the State. In

this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision

as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the

limitations applied do not restrict or reduce the access left to the individual in such a way or to such an

extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible

with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of

proportionality between the means employed and the aim sought to be achieved (see, among other

cases, Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999-I).

75. The Court must first examine whether the limitation pursued a legitimate aim. It recalls in this

connection that, in application no. 25646/94, Young v. Ireland (DR 84, p. 122), the Commission

identified an underlying aim of the immunity accorded to members of the lower house of the Irish

legislature as being to allow such members to engage in meaningful debate and to represent their

constituents on matters of public interest without having to restrict their observations or edit their

opinions because of the danger of being amenable to a court or other such authority.

76. The Court notes that the applicant recognises that aim in connection with the operation of

parliamentary immunity in the United Kingdom. She recognises also that the immunity pursues a

second legitimate aim, namely that of regulating the relationship between the legislature and the

judiciary. 15 prof. Giorgio Costantino

D I (A – L)

IRITTO PROCESSUALE CIVILE

Materiali didattici


PAGINE

27

PESO

1.68 MB

AUTORE

Atreyu

PUBBLICATO

+1 anno fa


DESCRIZIONE DISPENSA

La dispensa si riferisce alle lezioni di Diritto Processuale Civile I, tenute dal Prof. Giorgio Costantino nell'anno accademico 2011.
Il documento riporta il testo in inglese della sentenza della Corte europea dei Diritti dell'Uomo relativa al c.d. Caso Al Adsani. La Corte è chiamata a pronunciarsi sull'esistenza o meno dell'immunità giurisdizionale dello Stato nella causa intentata dal ricorrente per risarcimento danni derivanti dalle torture subite.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Processuale Civile I e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Roma Tre - Uniroma3 o del prof Costantino Giorgio.

Acquista con carta o conto PayPal

Scarica il file tutte le volte che vuoi

Paga con un conto PayPal per usufruire della garanzia Soddisfatto o rimborsato

Recensioni
Ti è piaciuto questo appunto? Valutalo!

Altri appunti di Diritto processuale civile i

Introduzione causa - Schemi
Dispensa
Modelli verbali udienza
Dispensa
Trattazione causa- Schema
Dispensa
Procedimenti di cognizione
Dispensa