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Immunità - Caso Cordova

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo della sentenza della Corte di Giustizia relativa al Caso Cordova. La pronuncia riguarda: opinioni espresse durante l'esercizio... Vedi di più

Esame di Diritto Costituzionale Avanzato docente Prof. F. Cerrone

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Constitutional Court, the courts would express a view, albeit by implication, on the propriety and

lawfulness of the impugned resolution. In any event, the courts alone were not entitled to deprive

the trial court of its power to look into the dispute.

43. In the light of the foregoing, the Government did not consider that the applicant's right of

access to a court had been in any way restricted. While that right of access secured the possibility of

asking a court to settle a dispute over a civil right, it did not mean that the court was obliged to steer

the trial in the direction which the plaintiff wished it to take or to dismiss any preliminary issues

likely to stand in the way of a decision on the merits. The applicant had been able to go to court and

to bring civil proceedings as part of the prosecution of Mr Cossiga. The Messina District Court had

then considered the Senate's resolution and found it to be lawful. Finally, the prosecution had found

the District Court's decision to be well-founded and that there were no grounds for an appeal.

44. The Government contended that even assuming that there had been an interference with the

applicant's right of access to a court, the interference was proportionate to the legitimate aim

pursued, namely the freedom and spontaneity of parliamentary debate. In that connection, they

observed that from 1997 onwards (see, in particular, judgments nos. 265 and 375 of 1997, no. 289

of 1998, no. 329 of 1999, nos. 10, 11, 56, 58, 82, 320 and 420 of 2000, nos. 137 and 289 of 2001,

and nos. 50, 51, 52, 79 and 207 of 2002) the Constitutional Court had quashed a number of

parliamentary resolutions concerning the immunity in question on the grounds that the behaviour in

issue, even though it was founded on a political quarrel, did not bear any relationship with acts

characteristic of parliamentary functions. Thus, the type of scrutiny exercised by the Constitutional

Court over conflicts of State powers constituted an instrument for the protection of the victims of a

criminal offence committed by a member of the Chamber of Deputies or the Senate and wrongly

considered by Parliament to be covered by Article 68 § 1 of the Constitution. Recent case-law

showed, moreover, that the scope of parliamentary immunity was now carefully tailored to the aim

pursued, because the Constitutional Court took account of the importance of providing legal

protection for the fundamental rights to honour and reputation of those who considered themselves

offended by the statements of a parliamentarian. In such circumstances, it would be wrong to

conclude that the very essence of the right of access by individuals to a court had been impaired,

where the exercise of that right had merely been regulated within the margin of appreciation which

the Contracting States must enjoy in the matter.

45. The Government noted that individuals were not entitled to refer a case directly to the

Constitutional Court or to oblige the trial court to do so, but could only apply for a decision to that

effect. They submitted nevertheless that such a system could not be held to infringe the Convention,

because conflicts of State powers served to protect the courts' role in upholding the rule of law.

Moreover, as was clear from the Constitutional Court's judgment no. 76 of 2001, private individuals

could intervene in its proceedings.

46. Lastly the Government submitted that, even if there had been a violation, it was simply due

to a one-off malfunction of the Italian system, which normally offered sufficient safeguards and

must be regarded as complying with the Convention. If the conflict of powers had been raised, the

Constitutional Court would in all likelihood, in the light of its case-law, have quashed the Senate's

resolution of 2 July 1997.

B. The Court's assessment

47. In its decision on the admissibility of the application, the Court found that the complaint

under Article 6 of the Convention primarily raised the question of whether the applicant had been

able to exercise his right of access to a court (see Golder v. the United Kingdom, judgment of

21 February 1975, Series A no. 18, pp. 17-18, §§ 35-36).

1. The existence of an interference with the applicant's right of access to a court

48. The Court notes that, according to its case-law, Article 6 § 1 secures the “right to a court”, of

which the right of access, that is the right to institute proceedings before courts in civil matters

constitutes one aspect only (see Osman v. the United Kingdom, judgment of 28 October 1998,

Reports of Judgments and Decisions 1998-VIII, p. 3166, § 136). This right extends only to disputes

(“contestations”) over “civil rights and obligations” which can be said, at least on arguable grounds,

to be recognised under domestic law (see, among other authorities, James and Others v. the United

Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81, and Powell and Rayner

v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, p. 16, § 36).

49. In the present case, the Court notes that the applicant, considering himself defamed by Mr

Cossiga's behaviour, had lodged a complaint against him and had joined the subsequent criminal

proceedings as a civil party. From that moment, those proceedings covered a civil right – namely

the right to the protection of his reputation – to which the applicant could, on arguable grounds,

claim to be entitled (see Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A, p. 43,

§ 121).

50. The Court notes further that, by its resolution of 2 July 1997, the Senate declared that Mr

Cossiga's behaviour was covered by the immunity provided for in Article 68 § 1 of the Constitution

(see paragraphs 14 and 15 above), so making it impossible for any criminal or civil proceedings

aimed at establishing his liability or at securing reparation for the damage suffered to be continued

(see paragraph 23 above).

51. It is true that, as stated by the Government, the Messina District Court had examined the

lawfulness of that resolution and, in its judgment of 27 September 1997, had found that it was

neither procedurally flawed nor manifestly unreasonable (see paragraphs 17-18 above).

52. However, such an examination cannot be equated with a decision on the applicant's right to

the protection of his reputation, nor can a degree of access to a court limited to the right to ask a

preliminary question be considered sufficient to secure the applicant's “right to a court”, having

regard to the rule of law in a democratic society (see, mutatis mutandis, Waite and Kennedy v.

Germany [GC], no. 26083/94, § 58, ECHR 1999-I). In this connection, it should be borne in mind

that, in order for the right of access to be effective, an individual must have a clear and practical

opportunity to challenge an act interfering with his rights (see Bellet v. France, judgment of 4

December 1995, Series A no. 333-B, p. 42, § 36). In the present case, following the resolution of 2

July 1997 coupled with the Messina District Court's refusal to raise a conflict of State powers

before the Constitutional Court, the prosecution of Mr Cossiga was abandoned and the applicant

was deprived of the possibility of securing any form of reparation for his alleged damage.

53. In these circumstances, the Court considers that there has been an interference with the

applicant's right of access to a court.

54. Moreover, it notes that this right is not absolute, but may be subject to implied limitations.

Nonetheless, such limitations must not restrict 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, they will not be

compatible with Article 6 § 1 if they do not pursue a legitimate aim and if there is not a reasonable

relationship of proportionality between the means employed and the aim sought to be achieved (see,

among many other authorities, Khalfaoui v. France, no. 34791/97, §§ 35-36, ECHR 1999-IX, and

Papon v. France, no. 54210/00, § 90, ECHR 2002-VII; see also a reminder of the relevant

principles in Fayed, cited above, pp. 49-50, § 65).

2. Aim of the interference

55. The Court notes that it is a long-standing practice for States generally to confer varying

degrees of immunity to parliamentarians, with the aim of allowing free speech for representatives of

the people and preventing partisan complaints from interfering with parliamentary functions. In

these circumstances, the Court considers that the interference in question, which was provided for in

Article 68 § 1 of the Constitution, pursued legitimate aims, namely to protect free parliamentary

debate and to maintain the separation of powers between the legislature and the judiciary (see A. v.

the United Kingdom, no. 35373/97, §§ 75-77, ECHR 2002-X).

56. It remains to be determined whether the consequences for the applicant were proportionate

to the legitimate aims pursued.

3. Proportionality of the interference

57. The Court must assess the contested limitation in the light of the particular circumstances of

the case (see Waite and Kennedy, cited above, § 64). It observes in this respect that its task is not to

review the relevant law and practice in abstracto, but to determine whether the manner in which

they were applied to or affected the applicant gave rise to a violation of the Convention (see,

mutatis mutandis, Padovani v. Italy, judgment of 26 February 1993, Series A no. 257-B, p. 20, §

24). In particular, it is not the Court's task to take the place of the domestic courts. It is primarily for

the national authorities, notably the courts, to resolve problems of interpretation of domestic

legislation (see, among other authorities, Pérez de Rada Cavanilles v. Spain, judgment of 28

October 1998, Reports 1998-VIII, p. 3255, § 43). The Court's role is confined to ascertaining

whether the effects of such an interpretation are compatible with the Convention.

58. The Court observes that the fact that a State confers immunity on the members of its

parliament may affect the protection of fundamental rights. It would be incompatible with the

purpose and object of the Convention, however, if the Contracting States, by adopting a particular

system of parliamentary immunity, were thereby absolved from their responsibility under the

Convention in relation to parliamentary activity. It should be borne in mind that the Convention is

intended to guarantee not rights that are theoretical or illusory but rights that are practical and

effective. This is particularly so of the right of access to a court in view of the prominent place held

in a democratic society by the right to a fair trial (see Aït-Mouhoub v. France, judgment of 28

October 1998, Reports 1998-VIII, p. 3227, § 52). 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 on categories of persons (see Fayed, loc. cit.).

59. The Court reiterates that, while freedom of expression is important for everybody, it is

especially so for an elected representative of the people; he or she represents the electorate, draws

attention to their preoccupations and defends their interests. In a democracy, the parliament and

comparable bodies are the essential fora for political debate. Very weighty reasons must be

advanced to justify interfering with the freedom of expression exercised therein (see Jerusalem v.

Austria, no. 26958/95, §§ 36 and 40, ECHR 2001-II).

60. Accordingly, parliamentary immunity cannot in principle be regarded as imposing a

disproportionate restriction on the right of access to a court as embodied in Article 6 § 1. Just as the

right of access to a court is an inherent part of the fair trial guarantee in that Article, so some

restrictions on access must likewise be regarded as inherent, an example being those limitations

generally accepted by the Contracting States as part of the doctrine of parliamentary immunity (see

A. v. the United Kingdom, cited above, § 83, and, mutatis mutandis, Al-Adsani v. the United

Kingdom [GC], no. 35763/97, § 56, ECHR 2001-XI).

61. In this connection, it is worth noting that the Court has found that an immunity attaching to

statements made in the course of parliamentary debates in the legislative chambers and designed to

protect the interests of Parliament as a whole, as opposed to those of individual parliamentarians,

was compatible with the Convention (see A. v. the United Kingdom, cited above, §§ 84-85).

62. However the Court notes that, in the particular circumstances of this case, Mr Cossiga's

behaviour was not connected with the exercise of parliamentary functions in their strict sense.

Although it emerges from the decision of the Messina public prosecutor of 13 December 1997 (see

paragraph 20 above) that Mr Cossiga had criticised the applicant's investigations in an earlier

parliamentary question, the Court considers that ironic or derisive letters accompanied by toys

personally addressed to a prosecutor cannot, by their very nature, be construed as falling within the

scope of parliamentary functions. Such behaviour is more consistent with a personal quarrel. In

such circumstances, it would not be right to deny someone access to a court purely on the basis that

the quarrel might be political in nature or connected with political activities.

63. The Court takes the view that the lack of any clear connection with a parliamentary activity

requires it to adopt a narrow interpretation of the concept of proportionality between the aim sought

to be achieved and the means employed. This is particularly so where the restrictions on the right of

access stem from the resolution of a political body. To hold otherwise would amount to restricting

in a manner incompatible with Article 6 § 1 of the Convention the right of individuals to have

access to a court whenever the allegedly defamatory statements have been made by a

parliamentarian.

64. The Court therefore considers that in this case the decisions that Mr Cossiga had no case to

answer and that no further proceedings could be brought to secure the protection of the applicant's

reputation did not strike a fair balance between the requirements of the general interest of the

community and the need to safeguard the fundamental rights of individuals.

65. The Court also attaches some significance to the fact that the Senate's resolution of 2 July

1997 left the applicant with no reasonable alternative means of effectively protecting his

Convention rights (see, by converse implication, Waite and Kennedy, cited above, §§ 68-70, and

A. v. the United Kingdom, cited above, § 86). The Messina District Court's refusal to raise a conflict

of State powers with the Constitutional Court prevented the latter from ruling on the compatibility

between the resolution in issue and the jurisdiction of the courts. In this connection it should be

noted that there have since been developments in the Constitutional Court's case-law on the issue,

and that it now considers it wrong for immunity to extend to statements lacking any substantial

connection with prior parliamentary activities which the parliamentarian concerned could be

thought to be relaying (see paragraphs 26, 27 and 44 above).

66. In the light of the foregoing, the Court finds that there has been a violation of the applicant's

right of access to a court guaranteed by Article 6 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

67. The applicant submitted that the decision that Mr Cossiga had no case to answer also

breached Article 13 of the Convention, which is worded as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective

remedy before a national authority notwithstanding that the violation has been committed by persons acting in an

official capacity.”

68. The applicant contended that the Italian system of immunities and privileges deprived him of

effective legal protection. He further complained that Italian litigants were denied direct access to

the Constitutional Court.

69. The Government submitted that the Article 13 complaint had to be regarded as absorbed by

the complaint under Article 6 § 1. In any event, with reference to the arguments advanced in

relation to the right of access to a court, they contended that there had been no violation of Article

13. They observed that Article 13 could not be construed as requiring a State to provide an appeal

against the final decisions of the courts or to grant litigants direct access to the Constitutional Court.

70. The Court notes that the applicant's complaint under Article 13 is based on the same facts as

were reviewed under Article 6 § 1 of the Convention. Moreover, it should be remembered that

where an issue of access to a court arises, the requirements of Article 13 are absorbed by those of

Article 6 (see Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports 1997-

VIII, p. 2957, § 41).

71. The Court therefore sees no need to examine whether there has been a violation of Article 13

of the Convention (see Posti and Rahko v. Finland, no. 27824/95, § 89, ECHR 2002-VII).

IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

72. The applicant submitted that his fundamental rights to honour and reputation had been

infringed by the fact that Mr Cossiga, in his capacity as a member of Parliament, had been allowed

a much wider freedom of expression than that usually reserved for other citizens. He relied on

Article 14 of the Convention, which is worded as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination

on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin,

association with a national minority, property, birth or other status.”

73. The applicant submitted that the immunity wrongly afforded Mr Cossiga amounted to a

serious instance of discrimination before the law, which converted an immunity into an unjustified

privilege. He claimed to be a “victim” of that state of affairs in that, his right to honour having been

breached, he had been unable to obtain redress from the national courts.

74. The Government observed that parliamentarians were not in a situation comparable to that of

the general public and that the scope of the freedom of expression they enjoyed was justified by the

need to protect freedom of parliamentary debate. In any event, they contended that the applicant

could not be regarded as the victim of a form of “discrimination” which applied to the public at

large.

75. The Court considers, in the light of its finding under Article 6 § 1 of the Convention (see

paragraph 66 above) that it is not necessary to examine the applicant's complaint under Article 14 of

the Convention separately.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

76. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal

law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if

necessary, afford just satisfaction to the injured party.”

A. Damage

77. The applicant claimed to have sustained non-pecuniary damage and sought an amount of not

less than 50,000 euros (EUR).

78. The Government submitted that a judgment finding that there had been a violation of the

Convention would in itself constitute sufficient just satisfaction.

79. The Court finds that the applicant sustained undeniable non-pecuniary damage. Taking into

account the various relevant circumstances and making an assessment on an equitable basis in

accordance with Article 41 of the Convention, it awards him EUR 8,000.

B. Costs and expenses

80. On the basis of a fee note, the applicant claimed the reimbursement of EUR 8,745 in respect

of costs incurred before the Commission and the Court.

81. The Government left the matter to the Court's discretion.

82. The Court finds that the applicant should be awarded the amount of EUR 8,745 he has

claimed for the proceedings before the Commission and the Court.

C. Default interest


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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo della sentenza della Corte di Giustizia relativa al Caso Cordova. La pronuncia riguarda: opinioni espresse durante l'esercizio delle funzioni parlamentari, l'immunità ex art. 68 c.1 Cost., diffamazione aggravata.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
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 Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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