Immunità - Caso Cordova
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,
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
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
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
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.”
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
+1 anno fa
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.
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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