JUDGMENT NO. 17
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of: President:
Augusto Antonio BARBERA;
Judges: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has delivered the following
JUDGMENT
in the proceedings for conflict of attribution between State powers arising from the resolutions of the Chamber of Deputies of 27 July 2022, which approve the proposals of the Board for Authorizations (doc. IV-quater, numbers 3 and 4), initiated by the Ordinary Court of Salerno, First Civil Section, with notice of appeal served on 24 July 2023, filed with the registry on 24 July 2023, registered under No. 2 of the register of conflicts between State powers 2023 and published in the Official Gazette of the Republic No. 31, first special series, of the year 2023, merits phase.
Having regard to the act of constitution of the Chamber of Deputies;
Having heard at the public hearing of 10 January 2024 the Reporting Judge Filippo Patroni Griffi;
Having heard lawyer Marco Cerase for the Chamber of Deputies;
Resolved in the council chamber of 10 January 2024.
Considered in Fact
1. – By appeal filed on 24 July 2023 (reg. confl. pot. No. 2 of 2023), the Ordinary Court of Salerno, First Civil Section, initiates a conflict of attribution between State powers with reference to the resolutions of 27 July 2022, with which the Chamber of Deputies, approving the proposals of the Board for Authorizations (doc. IV-quater, numbers 3 and 4), affirmed that the statements of Hon. Giorgio Mulè and Hon. Roberto Occhiuto, for which civil proceedings are pending before the aforementioned Court, constitute opinions expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution.
1.1. – The Court of Salerno reports that it is seized of a claim for compensation for non-pecuniary damages brought by M.M., at the time of the facts Deputy Prosecutor at the Public Prosecutor's Office of the Ordinary Court of Cosenza, for the allegedly defamatory statements made by the two deputies.
At a press conference – convened on 13 May 2019 at the press room of the Chamber of Deputies for the «declared purpose», the appellant specifies in its act, of «reacting to a conspiracy hatched against the mayor of Cosenza Occhiuto Mario», brother of Hon. Roberto Occhiuto – Hon. Mulè and Hon. Occhiuto would have spoken, «among other things», of «"bad justice”» and of «"incorrect methods”», thus «insinuating the suspicion that M.M. had acted under the directives of Senator Morra, in order to obtain prestigious positions from the Antimafia Commission».
1.2. – During the proceedings, the two parliamentarians requested the rejection of the claim for compensation, due to the non-reviewability of their opinions pursuant to Article 68, first paragraph, of the Constitution.
The Court of Salerno reports that it has «substantially» rejected this request, «even in the absence of an express provision to that effect», with the order of 13 January 2022 with which it ordered the continuation of the preliminary investigation phase (Court of Cassation, Third Civil Section, judgment of 5 December 2014, No. 25739 is cited on the value of implicit rejection of the request in case of silence).
The appellant complains that, subsequently, with a «resolution» of 27 July 2022, as per a «note» sent to the Court by its President, the Chamber of Deputies resolved that the statements in relation to which the proceedings are pending are to be considered non-reviewable pursuant to Article 68, first paragraph, of the Constitution.
According to the appealing Court, there would therefore be «a clear contrast between what was resolved by the Board for Authorizations to Proceed and the substantive content of the [own] order», «it being necessary first of all to establish […] whether there is a causal link between the statements made and the parliamentary function performed».
Hence the conclusion that «there is a conflict, the resolution of which can only fall within the jurisdiction of the Constitutional Court», which is ultimately asked to declare the admissibility of the appeal pursuant to Article 37 of Law No. 87 of 11 March 1953 (Rules on the constitution and functioning of the Constitutional Court), «with all the legal consequences».
2. – With order No. 154 of 2023, this Court considered that the subjective and objective prerequisites for the conflict were present and declared it admissible, in the council chamber and without adversarial proceedings, pursuant to Article 37, first paragraph, of Law No. 87 of 1953.
3. – On 7 September 2023, the Chamber of Deputies constituted itself in the proceedings, requesting that the inadmissibility or, in any case, the unfoundedness of the initiated conflict be declared.
3.1. – The respondent refers to the phrases that are the subject of the complaint in civil proceedings, expressed by Hon. Occhiuto at the conference in the press room of the Chamber of Deputies and broadcast on the web-tv of the same, and specifies that according to the plaintiff their content, allegedly defamatory, is fully shared by Hon. Mulè, who had introduced the press conference.
The defense of the Chamber notes that the Board for Authorizations has resolved that the statements for which the proceedings are pending before the Court of Salerno are opinions expressed in the exercise of parliamentary functions, as on the matter an urgent interpellation (No. 2-00433) had been published on 25 June 2019, signed by Hon. Occhiuto and, on 4 July 2019, also signed by Hon. Mulè: an interpellation that Hon. Occhiuto would have announced during the press conference.
The Board, moreover, had ascertained, through the competent offices of the Chamber, that the inspection act had been presented through the computer application on 12 May 2019 – therefore the day before the press conference – and had only been published on the following 25 June «after the admissibility check carried out – as always occurs for the acts of parliamentary scrutiny – by the President of the Chamber».
Given the circumstance that the contents of the interpellation were substantially reproduced in the press conference, the Board proposed to the Assembly to declare the non-reviewability of the opinions expressed by Hon. Occhiuto and Mulè, as then effectively occurred with the resolutions object of the conflict.
3.2. – Having stated all of the above, the defense of the Chamber of Deputies considers the initiated conflict «inadmissible for a range of reasons».
3.2.1. – The appellant, first of all, would not have sufficiently presented the reasons for the conflict, as instead required by Article 26 of the Supplementary Rules for proceedings before the Constitutional Court, which no longer provides that the presentation of the reasons for the conflict be «summary».
The case law of this Court, in fact, would be consolidated in the sense that, in conflicts concerning the applicability of Article 68, first paragraph, of the Constitution, the judicial authority «has the burden – in compliance with the principle of completeness and self-sufficiency of the appeal – to report "completely”, "punctually” and "in an exact and objective manner”, the allegedly offensive statements attributed to the parliamentarian», because only in this way is it possible to verify the existence or otherwise of the so-called functional connection. It would also have been repeatedly affirmed that the failure to punctually reproduce the statements of the parliamentarian cannot be remedied by looking at the acts of the proceedings, «as it is only in the introductory act and in any documents attached thereto that the identifying elements of the causa petendi and the petitum of the conflict must be found».
The Court of Salerno, on the other hand, would not have fully mentioned the allegedly defamatory statements of the deputies at the origin of the civil proceedings, having limited itself to attributing only two phrases to the deputies («bad justice» and «incorrect methods») and for the rest having summarised «in its own words (but in a rather incomplete way, in fact) what the defamatory content would have been».
Hence the inadmissibility of the conflict, especially since this Court would have repeatedly specified that «the replacement of the expressions considered offensive with a free re-elaboration by the appealing judicial authority is not allowed», as in this way the subjective interpretation of the opinions expressed by the parliamentarian «interferes with the ascertainment of the functional connection between the phrases uttered and any typical parliamentary acts, of which the phrases themselves could be the external disclosure».
The Chamber of Deputies also notes how the gap in the introductory act of the proceedings, on the one hand, prevents «the full unfolding» of its defense, as the thema decidendum of the conflict is not known; on the other, it does not allow the judge of the conflicts to assess whether there is effectively a functional link between the phrases that are the subject of the civil proceedings and the parliamentary acts of which they could be divulgative.
The Court of Salerno, on the other hand, would not even have indicated the constitutional parameters that it deems to be violated, limiting itself to noting that there has been a different assessment, between it as judge and the Chamber of Deputies, regarding the existence of the requirement of non-reviewability ex Article 68, first paragraph, of the Constitution.
3.2.2. – The respondent Chamber considers the conflict also inadmissible because it lacks «a clear request for attribution of power and annulment of the parliamentary resolutions»: which this Court would place at the basis of the admissibility of the conflict since judgment No. 363 of 2001, extensively cited by the defense.
3.2.3. – The respondent then notes that the resolutions that affirmed the non-reviewability of the opinions of Hon. Occhiuto and Hon. Mulè are two and that, therefore, each of them, according to what was stated in judgment No. 223 of 2009, «should have been the subject of specific complaints, well identified and attributable to them». The Court of Salerno, which did not comply with this principle, even in the operative part referred to a single resolution.
3.3. – On the merits, which the defense of the Chamber of Deputies addresses «[f]or mere defensive scruple», the conflict would in any case be unfounded.
3.3.1. – With regard to Hon. Occhiuto, the respondent observes that he, already the day before the press conference, «had entered into the computer system of the Chamber of Deputies the act that would become the urgent interpellation No. 2-00433», published on 25 June 2019. This Court has acknowledged that the presentation of the parliamentary act is an act of function, regardless of its publication (judgment No. 379 of 2003 is cited).
As regards the contents of this interpellation, extensively and textually referred to in the act of constitution, they would be aimed, like the statements at the press conference, at censuring «the behavior – considered questionable – of a magistrate, who had promptly followed up on the complaints of Senator Nicola Morra and then became a consultant of the Parliamentary Commission of Inquiry on Mafias, chaired by the same Morra». There would therefore be that identity of content sufficient to establish, according to the constitutional case law, the existence of the functional connection.
3.3.2. – Similar considerations would apply with regard to Hon. Mulè, «who has in every way participated in the iter of implementation of parliamentary interpellation No. 2-00433»: he, in fact, participated in the press conference that announced the interpellation, added his signature to the interpellation on 4 July 2019 and illustrated it in the chamber the following day (with words extensively reported also in the defensive act).
The respondent observes, then, that there would be «a substantial and temporal unitary context». What is argued, in particular, in light of the circumstance that this Court, in judgment No. 133 of 2018, would have acknowledged that the non-reviewability ex Article 68, first paragraph, of the Constitution could also cover extra moenia statements «not necessarily connected to parliamentary acts but for which a clear and qualified connection with the exercise of parliamentary function is nevertheless considered to exist»: if this is the case, then the functional connection must be said to exist when the statements are made, as in the case in point, «before the affixing of the signature of the inspection act, but during a press conference aimed precisely at announcing and disclosing the content of the act itself», according to, moreover, the criterion of adequacy and proportionality referred to in judgment No. 221 of 2014.
Significant, according to the defense of the Chamber, would then be the precedent referred to in judgment No. 219 of 2003. Then, in fact, this Court rejected a conflict initiated by the judicial authority against a resolution of non-reviewability of the Senate of the Republic referred to a letter from a group leader in the Antimafia Commission to its president: if an atypical act such as that was considered non-reviewable, a fortiori the announcement of a typical act should be.
The defense of the respondent concludes, finally, noting that Hon. Mulè only introduced the press conference, making «introductory and general considerations with which he censures the way in which some public officials operate, who perform delicate institutional functions», and never mentioned the name of M.M. The phrases of Hon. Mulè, therefore, would be an expression of the right of opinion and criticism referred to in Article 21 of the Constitution, as reconstructed also by the criminal case law of the Court of Cassation.
4. – In proximity to the hearing, the Chamber of Deputies filed a brief with which it insisted on the inadmissibility or the unfoundedness of the appeal, reiterating the arguments already used in the act of constitution.
Considered in Law
1. – With the appeal in the heading, the Court of Salerno, First Civil Section, initiates a conflict of attribution between State powers with reference to the resolutions of 27 July 2022, with which the Chamber of Deputies, approving the proposals of the Board for Authorizations (doc. IV-quater, numbers 3 and 4), affirmed that the statements of Hon. Giorgio Mulè and Hon. Roberto Occhiuto, for which civil proceedings are pending before the aforementioned Court, constitute opinions expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution.
1.1. – The appellant reports that it is called upon to decide on a claim for compensation for non-pecuniary damages, allegedly suffered by the plaintiff, M.M., due to the defamatory nature of the statements that Hon. Mulè and Hon. Occhiuto made at a press conference convened on 13 May 2019 in the press room of the Chamber of Deputies.
The two deputies, according to what emerges from the appeal and from the proposals of the Board for Authorizations, had asked the Court of Salerno to declare the claim for compensation inadmissible, considering Article 68, first paragraph, of the Constitution applicable. The appellant affirms that it implicitly rejected this request with the order with which it «ordered the continuation of the preliminary investigation phase»: this, however, was not followed by the transmission of a copy of the acts to the Chamber of Deputies to allow it to deliberate on the matter, as required by Article 3, paragraph 4, of Law No. 140 of 20 June 2003 (Provisions for the implementation of Article 68 of the Constitution as well as in matters of criminal proceedings against senior officials of the State). Subsequently, the Chamber of Deputies, at the request of the two parliamentarians, affirmed that the statements for which the civil proceedings are pending constitute opinions expressed in the exercise of parliamentary functions: hence the initiated conflict.
2. – As a preliminary matter, the admissibility of the conflict must be confirmed in relation to the existence of the subjective and objective prerequisites, as already considered by this Court with order No. 154 of 2023, with which it was also specified that «any further issue, also regarding admissibility, remained unprejudiced».
There is no doubt, in fact, that the Court of Salerno is entitled to initiate a conflict of attribution between State powers, as it is a judicial body, in a position of constitutionally guaranteed independence, competent to declare definitively the will of the power to which it belongs in the exercise of the functions attributed to it. Equally undisputed is the passive legitimacy of the Chamber of Deputies, as the body competent to declare definitively its will regarding the application of Article 68, first paragraph, of the Constitution.
As regards the objective prerequisites, the inhibition of exercising the judicial function, consequent to the resolutions of the Chamber of Deputies, is suitable to cause, if the statements of the two deputies were not attributable to opinions expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution, the violation of the sphere of attributions constitutionally guaranteed to the appealing power.
3. – The conflict is, however, inadmissible for the overriding reason that it is in violation of the principle of completeness and self-sufficiency of the appeal, as moreover raised by the Chamber of Deputies.
3.1. – The case law of this Court, in fact, has consistently affirmed that the appeal must «identify with a sufficient degree of precision the content of the allegedly defamatory statements made extra moenia in order to compare it with that of any typical acts of the parliamentary function» (judgment No. 59 of 2018; similarly, among the many, judgments No. 4 of 2015, No. 55 of 2014, No. 282 of 2011, No. 31 of 2009, No. 330 of 2008, No. 247 and No. 52 of 2007).
The expressions considered defamatory must, therefore, be reported in the appeal «in an exact and objective manner» (judgment No. 31 of 2009) or, at the limit, in acts attached to it that the appellant expressly refers to, this Court not being able to derive them autonomously from the acts of the proceedings (judgments No. 368 and No. 305 of 2007, No. 336 of 2006; orders No. 402 of 2006, No. 129 and No. 104 of 2005). Furthermore, «the replacement of those expressions "with a free re-elaboration by the appealing judicial authority" is not allowed, since, by acting in this way, an "improper overlapping between the objective relevance of the opinions expressed by the deputy [...] and the subjective interpretation that has been given of it is created, which interferes with the ascertainment of the functional connection between the phrases uttered [...] and any typical parliamentary acts of which the phrases themselves could be the external disclosure" (judgment No. 79 of 2005; in accordance therewith, also judgment No. 383 of 2006)» (judgment No. 320 of 2013; similarly judgments No. 282 of 2011, No. 247, No. 246 and No. 236 of 2007).
3.2. – In its appeal, the Court of Salerno has instead limited itself to affirming «that during the conference – convened with the declared purpose of reacting to a conspiracy hatched against the mayor of Cosenza Occhiuto Mario, brother of Hon. Roberto – Hon. Mulè and Occhiuto spoke, among other things, of "bad justice” and "incorrect methods”, insinuating the suspicion that M.M. had acted under the directives of Senator Morra, in order to obtain prestigious positions from the Antimafia Commission».
In this way, the appellant has not reported what the expressions considered defamatory for which the civil proceedings are pending are, but has freely summarized their overall sense, which prevents this Court from carrying out the necessary comparison between these expressions and the interpellation, to which the resolutions of the Chamber of Deputies refer, that Hon. Mulè and Hon. Occhiuto would have externally disclosed.
The Court of Salerno, moreover, with the aforementioned words has not even satisfied the requirement, equally noted by the case law of this Court, that the specific statements attributable to each parliamentarian be described in the appeal, which, even if made in a single context, maintain their autonomy, so that they must be kept separate for the purposes of verifying the existence of the functional connection (judgments No. 223 of 2009, No. 291 of 2007, No. 267 of 2005, No. 87 of 2002).
3.3. – The aforementioned gaps in the appeal determine the inadmissibility of the conflict of attribution initiated by the Court of Salerno.
For These Reasons
THE CONSTITUTIONAL COURT
declares inadmissible the conflict of attribution between State powers initiated, against the Chamber of Deputies, by the Ordinary Court of Salerno, First Civil Section, with the appeal indicated in the heading.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 10 January 2024.
Signed:
Augusto Antonio BARBERA, President
Filippo PATRONI GRIFFI, Reporting Judge
Roberto MILANA, Director of the Registry
Filed with the Registry on 15 February 2024