ORDER No. 33
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, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has issued the following
ORDER
in the proceedings for conflict of attribution between State powers arising from the resolution of the Chamber of Deputies of 18 January 2023, which approves the proposal of the Committee on Authorizations (doc. IV-ter, no. 11-A) to deem unreviewable, pursuant to Article 68, first paragraph, of the Constitution, the statements of Hon. Carlo Fidanza, initiated by the Ordinary Court of Milan, in single-judge composition, seventh criminal section, with appeal notified on 20 November 2023, filed with the registry on 20 November 2023, registered under no. 5 in the register of conflicts between State powers 2023 and published in the Official Gazette of the Republic no. 48, first special series, of the year 2023, merits phase.
Seen the act of constitution of the Chamber of Deputies, as well as the acts of intervention of Santeria spa and A. P., and of Carlo Fidanza;
seen the requests for the scheduling of the council chamber for the decision on the admissibility of the interventions filed by Santeria spa and A. P., and by Carlo Fidanza;
heard in the council chamber of 20 February 2024 the Judge rapporteur Filippo Patroni Griffi;
resolved in the council chamber of 20 February 2024.
Considered that, with an appeal filed on 20 November 2023 (reg. confl. powers no. 5 of 2023), the Ordinary Court of Milan, in single-judge composition, seventh criminal section, initiated a conflict of attribution between State powers, with reference to the resolution of 18 January 2023 of the Chamber of Deputies, with which, approving the proposal of the Committee on Authorizations (doc. IV-ter, no. 11-A), it was affirmed that the statements made on his Facebook page by the then-Deputy Carlo Fidanza, on 2 December 2018, were expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution;
that the appeal is initiated in the context of criminal proceedings against Carlo Fidanza, a Member of Parliament at the time of the facts, summoned to court to answer for the offense of aggravated defamation pursuant to Article 595, third paragraph, of the Criminal Code;
that, in particular, in a video published on his Facebook page on 2 December 2018, the defendant stated: "We are here in Milan, in viale Toscana in front of Santeria Social Club, premises granted in concession by the Municipality of Milan where this fantastic exhibition: 'porn for children' was supposed to open on 13 December. An exhibition that, with images of dubious taste and certainly ambigu[ous], would have done nothing but legitimize child pornography. We're not stopping here! We ask to keep a watch on what is carried out in the premises that it [gives] in concession, but above all we want to defend children and their innocence from these madmen who want to violate it";
that the Chamber of Deputies - at the request of the applicant Court pursuant to 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 on criminal proceedings against high State offices) - on 18 January 2023 resolved that those of the defendant are opinions expressed in the exercise of parliamentary functions, pursuant to Article 68, first paragraph, of the Constitution;
that, conversely, the applicant Court considers, in light of the jurisprudence of this Court on the scope of immunity ex Article 68, first paragraph, of the Constitution, that the then-Deputy Fidanza, expressing opinions extra moenia for which he is accused, "did not observe any parliamentary mandate, but rather exercised his right of criticism pursuant to Article 21 of the Constitution, the existence of whose limits is however entrusted to the exclusive assessment by the Judicial Authority";
that the Chamber of Deputies, with the challenged resolution, would have instead precluded said examination, depriving the Court of Milan "of its jurisdictional prerogatives";
that, for all of the above, the applicant asks this Court to "ascertain and declare that the assessment of the opinions expressed by Deputy Carlo Fidanza" for which the criminal proceedings are pending "belongs to the judicial authority and not to the Chamber of Deputies", as said opinions were not expressed in the exercise of parliamentary function;
that, consequently, the Court of Milan also requests the annulment of the challenged resolution;
that this Court, with order no. 204 of 2023, has considered that the subjective and objective requirements of the conflict are met and has declared the appeal admissible, in a council chamber and without adversarial proceedings, pursuant to Article 37, first paragraph, of Law no. 87 of 11 March 1953 (Rules on the constitution and functioning of the Constitutional Court);
that the Chamber of Deputies has constituted itself in the proceedings, which has requested that the appeal be dismissed as unfounded;
that, with a single act, Santeria spa and A. P. intervened, pursuant to Article 4, paragraph 3, of the Supplementary Rules for proceedings before the Constitutional Court, injured parties constituted as civil parties in the criminal proceedings from which the conflict of attribution originates;
that the intervening parties state that they have a qualified interest in intervening in these proceedings, the outcome of which "inevitably conditions the criminal proceedings";
that said intervening parties have submitted a request, pursuant to Article 5 of the same Supplementary Rules, for the early and separate scheduling of only the issue concerning the admissibility of the intervention;
that Carlo Fidanza has also intervened in these proceedings, defendant before the Court of Milan and a Member of Parliament at the time of the facts;
that Fidanza has also submitted a request for the early and separate scheduling of only the issue concerning the admissibility of the intervention; intervention that would be admissible as he would be "holder of a qualified interest, directly and immediately related to the relationship deduced in the proceedings, as a defendant in the criminal proceedings".
Considered that in proceedings for conflict of attribution, as a rule, the intervention of subjects other than those entitled to initiate the conflict or to resist it is not admitted;
that this Court has constantly affirmed that such preclusion does not operate when the object of the conflict is such as to involve, in an immediate and direct way, subjective situations of third parties, whose prejudice or whose safeguard depend on the outcome of the same (most recently, judgment no. 227 of 2023 and procedural order attached to the same);
that in such circumstances, without prejudice to the assessment of the admissibility of the intervention by this Court, third parties must intervene, given the referral of Article 31 of the Supplementary Rules for proceedings before the Constitutional Court, with the modalities and within the peremptory time limit set out in Article 4, paragraph 2, of the same Supplementary Rules;
that Carlo Fidanza, defendant in the criminal proceedings pending before the applicant Court of Milan, filed the act of intervention on 9 January 2024;
that, therefore, the filing took place after the expiry of the twenty-day period set by said Supplementary Rules, starting from the publication in the Official Gazette of the introductory appeal, in this case occurring on 29 November 2023;
that, therefore, the intervention of Carlo Fidanza is not admissible as it is late;
that Santeria spa and A. P. duly and timely filed the act of intervention on 4 December 2023;
that the intervening parties have constituted themselves as civil parties, as injured parties, in the criminal proceedings pending before the applicant Court of Milan;
that this Court, in the present conflict of attribution between State powers, is called upon to assess whether it was up to the Chamber of Deputies to affirm that the statements for which Carlo Fidanza is accused are opinions expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution;
that, therefore, since the pronouncement of this Court is susceptible to directly and immediately conditioning the outcome or the effects of the proceedings in which the intervening parties are involved, affecting their interests, it is necessary that they can assert their reasons;
that, in light of such considerations, the act of intervention of Santeria spa and A. P. must be declared admissible.
Seen Articles 4, 5 and 31 of the Supplementary Rules for proceedings before the Constitutional Court.
For These Reasons
THE CONSTITUTIONAL COURT
declares the intervention of Santeria spa and A. P. admissible and the intervention of Carlo Fidanza not admissible.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta on 20 February 2024.
Signed:
Augusto Antonio BARBERA, President
Filippo PATRONI GRIFFI, Drafter
Roberto MILANA, Director of the Registry
Filed with the Registry on 29 February 2024