ORDER NO. 34
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 pronounced the following
ORDER
in the proceedings for conflict of attribution between powers of the State arising from the deliberation of the Senate of the Republic of 28 June 2023, which approves the proposal of the Committee on Authorizations (doc. IV-quater, no. 2) to consider unreviewable, pursuant to Article 68, paragraph one, of the Constitution, the declarations of Senator Mario Michele Giarrusso, initiated by the Judge for Preliminary Investigations at the Ordinary Court of Catania with an application filed with the registry on 14 September 2023 and registered under no. 6 of the register of conflicts between powers of the State 2023, admissibility phase.
Heard in the council chamber of 20 February 2024, the Reporting Judge Filippo Patroni Griffi;
Resolved in the council chamber of 20 February 2024.
Considered that, by application filed on 14 September 2023 (reg. confl. pot. no. 6 of 2023), the Judge for Preliminary Investigations at the Ordinary Court of Catania initiated a conflict of attribution between powers of the State, with reference to the deliberation of 28 June 2023 of the Senate of the Republic, with which, approving the proposal of the Committee on Authorizations (doc. IV-quater, no. 2), it was affirmed that the declarations for which Mario Michele Giarrusso, senator at the time of the facts, is under investigation for the crime of defamation, provided for by Article 595 of the Criminal Code, to the detriment of F. B., were made in the exercise of parliamentary functions, pursuant to Article 68, paragraph one, of the Constitution;
that the application is initiated within the scope of criminal proceedings against Mario Michele Giarrusso, in relation to what he stated in the interview given on 27 May 2020 to the television program "Voxitaliatv” and published online on the Youtube channel;
that the applicant judge, having reported in full the declarations for which Giarrusso is under investigation, states that the public prosecutor had submitted a request for dismissal, considering Article 68, paragraph one, of the Constitution applicable; a request that was shared by the investigated party and which F. B. had opposed, requesting the formulation of the compulsory indictment or the initiation of a conflict of attribution between powers of the State before this Court;
that, the applicant further reports, considering that the conditions for the application of Article 68, paragraph one, of the Constitution were not met, he had suspended the decision and transmitted the documents to the Senate of the Republic, pursuant to Article 3 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 offices of the State), so that it could rule on the matter;
that the Committee on Parliamentary Immunities of said branch of Parliament, instead, considered that Giarrusso's declarations were made in the exercise of parliamentary functions, and the Senate of the Republic also resolved in this sense on 28 June 2023;
that, the applicant specifies, the deliberation was rendered with reference both to the criminal proceedings and to the proceedings pending before the civil mediation body Ex Aequo adr srl of Potenza: a clarification that is necessary because «the President erred in indicating the nominal vote with simultaneous scrutiny on the sole issue of civil liability […], despite the fact that the Committee's proposal also referred to the present criminal proceedings»;
that, having stated all of the above, the judge from Catania notes that the deliberation of the Senate of the Republic inhibits the exercise of the judicial function;
that, however, immunity is «an instrument to ensure the autonomy and freedom of the Chambers» and cannot, therefore, «be considered an expression of a privilege belonging to the person of the parliamentarian» (references are made to the judgments of this Court no. 379 of 1996 and no. 81 of 1975);
that the jurisprudence of this Court – starting from the judgments no. 10 and no. 11 of 2000 – would have emphasized, for opinions to be unreviewable, the need for a connection between the activities carried out outside the seats of the Chambers and the function of parliamentarian (references are made to the judgments no. 59 of 2018 and no. 194 of 2011): and the same Law no. 140 of 2003 must be interpreted in this sense (judgment no. 120 of 2004);
that the applicant gives ample account of the debate, in the jurisprudence of legitimacy, on the nature of the immunity in question;
that unreviewability ex Article 68, paragraph one, of the Constitution could only operate when the extra moenia declarations present «a substantial coincidence of content with those made in Parliament and are chronologically subsequent to the so-called "internal" declarations» (reference is made to the judgment of the Court of Cassation, Fifth Criminal Section, 6-26 May 2014, no. 21320), the commonality of arguments or a mere political context to which they may refer not being sufficient instead (reference is made to the judgment of the Court of Cassation, Fifth Criminal Section, 4 May-14 June 2010, no. 22716);
that the declarations of the then Senator Giarrusso were made extra moenia and the Committee on Parliamentary Immunities considered them covered by unreviewability because of the written question submitted on 28 May 2020, therefore the day after the interview, «with a substantial contemporaneity between the declarations and the adoption of a typical act of parliamentary activity»;
that the applicant judge, on the contrary, believes that there is no «substantial correspondence» between the opinions expressed in the interview and those in the parliamentary question;
that, first of all, the temporal link and, therefore, the divulgative purpose of the external activity with respect to the parliamentary one would be lacking;
that, in fact, the submission of the question the following day would have the sole purpose of «finding ex post coverage» for the declarations made extra moenia;
that there would not even be «substantial coincidence/correspondence/assimilation of meaning between the opinions expressed and the acts adopted (rectius: the only act) in the exercise of functions»;
that in this regard the mere «political context» would not be sufficient (judgment no. 144 of 2015), but it would be necessary that the declarations «constitute the substantial reproduction of the specific and concrete opinions expressed by the parliamentarian in the exercise of his/her duties», otherwise the freedom of expression of thought guaranteed to everyone by Article 21 of the Constitution would come into play (judgment no. 152 of 2007);
that, in the case in question, the statements of the investigated party would not be connected «except artificially to parliamentary activity» and would not represent «the reflection of the particular contribution that each parliamentarian makes to democratic life through his opinions and votes – a contribution covered by the guarantees referred to in Article 68 of the Constitution – but [would fall] within the exercise of the free expression of thought guaranteed to everyone by Article 21 of the Constitution»;
that Article 21 of the Constitution, however, does not prevent the ordinary judge from «examining the statements deemed harmful by the injured party»;
that the immunity referred to in Article 68 of the Constitution, the applicant observes, «certainly marks an advanced line of freedom of expression of thought, but it must remain linked by an intrinsic link to the exercise of political functions and cannot overflow into personal attacks on the dignity of other subjects, to the point of damaging the personal assets of the latter»: otherwise, Articles 2 and 3 of the Constitution would be violated;
that, in this regard, the applicant judge observes, indeed, that if unreviewability ex Article 68, paragraph one, of the Constitution, is «a case of freedom that is more qualified than the general freedom of expression of thought recognized to all», then «it encounters the obligation of its exercise» according to the canons of discipline and honor referred to in Article 54 of the Constitution, in light of which those who exercise public functions cannot take advantage of it to harm other assets of constitutional importance such as those protected by Articles 2, 3, 27 and 32 of the Constitution;
that, from this perspective, a distinction should be made between declarations intended for other political subjects and declarations addressed instead to subjects external to the political competition, who do not have «means of protecting their dignity analogous to those available to political exponents (if only because of the ease of access to the media)»;
that, therefore, the declarations of Mario Michele Giarrusso would be «outside the scope of application of Article 68 of the Constitution due to the time at which they were made, the methods and the content, as well as the addressee of the same»;
that, consequently, the challenged deliberation of the Senate of the Republic would be «in contrast with the scope of protection assigned to the Chamber to which the parliamentarian belongs by Article 68 of the Constitution and therefore capable of damaging the jurisdictional powers to protect the rights of private subjects guaranteed by Articles 2, 3, 24, 101 of the Constitution and by Article 6 ECHR, the violation of which results in a case of violation of Article 117, paragraph I, of the Constitution».
Considered that, by application filed on 14 September 2023 (reg. confl. powers no. 6 of 2023), the Judge for Preliminary Investigations at the Ordinary Court of Catania initiated a conflict of attribution between powers of the State, with reference to the deliberation of 28 June 2023 of the Senate of the Republic, with which, approving the proposal of the Committee on Authorizations (doc. IV-quater, no. 2), it was affirmed that the declarations for which Mario Michele Giarrusso, senator at the time of the facts, is under investigation for the crime of defamation, provided for by Article 595 of the Criminal Code, to the detriment of F. B., were made in the exercise of parliamentary functions, pursuant to Article 68, paragraph one, of the Constitution;
that, in the present phase of the proceedings, this Court is called upon to deliberate, in the council chamber and without adversarial proceedings, on the existence of the subjective and objective requirements prescribed by Article 37, paragraph one, of Law no. 87 of 11 March 1953 (Rules on the constitution and functioning of the Constitutional Court), i.e. to decide whether the conflict has arisen between bodies competent to definitively declare the will of the power to which they belong and for the delimitation of the sphere of attributions determined for the aforementioned powers by constitutional rules, without prejudice to any further question, also in terms of admissibility;
that, from the point of view of the subjective requirement, the active legitimacy of the applicant Judge for Preliminary Investigations to initiate a conflict of attribution between powers of the State must be recognized, as a jurisdictional body, in a position of constitutionally guaranteed independence, competent to definitively declare, in the exercise of the functions attributed to it, the will of the power to which it belongs (most recently, order no. 204 of 2023);
that, similarly, the passive legitimacy of the Senate of the Republic to be a party to the present conflict must be recognized, as the body competent to definitively declare its will regarding the application of Article 68, paragraph one, of the Constitution (most recently, again order no. 204 of 2023);
that, as regards the objective profile, the applicant complains of the infringement of his sphere of attributions, constitutionally guaranteed, as a consequence of an exercise deemed illegitimate, due to the lack of the related conditions, of the power belonging to the Senate of the Republic to declare the unreviewability of the opinions expressed by a member of that branch of Parliament, pursuant to Article 68, paragraph one, of the Constitution (most recently, again order no. 204 of 2023);
that, therefore, there is a subject matter of a conflict, the resolution of which is within the competence of this Court.
For These Reasons
THE CONSTITUTIONAL COURT
1) declares admissible, pursuant to Article 37 of Law no. 87 of 11 March 1953 (Rules on the constitution and functioning of the Constitutional Court), the application for conflict of attribution between powers of the State indicated in the epigraph, initiated by the Judge for Preliminary Investigations at the Ordinary Court of Catania against the Senate of the Republic;
2) orders:
a) that the registry of this Court give immediate notice of this order to the Judge for Preliminary Investigations at the Ordinary Court of Catania;
b) that the application and this order be notified, by the applicant, to the Senate of the Republic, in the person of its President, within sixty days from the communication referred to in point a), to be subsequently filed, with proof of notification, in the registry of this Court within the thirty-day period provided for by Article 26, paragraph 3, of the Supplementary Rules for proceedings before the Constitutional Court.
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, Drafting Judge
Roberto MILANA, Director of the Registry
Filed in the Registry on 4 March 2024