Sentenza n. 37 del 2024

Judgment No. 37 of 2024

JUDGMENT NO. 37

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

[ ]

has issued the following

JUDGMENT

in the proceedings for conflict of attribution between State powers arising from the resolution of the Senate of the Republic of 16 February 2022 (doc. IV-quater, n. 4), initiated by the Ordinary Court of Catania, Fourth Criminal Section, sitting in single-judge formation, with an appeal notified on 14 September 2023, filed with the registry on 16 September 2023, registered under no. 1 of the Register of Conflicts between State Powers 2023 and published in the Official Gazette of the Republic no. 39, first special series, of the year 2023, merit phase.

Having seen the act of constitution of the Senate of the Republic, out of time;

Having heard the reporting Judge Giulio Prosperetti at the public hearing of 7 February 2024;

Having heard lawyer Ulisse Corea for the Senate of the Republic;

Having deliberated in the council chamber on 7 February 2024.

Facts of the Case

1. – With an appeal filed on 16 September 2023 (reg. confl. pot. no. l of 2023), the Ordinary Court of Catania, Fourth Criminal Section, sitting in single-judge formation, initiated a conflict of attribution between State powers with reference to the resolution of 16 February 2022 (doc. IV-quater, n. 4), with which the Senate of the Republic affirmed that what was published by Senator Mario Michele Giarrusso in the posts on his Facebook page on 30 October 2017 and 21 January 2018 was expressed in the exercise of parliamentary functions, and, therefore, is attributable to the guarantee of non-reviewability referred to in Article 68, paragraph one, of the Constitution.

2. – The appeal was initiated in the context of criminal proceedings against Senator Giarrusso, sued by D. B. to answer for the crime of defamation aggravated by the use of advertising means, pursuant to Article 595, paragraphs one and three, of the criminal code, in that the parliamentarian: with a first post published on his Facebook page on 30 October 2017, after having stated that "[e]veryone has distant, unsavory relatives,” added the following expressions: "[t]hink that a well-known venomous tongue from Catania, despite the pseudo-revolutionary surname, they tell me is a descendant of Madame De Pompadour,” that is, "[a] fake follower of Robespierre and a true recipient of a salary from Fratelli d’Italia. At the mere mention of her name, misfortunes happen, as can well be testified by a friend of mine who follows her and to whom everything really happens”; on the same occasion, replying to a reader of the post, who had read in it a "vulgar attack on D.,” Senator Giarrusso wrote the following words: "[b]e careful of bad luck”; with the second post, published on 21 January 2018, after having published a cartoon depicting the complainant, the parliamentarian commented, "Meanwhile, Madame Pompadour continues to drool bile,” while, in relation to a photograph that portrays the said D. B. with a third person, he commented: "[p]oor company.”

3. – The appellant Court takes note of the resolution of 16 February 2022 with which the Senate of the Republic, accepting the proposal of the Board of Elections and Parliamentary Immunities, considered that the declarations of Senator Giarrusso were non-reviewable, in that it saw in them a divulgative character of two typical parliamentary acts previously performed by the senator: the oral question of 22 July 2014, discussed in the chamber on 10 March 2016 (no. 3-01125), and the question of 4 February 2016 (no. 3-02557).

The Court of Catania reports that the Board of Elections and Parliamentary Immunities of the Senate, for the purpose of the presumed non-reviewability, represented, albeit generically, the activity of Senator Giarrusso in his capacity as a member of the Parliamentary Anti-Mafia Commission, the Justice Commission and the Board itself, indicating more specifically, as a typical act, assessable for the purpose under consideration, also the presentation of a bill for the amendment of Article 416-ter of the Criminal Code (entitled "Political-Mafia Electoral Exchange”) and that, in conclusion, in the opinion of the Board, whose proposal was approved by the chamber, the posts published on his Facebook page by the parliamentarian should be attributed to the activity that the latter carried out in relation to the ineligibility of the so-called "unsavory” candidates.

4. – However, in light of the jurisprudence of this Court, the appellant disputes the assessment thus provided in the resolution of 16 February 2022 by the Senate regarding the activity carried out by Senator Giarrusso.

The Court notes, first of all, that with the oral question of 22 July 2014, the parliamentarian, dealing with the municipal elections in Alcamo in 2012, had denounced that the elected mayor had been supported by an "unsavory” individual, that is, a person burdened by accusations that would prevent or in any case make it inappropriate to run for public office. Furthermore, in this question, Senator Giarrusso had deplored the influence that "local political figures” would have exercised to delay the outcome of the proceedings pending against the elected mayor.

5. – The Court then examines the parliamentary question of 4 February 2016, in which Senator Giarrusso argued that the then newly elected mayor of the Municipality of Agira was "politically close to the most influential politician in the province of Enna,” specifically a person removed from the electoral lists in 2013 "as he was defined as ‘unsavory’”.

6. – Finally, the Court of Catania evaluates the intervention carried out by Senator Giarrusso in the Parliamentary Anti-Mafia Commission at the session of 13 June 2017 (doc. no. 210) in which he denounced: that "a person with a mafia criminal record” "is campaigning”; that "the candidate who came second in the elections in Palermo is under investigation for vote buying”; that "the most voted candidate in Trapani is a person just arrested by the judiciary”; that "one of the challengers was a subject that the public prosecutor indicated as socially dangerous”; and that in Avola there would have been a mafia indication in favor of a candidate for the municipal council.

7. – Having examined the aforementioned content, the Court of Catania excludes that the posts object of the criminal charge are reproducible of typical parliamentary acts, given that the injured party is "never even mentioned” there, and excludes that they represent opinions, being, instead, "value judgments concerning the person” of D. B.; consequently, it believes that the resolution of non-reviewability has "illegitimately removed from the judicial authority the power to decide on the crime contested” and must, therefore, be annulled by this Court.

8. – The appeal for conflict of attribution was declared admissible by order of this Court no. 175 of 2023.

9. – The Senate of the Republic filed a deed of constitution on 6 February 2024, beyond the deadline established by Article 26, paragraph 4, of the Supplementary Rules for Proceedings before the Constitutional Court.

Legal Reasoning

1. – With the appeal in the epigraph (reg. confl. pot. no. 1 of 2023), the Ordinary Court of Catania, Fourth Criminal Section, sitting in single-judge formation, initiated a conflict of attribution between State powers against the Senate of the Republic with reference to the resolution of 16 February 2022 (doc. IV-quater, n. 4), with which the Senate of the Republic affirmed that what was published by Senator Mario Michele Giarrusso on his Facebook page, on 30 October 2017 and 21 January 2018, was expressed in the exercise of parliamentary functions, and, therefore, is attributable to the guarantee of non-reviewability referred to in Article 68, paragraph one, of the Constitution.

2. – In particular, the Court states that it must proceed in relation to the crime of defamation aggravated by the use of advertising means, pursuant to Article 595, paragraphs one and three, of the criminal code, following a complaint filed by D. B. to whom the insulting phrases of Senator Giarrusso contained in the aforementioned posts were addressed.

3. – The appellant Court takes note of the resolution of 16 February 2022 with which the Senate of the Republic, accepting the proposal of the Board of Elections and Parliamentary Immunities, considered that the contested declarations were non-reviewable, but, in light of the jurisprudence of this Court, believes that, on the contrary, they are not merely divulgative of any act taken in the exercise of parliamentary function and, therefore, believes that the resolution of non-reviewability has "illegitimately removed from the judicial authority the power to decide on the crime contested” and must, therefore, be annulled by this Court.

4. – Preliminarily, the inadmissibility of the constitution of the Senate of the Republic in the proceedings must be reiterated, because it is late, since the deed of constitution was filed on 6 February 2024, instead of by 4 October 2023, and therefore beyond the deadline established by Article 26, paragraph 4, of the Supplementary Rules.

4.1. – In the jurisprudence of this Court, the peremptory nature of the deadline for the constitution of the parties in the proceedings for constitutional legitimacy in an incidental way had been repeatedly affirmed even before the express provision in this sense contained in Article 3 of the current Supplementary Rules (ex plurimis, judgments no. 222 of 2018, no. 75 of 2012, no. 257 of 2007, no. 190 and no. 108 of 2006; orders no. 63 of 2003, no. 430 of 2002, no. 394 of 2001).

A similar peremptory nature must be recognized for the deadlines for constitution in the proceedings for conflict of attribution. On a textual level, this solution is to be found in the reference of Article 31 of the Supplementary Rules to the aforementioned Article 3 and in the link between paragraph 4 of Article 26 of the current Supplementary Rules and paragraph 3 of the same article, which expressly defines the deadline for filing the appeal after its notification as peremptory.

4.2. – Moreover, the conflict is configured in terms of a judgment between opposing parties and the peremptory character is inherent to the system of constitutional justice as it is designed to ensure the principle of equality of the parties, in order to respect the adversarial process, and the orderly conduct of the judgment itself, such as to guarantee certain times of definition and, therefore, the defendant cannot participate in the public hearing to argue orally and submit its conclusions.

4.3. – Nor can recourse be made – as requested by the Senate of the Republic – to the reinstatement of terms for excusable error provided for by Article 37 of Annex 1 (Code of Administrative Procedure) to Legislative Decree No. 104 of 2 July 2010 (Implementation of Article 44 of Law No. 69 of 18 June 2009, containing delegation to the government for the reorganization of the administrative process), insofar as it is applicable to the constitutional process (most recently, judgment no. 227 of 2023 and the court order attached to it), by virtue of the reference referred to in Article 22 of Law No. 87 of 11 March 1953 (Rules on the constitution and functioning of the Constitutional Court). This institution is in fact to be strictly interpreted and is of an exceptional nature (Council of State, seventh section, judgment of 8 February 2023, no. 1410), so that it could also be used in proceedings before this Court only in cases of objective, unequivocal, evident and absolute impossibility (or for reasons absolutely not attributable to omissions by the parties, but rather due to profiles of force majeure), the proof of the recurrence of which naturally rests with those who intend to make use of it. In the case in point, such recurrence has not even been alleged.

5. – Always preliminarily, pursuant to Article 37 of Law No. 87 of 1953, the admissibility of the conflict must be confirmed, already declared by this Court, in the preliminary and summary review, in the order no. 175 of 2023, with which the existence of its objective and subjective elements was ascertained.

5.1. – Indeed, as stated in the aforementioned order, from the point of view of the subjective requirement, the active legitimacy of the Court of Catania to initiate a conflict of attribution between State powers must be recognized, as a judicial body, in a position of constitutionally guaranteed independence, competent to declare definitively, in the exercise of the functions attributed to it, the will of the power to which it belongs (ex plurimis, orders no. 34 of 2023, no. 35 of 2022 and no. 148 of 2020).

5.2. – Likewise, the passive legitimacy of the Senate of the Republic to be a party to this conflict must be recognized, as the body competent to declare definitively its will regarding the application of Article 68, paragraph one, of the Constitution (ex plurimis, orders no. 34 of 2023, no. 148 of 2020 and no. 69 of 2020).

5.3. – In relation to the objective profile, the appellant complains of the violation of its sphere of attributions, constitutionally guaranteed, as a consequence of an exercise deemed illegitimate, due to the absence of the relative prerequisites, of the power vested in the Senate of the Republic to declare the non-reviewability of the opinions expressed by a member of that branch of Parliament, pursuant to Article 68, paragraph one, of the Constitution and, therefore, there exists the matter of a conflict, the resolution of which falls within the competence of this Court (ex plurimis, again orders no. 34 of 2023, no. 35 of 2022 and no. 148 of 2020).

6. – On the merits, the appeal for conflict is well-founded.

6.1. – Article 68, paragraph one, of the Constitution establishes that "[m]embers of Parliament shall not be held accountable for opinions expressed or votes cast in the exercise of their functions.”

6.2. – According to the constant teaching of this Court on the subject of declarations of parliamentarians made extra moenia, "for the configurability of the functional link, the concurrence of two requirements is necessary: a) a link of temporal order between the parliamentary activity and the external activity (judgments no. 55 of 2014 and no. 305 of 2013, among the latest), such that the latter assumes a divulgative purpose of the former; b) a substantial correspondence of meaning between the opinions expressed in the exercise of functions and external acts, beyond the literal formulas used (judgment no. 333 of 2011), it not being sufficient either a simple thematic connection or a partial content correspondence (judgment no. 334 of 2011), nor a mere "political context” within which the extra moenia declarations can be placed (judgment no. 205 of 2012), nor, finally, the reference to the generic parliamentary activity or the relevance to themes of general importance, even if discussed in Parliament (judgment no. 98 of 2011)” (in this sense, judgment no. 144 of 2015).

In other words, as reiterated by this Court also recently, "in order to find a functional link between the declarations made extra moenia by a parliamentarian and the performance of his functions – to which the prerogative of non-reviewability referred to in Article 68, paragraph one, of the Constitution is subordinated – it is necessary that they can be recognized as an expression of the exercise of parliamentary activity (judgments no. 10 and no. 11 of 2000; later, ex plurimis, judgments no. 59 of 2018 and no. 144 of 2015), that is, that they assume a divulgative character of what is attributable to the latter (judgments no. 265 of 2014, no. 221 of 2014, no. 55 of 2014, no. 81 of 2011 and no. 420 of 2008)” (judgment no. 241 of 2022).

7. – In this case, the functional link between the declarations contained in the posts for which proceedings are being brought for the crime of defamation aggravated against Senator Giarrusso and the opinions expressed by the latter in the parliamentary acts indicated in the resolution of 16 February 2022, with which the Senate of the Republic considered the aforementioned declarations non-reviewable, is entirely lacking.

In fact, through the posts published on his Facebook page, Senator Giarrusso formulated observations towards D. B., who is never mentioned in the parliamentary acts examined by the Board of Elections and Parliamentary Immunities and indicated in the Senate's resolution in support of the motivation of non-reviewability.

7.1. – The lack of a functional link is evident when examining the content of the aforementioned parliamentary acts; as for the first, the act of supervisory inquiry of 22 July 2014 discussed in the chamber on 10 March 2016, it concerns, in fact, the municipal administrative elections in the Sicilian City of Alcamo (Trapani), won in the runoff by a candidate supported by a former senator from Alcamo considered by the Democratic Party as "unsavory” in the recent political elections, as he was burdened by accusations such as to prevent or in any case make it inconvenient to run for public office. In this question, Senator Giarrusso had deplored the influence that "local political figures” would have exercised to delay the outcome of the pending proceedings and, in particular, the control of the ballot papers that the Prefect of Trapani would have had to carry out promptly in order to dispel any doubt about the actual results of the elections.

7.2. – From an examination of the content of this oral question, no reference to D. B. emerges and a similar conclusion applies with reference to the parliamentary question of 4 February 2016, with which Senator Giarrusso denounced the presence on the electoral lists for the administrative consultations of 2015 of people considered unsavory, given their association with mafia bosses, without any reference, not even indirect, to the complainant D. B.

7.3. – As regards, finally, the intervention carried out by Senator Giarrusso in the Parliamentary Anti-Mafia Commission at the session of 13 June 2017 (doc. no. 210), in it the parliamentarian had denounced mafia infiltrations on the occasion of the electoral consultations for the renewal of local authorities, also in this case without any reference to the person of D. B.

7.4. – The functional link between the expressions addressed to D. B. and the parliamentary activity carried out by Senator Giarrusso is not found even with respect to what was done by the latter in his capacity as a member of the Parliamentary Anti-Mafia Commission, the Justice Commission and the Board of Elections and Parliamentary Immunities of the Senate itself and, in particular, in relation to the presentation by the same senator of a bill for the amendment of Article 416-ter of the Criminal Code (entitled "Political-Mafia Electoral Exchange”).

Indeed, the aforementioned activity and the parliamentary acts indicated in the resolution of the Senate of the Republic would be united by having as their subject matter the theme of mafia infiltrations in local authorities, but from the analysis of the expressions addressed to D. B., no reference to the anti-mafia issue emerges.

8. – In conclusion, the declarations of Senator Giarrusso attributable to the charge referred to in Article 595, paragraphs one and three, of the criminal code following a complaint filed by D. B. do not constitute opinions expressed in the exercise of parliamentary function and, therefore, the Senate was not entitled to deliberate their non-reviewability.

As a result, pursuant to Article 38 of Law No. 87 of 1953, the resolution of the Senate of 16 February 2022 must be annulled, with regard to the charges referred to in Article 595, paragraphs one and three, of the criminal code.

For These Reasons

THE CONSTITUTIONAL COURT

1) declares that it was not for the Senate of the Republic to deliberate that the conduct contested to Senator Mario Michele Giarrusso pursuant to Article 595, paragraphs one and three, of the criminal code following a complaint filed by D. B., for which criminal proceedings are pending before the Ordinary Court of Catania, Fourth Criminal Section, sitting in single-judge formation, constitutes opinions expressed by a member of Parliament in the exercise of his functions, pursuant to Article 68, paragraph one, of the Constitution;

2) annuls, as a result, the resolution of non-reviewability adopted by the Senate of the Republic in the session of 16 February 2022 (doc. IV-quater, n. 4), in the part in which it refers to the conduct of Senator Mario Michele Giarrusso contested by the Ordinary Court of Catania pursuant to Article 595, paragraphs one and three, of the criminal code.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 7 February 2024.

Signed:

Augusto Antonio BARBERA, President

Giulio PROSPERETTI, Reporting Judge

Roberto MILANA, Director of the Registry

Filed with the Registry on 7 March 2024