JUDGMENT NO. 104

YEAR 2024

Commentaries on the Decision of

1. Maria Rosaria Donnarumma, The case of the deputy Carlo Fidanza, accused of the crime of aggravated defamation, and the difficult balance between articles 21 and 68 of the Constitution, for g.c. of Giurisprudenza Penale

2. Tommaso F. Giupponi, Was it a real turning point? The Constitutional Court and the importance of "revealing indices" in matters of parliamentary non-liability, for g.c. of the Osservatorio costituzionale 

3. Alessia Indelicato, The long-standing conflict between state powers on parliamentary non-liability "extra moenia", for g.c. of the Journal of the Court of Auditors

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA

Judges: 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 pronounced the following

JUDGMENT

in the proceedings for a conflict of attribution between powers of the State arising from the resolution of the Chamber of Deputies of January 18, 2023, which approves the proposal of the Board for Authorizations (doc. IV-ter, no. 11-A) to consider non-liable, pursuant to Article 68, first paragraph, of the Constitution, the declarations of Carlo Fidanza, deputy at the time of the facts, promoted by the Ordinary Court of Milan, in single-judge composition, seventh penal section, with appeal notified on November 20, 2023, filed in the registry on November 20, 2023, registered under no. 5 of the register of conflicts between powers of the State 2023 and published in the Official Gazette of the Republic no. 48, first special series, of the year 2023, merit phase.

Seen the act of constitution of the Chamber of Deputies and the acts of intervention of Santeria spa and A. P. as well as of Carlo Fidanza;

heard at the public hearing of April 10, 2024, Judge rapporteur Filippo Patroni Griffi;

heard attorney Roberto Dissegna for Santeria spa and A. P., as well as attorney Maria Teresa Losasso for the Chamber of Deputies;

resolved in the council chamber of April 11, 2024.

Considered in fact

1.− With the appeal indicated in the heading, the Ordinary Court of Milan, in single-judge composition, seventh penal section, promoted a conflict of attribution between powers of the State, with reference to the resolution of January 18, 2023, of the Chamber of Deputies, with which, approving the proposal of the Board for Authorizations (doc. IV-ter, no. 11-A), it was affirmed that the declarations made on Facebook by the then deputy Carlo Fidanza, on December 2, 2018, had been expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution.

1.1.− The appeal is promoted within the framework of criminal proceedings against Carlo Fidanza, deputy at the time of the facts, summoned to trial to answer for the crime of aggravated defamation pursuant to Article 595, third paragraph, of the penal code. The appealing criminal judge reports that, in a video published on Facebook on December 2, 2018, the defendant stated: «We are here in Milan, in Viale Toscana in front of Santeria Social Club, premises given in concession by the Municipality of Milan where on December 13 this fantastic exhibition should have opened: "porn for children". An exhibition that, with images of dubious taste and certainly ambiguous, would have done nothing but legitimize child pornography. We do not stop here! We ask to monitor 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».

The Chamber of Deputies – at the request of the appealing Court pursuant to Article 3, paragraph 4, of Law no. 140 of June 20, 2003 (Provisions for the implementation of Article 68 of the Constitution as well as regarding criminal proceedings against high offices of the State) – on January 18, 2023, resolved that those of the defendant are opinions expressed in the exercise of parliamentary functions, pursuant to Article 68, first paragraph, Const.

1.2.− The Court of Milan observes, however, that, according to the consolidated orientation of the jurisprudence of this Court, «the judgment on the penal relevance of the declarations expressed by a parliamentarian can be withdrawn from the judicial authority only in the presence of a functional link between the aforementioned and specific acts carried out in the exercise of the public functions exercised» (the judgment no. 241 of 2022 is cited). In the case at hand, the declarations of the defendant were expressed extra moenia, so that they could be considered «not punishable ex Article 68 Const. only if they present a substantial coincidence with opinions expressed in the institutional seat and are, also, chronologically subsequent to the latter», the commonality of argument or the political nature of the context in which they are pronounced not being sufficient in this regard (the judgment of the Court of Cassation, fifth penal section, May 7-July 22, 2019, no. 32862, is cited).

The report of the Board for Authorizations of the Chamber of Deputies (doc. IV-ter, no. 11-A), approved with the resolution subject of the conflict, instead affirmed the non-liability of the opinions for which criminal proceedings are being taken: and this because Carlo Fidanza presented, two days after having expressed said opinions, a parliamentary question of the same tenor (no. 4-01794 of December 5, 2018), addressed to the Ministry for the Family and Disability. The Board also noted that Carlo Fidanza had been the promoter of various legislative initiatives on the subject of the protection of minors, including the draft law AC no. 305, presented on March 23, 2018, with which he had proposed «the adoption of more severe measures against pedophilia and child pornography».

1.2.1.− The appealing Court affirms, to the contrary, that the typical parliamentary act must always be carried out «before (and not after, even if only one or two days) the incriminated externalizations» since otherwise «one would end up legitimizing pretexts of institutional initiatives implemented ex post for the sole purpose of justifying previous potentially defamatory conduct». The jurisprudential precedents of this Court, cited by the Board for Authorizations to justify the reference to a typical act subsequent to the opinions extra moenia, would have been «abundantly superseded by subsequent elaboration», according to which «parliamentary acts subsequent to the declaration deemed non-liable cannot be relevant, because, by definition, the latter cannot be divulgative of the former» (the judgments no. 241 of 2022 and no. 55 of 2014 are cited).

In any case, the appellant believes that, «also with regard to the contents, the parliamentary question was much milder, in tone, than the video uploaded two days before». If, in fact, in the latter, the deputy had explicitly accused the organizers of the exhibition and the author of the illustrations of «legitimizing child pornography» and of being «madmen» who intended to «violate the innocence of children», in the question he would have shown himself «much more doubtful and possibilistic, stating that "the provocative juxtaposition of the terms 'porn' and 'children', as well as some of the contents, risk transmitting a message of cultural legitimation of pornographic and child pornographic practices that are very dangerous for children" and that it was necessary to "defend children from aggressive cultural or commercial messages"».

On the other hand, the legislative initiatives of the then deputy recalled by the Board would have no relevance, as they would not be valid «to characterize the declarations in themselves as expressive of the function» (the judgment of this Court no. 144 of 2015, in addition to the already cited judgment of the Court of Cassation no. 32862 of 2019, is cited).

1.3.− According to the appealing Court, therefore, the then deputy Fidanza, expressing the opinions for which he is accused, «did not observe any parliamentary mandate, but rather exercised his right of criticism pursuant to Article 21 Const., the existence of whose limits is however delegated to the exclusive ascertainment by the A.G.». The Chamber of Deputies, with the challenged resolution, would have instead precluded said examination, depriving the Court of Milan «of its jurisdictional prerogatives».

The appellant then asks this Court to «ascertain and declare that the judgment of the opinions expressed by deputy Carlo Fidanza» for which the criminal proceeding is pending «belongs to the judicial authority and not to the Chamber of Deputies», as said opinions were not expressed in the exercise of the parliamentary function. As a result, the annulment of the challenged resolution is also requested.

2.− With order no. 204 of 2023, this Court considered that the subjective and objective prerequisites of the conflict were met and declared the relative appeal admissible, in the council chamber and without contradiction, pursuant to Article 37, first paragraph, of Law no. 87 of March 11, 1953 (Rules on the constitution and operation of the Constitutional Court).

3.− With act filed on January 8, 2024, the Chamber of Deputies constituted itself in the proceedings, which requested that the appeal be rejected as unfounded.

3.1.− The respondent considers it appropriate, first of all, to reconstruct the facts at the origin of the appeal. In this regard, it specifies that, according to what emerges from the Board's report, in the exhibition entitled «Porn for children», at the center of Carlo Fidanza's declarations, according to the artist, «comics in an erotic key with ironic, funny content and therefore defined as "for children"» would have been exhibited, which «would not have had pornographic nature nor, much less, would they have portrayed minors». The reference to children would be traced back «to the childlike style, typical of the drawings of the little ones». However, this exhibition was cancelled «following the media uproar» and «the presentation of an exposé to the Guarantor for Childhood of the Lombardy Region».

In February 2019, the administrator of the company that had organized the exhibition sued the then deputy Fidanza and others, as their declarations «would have led a very large number of people to believe that the premises, where the exhibition was to be held, were actually a place used for the propaganda of pedophilia and child pornography».

3.2.− That said, in the opinion of the Chamber of Deputies, both the substantial correspondence and the temporal link between the declarations of Carlo Fidanza and those referred to in the typical acts mentioned in the Board's report would exist.

3.2.1.− As regards the first requirement, the defense of the Chamber, having fully reported the parliamentary question no. 4-01794, affirms that «there is a correspondence that goes well beyond that requested [by] the Constitutional Court» (the judgments no. 144 of 2015, no. 55 of 2014, no. 305 of 2013, no. 205 of 2012, no. 333, no. 98 and no. 81 of 2011, no. 59 of 2007 and no. 335 of 2006 are cited). It would be evident, in fact, that in the case at hand there is «a real correspondence» between the opinions extra moenia and those intra moenia, all the more so considering that it is not possible to carry out, as the appealing Court would instead believe, «a punctual and pedantic check on the words used»: what is necessary, also in the light of the jurisprudence of the European Court of Human Rights, is that the link between the external declarations and the typical act be evident, «in such a way as not to be able to be denied by a reasonable person» (judgment no. 144 of 2015).

The differences in tone, assuming and not conceding that there are any, «would eventually be attributable to the different type of communication», the extra moenia ones having been expressed on a social media, which requires a «more immediate, informal and direct» character compared to the «more formal assertions, characteristic of the parliamentary context».

The other typical acts mentioned in the Board's report, including in particular the draft law no. 305, would testify to «the constant commitment of Hon. Fidanza on the themes of the protection of children», also certified by the recent activity of the same as a European parliamentarian.

3.2.2.− As regards, then, the requirement of the temporal link, the arguments of the Chamber of Deputies start from the times and circumstances of the affair, specifying that the video published on Facebook was published on December 3, 2018 (and not on December 2, as erroneously indicated in the charge), the question was published just two days later and the complaint was filed on February 22, 2019. It is noted, in particular, that from November 29 to December 4, 2018, there was no parliamentary activity and that «the day on which the organizers of the exhibition announced its cancellation was a Monday, a day that is traditionally dedicated to the relationship with voters and with the territory. It therefore appeared understandable that Hon. Fidanza immediately wanted to give news of this to his community of reference, also due to the uproar that the event had caused and that, on the same day in which he published the video, or at most the day after, i.e., December 4, he had prepared the aforementioned question, and then filed it on the first useful day, that is, the following December 5, date of arrival at the Chamber in Rome».

To deny the temporal link, observes the defense of the respondent, the Court of Milan affirms that the typical parliamentary act must always be prior to the declarations extra moenia, with no value being attributed to the reference made by the Board for Authorizations to «very old precedents and therefore superseded by subsequent jurisprudence». In this regard, the Chamber of Deputies objects that, according to the constitutional jurisprudence recalled by the Board and «never denied», «the temporal link exists not only when the parliamentary act precedes the incriminated declaration, but also when it follows said declaration in a period of time so short as to be substantially considered contiguous to it» (the judgments no. 218 of 2023, no. 241 of 2022, no. 133 of 2018, no. 97 of 2008 and no. 260 and no. 221 of 2006 are cited). It would be a «flexible criterion, to be applied with attention to the specific case».

In the case at hand, the verification of the temporal link by the Board would have been carried out «in perfect coherence» with what was decided by this Court both in judgment no. 10 of 2000 and in judgment no. 276 of 2001, in which the typical acts were two days after the declarations extra moenia. It should also be considered that «the establishment of social media has led to an evolution of political communication: in fact, when events occur, citizens expect an immediate reaction from their representatives, when they do not always have the possibility of expressing themselves in the parliamentary sphere».

4.− With act filed on December 4, 2023, both Santeria spa and A. P. intervened in the proceedings, requesting the acceptance of the appeal, having constituted themselves as civil parties, in the capacity of injured persons, in the criminal proceedings from which the conflict of attribution originates.

5.− With act filed on January 9, 2024, Carlo Fidanza intervened in the proceedings requesting the rejection of the appeal.

6.− Santeria spa, A. P. and Carlo Fidanza, respectively on December 5, 2023, and January 10, 2024, requested, pursuant to Article 5 of the Supplementary Rules for judgments before the Constitutional Court, an early and separate fixing of only the issue concerning the admissibility of the respective interventions.

This Court, in the council chamber of February 20, 2024, declared the interventions of Santeria spa and A. P. admissible and inadmissible, due to tardiness, that of Carlo Fidanza (order no. 33 of 2024).

7.− In view of the public hearing, the Chamber of Deputies filed a brief with which it insisted on the rejection of the appeal.

Considered in law

1.− The Court of Milan, in single-judge composition, seventh penal section, with the appeal indicated in the heading promoted a conflict of attribution between powers of the State, with reference to the resolution of January 18, 2023, of the Chamber of Deputies, with which, approving the proposal of the Board for Authorizations (doc. IV-ter, no. 11-A), it was affirmed that the declarations made on Facebook by the then deputy Carlo Fidanza, on December 2, 2018, had been expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, Const.

1.1.− The appellant reports that Carlo Fidanza is summoned to trial to answer for the crime of aggravated defamation pursuant to Article 595, third paragraph, of the penal code, by virtue of the following statements, made in a video published on Facebook on December 2, 2018: «We are here in Milan, in Viale Toscana in front of Santeria Social Club, premises given in concession by the Municipality of Milan where on December 13 this fantastic exhibition should have opened: "porn for children". An exhibition that, with images of dubious taste and certainly ambiguous, would have done nothing but legitimize child pornography. We do not stop here! We ask to monitor 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».

The Chamber of Deputies – at the request of the appealing Court pursuant to Article 3, paragraph 4, of Law no. 140 of 2003 – on January 18, 2023, resolved that those of the defendant are opinions expressed in the exercise of parliamentary functions, pursuant to Article 68, first paragraph, Const.

The appealing Court believes, on the contrary, that such statements extra moenia are not, as would be required by constitutional jurisprudence, either substantially or chronologically connected to opinions expressed in the institutional seat, but are instead an expression of the right of criticism pursuant to Article 21 Const.: hence the promoted conflict, as the challenged resolution of the Chamber of Deputies would prevent the ascertainment, which belongs to the judicial authority, regarding whether or not the limits to the freedom of expression of thought have been exceeded.

2.− In a preliminary manner, the admissibility of the conflict must be confirmed in relation to the existence of the subjective and objective prerequisites, as already deliberated by this Court with order no. 204 of 2023.

There is no doubt, in fact, that the Court of Milan is entitled to promote a conflict of attribution between powers of the State, being a jurisdictional body, in a position of constitutionally guaranteed independence, competent to definitively declare the will of the power to which it belongs in the exercise of the functions assigned to it. The passive legitimization of the Chamber of Deputies is equally undisputed, as the body competent to definitively declare its will regarding the application of Article 68, first paragraph, Const.

As for the objective prerequisites, the inhibition to exercise the jurisdictional function, resulting from the resolution of the Chamber of Deputies, is capable of causing, if the statements of Carlo Fidanza were not attributable to opinions expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, Const., the injury to the sphere of attributions constitutionally guaranteed to the appealing power.

3.− The Chamber of Deputies, which constituted itself in the proceedings, requested that the appeal be rejected: in fact, both the substantial correspondence and the temporal link between the declarations of Carlo Fidanza, deputy at the time of the facts, and those referred to in the typical acts mentioned in the Board's report would exist.

4.− This Court, with order no. 33 of 2024, declared the interventions of Santeria spa and A. P. admissible and inadmissible, due to tardiness, that of Carlo Fidanza.

The defense of Santeria spa and A. P., which did not file any brief, stated at the public hearing of April 10, 2024, that it would be «limiting» to consider a parliamentary opinion extra moenia non-liable pursuant to Article 68, first paragraph, Const. only in the case in which the latter had already previously expressed the same opinion in a prior parliamentary act: this, in fact, would make this Court a «notary» called upon to verify only the pre-existence of such a parliamentary act, when instead Article 68, first paragraph, Const. would require that it be assessed whether that of the deputy or senator is an «opinion» and, in particular, whether said opinion is a «political assessment» or whether it is instead concretized in the conscious attribution of «a false historical fact». Only in the first case, the defense of the interveners states, could the conduct of the parliamentarian be considered excused, because otherwise this Court would endorse slanderous declarations against individual citizens, to the detriment of the same non-liability ex Article 68, first paragraph, Const., «too important to be usurped in this way».

5.− The statements reported in the hearing of the interveners, which propose a reading of the parliamentary immunity in question partly different from that adopted, despite the divergence of views, by the appellant and the respondent, lead to appropriate clarifications regarding the scope of application of Article 68, first paragraph, Const.

6.− Parliamentary immunities are intended to remove the parliamentarian from limitations or obstacles in the performance of his function coming from powers that do not belong to the Chamber to which he belongs, and that could assume the character of interference in the performance of the function of the parliamentary Assemblies (judgment no. 9 of 1970). Historically born to preserve parliaments from undue interference by the judiciary conditioned by the executive power, in the current constitutional system – in which, instead, the independence of the judicial order is ensured – they are structured in such a way as to define «a rational and measured balance between the demands of the rule of law, which tend to exalt the values connected to the exercise of jurisdiction (universality of the law, legality, removal of any privilege, mandatory nature of criminal action, right of defense in court, etc.) and the safeguarding of areas of parliamentary autonomy removed from common law, which serve to preserve for political representation its indispensable space of freedom» (judgment no. 379 of 1996).

What the Constitution therefore allows and demands is not the protection of the rights of the individual deputy or senator, but «to protect the freedom of the function that the subject exercises, in accordance with the very nature of parliamentary immunities, primarily aimed at protecting the autonomy and decisional independence of the Chambers with respect to undue invasions by other powers, and only instrumentally intended to reverberate their effects in favor of the persons invested with the function» (judgment no. 38 of 2019; but in a similar sense, also recently, judgments no. 170 and no. 157 of 2023).

The «overall institutional architecture [that derives from it], inspired by the principles of the division of powers and their balance» (judgment no. 262 of 2009) can naturally determine an antagonism between the two values in balance: the political freedom of Parliament and the autonomy of the functions of the Chambers, on one hand; the independence and impartiality of the judge, functional to guaranteeing the principle of equality of citizens before the law and the defense of their rights and interests, on the other. Antagonism that, in determining a derogation from the principle of equal treatment before the jurisdiction that is at the origin of the rule of law (judgment no. 24 of 2004), must find a point of equilibrium in concrete terms through the work of the Chambers and the judicial order, without prejudice to the possibility, for the power that deems its attributions harmed, of raising a conflict before this Court (judgment no. 1150 of 1988).

6.1.− Article 68, first paragraph, Const., in order «to make the discussions that take place in the Chambers fully free, for the satisfaction of the superior public interest connected thereto» (judgment no. 81 of 1975), prevents parliamentarians from being called to answer for the opinions expressed and the votes given in the exercise of their functions.

In this way, the Constitution radically excludes any form of legal responsibility, for such votes and opinions, of deputies or senators, «so that they cannot, nor will they be able to after the expiration of the mandate, be called to answer for the activities they have carried out in that capacity. This in order to guarantee to the Chambers themselves that parliamentarians can exercise their functions in the freest way, without the limits deriving from the fear of possible sanctioning measures against them» (judgment no. 46 of 2008). The so-called non-liability protects, therefore, the "heart" of the parliamentary mandate, the performance of which must be free from conditioning to allow, as outlined by Article 67 Const., a free representation, not of partisan or party interests, but of the Nation.

6.2.− It is, on the other hand, equally evident that the non-liability of opinions – precisely because it radically excludes the legal responsibility of the parliamentarian – makes particularly problematic, in concrete terms, the identification of the point of equilibrium between the antagonistic values mentioned, since in such cases «some moral goods of the person, which the Constitution itself qualifies as inviolable (honor, reputation, equal dignity), come into conflict with the non-liability of the opinion expressed by the parliamentarian, which is an irrepressible moment (and, it can well be said, also inviolable), of the freedom of the function» (judgment no. 379 of 1996).

In this, the different breadth, as regards the field of application, between Article 21 Const. and Article 68, first paragraph, Const., is particularly evident. The freedom of expression of thought – which is «coessential to the regime of freedom guaranteed by the Constitution» (judgment no. 11 of 1968) and, precisely as such, is a «cornerstone of the democratic order» (