JUDGMENT NO. 193

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of: President:

Augusto Antonio BARBERA

Justices: 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 rendered the following

JUDGMENT

in the proceedings regarding the conflict of attribution between powers of the State, arising from the resolution of the Senate of the Republic of 16 February 2022, which, approving the proposal of the Board on Elections and Parliamentary Immunities (doc. IV-quater, no. 3), deemed the statements of Senator Mario Michele Giarrusso to be unchallengeable, pursuant to Article 68, first paragraph, of the Constitution, promoted by the Ordinary Court of Potenza, Civil Division, with appeal notified and filed with the registry on 27 March 2023, registered under no. 12 of the register of conflicts between powers of the State 2022 and published in the Official Gazette of the Republic no. 15, first special series, of the year 2023, merit phase.

Having regard to the deed of constitution of the Senate of the Republic;

Having heard in the public hearing of 25 September 2024, Justice rapporteur Filippo Patroni Griffi;

Having heard the lawyer Rosaria Aurelia Giunta for the Senate of the Republic;

Deliberated in the council chamber of 25 September 2024.

Statement of Facts

1.− By appeal notified and filed on 27 March 2023 (reg. confl. pot. no. 12 of 2022), the Ordinary Court of Potenza, Civil Division, has promoted a conflict of attribution between powers of the State, in reference to the resolution of 16 February 2022 of the Senate of the Republic, with which, approving the proposal of the Board on Elections and Parliamentary Immunities (doc. IV-quater, no. 3), it was stated that the declarations made to the newspaper "La Verità” on 8 June 2020 by then-Senator Mario Michele Giarrusso were expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution.

1.1.− The appeal is promoted within the context of civil proceedings, initiated against then-Senator Giarrusso by Dr. Francesco Basentini, former head of the Department of Penitentiary Administration (DAP), to obtain compensation for damages caused by the publication of the aforementioned interview, deemed defamatory.

The appellant Court reports that the plaintiff considers himself harmed in his own "personal dignity” by statements contained in the interview: on the one hand, by the "juxtaposition of his name” to the so-called "Palamara gang”; on the other, by the reference to his proximity to M.Z., detained in prison, with whom he allegedly had a meeting in the presence of a third party (alluded to as belonging to the "secret services”), following the adoption, by the DAP, of the circular of 21 March 2020 which, during the pandemic period, allegedly led to the release of people of "very high criminal caliber”: a circular whose content would be linked to the riots that occurred within prisons.

Senator Giarrusso, who appeared in court, had raised the applicability of Article 68, first paragraph, of the Constitution. The Court of Potenza, disagreeing with the defendant’s position, forwarded the documents to the Senate of the Republic, which, with the resolution subject to appeal, approved the report of the Board on Elections and Parliamentary Immunities in the sense of the non-challengeability of opinions.

1.2.− That being stated, the Court of Potenza considers its own constitutionally guaranteed jurisdictional attributions to be infringed by said resolution, insofar as there would be no connection between the opinions of the then-Senator and the exercise of parliamentary functions.

1.2.1.− In this regard, the appellant refers to the case law of this Court, according to which said connection can only be found in the concurrence of two requirements: a temporal link between parliamentary activity and external activity, such that the latter takes on a divulgative purpose of the former, and a substantial correspondence of meaning between the opinions expressed in the exercise of functions and external acts (the judgments of this Court no. 144 of 2015, no. 265, no. 221 and no. 55 of 2014, no. 98 of 2011 are cited). This is because, otherwise, non-functional, but personal immunity would be generated, to the advantage of the parliamentarian (the judgments of this Court no. 313 of 2013, no. 508 of 2002, no. 56, no. 11 and no. 10 of 2000 are cited). In short, the appellant judge states that the extra moenia declarations must represent the expression of the exercise of typical parliamentary activities (the judgments of this Court no. 98 of 2011, no. 301 of 2010, no. 420 and no. 410 of 2008 are cited), and insults cannot be considered as such (judgments of this Court no. 257 of 2002 and no. 137 of 2001).

Moreover, the case law of this Court would also have recalled that the functional connection, as defined, would avoid conflict with Article 6 of the European Convention on Human Rights, as interpreted by the case law of the European Court of Human Rights (judgment of this Court no. 59 of 2018).

1.3.− The Court of Potenza acknowledges that, in the case at hand, the Senate of the Republic has found the functional connection between the statements for which Senator Giarrusso is cited in court and a parliamentary question, no. 4-03566, presented by the same on 28 May 2020.

With this act, almost entirely reported in the appeal, Senator Giarrusso, after having mentioned the resignations submitted by some managers of the Ministry of Justice following the "so-called ‘Palamara interceptions’”, questioned the Minister on the connection between the prison riots of 2020, a "list” of requests made by the latter, and the DAP circular of 21 March 2020, which would have accepted it, leading to the "release of almost 500 mafiosi”.

In this context, there would have been a conversation in prison between Dr. Basentini and M. Z., a "top figure in the Casalesi clan”, in the presence of an "unknown” person. In this regard, the parliamentary question refers to an alleged agreement between "branches of the secret services and the penitentiary administration”, "aimed at favoring direct and confidential relations with mafiosi inside prisons”.

Senator Giarrusso also asked to know why the circular of 21 March 2020, issued on a Saturday, was signed by a manager, instead of by the "general manager” or by the "head of the DAP”.

1.3.1.− However, the Court of Potenza excludes that, regardless of the "temporal gap” between the parliamentary question and the interview, the requirement of substantial identity of content exists between it and the declarations of the following 8 June.

1.3.2.− The appellant observes, in fact, that, with the extra moenia declarations of 8 June 2020, Senator Giarrusso had referred: "a) to the profile of the disengagement of responsibility by Francesco Basentini in favor of the manager who signed the circular ("In fact, that was such a hot circular that the ministry refused to sign it. In the end, they had it signed by Dr. [A. B.], whom we heard in the Antimafia Commission”); b) to the ‘Palamara gang’, an evocative expression of a precise disvalue (in particular, it reads: ‘The revelations on the Palamara case: a gang of Luca Palamara had settled in the ministry’; ‘How else to define it? Head of cabinet, head of the DAP, deputy head of the DAP, all who affectionately called him and referred to him. This intimacy, if it concerns the top of one of the most important ministries, is a scandal’); c) to the long conversation between Francesco Basentini and [M. Z.] (‘The first question is: what was the former head of the DAP doing visiting prisoners at 41 bis? And not just any 41 bis, but [M. Z.], the brother of [P. Z.], who we know was later released’; ‘I have been told about a long conversation. He was together with the director of the prison and an unknown third party, who was certainly not from the Mobile Operational Group’); d) to the link between prison riots and the circular of 21 March 2020 (‘There was a contemporaneity between the riots in prisons, evidently triggered by organized crime and which caused 14 deaths and 60 escapes, and the release of a list of requests. The indications of which, probably – we are trying to ascertain it with the Antimafia commission – flowed into the circular of March 21’); e) to the fact that the issuance on Saturday responded to the precise purpose of removing the circular from the control of the ministerial directorates responsible for dealing with issues related to the application of Article 41-bis of the law on the penitentiary system and the health of prisoners (‘It seems obvious to me: it was necessary to unload the responsibility on someone else. And then why was the circular issued on a Saturday, with administrative offices closed?’; ‘Because on Monday, with the ministry open, it would have been impossible to get it through without the directorates that deal with 41-bis or the health of prisoners noticing’).”

In the act of supervisory inquiry, instead, Senator Giarrusso: a) would not in any way have alluded to "the existence of a business consortium aimed at the division of top positions within the Ministry of Justice (‘Palamara gang’, an evocative expression of a precise disvalue)”; b) would not have referred to the "disengagement of responsibility” by Dr. Basentini at the time of signing the circular of 21 March: c) nor, finally, would he have alluded to the circumstance that the adoption of the act during Saturday would have had the "precise purpose” of removing the circular from the control of other ministerial directorates.

Between the statements in comparison, therefore, only a "partial correspondence of content” would be identifiable, which would not be suitable to "confer on the statements made in the interview a communicative aptitude of parliamentary activity”: hence the request for the annulment of the challenged resolution of the Senate of the Republic.

2.− By deed filed on 8 May 2023, the Senate of the Republic has appeared in court, requesting that the appeal be declared inadmissible and, in any case, unfounded.

2.1.− The defense of the respondent reconstructs, first of all, the events that originated the conflict, in particular for the purpose of observing, on the one hand, that Senator Giarrusso, in the interview, never referred to a "business consortium aimed at the division of positions within the Ministry of Justice”, as the appellant reports instead; on the other, that the other passages of the interview, which according to the Court of Potenza would not find correspondence in the parliamentary question, are never mentioned "in the writ of summons as the reason for the alleged defamation”.

2.2.− That being stated, the appeal would first of all be inadmissible.

2.2.1.− The Court of Potenza, first of all, would not have reported the content of the extra moenia statements exhaustively, which is necessary to allow this Court to verify the existence or not of the functional connection (the judgment of this Court no. 334 of 2011 is cited).

In fact, the appellant would not have cited any excerpt from the interview, but would have only paraphrased and reconstructed some passages, "moreover in an already oriented way”. The defense of the Senate of the Republic refers, in particular, to Senator Giarrusso's alleged allusion to the "business consortium aimed at the division of positions within the Ministry of Justice”.

This would be a statement that does not appear in the interview and that would, instead, be the result of "a reconstruction carried out independently by the Judge”: which makes the overlap between interview and parliamentary question non-existent, but because this statement would never have been made. On the other hand, the failure to transcribe the interview in the appeal would not allow this Court to verify the correspondence between extra moenia declarations and act of supervisory inquiry.

2.2.2.− Furthermore, the appellant Court could not have considered those parts of the interview that the plaintiff in the civil proceedings did not consider to be the basis of the claim for damages and with respect to which, therefore, "he had not requested the cognizance of the civil judge”.

In particular, Dr. Basentini would not have made any reference, in his writ of summons, to those statements by Senator Giarrusso that, according to the appellant judge, would have alluded to his disengagement of responsibility when signing the circular of 21 March 2020 and to the circumstance that the adoption of the latter on a Saturday was aimed at evading the control of other ministerial directorates. Even the allusion to the business consortium would not be contained in the writ of summons, in which the plaintiff would have only complained that Senator Giarrusso had referred to a "’relationship of intimacy’ between him and Dr. Luca Palamara, also using the term ‘Palamara Gang’”.

The Senate of the Republic then believes that the Court of Potenza could not have promoted a conflict with regard to statements outside its scope of cognizance. If not a reason for inadmissibility, the latter would in any case be a reason for unfoundedness, insofar as the resolution of non-challengeability would not have undermined the judicial function, which must be exercised only in relation to the statements made in the interview, on which the plaintiff based the claim for damages.

2.3.− On the merits, the appeal would be unfounded.

2.3.1.− Having recalled the principles of constitutional case law on the functional connection (the judgments of this Court no. 144 of 2015 and no. 371 of 2006 are cited), the defense of the Senate notes that: a) the parliamentary question is undoubtedly a typical act adopted in the exercise of functions, the content of which can be disclosed extra moenia (the judgment of this Court no. 379 of 2003 is cited); b) in the case at hand, it is undeniable that the interview of Senator Giarrusso intended to disclose the opinions expressed in parliament, since from the beginning of the interview there is explicit reference to the question recalled by the challenged resolution; c) the interview is only ten days after the question; d) there is a substantial correspondence of content between the interview and the question; and this, taking into consideration all the statements made by Senator Giarrusso, including those not the subject of the claim for damages by Dr. Basentini.

2.3.2.− With regard, in particular, to the correspondence of contents, the defense of the Senate, fully reporting the parliamentary question and the complaints of Dr. Basentini in the writ of summons, affirms that: a) even if the expression, used instead in the interview, "’Palamara gang’” is not used in the question, it nonetheless refers to a "comprehensive link” of Dr. Basentini, and other subjects, with Dr. Palamara, "united by a notation of specific disvalue also in relation to the functions exercised”; b) both in the question and in the interview, the meeting of Dr. Basentini with the detainee [M. Z.] at the L’Aquila prison is spoken of, "in the presence of a person of unknown identity, presumably belonging to the secret services”; c) in both, a connection is hypothesized between the riots in prisons, the adoption of the circular and the release of numerous convicts for crimes of a mafia nature.

The overlap of the statements should lead to the rejection of the appeal, "given the full operation of the constitutional guarantee referred to in Article 68, paragraph 1, of the Constitution, in part here”.

2.3.3.− The content correspondence, insists the defense of the Senate, also exists between the parliamentary question and the declarations made in the interview not subject to a claim for damages by Dr. Basentini.

Senator Giarrusso, first of all, never spoke of "a business consortium aimed at the division of top positions within the Ministry of Justice”: this would be a "statement ‘made up’ by the appellant, which does not find correspondence in the interview”. The reference to the "Palamara gang”, on the other hand, would also be found in the parliamentary question, by virtue of the already mentioned reference to the link between Dr. Basentini and Dr. Palamara: this even more so considering that, according to the case law of this Court, an integral identity between the expressions used is not necessary.

Senator Giarrusso, then, would have also referred in the parliamentary question, as well as in the interview, both to the circumstance that the ministerial circular was signed not directly by Dr. Basentini, but by another manager, and to the fact that it was signed on a Saturday.

2.4.− In concluding for the inadmissibility or unfoundedness of the appeal, the Senate of the Republic affirms that the conclusions reached are "also in line with the case law of the European Court of Human Rights recalled by the Court of Potenza in the appeal”.

In the case at hand, in fact, there would be a "clear link” between the interview and the parliamentary question, which cannot be denied "by a reasonable person”. The resolution of non-challengeability, in any case, would still be in a relationship of proportionality with the aim pursued, also considering the activity carried out by Senator Giarrusso as a member "in the Antimafia Commission and in the Justice Commission”.

Consideration of the Law

1.− The Court of Potenza, Civil Division, with the appeal indicated in the heading, has promoted a conflict of attribution between powers of the State, in reference to the resolution of 16 February 2022 of the Senate of the Republic, with which, approving the proposal of the Board on Elections and Parliamentary Immunities (doc. IV-quater, no. 3), it was stated that the declarations made to the newspaper "La Verità” on 8 June 2020 by then-Senator Mario Michele Giarrusso were expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution.

1.1.− The appellant reports that Mario Michele Giarrusso is a defendant in civil proceedings by Dr. Francesco Basentini, former head of the DAP, to obtain a judgment for compensation for damages allegedly suffered as a result of the publication of the aforementioned interview, deemed defamatory.

The Senate of the Republic – at the request of the appellant 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 officials) – on 16 February 2022 resolved that those of the defendant are opinions expressed in the exercise of parliamentary functions, pursuant to Article 68, first paragraph, of the Constitution.

The Court of Potenza believes, on the other hand, that such extra moenia statements are not, as constitutional case law would require, substantially or chronologically connected to opinions expressed in the institutional setting. In particular, only a "partial correspondence of content” would be identifiable between the interview and the parliamentary question no. 4-03566 of 28 May 2020, presented by Senator Giarrusso and to which the Board on Elections and Parliamentary Immunities referred in the proposal approved by the Senate of the Republic: hence the request for the annulment of the challenged resolution.

2.− As a preliminary matter, the admissibility of the appeal for conflict of attribution in relation to the existence of the subjective and objective requirements must be confirmed, as already decided by this Court with the order no. 34 of 2023.

There is no doubt, in fact, that the Court of Potenza is entitled to promote a conflict of attribution between powers of the State, since it is 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 attributed to it. Equally undisputed is the passive legitimacy of the Senate of the Republic, as the body competent to definitively declare its will regarding the application of Article 68, first paragraph, of the Constitution.

As for the objective requirements, the inhibition from exercising the jurisdictional function, resulting from the resolution of the Senate of the Republic, is capable of causing, if the statements of Mario Michele Giarrusso were not attributable to opinions expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution, the infringement of the sphere of attributions constitutionally guaranteed to the appellant power.

3.− The Senate of the Republic, which has appeared in court, has however raised the inadmissibility of the appeal under two different profiles.

3.1.− Firstly, according to the respondent, the Court of Potenza is not called upon to know the supposedly defamatory scope of the entire interview given by Senator Giarrusso, but only of those parts of it that Dr. Basentini has based his claim for damages on. With regard to the statements outside its scope of cognizance – which would be those for which the conflict is promoted – the appellant Court would not be called upon to exercise the jurisdictional function and, therefore, would not even be entitled to promote a conflict of attribution.

The objection must be rejected.

The Court of Potenza, as stated in the Statement of Facts, not only adequately summarizes the content of the writ of summons, but also refers extensively to the statements made in the interview that are the basis of the claim for damages, specifying then that only some of them – those in relation to which the present conflict is promoted – do not find content correspondence in the parliamentary question of Senator Giarrusso. It must be considered, therefore, that the Court of Potenza considers itself called to exercise the jurisdictional function also with reference to these latter statements and is, therefore, entitled to promote a conflict. Moreover, a different delimitation of the thema decidendum before the civil judge is not up to this Court, which only in that venue, and provided that the conditions are met, may eventually be evaluated.

3.2.− The Senate of the Republic then complains that the Court of Potenza has not reported the content of the extra moenia statements exhaustively, which is necessary to allow this Court to verify whether or not they were expressed in the exercise of the parliamentary function. The appellant, in fact, would not have cited any excerpt from the interview, but would have only paraphrased and reconstructed some passages, "moreover in an already oriented way”.

This objection must also be rejected.

The Court of Potenza, in fact, textually reports several of the statements made in the interview by Senator Giarrusso, compares them with the parliamentary question and then, finally, finds that only some of them are substantially corresponding in their meaning. Hence the decision to propose the present conflict in relation to the statements which, in the opinion of the appellant, were not expressed in the exercise of the parliamentary function: statements textually reported in the appeal and which, therefore, this Court can verify whether or not they can be attributed to opinions ex Article 68, first paragraph, of the Constitution.

4.− On the merits, the conflict is unfounded.

4.1.− For the purposes of resolving conflicts such as the present one, which relate to the attributability or otherwise of opinions rendered extra moenia to the exercise of the parliamentary function, this Court, as has recently been reiterated, "has considered as revealing indices of the existence of the functional connection the substantial correspondence with opinions expressed in the exercise of typical parliamentary activity and the substantial temporal contextuality between such latter activity and the external activity (see, among many others, the judgments no. 218 of 2023, no. 241 of 2022, no. 59 of 2018, no. 144 of 2015 and no. 115 of 2014). When these conditions are met, in fact, it can well be affirmed that the opinions expressed outside the venues of the Houses are connected to the exercise of the parliamentary function, as they are intended to communicate to the outside world, even in the unavoidable diversity of the instruments and language used in the typical act and in its dissemination to public opinion, the meaning of the activity carried out in the exercise of the mandate, which, moreover, by its nature, is destined to project itself outside the parliamentary chambers, in the interest of the free political dialectic which is a condition of life of democratic-representative institutions” (judgments no. 321 and no. 320 of 2000)” (judgment no. 104 of 2024).

4.2.− In the case at hand, it cannot be doubted, unlike what the Court of Potenza does, even if only incidentally, that there is a substantial temporal contextuality between the parliamentary question of Senator Giarrusso recalled by the challenged resolution, published on 28 May 2020, and the subsequent interview given by the same senator, published on 8 June 2020.

4.3.− With regard to the substantial correspondence of content between intra and extra moenia opinions, it must first of all be reiterated that the conflict is promoted not in relation to all the statements made by Senator Giarrusso in the interview, but only to those that, according to the appellant Court of Potenza, do not find correspondence in the parliamentary question.

More specifically, there are three series of statements.

With a first series, Senator Giarrusso asserts that Dr. Basentini belongs to the so-called "Palamara gang”: "The revelations on the Palamara case: a gang of Luca Palamara had settled in the ministry”; "How else to define it? Head of cabinet, head of the DAP, deputy head of the DAP, all who affectionately called him and referred to him. This intimacy, if it concerns the top of one of the most important ministries, is a scandal”.

With a second series, Senator Giarrusso complains about a "disengagement of responsibility” on the part of Dr. Basentini at the time of signing the DAP circular of 21 March 2020 which, he says, would have led to the release of detainees convicted for mafia-type crimes: "In fact, that was such a hot circular that the ministry refused to sign it. In the end, they had it signed by Dr. [A. B.], whom we heard in the Antimafia Commission”.

With a third series, finally, Senator Giarrusso alludes to the fact that the adoption of said circular during Saturday would have had the "precise purpose” of removing it from the control of other ministerial directorates: "It seems obvious to me: it was necessary to unload the responsibility on someone else. And then why was the circular issued on a Saturday, with administrative offices closed?”; "Because on Monday, with the ministry open, it would have been impossible to get it through without the directorates that deal with 41-bis or the health of prisoners noticing”.

4.4.− The second and third series of statements are fully reflected in the parliamentary question.

In the latter, Senator Giarrusso – after having extensively correlated the adoption of the circular of 21 March 2020 with a presumed negotiation, which he asserts was conducted secretly by Dr. Basentini, with the involvement also of subjects from the services, in order to stop the riots in prison – prefaces in particular that "the circular, issued on Saturday 21 March, would not only not be signed by the head of the DAP or the general manager of the Directorate of Detainees and Treatment, but by a simple non-top-level subordinate” and then asks the Minister of Justice "if he can report the reasons why it was a manager, Dr. [B.], rather than the general manager, who signed the very sensitive circular of 21 March, which allowed the release of numerous and dangerous mafia bosses to begin”.

Beyond the different "literal formulas used” (judgment no. 333 of 2011), which reflect "[t]he use of expressive and communicative modalities which are physiologically different, in view of the unavoidable diversity of the instruments actually used” (judgment no. 104 of 2024), there is no doubt, therefore, that already in the act of supervisory inquiry Senator Giarrusso had complained both that the circular had not been signed by Dr. Basentini, but by another non-top-level manager, and that it had been adopted according to an opaque procedure, which ended on Saturday, aimed at following up on, as it reads textually in the parliamentary question, "some negotiation between the DAP and the rioting detainees”, who had drawn up "a ‘list’ […] containing a series of requests”, some of which would have "merged” precisely into the ministerial act.

The substantial correspondence of meaning between the intra moenia opinions and the statements now examined published in the interview allows us to consider the functional connection required by Article 68, first paragraph, of the Constitution to be in place.

4.5.− Conversely, the first series of statements – with which Senator Giarrusso asserts that Dr. Basentini belonged to the "Palamara gang”, which had "settled” at the Ministry of Justice – is not reflected in the parliamentary question, in which only a fleeting reference is made to the "so-called ‘Palamara interceptions’”, which would be at the origin, at least in part, of the resignations of several managers of the Ministry of Justice, including those of Dr. Basentini as head of the DAP.

Nonetheless, even the opinions of Senator Giarrusso now under examination must be considered expressed in the exercise of the parliamentary function.

4.5.1.− The constitutional case law, in fact, if it has recognized that the temporal contextuality and the substantial correspondence of meaning between intra and extra moenia opinions are revealing indices that are "particularly consistent and qualified” (judgment no. 104 of 2024), has not excluded that, in particular cases, Article 68, first paragraph, of the Constitution can be applied also to "declarations made extra moenia, not necessarily connected to parliamentary acts but for which it is nonetheless considered that there is a clear and qualified connection with the exercise of the parliamentary function” (