JUDGMENT NO. 194
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA
Justices: Franco MODUGNO, 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 delivered the following
JUDGMENT
in the proceedings concerning a conflict of powers of the State, arising from the resolution of the Senate of the Republic of 28 June 2023, which, approving the proposal of the Committee on Elections and Parliamentary Immunities (doc. IV-quater, no. 2), deemed the statements of Senator Mario Michele Giarrusso to be inviolable, pursuant to Article 68, first paragraph, of the Constitution, initiated by the Judge for Preliminary Investigations at the Ordinary Court of Catania, with an appeal notified on 5 April 2024, filed with the registry on 8 April, registered under no. 6 of the register of conflicts between powers of the State 2023, and published in the Official Gazette of the Republic no. 16, first special series, of the year 2024, merit phase.
Having seen the instrument of constitution of the Senate of the Republic;
Having heard at the public hearing of 25 September 2024, the Reporting Judge Filippo Patroni Griffi;
Having heard the attorney Rosaria Aurelia Giunta for the Senate of the Republic;
Deliberated in the Chamber of Council on 16 October 2024.
Considered in fact
1.− By appeal notified on 5 April 2024 and filed on 8 April (reg. confl. pot. no. 6 of 2023), the Judge for Preliminary Investigations at the Ordinary Court of Catania initiated a conflict of powers of the State, in reference to the resolution of 28 June 2023 of the Senate of the Republic, whereby, approving the proposal of the Committee on Elections and Parliamentary Immunities (doc. IV-quater, no. 2), it was affirmed that the statements made by the then Senator Mario Michele Giarrusso, for which he is under investigation for the crime provided for and punished by Article 595, first, second and third paragraphs, of the Criminal Code, were expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution.
1.1.− The appellant states that Giarrusso, a senator at the time of the events, is under investigation for the crime of defamation against Francesco Basentini, in relation to statements made during the interview of 27 May 2020 given during the program "Voxitaliatv," published on the Youtube web platform and whose contents are fully transcribed in the appeal.
The Judge for Preliminary Investigations reports that the public prosecutor had formulated a request for dismissal, considering Article 68, first paragraph, of the Constitution applicable; a request that was shared by the defendant and opposed by Basentini, who requested the formulation of the mandatory indictment or to raise a conflict of attribution between powers of the State before this Court. The Judge, considering that the conditions for the application of Article 68, first paragraph, of the Constitution, did not exist, then suspended the decision and transmitted the documents to the Senate of the Republic, 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 regarding criminal proceedings against high officials of the State), so that it could rule on the matter.
The Committee on Elections and Parliamentary Immunities of that branch of Parliament, instead, considered that the statements of Senator Giarrusso were expressed in the exercise of parliamentary functions and in that sense the Senate of the Republic also resolved on 28 June 2023. The appellant Judge for Preliminary Investigations specifies that the resolution was rendered with reference to both the criminal proceedings and 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 matter of possible civil liability […], despite the proposal of the Committee also referring to these criminal proceedings."
1.2.− Having stated the above, the appellant Judge for Preliminary Investigations notes that the resolution of the Senate of the Republic inhibits the exercise of the judicial function.
Immunity, however, 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" (the judgments of this Court no. 379 of 1996 and no. 81 of 1975 are cited). The jurisprudence of this Court – starting from the judgments no. 10 and no. 11 of 2000 – would have emphasized, in order to consider them inviolable opinions, the need for a connection between the activities carried out outside the parliamentary seat and the function of parliamentarian (the judgments no. 59 of 2018 and no. 194 of 2011 are cited): and in that sense Law no. 140 of 2003 must be interpreted (judgment no. 120 of 2004).
The inviolability under Article 68, first paragraph, of the Constitution, could therefore only operate when the extra moenia statements present "a substantial coincidence of content with those made in parliament and are chronologically subsequent to the so-called 'internal' statements" (Court of Cassation, fifth criminal section, judgment 6-26 May 2014, no. 21320 is cited), and neither the commonality of arguments nor a mere political context to which they may refer is sufficient (Court of Cassation, fifth criminal section, judgment 4 May-14 June 2010, no. 22716 is cited).
1.3.− The statements of Senator Giarrusso were made extra moenia and the Committee considered them covered by inviolability by reason of the parliamentary question with written answer submitted on 28 May 2020, therefore the day immediately after the indicated interview, "with a substantial contemporaneity between the statements and the adoption of a typical act of parliamentary activity."
The appellant judge, on the contrary, believes that there is no "substantial correspondence" between the opinions expressed in the interview and those of the parliamentary act.
There would be a lack, first of all, of a temporal link and, therefore, of the divulgative purpose of the external activity with respect to the parliamentary activity. The presentation of the act of supervisory activity the following day would have the sole purpose of "finding ex post coverage" for the statements made extra moenia.
There would not even be a substantial correspondence of meaning between the opinions expressed and the act adopted in the exercise of functions. In fact, the mere "political context" is not sufficient (the judgment of this Court no. 144 of 2015 is cited), but it is necessary that the statements "constitute the substantial reproduction of the specific and concrete opinions expressed by the parliamentarian in the exercise of his duties", otherwise the freedom of expression of thought guaranteed to all by Article 21 of the Constitution comes into play (the judgment of this Court no. 152 of 2007 is cited).
In the case in question, the statements of the defendant 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 of Article 68 of the Constitution – but [would fall] within the exercise of the free expression of thought guaranteed to all by Article 21 of the Constitution."
1.3.1.− Article 21 of the Constitution, however, does not prevent the ordinary judge from "examining the statements deemed harmful by the injured party." The immunity of Article 68 of the Constitution "certainly marks an advanced line of freedom of expression of thought, but it must remain linked by an intrinsic connection to the exercise of political functions and cannot spill over into a personal attack 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.
In this regard, the appellant judge observes, indeed, that, if the inviolability under Article 68, first paragraph, of the Constitution, is "a case of freedom 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 them to harm other assets of constitutional importance, such as those protected by Articles 2, 3, 27 and 32 of the Constitution.
From this perspective, a distinction should be made between statements addressed to other political subjects and statements directed instead towards subjects extraneous to the political competition, who do not have "means of protecting their dignity similar to those available to political exponents (if only for the ease of access to the media)". The statements of Giarrusso, therefore, would be "outside the scope of operation of Article 68 of the Constitution due to the time they were made, the methods and content, as well as the recipient of the same."
Hence the present conflict of powers, as the resolution of the Senate of the Republic would be "in contrast with the scope of protection assigned to the Chamber of membership of the parliamentarian by Article 68 of the Constitution and therefore suitable to harm the jurisdictional attributions for the protection of the rights of private subjects guaranteed by Articles 2, 3, 24, 101 of the Constitution and by Article 6 of the ECHR, the violation of which results in a case of violation of Article 117, first paragraph of the Constitution."
2.− By instrument filed on 30 April 2024, the Senate of the Republic was constituted 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 in order to point out that for the same interview Dr. Basentini had also sued Giarrusso in civil court, before the mediation body ExAequo adr srl of Potenza: the Senate of the Republic treated the requests for attribution of the interview to opinions pursuant to Article 68, first paragraph of the Constitution, received both from the civil court and from the appellant Judge for Preliminary Investigations in the present conflict, as a single matter, concluding for inviolability by reason of the correspondence of content with the parliamentary question no. 4-03566 of 28 May 2020.
2.2.− Having given ample account of the contents of the appeal as well, according to the defense of the Senate, the latter would be, first of all, inadmissible.
2.2.1.− The appellant would not have indicated the reasons why the resolution of the Senate would have impaired the exercise of the judicial power: on the one hand, in fact, it would not have verified the correspondence between the contents of the interview and those of the parliamentary question, and on the other hand, it would not have complained of an impairment of its own attributions, but "presumed violations of the inviolable rights of the injured party that would result from the resolution of inviolability."
Under the first profile, the appellant states that the accusations made against Dr. Basentini in the interview would not be connected "except artificially to the parliamentary activity of the […] defendant," but in saying this it does not assess whether there is a correspondence of content with the act of supervisory activity referred to by the Senate. According to the Judge for Preliminary Investigations of Catania – states the defense of the respondent – the opinions would be extraneous to Article 68, first paragraph of the Constitution "for the sole fact of referring to third parties."
As for the second profile, the appellant's approach would betray an incorrect reconstruction of the prerogative of the inviolability of opinions, which is functional to guarantee the autonomy of the Chambers and not, instead, the freedom of expression of thought of the parliamentarian (the judgments of this Court no. 218 of 2023, no. 265 of 2014, no. 508 of 2002 and no. 11 of 2000 are cited). And it is by reason of this, and to prevent immunity from being transformed into privilege, that the jurisprudence of this Court has delimited the scope of application of Article 68, first paragraph of the Constitution, to the exercise of parliamentary functions, to which the extra moenia opinions must be rigorously traced: this occurs when there is a temporal link between the former and the latter and substantial correspondence of content (the judgments no. 144 of 2015, no. 265 and no. 115 of 2014 are cited).
It is not relevant, therefore, the "measured and prudent" nature of the extra moenia statement, but its being attributable to the exercise of parliamentary functions, which is a quality that characterizes it in itself and everywhere (the judgment of this Court no. 59 of 2018 is cited) and is independent of any defamatory content (the judgment of this Court no. 371 of 2006 is cited).
The appellant, on the contrary, contests the merits of the statements of Senator Giarrusso, which are considered in themselves extraneous to the parliamentary function, without conducting any assessment on the existence of the functional link, which is instead an element of composition and balance between the autonomy of the Chambers and the exercise of the judicial function.
The jurisprudence of the European Court of Human Rights, moreover, would have recognized that the inviolability of opinions protects the "free parliamentary debate and the maintenance of the separation of the legislative and judicial powers," which occurs whenever there is a "clear link" between typical function and opinion (ECHR Court, judgment 6 April 2010, CGIL and Cofferati against Italy and the other rulings cited therein are cited).
2.3.− The appeal, in any case, would be unfounded.
2.3.1.− Considering that the parliamentary question is certainly a typical activity of the parliamentary function (the judgment of this Court no. 379 of 2003 is also cited), the Senate of the Republic states that there is certainly a substantial correspondence of content between the statements of Senator Giarrusso made during the interview and the question presented by the same and referred to in the challenged resolution.
If in the interview, in fact, the senator alluded to a "State-mafia negotiation," in the question reference is made "to 'the conduct of some negotiation between the DAP and the rebellious detainees,' as well as to 'a secret agreement between branches of the secret services and the prison administration, aimed at favoring direct and confidential relations with mafiosi inside prisons'," which would have resulted in "'the release of almost 500 mafiosi.'"
In the same way, in the interview the meeting of Dr. Basentini with the detainee M. Z. is reported, in the presence of a third subject, presumably belonging to the secret services, as in the parliamentary question the Minister of Justice is asked if "he was informed of the meeting of Basentini with the boss [M. Z.] and the object of the same; if he was informed of the presence of a third person at the meeting; if he can indicate the identity of the third person present at the meeting and if the same is part of the services or not."
Furthermore, both in the interview and in the question, Senator Giarrusso has hypothesized a connection between the riots that occurred in prisons in February-March 2020, the circular of the Department of Prison Administration (DAP) of 21 March 2020, which would have accepted some requests of the detainees, and the release of numerous convicts for mafia-style crimes; as in both, reference is made to the peculiar adoption of the circular on Saturday and by "a simple non-senior subordinate."
Finally, Senator Giarrusso in both statements has made an explicit reference, in a critical sense in relation to the functions performed, to the relations between Dr. Luca Palamara, Dr. Basentini and other ministerial exponents, linking the resignation of these to the wiretaps of the so-called "Palamara case."
2.3.2.− According to the defense of the Senate of the Republic, the only extra moenia statement for which there is a lack of full overlap of content is that concerning the "alleged appointment of Dr. Basentini as head of the DAP with an increase in remuneration despite the lack of adequate professional skills, also in relation to the management of the so-called Tempa Rossa investigation."
In this regard, the respondent refers to the assessments of this Court regarding the possibility of considering that this last opinion is also subsumable in the content of the parliamentary question, precisely by reason of the reference to the resignations following the wiretaps of the "Palamara case": and this because, as the jurisprudence of this Court has affirmed, the identity of the expressions used is not necessary but the substantial correspondence of meaning is (judgment no. 144 of 2015 is cited).
2.3.3.− The defense of the Senate of the Republic observes, then, that there is also a temporal link between the parliamentary question, published on 28 May 2020, and the statements made in the interview, given the day before.
Pursuant to the regulations of the Senate, in fact, the parliamentary question must be proposed in writing (Article 145, paragraph 2) and is published only after the scrutiny of the President, also on its wording in non-inconvenient terms (Article 146), so that it is "plausible that the same was filed at least on 27 May and then recorded and published the following day."
On the other hand, the jurisprudence of this Court requires a "substantial contemporaneity" between extra moenia statements and typical act, which in principle may exist even when the second is subsequent to the first (the judgment no. 221 of 2006 is cited) and provided that the temporal distance is not significant (judgment no. 133 of 2018); in particular, it has been deemed necessary that the typical act be announced or foreseeable (judgment no. 335 of 2006).
In the case in question, in the interview Senator Giarrusso explicitly stated that he was "presenting a question to find out what Basentini was doing at [M. Z.]'s," so that the subsequent typical act must be considered substantially contemporaneous with the extra moenia statements – all the more so since it must be considered drafted and filed "at the latest on the evening of the interview" – and certainly not adopted, as instead the Judge for Preliminary Investigations believes, to obtain an "ex post coverage."
2.3.4.− The defense of the Senate, finally, specifies that the conclusions submitted are in line with the jurisprudence of the ECHR Court, as "the substantial commonality of meaning between the parliamentary act (question) and its extra moenia disclosure (interview) cannot be denied by a reasonable person, based on the reading of both documents."
The challenged resolution, moreover, would in any case be "in proportion to the purpose pursued," taking into account the content of the parliamentary question of Senator Giarrusso and the activity carried out by the latter as a member "in the Anti-Mafia Commission and in the Justice Commission."
Considered in law
1.− The Judge for Preliminary Investigations at the Ordinary Court of Catania, with the appeal indicated in the heading, has initiated a conflict of powers of the State, in reference to the resolution of 28 June 2023 of the Senate of the Republic, whereby, approving the proposal of the Committee on Elections and Parliamentary Immunities (doc. IV-quater, no. 2), it was affirmed that the statements made by the then Senator Mario Michele Giarrusso, for which he is under investigation for the crime provided for and punished by Article 595, first, second and third paragraphs, of the Criminal Code, were expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution.
1.1.− The appellant states that Giarrusso, a senator at the time of the events, is under investigation for the crime of defamation against Francesco Basentini, in relation to statements made during the interview of 27 May 2020 given during the program "Voxitaliatv," published on the Youtube web platform and whose contents are fully transcribed in the appeal.
The Senate of the Republic – at the request of the appellant Judge for Preliminary Investigations pursuant to Article 3, paragraph 4, of Law no. 140 of 2003 – on 28 June 2023 resolved that those of the defendant are opinions expressed in the exercise of parliamentary functions, pursuant to Article 68, first paragraph, of the Constitution.
The Judge for Preliminary Investigations believes, on the other hand, that such extra moenia statements are not, as would be required by the constitutional jurisprudence, neither chronologically nor substantially connected to opinions expressed in the institutional seat, but instead represent an expression of the free expression of thought pursuant to Article 21 of the Constitution: hence the request for annulment of the challenged resolution.
2.− Preliminarily, the admissibility of the conflict must be reiterated in relation to the existence of the subjective and objective prerequisites, as already deliberated by this Court with the order no. 34 of 2024.
There is no doubt, in fact, that the appellant Judge for Preliminary Investigations is entitled to initiate a conflict of powers of the State, as it is a jurisdictional body, in a position of constitutionally guaranteed independence, competent to declare definitively 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 declare definitively its will regarding the application of Article 68, first paragraph, of the Constitution.
As for the objective prerequisites, the inhibition to exercise the judicial function, resulting from the resolution of the Senate of the Republic, is suitable to cause, if the statements of Michele Giarrusso were not attributable to opinions expressed in the exercise of parliamentary functions pursuant to Article 68, first paragraph, of the Constitution, the impairment of the sphere of attributions constitutionally guaranteed to the appellant power.
3.− The Senate of the Republic, constituted in court, has however raised an objection of inadmissibility of the conflict under a different profile.
The appellant judge, in fact, would not have indicated the reasons why the challenged resolution would have impaired the exercise of judicial power: on the one hand, it would not have verified the correspondence between the contents of the interview and those of the parliamentary question with a written answer submitted by Senator Giarrusso on 28 May 2020 and, on the other hand, it would not have complained of an impairment of its own attributions – contesting the existence of the functional link – but "presumed violations of the inviolable rights of the injured party that would result from the resolution of inviolability."
3.1.− The objection must be rejected.
The appellant judge shows that he is aware of the constitutional jurisprudence on the issue of inviolability under Article 68, first paragraph, of the Constitution, and excludes that, in the case in question, the temporal link and the substantial correspondence of content exist between the extra moenia statements and the parliamentary question referred to by the challenged resolution.
The fact that then, in motivating the reasons for the conflict, it also affirms that the statements made in the interview, due to the expressive methods used and the recipient of the same, are in themselves devoid of connection with the parliamentary function – a connection that the typical act, subsequent to the interview, is aimed at "artificially" determining – does not impede the examination on the merits of the conflict, but rather precisely relates to it. The constitutional jurisprudence, in fact, has long affirmed that, where the applicability of Article 68, first paragraph, of the Constitution, is contested between the Chambers and the judicial authority, this Court is called not to judge the validity or appropriateness of the reasons for the parliamentary resolution of inviolability, but to "verify whether, in the case in question, the inviolability exists, that is, whether the opinion under discussion was expressed in the exercise of parliamentary functions, in light of the notion of such exercise that can be inferred from the Constitution" (judgment no. 10 of 2000; in analogous terms, also the judgment no. 11 of 2000).
4.− On the merits, the conflict is only partially founded.
4.1.− For the purposes of resolving conflicts such as the present one, which concern whether or not extra moenia opinions are attributable to the exercise of the parliamentary function, this Court, as has been reiterated recently, "has considered that the substantial correspondence with opinions expressed in the exercise of typical parliamentary activity and the substantial temporal contemporaneity between this latter activity and the external activity are revealing indices of the existence of the functional link (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 be affirmed that the opinions expressed outside the seats of the Chambers are connected to the exercise of the parliamentary function, as they are intended to communicate externally, despite 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 be projected outside the parliamentary chambers, in the interest of free political debate, which is a condition of life for democratic-representative institutions" (judgments no. 321 and no. 320 of 2000)" (judgment no. 104 of 2024).
4.2.− In the case in question, contrary to what was held by the Judge for Preliminary Investigations, there is a substantial temporal contemporaneity between the parliamentary question of Senator Giarrusso referred to in the challenged resolution, published on 28 May 2020, and the interview, of 27 May 2020, for which the criminal proceeding is pending.
In fact, "a rigid application of the index of the temporal link in terms of mere disclosure of an act, necessarily existing and preceding, must be excluded, [that] would transform the requirement of the functional link into a sort of chronological link that is not suitable, in its rigidity, to qualify 'the exercise of functions'" (judgment no. 104 of 2024). What is relevant is that the opinions extra and intra moenia are given in the "same temporal context" (judgment no. 221 of 2006): which clearly occurs when, as in the case at the origin of the present conflict, the typical act – the publication of which, pursuant to Article 146 of the regulations of the Senate, must also be preceded by the scrutiny of the President of the Assembly – follows by just one day the statements made elsewhere (on the verification of temporal contemporaneity, ex multis, recently, judgments no. 104 of 2024, no. 218 of 2023, no. 241 of 2022, and already no. 276 of 2001 and no. 10 of 2000).
Moreover, the temporal link between the former and the latter is clearly demonstrated by the fact that, during the interview, Senator Giarrusso states that, in relation to the topics he was dealing with, he was about to present a parliamentary question, so that the latter cannot be considered other than concretely announced by the extra moenia statements (judgments no. 104 of 2024, no. 241 of 2022, no. 133 of 2018, no. 335 of 2006 and no. 223 of 2005).
4.3.− As regards the substantial correspondence of content between the opinions intra and extra moenia, the Judge for Preliminary Investigations proposes the conflict for the entire complex of statements for which Senator Giarrusso is under investigation, fully reported in the appeal.
These are two series of statements regarding, on the one hand, the appointment of Dr. Francesco Basentini as head of the DAP and, on the other hand, the existence of a "State-mafia negotiation." Within both series of statements, then, Senator Giarrusso asserts that Dr. Basentini belonged to the "Palamara gang."
4.4.− The series of affirmations concerning the existence of a "State-mafia negotiation" substantially corresponds in content to the parliamentary question of 28 May 2020.