Mensenrechtenhof in Italiaanse zaak: parlementariërs genieten geen immuniteit bij laster (en)

Press release issued by the Registrar

CHAMBER JUDGMENT - PATRONO, CASCINI AND STEFANELLI v. ITALY

The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Patrono, Cascini and Stefanelli v. Italy (application no. 10180/04). The Court held unanimously that there had been a violation of Article 6 § 1 (right to a court) of the European Convention on Human Rights.

Under Article 41 (just satisfaction) of the Convention, the Court awarded each of the applicants 8,000 euros (EUR) for non-pecuniary damage and EUR 2,000 for costs and expenses. (The judgment is available only in French.)

• 1. 

  Principal facts

The applicants, Antonio Patrono, Giusepe Cascini and Vittoria Stefanelli, are Italian nationals who were born in 1956, 1965 and 1959 respectively and live in Rome.

Judges by profession, they were seconded at the material time to the legislative bureau (“Ufficio Legislativo”) of the Ministry of Justice.

On 2 October 2001, during the debate before the legislative chambers of the law on international requests for judicial assistance, Senator Calvi revealed the existence of an internal note from the legislative bureau, criticising the above law. The following day, Mr Castelli, Minister of Justice, informed the President of the National Council of the Judiciary that he wished to reorganise the legislative bureau and, as a result, was requesting that the three applicants be removed from the bureau and be reinstated in their posts.

The applicants were subsequently reinstated in their previous posts.

On 5 October 2001 the newspaper Il Corriere della sera published an interview with Mr Taormina, a member of Parliament, under the headline “Taormina: it is fair to dismiss these indiscreet judges”. In particular, Mr Taormina stated: “Technically, judges who are seconded to the Ministry of Justice are put at its disposal. In practice, they are no longer judges, but employees of the Ministry, that is, persons who are subordinate to the Minister. If they do not agree with him, they should leave. I also believe that a question of criminal liability arises for

judges who infringe the principle of discretion. Mr Castelli was thus quite right to dismiss them”.

On the following day, namely 6 October 2001, the newspaper Il Giorno published an interview with Mr Pecorella, member of Parliament and Chair of the Justice Committee, under the headline “We could be in the 1970s: the red togas have returned”. When invited to state whether Mr Castelli had been right to dismiss the judges from the legislative bureau, Mr Pecorella replied: “It is for the Minister to select his assistants. Obligations of confidentiality and loyalty exist; those were infringed by [the judges concerned], and the relationship of trust between them and the Minister no longer exists. Had they been servicemen, they would have been brought before a court martial. His decision was not based on the opinions expressed by those judges, but on an act of disloyalty”.

Considering that their honour and reputation had been injured, the applicants lodged a complaint against Mr Taormina and Mr Pecorella for aggravated defamation through the medium of the press. Two sets of proceedings were consequently opened against those individuals.

On 18 December 2002 and 27 May 2003, Parliament ruled that the impugned remarks were covered by the parliamentary immunity provided for in Article 68 § 1 of the Italian Constitution, as the opinions concerned had been expressed in the exercise of parliamentary functions. In application of that provision, the investigating judge held that there was no case to answer in respect of Mr Taormina and Mr Pecorella.

• 2. 

  Procedure and composition of the Court

The application was lodged on 9 March 2004.

Judgment was given by a Chamber of 7 judges, composed as follows:

Christos Rozakis (Greek), President,

Loukis Loucaides (Cypriot),

Françoise Tulkens (Belgian),

Peer Lorenzen (Danish),

Dean Spielmann (Luxemburger),

Sverre Erik Jebens (Norwegian),

Roberto Baratta (Italian), judges,

and also Søren Nielsen, Section Registrar.

• 3. 

  Summary of the judgment [2]

Complaints

The applicants contended that the finding that the impugned remarks were covered by parliamentary immunity had deprived them of their right to access to a court. They relied on Article 6 § 1 (right to a fair hearing) and Articles 13 (right to an effective remedy) and 14 (prohibition of discrimination).

Decision of the Court

Article 6 § 1

The Court noted that, following the Parliament resolution to the effect that the comments by Mr Taormina and Mr Pecorella were covered by parliamentary immunity, the proceedings against the latter were discontinued and the applicants were thus deprived of the possibility of securing compensation for the alleged damage. There was thus an interference with their right of access to a court.

The Court also noted that parliamentary immunity was a long-standing practice, with the aim of allowing free speech for representatives of the people and preventing partisan complaints from interfering with parliamentary functions. Accordingly, it considered that the interference in question, which was provided for in Article 68 § 1 of the Constitution, pursued legitimate aims, namely to protect free parliamentary debate and to maintain the separation of powers between the legislature and the judiciary.

As to whether the interference was proportionate, the Court considered that the impugned statements had not been connected with the exercise of parliamentary functions in their strict sense. The members of parliament had not expressed political opinions but had alleged that the applicants had conducted themselves in a specific and unprofessional manner. The Court took the view that the lack of any clear connection with parliamentary activity required it to adopt a narrow interpretation of the concept of proportionality between the aim sought to be achieved and the means employed.

In those circumstances, the Court considered that finding that there was no case to answer in respect of Mr Taormina and Mr Pecorella had not struck a fair balance between the requirements of the general interest of the community and the need to safeguard the fundamental rights of individuals. The Court also attached importance to the fact that, following the Parliamentary resolution, the applicants did not have available to them reasonable alternative means to protect effectively their rights under the Convention. Accordingly, the Court concluded that there had been a violation of Article 6 § 1.

Articles 13 and 14

The Court noted that the complaint under Article 13 concerned the same events as those already examined from the standpoint of Article 6 § 1 and consequently considered that it was not necessary to examine whether there had been a violation of that provision. In addition, in view of its conclusion with regard to Article 6 § 1, it considered that it was unnecessary to examine separately the applicants’ complaint under Article 14.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Press contacts

Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)

Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)

Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.