CEDH · CASELAW;CLIN;ENG — 24 février 2009

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Italy - 46967/07 Judgment 24.2.2009 [Section II] Article 6 Civil proceedings Article 6-1 Access to court Grant of immunity to a member of parliament concerning statements made to press unconnected with his parliamentary activity proper: violation   Facts : A Labour Ministry consultant was murdered by the Red Brigades. His ideas on flexible employment contracts had been challenged by the applicants, a trade-union federation. The Chamber of Deputies repeatedly announced the news of the murder and the subsequent declarations of its members. A daily newspaper published an article relating statements made by an MP in an interview. Eventually comments similar to those made by the MP in that interview were repeated by several MPs during a session. Considering that the MP’s statements were damaging for their reputation, the applicants brought proceedings in the civil court against the MP, the editorial director of the newspaper and its publishing house, seeking damages. They alleged that the impugned article suggested that there was a cause-and-effect relationship between the murder and the work done by the union organisation and its General Secretary to defend the workers, and that the terrorists came from trade-union circles. The Chamber of Deputies, confirming a proposal made by the Committee on Parliamentary Immunity, found that the MP’s offending statements were opinions he had expressed in the course of his duties. He therefore enjoyed the immunity provided for by the Constitution. The court raised a conflict of State powers before the Constitutional Court and stayed the proceedings brought by the applicants, asking for the decision of the Chamber of Deputies to be set aside. The Constitutional Court declared the conflict of State powers submission inadmissible on procedural grounds. Law : Preliminary objection (application manifestly ill-founded or lack of victim status) dismissed : Assuming that the MP had actually made the offending remarks, the action taken by the applicants against the director and publishers of the newspaper seemed in any event to have little prospect of succeeding. So the theoretical possibility of bringing defamation proceedings against the director and publishers of the newspaper did not deprive the applicants of their victim status in respect of the immunity granted to the MP and provided no basis for a finding that the application was manifestly ill-founded. Preliminary objection (failure to exhaust domestic remedies) dismissed : Concerning the possibility of continuing the action taken against the director and publishers of the newspaper, the Court could only reiterate its reasons for dismissing the objection concerning the applicants’ lack of victim status. As to the possibility of seeking a first-instance judgment acknowledging the MP’s immunity in order to be able to appeal against that judgment and invite the second-instance court to raise a new conflict of State powers, obliging an applicant to embark on such a course when a negative decision had already been taken by a supreme court was like expecting him to resort to procedural subterfuges in order to have his case reviewed, with no apparent chance of success. In any event, under Italian law individuals did not have direct access to the Constitutional Court. That being so, that course of action could not be said to be a remedy that had to be exhausted for the purposes of the Convention. Article 6 § 1 – In its resolution the Chamber of Deputies declared that the MP’s statements were covered by the immunity enshrined in the Constitution, which made it impossible to continue any criminal or civil proceedings to determine responsibility and obtain compensation for the damage sustained.The legitimacy of the resolution had been examined by the court, then by the Constitutional Court, which had declared the conflict of State powers submission inadmissible for procedural reasons.However, such an examination could not be equated with a decision on the applicants’ right to protect their reputation, nor could a degree of access to a court limited to the right to ask a preliminary question be considered sufficient to secure the applicants’ right of access to a court. Following the resolution, plus the Constitutional Court decision, the civil action against the MP had been paralysed and the applicants had been deprived of the possibility of securing compensation for the damage allegedly sustained.As to the Government’s submissions concerning the possibility of continuing the civil action against the director of the newspaper and its publishing house, the Court reiterated the considerations that led it to dismiss the preliminary objections. It accordingly found that there had been interference with the applicants’ right, provided for in the Constitution, of access to a court, and that the interference had pursued the legitimate aim of protecting freedom of parliamentary debate and the separation of the judicial and legislative powers.As the MP’s statements had been uttered in interviews with the press, and therefore outside the legislative chamber, they had strictly speaking had no connection with his parliamentary activity. It was true that the murder had been debated in the Chamber of Deputies. However, there was no evidence in the file that the MP had contributed, orally or in writing, to any debate on the subject in a legislative chamber, or suggested that the applicants were in any way morally or politically responsible for the murder in question. In addition, the parliamentary debates had taken place after the MP’s interview in the press.For the Court the MP’s statements, as reported in the newspaper, appeared to suggest, in substance, that through their action contesting the Government’s planned labour law reforms, the applicants were responsible, at least in part, for the climate of social tension that had led to the murder. That being so, access to justice could not be denied solely because the dispute might be of a political nature or linked to a political activity.Therefore, the lack of any clear connection with a parliamentary activity called for a narrow interpretation of the notion of proportionality between the aim pursued and the means employed. The contrary would restrict the individual’s right of access to a court in a manner incompatible with Article 6 §   1 whenever the offending statements at the origin of legal proceedings were uttered by a Member of Parliament. The resolution of the Chamber of Deputies granting immunity to the MP, which had paralysed the applicants’ attempt to protect their reputation, had not struck the requisite fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. Furthermore, after that resolution and the Constitutional Court’s ruling, the applicants had had no other reasonable means of effectively protecting their rights under the Convention. Even if the Constitutional Court now considered that an MP’s immunity should not cover statements the MP might be considered to have echoed which had no substantial bearing on prior parliamentary matters, in the present case the Constitutional Court had found a procedural obstacle in the wording of the district court’s order and refused to examine whether the MP’s remarks had been made in the course of his parliamentary duties   and were covered by the Constitution. The restriction of the applicants’ right of access to a court had not been proportionate to the legitimate aims pursued. Conclusion : violation (five votes to two). Article 41 – EUR 8,000 in respect of non-pecuniary damage (five votes to two). See Cordova v. Italy (no. 1) , no. 40877/98 and Cordova v. Italy (no. 2) ,no. 45649/99, ECHR   2003‑I, Information Note no. 49; and De Jorio v. Italy , no. 73936/01, 3 June 2004, press release no. 280 of 3   June 2004.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes