CEDH · CASELAW;CLIN;ENG — 30 janvier 2003

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Italy (no. 1) - 40877/98 Judgment 30.1.2003 [Section I] Article 6 Civil proceedings Article 6-1 Access to court Parliamentary immunity – decision of Senate resulting in discontinuation of criminal proceedings against a senator: violation Facts : At the time of the events in question, the applicant was a public prosecutor.   As such, he was required to investigate a person who had had dealings with a former President of Italy, now a life member of the Senate.   The latter sent the applicant a number of sarcastic letters,   followed by a gift of children’s toys.   The applicant considered that his honour and reputation had been injured, and lodged a criminal complaint against the senator, who was prosecuted for insulting a public official, with the applicant appearing as a civil party in the proceedings.   The Senate decided, however, that the senator’s   constitutional immunity covered the acts of which he had been accused, and its President so informed the district court judge hearing the case, who accordingly terminated the proceedings.   The applicant then asked the public prosecutor to appeal against the order terminating the proceedings - which would have allowed him to raise a question of conflict of powers before the Constitutional Court at a later stage.   The public prosecutor refused, on the grounds that the Senate had not used its power arbitrarily. Law : Government’s preliminary objection (non-exhaustion) – Article 35 § 4 of the Convention allows the Court to reject an application which it considers inadmissible under Article 35 at any stage in the proceedings, but only new facts and exceptional circumstances may lead it to reconsider its rejection of an objection lodged when the admissibility of the application was being examined.   The Government has produced nothing which might lead the Court to reconsider its position on admissibility.   Its application is accordingly rejected.   Article 6 § 1 – To have an effective right to a court, an individual must have a clear and practical possibility of contesting any act which affects his rights.   The Senate’s decision to extend the parliamentary immunity guaranteed by the Constitution to the acts complained of, and the district court judge’s refusal to seek a ruling on a conflict of state powers from the Constitutional Court, led to termination of the proceedings brought by the applicant, who was thus deprived of any possibility of obtaining compensation for the alleged injury.   In other words, his right of access to a court was violated.   The aims pursued by this interference were legitimate, since they were connected with protecting free parliamentary debate and maintaining the separation of powers between legislature and judiciary.   As for the proportionality of the interference, it would be contrary to the aim and purpose of the Convention if adoption of one of the systems normally used to give members of parliament immunity automatically absolved Contracting States of all liability under the Convention in this area.   A state cannot, unreservedly and without supervision by the Convention bodies, withdraw a whole series of civil actions from the courts’ jurisdiction or exempt certain categories of person from all liability, without disregarding the pre-eminence of law in a democratic society and Article 6 § 1.   In a democracy, parliament or other comparable bodies provide vital tribunes for political debate.   Pressing reasons are thus needed to justify any interference with freedom of expression, as practised in these bodies.   Parliamentary immunity cannot therefore be regarded, in general, as a disproportionate restriction on the right of access to a court guaranteed by Article 6 § 1.   In this connection, immunity covering statements made in parliamentary debates, and designed to protect the interests of parliament as a whole, rather than those of individual members, has been judged compatible with the Convention.   In this case, however, the conduct complained of had nothing to do with the exercise of parliamentary functions in the strict sense, but seemed more the product of a private quarrel.   In such cases, access to the courts cannot be refused simply because the quarrel might be political, or connected with a political activity.   Because there is no obvious link with a parliamentary activity, the concept of proportionality between the aims pursued and the means employed must be interpreted narrowly.   This applies particularly when restrictions on the right to access result from a decision taken by a political body.   To conclude differently would be to restrict the individual’s right of access to a court, in a manner incompatible with Article 6 § 1 of the Convention, whenever the statements at issue in proceedings had been made by a member of parliament.   Thus the termination of the proceedings to the senator’s advantage, and the decision to block any other legal action aimed at protecting the applicant’s reputation, failed to respect the fair balance which must exist in this area between the need to protect the general interests of the community and the need to protect the fundamental rights of individuals.   Moreover, the applicant had no other reasonable ways of effectively protecting the rights guaranteed him by the Convention, and the Italian Constitutional Court now considers it unlawful that immunity should extend to remarks having no substantial connection with previous parliamentary acts which the representative in question could be taken as reflecting. Conclusion : violation (unanimously). Article 41 – The Court awards the applicant the sum of 8,000 € for non-material damage, and the sum which he claims to cover the cost of the proceedings before the Convention bodies.   © 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