CEDH · CASELAW;CLIN;ENG — 30 janvier 2003

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Italy (no. 2) - 45649/99 Judgment 30.1.2003 [Section I] Article 6 Civil proceedings Article 6-1 Access to court Parliamentary immunity – annulment of conviction for defamatory statements made at electoral meeting by a Member of Parliament: violation Facts : In 1993, the applicant was a public prosecutor in the prosecutor’s department at Palmi.   At two electoral meetings in Palmi, S., a member of parliament, made a number of coarse and offensive comments concerning the applicant, who lodged a complaint of aggravated defamation.   The prosecutor’s department at Palmi committed S. for trial, and the applicant participated in the proceedings as a civil party.   S. was given a suspended prison sentence and ordered to pay the applicant damages, the amount to be determined in civil proceedings.   The court did not think it necessary to suspend the proceedings, so that the opinion of parliament could be sought, since the statements complained of had not been made in connection with the exercise of parliamentary functions – and were not therefore covered by the parliamentary immunity guaranteed in the Constitution.   S. appealed unsuccessfully against the judgment.   He appealed again to the Court of Cassation, which suspended the proceedings and ordered referral of the matter to the Chamber of Deputies. The latter took the view that S. had expressed these opinions while exercising his functions as a member of parliament.   The Court of Cassation accordingly set aside the judgments of the first-instance and appeal courts, and refused to allow the applicant to raise the question of a conflict of state powers before the Constitutional Court.   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.   As a result of the Chamber of Deputies’ decision to extend immunity to the parliamentarian’s statements, and the Court of Cassation’s refusal to seek a ruling on a conflict of state powers from the Constitutional Court, the sentences passed on the parliamentarian were quashed, and the applicant was deprived of any possibility of obtaining redress 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 case, the statements complained of were made at an election meeting, i.e. outside parliament, were unconnected with the exercise of parliamentary functions in the strict sense, and seemed more the product of a private quarrel.   In such cases, access to the courts may not 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. Thus the decision to set aside the judgments given in the applicant’s favour and to block any other legal action aimed at protecting his 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