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Publication:2003-I
Title:Cordova v. Italy (no. 1)
Application No:40877/98
Respondent:Italy
Referred by:
Date of reference by Commission:
Date of reference by State:
Date of Judgment:30-01-2003
Articles:6-1
13
14
41		Conclusion:Violation of article 6-1
Not necessary to examine article 13
Not necessary to examine article 14
Compensation awarded
Keywords:ACCESS TO COURT

Summary:
(Extract from press release)
Agostino Cordova is an Italian national who was born in 1936 and lives in Naples. At the material time he was a public prosecutor in Palmi.
Cordova (no. 1)  (no. 40877/98) The application concerns events which occurred in 1993 during an investigation conducted by the applicant as part of his duties. The person under investigation had had dealings with Francesco Cossiga, a former President of Italy who had become a "senator for life". Mr Cossiga sent the applicant a number of sarcastic letters and various presents in the form of toys. The applicant considered that his honour and reputation had been injured and lodged a criminal complaint against Mr Cossiga, who was prosecuted for insulting a public official. The applicant applied to join the proceedings as a civil party in June 1997. The Senate considered that the acts of which Mr Cossiga was accused were covered by the immunity provided for in Article 68 § 1 of the Italian Constitution, as his opinions had been expressed in the performance of his parliamentary duties. In accordance with that provision, the Messina magistrate held that the accused had no case to answer. The applicant asked the public prosecutor to appeal against that judgment, but his request was refused on the ground that the reasons given by the Senate were neither illogical nor manifestly arbitrary.

Cordova (no. 2) (no. 45649/99) The application concerns comments made at two election rallies in 1994 by Vittorio Sgarbi, a member of the Italian parliament. While speaking at the rallies, Mr Sgarbi launched a personal attack on the applicant in offensive terms. The applicant lodged a criminal complaint alleging aggravated defamation and applied to join the proceedings as a civil party. Mr Sgarbi was sentenced to two months' imprisonment and ordered to pay damages. The magistrate held that his comments had not been made in the performance of his parliamentary duties and were therefore not covered by the parliamentary immunity provided for in Article 68 § 1 of the Constitution. The accused appealed unsuccessfully against that judgment. He then appealed to the Court of Cassation, which directed that the proceedings should be stayed and the matter referred to the Chamber of Deputies. The Chamber of Deputies expressed the view that Mr Sgarbi had been acting in the performance of his duties. On 6 May 1998 the Court of Cassation quashed the trial and appeal courts' decisions, holding that the Chamber of Deputies' broad interpretation of the concept of "parliamentary duties", encompassing all acts of a political nature, even outside Parliament, was not manifestly at variance with the spirit of the Constitution. In its decisions of 13 June 2002 as to admissibility the Chamber took the view that the principal question raised by the applications was whether the applicant had enjoyed the right of access to a court as guaranteed by Article 6 § 1 of the Convention.

Relying on Article 6 § 1 (right to a fair hearing) and Article 13 (right to an effective remedy), the applicant complained that the proceedings before the Messina magistrate and the Court of Cassation had been unfair. He also complained under Article 14 (prohibition of discrimination) of the degree of freedom of expression enjoyed by Mr Cossiga and Mr Sgarbi.

Article 6 § 1
The European Court of Human Rights observed that the applicant had lodged a complaint, alleging defamation, against two members of parliament and had applied to join the subsequent criminal proceedings as a civil party. The proceedings had therefore concerned a civil right which the applicant was entitled to claim, namely the right to enjoy a good reputation.

Following debates in the Senate (in the case of Mr Cossiga) and in the Chamber of Deputies (in the case of Mr Sgarbi), the impugned statements had been found to be covered by parliamentary immunity. The resolutions passed to that effect had made it impossible to continue the proceedings that were under way and had deprived the applicant of the opportunity to seek compensation for the damage he had sustained. The Court noted that the legitimacy of the resolutions had been reviewed by the Messina magistrate in the first case and by the Court of Cassation in the second. However, an assessment of that kind could not be likened to a decision on the applicant's right to enjoy a good reputation; nor could it be maintained that the applicant's degree of access to a court - which had been limited to the opportunity to raise a preliminary issue - had been sufficient to secure him the "right to a court". The applicant had been denied the opportunity to seek compensation for the alleged damage as a result both of the resolutions passed by the Senate and the Chamber of Deputies and of the refusal by the Messina magistrate and the Court of Cassation to refer a jurisdictional dispute to the Constitutional Court. Accordingly, the Court considered that there had been an interference with the applicant's right of access to a court.

The Court noted that parliamentary immunities constituted a long-standing practice designed to ensure freedom of expression among representatives of the people and to prevent the possibility of politically motivated prosecutions interfering with the performance of parliamentary duties. The Court consequently held that the interference in question, which was provided for in Article 68 § 1 of the Constitution, had pursued the legitimate aims of protecting free speech in parliament and maintaining the separation of powers between the legislature and the judiciary.

As to whether the interference had been proportionate, the Court observed that where a State afforded immunity to members of its parliament, the protection of fundamental rights might be affected as a consequence. It reiterated that, in principle, the recognition of parliamentary immunity did not in itself place a disproportionate restriction on the right of access to a court as enshrined in Article 6 § 1 of the Convention.

The Court noted in both cases that the statements that had given rise to proceedings had not related to the performance of parliamentary duties in the strict sense, but appeared to have been made in the context of personal disputes. A denial of access to a court could not be justified solely on the ground that the dispute might be of a political nature or might relate to a political activity. In the Court's opinion, the absence of an obvious link with any kind of parliamentary activity meant that the notion of proportionality between the aim pursued and the means employed had to be interpreted narrowly. That was particularly true where restrictions on the right of access had resulted from a resolution passed by a political body. To conclude otherwise would amount to restricting, in a manner incompatible with Article 6 § 1 of the Convention, the right of individuals to apply to a court in any case where the comments in issue had been made by a member of parliament.

That being so, the Court considered that the ruling that Mr Cossiga had no case to answer and the judgment quashing the decisions against Mr Sgarbi had upset the fair balance that should be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The Court also attached importance to the fact that, after the resolutions had been passed by the Senate and the Chamber of Deputies, the applicant had had no other reasonable alternative means available for the effective protection of his rights under the Convention. The Court accordingly held that there had been a violation of Article 6 § 1 of the Convention.

Article 13
The Court noted that the applicant's complaint under this provision concerned the same facts which it had already examined under Article 6 § 1 of the Convention. It also pointed out that, where the issue raised was one of access to a court, the requirements of Article 13 were absorbed by those of Article 6 § 1. The Court therefore considered that it was not necessary to examine whether there had been a violation of Article 13 of the Convention.

Article 14
In the light of the conclusion it had reached in respect of Article 6 § 1, the Court considered that it was not necessary to conduct a separate examination of the applicant's complaint under Article 14 of the Convention.

Article 41
Under Article 41 (just satisfaction) of the Convention, in both cases the Court awarded the applicant 8,000 euros (EUR) for non-pecuniary damage. For costs and expenses it awarded the applicant EUR 8,745 and EUR 5,000 for the first and second applications respectively.

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Last Modified: 26-02-2013 10:24:53 (Documentation SIM)