Freedom of Association and Assembly / Protests, Political Expression
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The Italian Constitutional Court ruled that the Senate is not entitled to assess the legal merits of instances of Parliamentary privilege and it is only entitled to determine whether statements have been made within the scope of Parliamentary duties or not. In 2013, during an event of an Italian political party, a Senator uttered racist statements against one of the former Italian Minister of Equal Opportunities and was charged with defamation. The Senator raised the defence that his statements were protected by parliamentary privilege by virtue of him being a Member of Parliament. The Italian Senate sided with the Senator. The Court of Bergamo ruled that the Senator made the statements outside the scope of his parliamentary functions, therefore parliamentary privilege did not apply. Furthermore, the Court of Bergamo found that the Senate overstepped its authority by assessing the legal merits of parliamentary privilege in the present case, and referred this question to the Constitutional Court for determination. The Constitutional Court upheld the decision of the Court of Bergamo.
On July 13 2013, during an event hosted by the Italian political party “Lega Nord”, Senator Calderoli made two controversial statements about the former Minister of Equal Opportunities, Cécile Kyenge. Calderoli stated that Kyenge “would be an excellent Minister, […] but it should be in Congo, not in Italy, because if there is the need […] for a Minister for equal opportunities and integration, that need is there, because […] if they see a white man passing by they shoot him.” The Senator also said that Kyenge looked an like an orangutan.
Calderoli was accused of defamation and faced two charges: violating article 595(3) of the Italian Criminal Code by publicly offending the honor of Mrs. Kyenge at a political event; and violating article 3 of the Law Decree 122/1993 that prohibits racial discrimination.
However, the Italian Senate opposed the accusations and concluded that Calderoli’s statements were made in the position of a Member of Parliament in the exercise of his public functions. Thus, his statements were privileged under article 68 of the Constitution. Article 68 states that “Members of Parliament cannot be held accountable for the opinions expressed or votes cast in the performance of their function”.
The matter was taken to the Court of Bergamo. The court held that under article 68, the Parliament possessed limited authority to assess whether there was a connection between the opinions expressed by Calderoli and the exercise of his official parliamentary functions. The Court held that the Senate could not determine the legal merits of the crimes of defamation or racial discrimination. The court added that the statements were not covered by the scope of article 68(1) since a functional link between the statements and the Senator’s parliamentary activity did not exist. The court ordered to send the case back to the Senate to determine if the criminal proceedings against Calderoli fell within the scope of article 68(1).
On September 16, 2015, the Senate decided that the Court of Bergamo had not authority to review the charge of racial discrimination, but could review charges brought under article 595(3).
The Court of Bergamo referred the case to the Italian Constitutional Court for clarification.
The Italian Constitutional Court had to determine the scope of the parliamentary privilege protected by article 68 of the Constitution.
The Court explained that its inquiry must focus on whether Calderoli’s statements were made in the exercise of Parliamentary functions. This inquiry looks at the statements beyond their literal interpretation. According to the existing jurisprudence of the Italian Constitutional Court (specifically, judgments no. 334/2011, 333/2011; 205/2012; 144/2015), it is not sufficient to demonstrate merely a link or a partial connection between the statements and official Parliamentary functions. The Court explained that parliamentary privilege afforded to senators protected them only in their official capacity.
The Court also referred to the European Court of Human Rights cases of C.G.I.L. and Cofferati v. Italy, App. No. 2/08 (2010), C.G.I.L. and Cofferati v. Italy App. No. 46967/07 (2009), Patrono, Cascini and Stefanelli v. Italy, App. No. 10180/04 (2006), Ielo v. Italy App. No. 2305/02 (2005), De Jorio v. Italy, App. No. 23053/02 (2004), and Cordova v. Italy, App. No. 45649/99 (2003),which clearly distinguished statements made during a Parliamentary hearing and those made by parliamentarians in the absence of a clear link to their parliamentary duties. Additionally, the ECtHR stressed in these cases that since parliamentary privilege affected the right to a fair trial under article 6 of the Convention by preventing the judiciary from exercising its proper function, it was necessary to interpret Parliamentary functions strictly.
The Court reiterated that when reviewing the application of article 68, the Senate must limit itself to a determination of whether the statements were made within the course and scope of the Senator’s official duties. The Senate was not entitled to determine the legal merits of the article 68 privilege in respect of the statements that have been made. The Court stated that the judiciary had the sole authority to assess whether the statements constituted protected speech under article 21 of the Constitution or if they violated the law.
The Court held that, in the present case, the Senate overstepped its authority. Accordingly, the Italian Constitutional Court upheld the verdict rendered by the Court of Bergamo, and held that statements made by Senators extra moenia (that is, outside of the Senate) are protected by parliamentary privilege only if they have been made in official capacity.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Italian Constitutional Court indirectly contracts freedom of expression as it restricts the degree of influence of the judiciary in determining the immunity of Parliamentarians. However, the Court did adequately balance the right to freedom of expression with other rights, and, given that the right to freedom of expression is not absolute, acknowledged that it can be limited in situations where an individual’s honor is infringed.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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