Communicated on 1 February 2016

FIRST SECTION

Application no. 51197/13 Pierluigi ONORATO against Italy lodged on 12 July 2013

STATEMENT OF FACTS

The applicant, Mr Pierluigi Onorato, is an Italian national, who was born in 1938 and lives in Fiesole (Florence). He is represented before the Court by Mr F. Sorrentino, a lawyer practising in Rome.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The criminal proceedings against Mr M.D.U.

In 1999, the applicant was a judge of the third section of the Court of Cassation.

Mr M.D.U., a senator who ran for election for the political party Forza Italia , was accused of tax evasion. After his conviction at first and second instance, he challenged the verdict and the penalty inflicted before the Court of Cassation. However, he subsequently applied for a plea bargain, to which the Public Prosecutor Office agreed. On 12 October 1999, Mr M.D.U., who had meanwhile been elected as a member of the European Parliament, withdrew his plea bargain request and invited the Court of Cassation to examine the merits of his appeal on points of law.

In a judgment of 28 October 1999, the third section of the Court of Cassation, where the applicant sat, applied the penalty proposed in the plea bargain (two years and three months ’ imprisonment). It held that the latter could not be unilaterally revoked by Mr M.D.U. Moreover, the Court of Cassation stated that the “accessory penalty” ( pena accessoria ) imposed by the Cou rt of Appeal – which was the prohibition to exercise public functions for a period of two years – was not the object of the plea bargain and should continue to apply. The Court of Cassation considered that this did not run counter to the principle enshrined in Article 66 of the Constitution, according to which the Parliament was competent to decide upon the disqualification of its members.

The applicant wrote the reasoning of the judgment of 28 October 1999. The procedure leading to the conviction of Mr M.D.U. for tax evasion is described in detail in M.D.U. v. Italy (Dec.), no. 58540/00, 28 January 2003.

2. The declarations of Mr M.D.U. to the press

Subsequently, Mr M.D.U. requested that criminal proceedings be instigated against the applicant for abuse of power. On 12 April 2002 the Rome District Court acquitted the applicant of this accusation.

Meanwhile, on 5 March 2002, two national newspapers ( Il Giornale and Il Corriere della Sera ) published extracts from interviews with Mr M.D.U.

The relevant passages of these interviews read as follows:

Ar ticle entitled “Investigation of the judge who co nvicted [Mr M.D.U.]” published i n Il Giornale :

“I consider that what happened to me shows once again the existence, in our country, of some magistrates that are using their power in order to harm their political opponents. I am ready to prove in the Parliament that I have been the victim of a special judgment ( giudizio speciale ).”

Article entitled “No suspension of penalty. [Mr M.D.U.] faces the risk of i mprisonment. He requested to be a ssigned to the social services. The parliamentarian: [I am the] victim of a special judgment of a political nature”, published i n Il Corriere della Sera :

“I have been the victim of a special judgment of a political nature ... [and of] a judge who is politically engaged, who militates in a [political] formation opposed to mine.”

Similar interviews and/or declarations by Mr M.D.U. were published by Il Corriere della Sera on 6 and 15 March 2002. Mr M.D.U. also underlined that the applicant had been a parliamentarian elected on the lists of the Italian Communist Party (PCI). The applicant complained about the impossibility of instigating defamation proceedings against Mr M.D.U. for the declarations published on 6 and 15 March 2002 in the ambit of application no. 26218/06. In a judgment of 24 May 2011, the Court found that there had been a violation of the applicant ’ s right of access to a court, guaranteed by Article 6 § 1 of the Convention (see Onorato v. Italy , no. 26218/06, 24 May 2011).

3. The criminal proceedings brought by the applicant against Mr M.D.U.

On 31 May 2002, the applicant requested that criminal proceedings for defamation be brought against Mr M.D.U. for, inter alia , the declarations contained in the articles published on 5 March 2002.

On 26 June 2003, the Judge of the Preliminary Hearing ( Giudice per l ’ udienza preliminare ) committed Mr M.D.U. for tr i a l before the Milan District Court for the declarations published on 5 March 2002. The applicant joined the proceedings as a civil party.

In the meantime, the Parliamentary Immunities Commission ( Giunta ... delle immunità parlamentari ) proposed that the Senate should declare that the acts of which Mr M.D.U. was accused were covered by the immunity provided for in Article 68 § 1 of the Constitution.

By a resolution of 15 October 2003 a majority in the Senate approved the Parliamentary Immunities Commission ’ s proposal.

On 17 March 2004, the Milan District Court attacked the Senate ’ s resolution before the Constitutional Court, observing that there was no discernible link between the acts of which Mr M.D.U. was accused and the exercise of parliamentary functions. On that basis, the District Court alleged that the Senate, in applying Article 68 to circumstances not provided for in the Constitution, had encroached on the powers of the judiciary, and requested the Constitutional Court to resolve the conflict of State powers.

In July 2005, the Constitutional Court declared the District Court ’ s claim inadmissible as being lodged out of time – that is, more than twenty days after the adoption of the Senate ’ s resolution.

By a judgment of 23 November 2005, the Milan District Court ruled that Mr M.D.U. had no case to answer “pursuant to Article 68 § 1 of the Constitution and to Article 3 of Law no. 140 of 2003”. The District Court considered that it was not possible to raise a second conflict of State powers case before the Constitutional Court and that the plea of unconstitutionality of Law no. 140 of 2003 raised both by the applicant and by the Public Prosecutor was manifestly ill-founded.

The applicant appealed on points of law. The Court of Cassation considered that his claim should be interpreted as an appeal and referred the matter back to the Milan Court of Appeal.

By a judgment of 28 February 2013, the text of which was lodged with the Registry on 12 March 2013, the Milan Court of Appeal confirmed the first-instance judgment.

The Court of Appeal observed that according to the relevant domestic case-law, once a conflict between State powers had been declared inadmissible, it was precluded to raise the same question to the Constitutional Court.

The Court of Appeal ’ s judgment subsequently became final, as the applicant did not lodge an appeal on points of law before the Court of Cas sation. In the application form the applicant argued that such a remedy would not have had any reasonable prospects of success.

B. Relevant domestic law and practice

Article 68 § 1 of the Constitution, as amended by Constitutional Law no. 3 of 1993, which abolished the need to obtain the consent of Parliament in order to take proceedings against one of its members, reads as follows:

“Members of Parliament shall not be required to account for the opinions they express or the votes they cast in the exercise of their functions.”

The case-law of the Constitutional Court concerning parliamentary immunity is resumed in Cordova v. Italy (No. 1) , no. 40877/98, §§ 23-27, ECHR 2003-I, and Cordova v. Italy (No. 2) , no. 45649/99, §§ 27-31, ECHR 2003-I.

The scope of Article 68 § 1 of the Constitution has been clarified by Law no. 140 of 20 June 2003, entitled “Provisions for the execution of Article 68 of the Constitution and concerning criminal trials against high dignitaries of the State”. According to Article 3 § 1 of this law, Article 68 § 1 of the Constitution applies, inter alia , to any “activity ... of critic ism and of political denunciation ( di critica e di denuncia politica ), linked to parliamentary functions, accomplished also outside the Parliament” (see C.G.I.L. and Cofferati , no. 46967/07 , § 25, 24 February 2009).

COMPLAINT

The applicant contends that the decision of n o case to answer in favo u r of Mr M.D.U. has violated his right of access to a court guaranteed by Article 6 § 1 of the Convention . He argues that there was no connection between Mr M.D.U. ’ s statements published on 5 March 2002 in the newspapers Il Giornale and Il Corriere della Sera and the exercise of parliamentary functions in the strict sense. These statements were more consistent with a personal quarrel (see, in particular, Onorato v. Italy , no. 26218/06, 24 May 2011). Moreover, according to the applicant, the statements of Mr M.D.U. were clearly defamatory as they were aimed at affirming that he was lacking impartiality and had disregarded his professional duties as a judge.

QUESTIONS TO THE GOVERNMENT

1. Having regard to the case-law of the Court in the subject matter (see, inter alia , Cordova v. Italy (No. 1) , no. 40877/98, ECHR 2003-I; Cordova v. Italy (No. 2) , no. 45649/99, ECRH 2003-I; De Jorio v. Italy , no. 73936/01, 3 June 2004; C.G.I.L. and Cofferati , no. 46967/07, 24 February 2009; C.G.I.L. and Cofferati (No. 2) , no. 2/08, 6 April 2010; and Onorato v. Italy , no. 26218/06, 24 May 2011), does the Government consider that the decisions of the Italian authorities to grant Mr M.D.U. the immunity provided for by Article 68 § 1 of the Constitution and to dismiss the case against him have violated the applicant ’ s right to access to a court guaranteed by Article 6 § 1 of the Convention?

2. In particular, having regard to Mr M.D.U. ’ s statements published on 5 March 2002 in the newspapers Il Giornale and Il Corriere della Sera , does the Government consider that the restrictions imposed on the applicant ’ s right of access to a court pursued a legitimate aim and that there had been a reasonable relationship of proportionality between the means employed and the aim sought to be achieved?