The exercise of freedom of political expression must necessarily be balanced with respect for and protection of the dignity of persons: tolerance and respect for the equal dignity of all human beings is the foundation of a democratic and pluralist society. In view of this, it may be necessary as a matter of principle in certain democratic societies to sanction or even preclude any form of expression that spreads, instigates, promotes or justifies intolerance-based hatred.
Indeed, the right to free speech, which is accompanied by the right to organise oneself in political parties, cannot be considered equivalent to, or even overriding, the fundamental principle of respect for the personal dignity of individuals.
In the specific case, in fact, it is clear that the unquestionable right to express dissent in relation to a certain management of the phenomenon of asylum seekers could have been carried out, correctly, by omitting those considerations, rightly highlighted by the Court of Appeal, which created around the 32 non-EU citizens a climate of humiliation and hostility. And it is clear that the right to free manifestation of thought, if carried out in an intolerant manner, as in the present case, must be considered recessive with respect to the right of individuals to respect for their personal dignity.
SUPREME COURT OF CASSATION
THIRD CIVIL SECTION
(date of hearing 22/05/2023) 16/08/2023, no. 24686
Composed of Messrs:
Mr Giacomo TRAVAGLINO - President -
Mr. SESTINI Danilo - Councillor -
Dott. SCODITTI Enrico - Councillor - - Dott.
Dott. CIRILLO Francesco M. - rel. Counsellor - - Dott.
Dott. VINCENTI Enzo - Councillor -
has pronounced the following
on appeal No. 27571 of 2020 brought by:
Lega Nord - Lega Lombarda, in the person of the National Commissioner, represented and defended by Advocates **;
- Appellant -
and Lega Nord per l'indipendenza della Padania, in the person of the Federal Administrator, represented and defended by Advocate EC **;
- applicant - against
Associazione per gli studi giuridici sull'immigrazione (ASGI) - APS in the person of its President and legal representative pro tempore, NAGA - Organizzazione di volontariato per l'assistenza sociosanitaria e per i diritti di cittadini stranieri rom e sinti, in the person of its President and legal representative pro tempore, both represented and defended, for both appeals, by AG and LN, lawyers;
- counter-appellants -
against judgement no. 418/2020 of the MILAN COURT OF APPEALS, filed on 06/02/2020;
heard the report of the case made in the public hearing of 22/05/2023 by Counselor Dr. FRANCESCO MARIA CIRILLO;
Hearing of the Public Prosecutor in the person of the Deputy Attorney General Dr. FRESA Mario, who concluded for the rejection of the main appeal and the cross appeal;
Hearing of Advocate EF, by proxy of Advocates **
Hearing of Advocate GDF for Lega Nord, by proxy of Advocate **.
Hearing of Advocate LN, for ASGI.
Facts of the proceedings
1. By an action brought pursuant to Article 44 of Legislative Decree No 286 of 25 July 1998, the Associazione degli studi giuridici sull'immigrazione (ASGI) and NAGA, Associazione volontaria di assistenza socio-sanitaria e per i diritti di cittadini stranieri, rom e sinti (a voluntary association for social and health assistance and for the rights of foreign citizens, Roma and Sinti) brought proceedings before the Court of Milan against Lega Nord, Saronno Section, seeking an order that it be ordered to pay damages in respect of the discriminatory conduct it had engaged in in connection with an incident involving the reception of asylum seekers.
In support of their application they stated that, since a local cooperative company had agreed with the Prefecture of Varese to make available a facility in Saronno to accommodate 32 asylum seekers, a demonstration had been organised by the Lega Nord of Saronno during which approximately 70 posters, bearing the Lega Nord party symbol, had been put up in the municipality with the following content: 'Saronno does not want illegal immigrants; A.A. and B.B. want to send 32 illegal immigrants to Saronno: board, lodging and pampering paid for by us. In the meantime, they are cutting pensions and increasing taxes for the Saronnesi; Alfano and Renzi are accomplices of the invasion'. Those placards had been posted for about a month and the secretary of the Lega Nord in Saronno had issued statements opposing the reception of illegal immigrants.
Considering that there had been discriminatory and harassing conduct, on grounds of race and ethnic origin, relevant under Article 2, paragraph 3 of Legislative Decree No. 215 of 9 July 2003, the above-mentioned associations requested compensation for damages, claiming, inter alia, that the limits of political criticism had been exceeded.
C.C., in his capacity as Secretary of the Lega Nord, Saronno Section, entered an appearance, objecting to the lack of passive legitimacy of the defendant, since it had no independent legal existence. On the merits, he requested the rejection of all claims.
By a subsequent order, the Court ordered the parties to integrate the cross-examination against the Northern League-League of Lombardy and the Northern League for the Independence of Padania, considering that they were in common cause.
Having integrated the cross-examination, both parties now indicated entered an appearance, requesting the dismissal of all claims.
At the end of the hearing, the Court issued an order declaring the discriminatory nature of the expression "clandestine immigrants" contained in the posters in question; it ordered the publication of the header and the operative part of the order, at the expense of the respondents, in a number of newspapers and internet sites; it ordered the Northern League, Section of (Omissis), the Northern League-League of Lombardy and the Northern League for the Independence of Padania to pay to the plaintiff associations, as compensation for non-pecuniary damage, the sum of Euro 5. 000 with interest at the legal rate from the date of the measure to the date of settlement and to pay the costs of the proceedings.
2. The order was appealed by the Lega Nord-Lega Lombarda and the Lega Nord per l'indipendenza della Padania and the Court of Appeal of Milan, in its ruling of 6 February 2020, rejected the appeal, condemning the appellants to reimbursement of the further costs of the case.
2.1. Proceeding to deal in part with the grounds of the two appeals as a whole and in part with the grounds of the two appeals separately, the judgement first of all stated that, following the order with which the Court had ordered the Lega Nord-Lega Lombarda and Lega Nord per l'indipendenza della Padania to be summoned, pursuant to Article 107 of the Code of Civil Procedure, the plaintiffs' attorney had specified that the claims formulated in the appeal should "be extended to all the defendants". There had therefore been an explicit manifestation of intention to extend the original claims, brought against the Lega Nord-Sezione (Omissis), against the third parties named. This extension, which could not be considered late, meant that the claims for damages brought by the two plaintiff Associations were to be considered as having been duly and promptly brought also against the third parties called.
2.2. Also unfounded was the ground of appeal by which both appellants had complained of the alleged logical contradiction in which the Court of First Instance had allegedly fallen in finding, on the one hand, that the Lega Nord-Sezione di (Omissis) had the passive legitimacy and, on the other hand, had issued the contested rulings concerning the finding of the discriminatory nature of the expressions "clandestine immigrants" and the sentence for damages also against the Lega Nord per l'indipendenza della Padania and the Lega Nord-Lega Lombarda.
The judgment stated, in this regard, that the posters at issue in the case, affixed on the occasion of the event organised by the Northern League, Section of (Omissis), bore 'in the centre the symbol belonging to the Northern League Movement for the Independence of Padania and the smaller one belonging to the "Nation" Northern League-Lombard League'. Since, according to Article 3 of the Statute of the Northern League for the Independence of Padania, its symbol belonged exclusively to the Northern League, while the Section of (Omissis) was only the basic territorial body for the implementation and dissemination of its political programmes, the use in the posters in question of the expressions whose discriminatory value was under discussion was directly referable to the political associations identified by the trial judge, who had correctly recognised a concurrent liability of the same. It was evident, on the other hand, that the "higher authorities" of the Lega Nord had to be considered fully involved in the matter, having at least allowed the dissemination of the contested placards "under the aegis of the Lega Nord symbol without exercising due supervision and control".
2.3. The Court of Appeal then addressed the central point of the case, consisting in the need to ascertain whether or not the use of the expression "clandestines" contained in the posters could have an actual discriminatory value; a question to which the Court gave a positive answer.
Referring to the content of Article 43 of Legislative Decree No. 286 of 25 July 1998 and Article 2 of Legislative Decree No. 215 of 2003, the judgment confirmed the Court's opinion that the content of the posters constituted "the extreme elements of discrimination, in contrast to the protective factors represented by ethnicity, race and nationality". In the case in question, in fact, the term 'clandestine immigrants' had been referred to 'foreigners who have applied to the Italian State for international protection, thereby exercising a fundamental right of the individual, recognised by Article 10 of the Constitution'. Pending the procedure aimed at ascertaining whether or not this application was admissible, the asylum seekers could not be qualified with the generic term of clandestine immigrants, a term which "identifies the position of those who enter or remain in the territory of the State in violation of the regulations governing immigration (which can be related to the offence referred to in Article 10-bis of Legislative Decree no. 286 of 25 July 1998)". So much so that, pending the assessment of the application, the police headquarters issued the foreigner with a residence permit as an asylum seeker, which also allowed him to work.
According to the Court of Appeal, the use of the above-mentioned term also by the legislature did not allow the legitimacy of the use of this expression to identify 32 persons in the condition of applicants for international protection to be considered; likewise, the fact that the majority of asylum applications are then rejected could have no significance. The definition of 'clandestine immigrants' in the posters, therefore, read in its overall context and 'linked to the presentation of the 32 asylum seekers as usurpers, "for board and lodging" and unspecified "vices", of economic resources to the detriment of the inhabitants of the municipality', had the certain effect of violating the dignity of foreign citizens and of creating around them a hostile, 'humiliating and offensive climate, on grounds of race, ethnic origin and nationality'.
Considering, then, the connection between the protection against discriminatory acts and the inviolable rights of the person, the Milan Court added that the freedom to manifest political thought must necessarily be balanced with respect for and protection of the dignity of persons, which was not the case in this instance.
2.4. Finally, with regard to the liquidated damages, the judgement stated that, since this was a case of collective discrimination, since the 32 asylum seekers classified as illegal immigrants were not directly and immediately identifiable, the appealed associations were entitled to claim compensation under Article 5 of Legislative Decree No. 215 of 2003, since they were included in the list provided for therein. Hence the legitimacy of the sentence inflicted by the Court in favour of the ASGI and NAGA Associations, according to the provision of Legislative Decree No. 150, Article 28 of 1 September 2011. In fact, according to the Court of Appeal, there was a hypothesis, expressly provided for by the law, of compensation for non-pecuniary damage also outside a crime hypothesis.
The sum of Euro 5,000, which was not the subject of specific and particular censure, appeared to the Court of Merit to be "entirely congruous and proportionate, taking into account the frank discriminatory content of the expressions contained in the posters, their wide distribution and the particular attitude of the conduct to generate a dangerous climate of denigration and hostility towards asylum seekers present in the territory".
The further provision of the first instance judgement containing the obligation to publish the judgement in some newspapers and Internet sites, considered "a proportionate and functional tool to counteract or at least mitigate the effects caused by the dissemination in the territory of the posters containing the above-mentioned discriminatory prejudicial expression", had also to be confirmed.
3. The Lega Nord-Lega Lombarda appeals against the judgment of the Court of Appeal of Milan on five grounds.
A further separate appeal has been lodged by Lega Nord-Lega per l'indipendenza della Padania, by a writ with five grounds.
The Associazione degli studi giuridici sull'immigrazione (ASGI) and NAGA, Associazione volontaria di assistenza sociosanitaria e per i diritti di cittadini stranieri rom e sinti, with two separate counter-appeals, each directed against one of the two appeals, are also resisting.
The Lega Nord per l'indipendenza della Padania filed a brief.
The Attorney General filed written submissions, asking the Court to dismiss both appeals.
Grounds for the decision
Action brought by Lega Nord-Lega Lombarda.
1. The first ground of appeal alleges, with reference to Article 360(1)(3) of the Code of Civil Procedure, breach and misapplication of Articles 107, 702-bis and 702-ter of the Code of Civil Procedure and Article 3 of Legislative Decree No 150 of 2011.
The appellant points out that the judgment under appeal disregarded the defence argument of C.C., formerly secretary of the Section of (Omissis), according to which the latter lacked passive legitimacy, thereby implicitly recognising the Section's capacity to stand trial. Since, in the present case, it is a question of a summons iussu iudicis, the claims brought by the plaintiffs against the defendant do not extend to the third parties summoned. In addition to this, the handling of the case by the summary procedure, as provided for by article 28 of Legislative Decree No. 150 of 2011, would not allow a third party to be summoned by order of the court, but only the summons by the defendant; this means that the summons, to be legitimate, should have been accompanied by the order of conversion of the procedure as per article 702-bis, paragraph 3, cited above, a rule that is inapplicable to the case under the provision of the same Legislative Decree no. 150 of 2011, art. 3. In conclusion, there would be the illegitimacy of the measure by which the Court ordered the integration of the cross-examination and the consequent lack of passive legitimacy of the applicant in the present case. In addition to that, having extended to the appellant the claims put forward in the application only at the end of the presentation of its arguments during the hearing would determine the tardiness of the claims themselves and the consequent vice of ultra-petition.
2. The second ground of appeal alleges, with reference to Article 360(1)(3) of the Code of Civil Procedure, breach and misapplication of Articles 81, 115 and 116 of the Code of Civil Procedure, Article 24 of the Constitution, Article 2043 of the Civil Code and Article 28 of Legislative Decree No 150 of 2011.
The appellant observes that the only symbol appearing at the bottom of the posters at issue in the proceedings is a fictional symbol, which cannot be attributed to the Lega Nord-Lega Lombarda or to the Lega Nord per l'indipendenza della Padania. It follows from this that the judgment would have considered as full evidence, accepting them without critical appreciation, evidence that was instead subject to evaluation, as the Court of Merit should have done by examining the statute of the Northern League that was at its disposal. Since, in the present case, this is a claim for damages brought pursuant to Article 28 of Legislative Decree No. 150 of 2011, which alleviates the burden of proof on the injured party with respect to Article 2043 of the Civil Code, the appellant notes that it is clear from reading the original application that the plaintiffs had not made any claim against Lega Nord-Lega Lombarda. Consequently, to have extended the claim for damages also against the latter by means of the institution of the summons by order of the court would be an entirely arbitrary act, such as to place a sort of strict liability, or rather an absolute presumption of liability, against the applicant. The reference, then, to the failure of the Lega Nord-Lega Lombarda to take action to stop the initiative of publishing the placards would constitute a 'trial of intentions'.
3. The third ground of appeal alleges, with reference to Article 360(1)(3) of the Code of Civil Procedure, breach and misapplication of the provisions of Legislative Decree No 215 of 2003 on racial discrimination.
According to the appellant, the interpretation given by the Court of Appeal to the legislation in question, with recognition of the discriminatory content of the expression 'clandestine immigrants', is not acceptable. The aforementioned decree, which implements a Community directive, is said to have the objective of 'encouraging equality between individuals in the increasingly multi-ethnic European societies, preventing citizens belonging to a certain ethnic group or race from being treated differently from national citizens or citizens belonging to other races and/or ethnic groups'. Discrimination exists when the agent's conduct results in the impairment of a human right or a fundamental freedom, which is to be regarded as objectively assessable and such as to result in 'less favourable treatment, or even only a position of particular disadvantage to the discriminated against and this for reasons related to race, ethnicity and/or nationality and independently of the subjective perception of the discriminated against'. The term 'clandestino', however, is used in the Italian vocabulary and is used to indicate cases where immigration takes place in an illegal manner, as is clear from Article 12 of the Consolidated Act of Legislative Decree No. 286 of 1998. It is therefore not, according to the applicant, an offensive term per se, also because it is used in association with the problem of immigration even by political exponents who follow different opinions from those of the applicant League. The poster at issue could not be defined as discriminatory, since 'it does not criticise or differentiate those who come from a certain country of the world because of their origin, but it challenges and opposes the way they enter our country'.
The error committed by the judgment under appeal consisted, therefore, in having considered that the placard could be offensive to foreigners, whereas the real targets were Mr A.A. and Mr B.B., opponents of the Northern League and recipients of the political criticism, which did not concern at all the 32 immigrants seeking asylum. In other words, according to the applicant, 'the circumstance that the term clandestine configures a situation of illegitimacy and, therefore, can be perceived as a negative condition is not in itself sufficient to constitute discriminatory conduct if it is not accompanied by unfavourable treatment of the foreign citizen'.
4. The fourth ground of appeal alleges, with reference to Article 360(1)(3) of the Code of Civil Procedure, breach and misapplication of Article 5 of Legislative Decree No 215 of 2003 and Article 28 of Legislative Decree No 150 of 2011.
In the appellant's view, the Court of Appeal confused the right of action, recognised by law to associations entered in the registers referred to in Article 5, with the entitlement to compensation for damage. In other words, 'the fact that the law provides for the legitimacy of those associations to take legal action for the protection of the rights of the discriminated against does not automatically mean that they are entitled to obtain compensation for damage in the absence of proof of its existence'. The admissibility of compensation for non-pecuniary damage provided for in Article 28 cited above 'does not mean that the applicant is exempt from proving, even if only by way of presumption, that the alleged discriminatory conduct may have caused him damage'. Having recalled the limits within which compensation for non-pecuniary damage must be considered admissible, the appellant League maintains that the contested judgment recognised a new type of damage of that kind, consisting of the impairment of the aims of safeguarding and social promotion that the associations set out to achieve. But that would not be correct, because the complained of frustration of the object of the association's activity 'does not constitute an impairment of a constitutionally guaranteed right'. Ultimately, therefore, the Court of Appeal failed to consider that the circumstance that 'associations have, at statutory level, purposes of protecting interests similar to those of victims of discrimination does not imply ex se that they are entitled to compensation for the damage, in the absence of a real prejudice or injury to their constitutional right, since the injury to an interest that the body sets out among its purposes cannot be classified as such'. Otherwise, any association entered in the aforementioned register could take action to obtain similar compensation, with the risk for the injured party of being exposed to the payment of sums that are not determined but certainly disproportionate to the objective pursued by the legislature.
5. The fifth ground of appeal alleges, with reference to Article 360 c.p.c. (1)(3) and (5), the erroneous assessment of the relationship between Articles 3 and 21 of the Constitution in relation to the balancing of rights both of a constitutional level.
According to the applicant, the freedom to manifest one's ideas 'is a cornerstone of our system in relation to the instrumentality of that freedom in the exercise of associative and political activities that underlie the dynamics and democratic principles that inform the constitutional system. This implies that the compression of the freedom of manifestation of thought requires, per se, "motivations and reasons of such gravity as to constitute, in themselves, a danger to the correct and democratic exercise of popular sovereignty". The judgment under review, on the other hand, with a reasoning defined as laconic, would have unduly attributed greater importance to the right under Article 3 than to that under Article 21 of the Constitution, not considering that the use of the term 'clandestine immigrants', in the political context of reference, 'does not assume the gravity in the abstract necessary to legitimise the compression of the right of expression'.
Appeal of the Northern League for the Independence of Padania.
6. The first ground of appeal alleges, with reference to art. 360 c.p.c., paragraph 1, no. 3), the violation and false application of art. 2043 c.c., of Legislative Decree no. 286 of 25 July 1998, art. 44 and of Legislative Decree no. 150 of 2011, art. 28.
The appellant observes that the two judgments on the merits recognised an independent passive legitimacy in the hands of the Northern League's Section of (Omissis); nevertheless, the Court of Appeal ruled that, although the posters were materially prepared at a local level, there was also a responsibility of the League's central bodies. In this way, however, violating the provision of Article 2043 cited above, the judgment would have placed a sort of strict liability on the appellant (based on Article 35 of the Lega Nord's Statute), failing to assess that a violation of Article 2043 requires not a generic anti-viciousness of the conduct, but 'a real obligation to prevent the event'. This would also be confirmed by Article 44 cited above, which provides for active conduct or omissive conduct in the presence of a legal duty to act; while Article 28 cited above provides that it is the applicant who must provide proof of the existence of the anti-discriminatory conduct.
7. The second ground of appeal alleges, with reference to Article 360(1)(3) of the Code of Civil Procedure, breach and misapplication of Article 2(3) of Legislative Decree No 215 of 2003 and Article 43 of Legislative Decree No 286 of 25 July 1998 on racial discrimination.
The ground raises complaints entirely similar to those of the third ground of the previous appeal, examining the discriminatory value of the use of the term 'clandestine'. The appellant emphasises the difference between the defamatory value of the term - in relation to which only those directly concerned would have the right to bring proceedings - and the discriminatory value, pointing out that the latter requires conduct which distinguishes persons on the basis of race, colour, ancestry or national origin and which, at the same time, has the purpose of compromising the enjoyment or exercise of fundamental rights. In the present case, on the contrary, there is no actual discriminatory intent, nor have the 32 foreign nationals suffered any prejudice in their right to apply for international protection. It is reiterated, as in the previous appeal, that the term 'clandestine' is not in itself offensive.
8. The third ground of appeal alleges, with reference to Article 360, paragraph 1, no. 3) of the Code of Civil Procedure, the violation and misapplication of Articles 107, 702-bis and 702-ter of the Code of Civil Procedure and Article 28 of Legislative Decree no. 150 of 2011.
The appellant's complaints overlap entirely with those in the first plea in the Lega Nord-Lega Lombarda's application.
9. The fourth ground of appeal alleges, with reference to Article 360(1)(3) and (5) of the Code of Civil Procedure, infringement and misapplication of Articles 1, 21 and 49 of the Constitution in relation to the balancing of rights both of a constitutional level.
The appellant, in arguments which in part echo those set out in the fifth plea in the Lega Nord-Lega Lombarda's appeal, criticises the balancing of constitutional values made by the judgment under appeal. In particular, the plea highlights the centrality of the constitutional right of free expression of thought; then, recalling Article 49 of the Constitution on the freedom of political parties, it observes that the posters in question were intended to challenge the political initiative of Mr A.A. and Mr B.B. in relation to the allocation of public resources in the scheme in favour of migrants. Accordingly, the contested posters were to be regarded as part of the exercise of the right to political criticism.
10. The fifth ground of appeal alleges, with reference to Article 360(1)(3) of the Code of Civil Procedure, breach and misapplication of Articles 4, 4a and 5(3) of Legislative Decree No 215 of 2003 and Article 44 of Legislative Decree No 286 of 25 July 1998.
The appellant observes that the legitimacy referred to in Article 5 of Legislative Decree No 215 of 2013 is of a residual nature - that is, it can be exercised only if the persons harmed by the discrimination are not directly identifiable - whereas in the present case the 32 persons to whom the poster referred were "perfectly identifiable". The judgment appealed against, then, failed to take into account the fact that the rule cited, "introducing a right of action of an extraordinary and subsidiary nature, must be limited to the protection of the discriminatory act by obtaining an injunction", without also including the bringing of actions for compensation.
Decision of the appeals.
11. The Court considers that the five complex pleas in each of the two appeals are assimilable to each other and can therefore be dealt with by grouping them together by reference to their respective logical and legal connections.
12. Reasons of a logical order require that the appeals be examined beginning with the procedural pleas raised in the first plea in the Lega Nord-Lega Lombarda appeal and in the third plea in the Lega Nord per l'indipendenza della Padania appeal, which must therefore be dealt with together.
The procedural issue raised by these grounds of appeal relates to the joinder of the parties in proceedings for interim relief, in the light of the wording of Article 702-bis of the Code of Civil Procedure applicable in the present case ratione temporis (before its repeal by section 3(48) of Legislative Decree 149 of 10 October 2022).
Article 702-bis cited, as is well known, after regulating the commencement of the summary proceedings and the appearance of the defendant, provides in its paragraph 5 that if "the defendant intends to call a third party as a surety, it must, under penalty of forfeiture, make a declaration in the appearance and request the designated judge to postpone the hearing. The judge, by a decree communicated by the clerk of the court to the parties entered in the proceedings, shall fix the date of the new hearing, assigning a peremptory term for the summoning of the third party. The third party shall be summoned in accordance with paragraph 4". The rule does not contain an express provision for the summoning of a third party by order of the judge and from this silence the appellants deduce that this summons would not be allowed, unless after the conversion of the procedure (pursuant to Article 702-ter, paragraph 3 of the Code of Civil Procedure), which is not even allowed in this case, since this is a case in which the summary procedure is provided for by law (Article 28 of Legislative Decree no. 150 of 2011).
The Court observes that the failure to regulate, in the legislation on summary proceedings, the institution of intervention by order of the court has given rise to numerous perplexities. In particular, what gives rise to doubts is the fact that art. 702-bis cit. seems to admit, within the general figure of the summons at the request of a party, only the summons in guarantee, to the exclusion of all others. The reasons for this silence do not appear easy to explain, so much so that authoritative voices in procedural doctrine have spoken of an "oversight" or "forgetfulness" on the part of the legislator, lacking any real justification. Although it is undoubtedly true that the summary procedure is such precisely because it has (or should have) as its object litigation of lesser complexity, the reasons for a limitation that could end up - if interpreted literally - by making a procedure intended to promote the very felt need for greater celerity all too frequently impracticable, remain very incomprehensible.
12.1. That said, the Court considers that the two pleas in question are both without foundation.
It should be recalled that article 3 of Legislative Decree no. 150 of 2011 provided (in the text applicable ratione temporis, before the amendments made by Legislative Decree no. 149 of 2022) that for the disputes governed by chapter III (which include those of article 28 of the same decree) "article 702-ter c.p.c., paragraphs 2 and 3, do not apply", which means that in such cases there is no provision for conversion into the ordinary procedure.
Now, if both legal logic and the need for an interpretation in conformity with the Constitution lead in principle to affirm that art. 702-bis cit. does not preclude any type of intervention in the case - neither at the request of the parties nor by order of the court - this conclusion is compulsory in the case under examination, in which the summary procedure is not the result of a choice made by the parties, but is imposed by law. The appellants themselves, in fact, fall into the obvious contradiction of stating that the summons by order of the court would be possible only following the conversion of the procedure, and then acknowledging that such conversion is not permitted ex ore legis. And it is clear that to make the application of a particular rite compulsory and at the same time not to allow the summons by order of the court is tantamount to hypothesising a system completely devoid of logic and with well-founded doubts of constitutional legitimacy.
The main complaint contained in the grounds here under examination must therefore be declared unfounded; and the other complaint, concerning the alleged tardiness of the extension of the application, must likewise be declared unfounded. The Court wishes to reiterate the principle, already stated in order no. 4724 of 19 February 2019, according to which the manifestation, by the plaintiff, of the will to extend the original claim against the third party called in iussu iudicis is not subject to any peremptory term, as intervention may be ordered pursuant to article 107 of the Code of Civil Procedure at any time of the proceedings (in this sense already, albeit indirectly, sentence no. 2901 of 7 February 2008).
The grounds under examination, therefore, must be rejected, establishing the following principle of law: "In cases dealt with by the summary procedure on the basis of the express provision of the law contained in Chapter III of Legislative Decree no. 150 of 2011, which include disputes on discrimination, must be considered always allowed the summons by order of the judge, pursuant to art. 107 c.p.c., although not expressly provided for by art. 702-bis c.p.c., paragraph 5".
13. At this point the second ground of the Lega Nord-Lega Lombarda's appeal and the first ground of the Lega Nord per l'indipendenza della Padania's appeal must be examined, which must be dealt with together as they both relate to the issue of the passive legitimacy of the applicants and the extension of the application originally made against Lega Nord, Section of (Omissis) alone.
13.1. The grounds are both unfounded.
The Court of Appeal, with an entirely plausible and correctly reasoned reconstruction of the facts, explained that the posters at issue were indeed attributable to the local section of the Lega Nord, but that this did not exclude, by virtue of the use of the symbol, the liability of the central bodies of the party. The Court of Milan reached this conclusion by highlighting the circumstance, which constitutes a factual finding unquestionable in this case, whereby the posters bore in the centre the symbol of the Northern League for the Independence of Padania and the smaller symbol of the Northern League-Lombardy League.
It follows that it is entirely reasonable to conclude that there is a responsibility on the part of what the ruling called the 'higher authorities' of the party; Such liability, it should be recalled, is not - as the appellants would have it - of an objective nature, but is nevertheless a liability for fault, if only by way of culpa in vigilando, because a political party is in any event required to guarantee, at central level, an active form of supervision to prevent local offices from taking initiatives considered eccentric or in conflict with the political programme of the party itself (a hypothesis, moreover, not predictable in the present case). Nor, on the other hand, does it appear from any act of the trial that the present plaintiffs have in any way manifested a willingness to distance themselves from the position taken by the Lega Saronnese, which is tantamount to admitting, even if by implication, that that position was shared.
14. The Court must proceed, at this point, to examine the third ground of appeal of the Lega Nord-Lega Lombarda and the second ground of appeal of the Lega Nord per l'indipendenza della Padania, which must be dealt with together in so far as they both relate to the issue of the finding, made by the judges on the merits, of the existence of discriminatory conduct.
14.1. It appears useful, in this regard, to make a brief premise for the reconstruction of the regulatory framework of reference.
As is well known, the complex matter in question is not regulated solely at national level, but has also received wide and growing attention in supranational legislation.
Although we must necessarily start from Articles 3 and 10 of the Republican Constitution, from which we derive the fundamental principles concerning the equal dignity of citizens and the protection of foreigners in a broad sense, it must be remembered that Art. 14 of the ECHR provides for the prohibition of discrimination, stating that the enjoyment of the rights and freedoms recognised therein "must be guaranteed without any distinction whatsoever, based in particular on sex, race, colour, language, religion, political or other opinions"; a parameter, the latter, which has been referred to by the Strasbourg Court on several occasions as the right to non-discrimination. The list of "factors for protection" in Article 14 cited above, moreover, is "open" in nature, as recognised by the European Court of Human Rights, which, in application of this principle, has held that Article 14 can also be applied with reference to hypotheses in which the factors to be protected did not expressly appear in the provision in question (such as, for example, sexual orientation and gender identity: European Court of Human Rights, 16 September 2021, X v. Poland, no. 20741/10, p. 70).
It is also worth mentioning Articles 20-23 of the Charter of Fundamental Rights of the European Union - not by chance included in Chapter III which is entitled "Equality" - and, among these, especially Art. 21, which prohibits "any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation". And the consolidated version of the Treaty on the Functioning of the European Union provides in Article 10 that in defining and implementing its policies 'the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation'.
Again, with reference to the sources, it appears significant to recall that, according to the orientation followed by the Court of Justice since the Mangold judgment (CJEC 22 November 2005, C144/04), those under discussion represent general principles of European Union law, characterised by an undeniable drittwirkung effect and, as such, having direct horizontal efficacy, i.e. recognitive of a right that can also be invoked in relations between private individuals.
At the level of domestic law, it is not without significance the orientation of the Constitutional Court predicative of the principle according to which "there exists a relationship of mutual implication and fruitful integration" between the prohibitions of discrimination prescribed by Union law and the fundamental rights guaranteed by the national Constitution (Order No. 182 of 2020, point 3.2. of the Consideration in law); so that it is considered its indefectible task to "ensure a systemic, and not a piecemeal protection of the rights guaranteed by the Constitution, also in synergy with the Nice Charter, and to assess the balance implemented by the legislature, in a perspective of maximum expansion of the guarantees" (Constitutional Court, sentence no. 54 of 2022, point 10).
This general framework represents the necessary premise for a correct reading of the national legislation of direct interest in today's case, consisting mainly of Legislative Decree no. 286 of 1998 (in particular Articles 43 and 44), Legislative Decree no. 215 of 2003 (which contains in Article 2 the express definition of discrimination) and Legislative Decree no. 150 of 2011, Article 28, which, in laying down the procedural rules on disputes on discrimination, also contains significant provisions of a substantive nature.
Legislative Decree no. 286 of 25 July 1998, art. 43 provides, in paragraph 1, that 'discrimination is any conduct which, directly or indirectly, involves a distinction, exclusion, restriction or preference based on race, colour, ancestry or national or ethnic origin, religious beliefs and practices, and which has the purpose or effect of destroying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social and cultural fields and in any other field of public life', while paragraph 2 specifically contains a list of discriminatory acts. The subsequent Article 44, extensively remodelled by subsequent legislation and now substantially recast in Legislative Decree No. 150 of 2011, Article 28 (with significant additions and amendments), already provided in its original text for the possibility to "appeal to the ordinary judicial authority to request the cessation of the prejudicial conduct and the removal of the effects of discrimination".
Article 2 of Legislative Decree No 215 of 2003, implementing Directive 2000/43/EC, provides for a distinction between direct and indirect discrimination, without prejudice to the provisions of Legislative Decree No 286 of 25 July 1998, art. 43, paragraphs 1 and 2, and establishes, in paragraph 3, that "harassment or undesirable conduct on grounds of racial or ethnic origin with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment shall also be considered as discrimination within the meaning of paragraph 1. Legislative Decree No. 215, art. 4 also provides that civil judgments against discriminatory acts and conduct are governed by Legislative Decree No. 150 of 2011, art. 28, while the subsequent art. 5 recognises, in favour of the associations and entities "included in a special list approved by decree of the Minister of Labour and Social Policies and the Minister for Equal Opportunities and identified on the basis of the programmatic purposes and continuity of action", the possibility of acting in collective discrimination cases, "where the persons harmed by the discrimination cannot be identified in a direct and immediate manner".
On the other hand, it is due to Legislative Decree No. 150 of 2011, Article 28, paragraph 4, the specific provision according to which, if the plaintiff "provides factual elements, also deduced from statistical data, from which the existence of discriminatory acts, pacts or conduct can be presumed, it is up to the defendant to prove the non-existence of discrimination". This is a provision which, in recognising a strong presumptive value to the elements indicated therein, in the judgments in question, facilitates the plaintiff's evidentiary position by means of a partial inversion of the burden of proof (see judgment No. 9870 of 28 March 2022).
14.2. Having said this from a normative point of view, the College recalls that the United Sections of this Court, by order no. 7186 of 30 March 2011, affirmed, in relation to the action referred to in the Consolidated Act no. 286 of 1998, art. 44 that the legislator, in order to guarantee equal treatment and to prohibit unjustified discrimination on the grounds of race and ethnic origin, has configured a position of absolute subjective right to protect an area of freedom and potentiality of the subject, a possible victim of discrimination, with respect to any type of violation put in place by both private individuals and the P.A, to this end, it is of no importance that the damaging conduct has been carried out in the context of proceedings for the recognition, by the P.A., of utilities with respect to which the private individual enjoys positions of legitimate interest (in that case, it was a case of a lawsuit brought to oppose the decision of the employing administration to exclude certain non-EU workers from the stabilisation procedures because they lacked the requisite of Italian citizenship).
That the right not to be discriminated against is an absolute subjective right was, moreover, already affirmed by the same United Sections in the previous Ordinance no. 3670 of 15 February 2011 (in the well-known case of the unlawful revocation of the so-called "bonus bebè" (a baby bonus) ordered by a municipality that had originally granted it only to families with at least one Italian parent).
Mention must then be made, as a further demonstration of the necessary hermeneutic rigour reserved by the United Sections of this Court to the phenomenon of discrimination, of the judgment of 20 April 2016, no. 7951, which, enunciating the principle of law in the interest of the law, established that the P.A. which includes in the call for the selection of volunteers for national civil service projects the requirement of Italian citizenship constitutes direct discrimination on grounds of nationality to the detriment of a foreign citizen legally resident in Italy, who may therefore exercise the anti-discrimination action provided for in Article 44 of Legislative Decree No. 286 of 25 July 1998.
Similarly, reference should be made to the recent order no. 3057 of 1 February 2022, in which the United Sections affirmed that the action brought against an act of a sports federation that results in discrimination on the grounds of nationality in relation to the registration of athletes, is outside the administrative jurisdiction in relation to disputes concerning the challenge of acts of sports federations, which are configured as administrative decisions having relevance for the state system, but falls under the jurisdiction of the ordinary judge, pursuant to Legislative Decree no. 286 of 25 July 1998, art. 44. Legislative Decree no. 286 of 25 July 1998, art. 44 and of Legislative Decree no. 150 of 2011, art. 28, being aimed at the protection of a subjective right of the person, qualifying as an absolute right.
14.3 In the light of this broad premise, which is necessary in order to place the specific issue under consideration today in a broader context, the Court considers that the two grounds of appeal under consideration are entirely without foundation.
The central point of the complaints contained therein concerns the use of the term 'clandestine immigrants' made in the posters in question and the reply given by the Court of Appeal.
First of all, it must be recalled that the Milan Court correctly pointed out that the above term had referred to foreigners who had applied to the Italian State for international protection. The Collegium observes, in this regard, that, according to the provisions of Legislative Decree no. 142, art. 1, paragraphs 2 and 3, of 18 August 2015, reception measures must apply from the moment of the manifestation of the will to apply for international protection, and that the submission of such an application implies the issuance of a special residence permit (for asylum seekers) which also allows them to carry out work activities. In particular, the aforementioned Legislative Decree No. 142 of 2015, also implementing a European Union directive, provides in Article 4, paragraph 1, that the applicant is issued a residence permit valid for six months and renewable until the decision of the application, a permit that constitutes an identification document. The subsequent art. 22 of Legislative Decree no. 142 cited above provides that the permit now described "allows the applicant to carry out work activities, sixty days after the submission of the application, if the procedure for examining the application has not been concluded and the delay cannot be attributed to the applicant".
Those who "justifiably fear persecution" and who would run the risk of being subjected to treatment contrary to Article 3 of the ECHR, in accordance with the so-called principle of non-refoulement (a well-established principle of customary international law), may not be refused entry at the borders (see Art. 31, 32 and 33 of the Geneva Convention, Art. 18 TFEU, Art. 18 Charter of Fundamental Rights of the European Union). Foreigners who enter the territory of the Italian state because they rightly fear persecution or because they run the real risk, in the event of their return to their country of origin, of suffering 'serious harm', cannot, therefore, and for no reason whatsoever, be considered irregular and are not, therefore, 'clandestine'.
The Court of Merit was therefore correct in ruling out the possibility that the term "clandestine immigrants" did not refer to the 32 third-country nationals seeking asylum to whom the poster deemed discriminatory was addressed, since they could not be considered to be in a situation such as that of Article 10-bis of Legislative Decree no. 286 of 1998, which provides for the offence of illegal entry and stay in the territory of the State.
The Court of Appeal, then, with a reconstruction and assessment of the facts that constitutes an unquestionable judgement on the merits in this case - also because it is unexceptionably argued - added that, beyond the illegitimacy of the use of the term, that use had to be framed in the overall context of the posters in question, which presented the 32 asylum seekers as "usurpers, for food, accommodation and unspecified vices, of economic resources to the detriment of the inhabitants of the municipality", forcing the latter to suffer the so-called "invasion", with a consequent increase in the number of asylum seekers who were in the municipality. so-called invasion, resulting in increased taxes and reduced pensions.
It should be recalled, in this regard, that the aforementioned Legislative Decree No 215 of 2003, art. 2 defines as indirect discrimination the situation in which 'an apparently neutral provision, criterion, practice, act, pact or conduct may place persons of a particular racial or ethnic origin at a particular disadvantage compared with other persons'; and adds in paragraph 3, as a closing provision, that 'harassment or unwanted conduct on grounds of racial or ethnic origin with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment shall also be deemed to be discrimination within the meaning of paragraph 1'.
With reference to this aspect, the recent Order No. 14836 of 26 May 2023 of this Court clarified that harassment for reasons of race or ethnicity, equated to the hypotheses of direct and indirect discrimination protected by Legislative Decree No. 215 of 2003, art. 2, paragraph 3, is integrated by any conduct that is detrimental to the dignity of the person and potentially capable of creating or increasing an intimidating, hostile, degrading, humiliating and offensive climate towards the aforementioned ethnic group, and that discrimination is also present when there is an association of such ethnic group with criminal behaviour.
It follows that the contested decision also appears to be fully in accordance with the law where, reading the reference to the term 'clandestine immigrants' in the specific and broader context in which it was used, it found that such use constituted discriminatory conduct, inasmuch as it was intended to create an intimidating, hostile, degrading, humiliating or offensive climate towards the 32 asylum seekers.
In other words, it is indirect discrimination on grounds of race and ethnic origin. And this must be affirmed regardless of the concrete possibility of qualifying the case in question in terms of direct discrimination, in the light of what the Court of Justice of the European Union has repeatedly clarified by stating that, where a disadvantageous conduct is based (also, but not only) on stereotypes or prejudices connected to the protected factor, as in the case at hand, we are in the presence of direct discrimination (judgment of 16 July 2015, Chez, C-83/14, p. 82).
It is the firm conviction of this Court, then, that a term such as the one at issue ('clandestine') has taken on, in current usage, a derogatory content and a strongly negative value; this does not mean that it cannot be used in its original, strictly lexical meaning, but that the context of the social structure in which it is used requires, however, extreme attention on the part of those who invoke it. If it is true, in fact, that one of the founding values of the Republican Constitution is that of the equal dignity of persons, it is also true that the term under discussion can easily lend itself (and induce), especially if inserted in a verbal context such as that of the poster in question, to abuses which, by creating an intimidating, hostile, degrading, humiliating or offensive climate, result in discriminatory behaviour.
The intentionally broad formula used in Article 2 of Legislative Decree No. 215 of 2003 is intended precisely to provide the judge with a tool to punish conduct that cannot all be precisely indicated a priori; hence the list in Article 43, paragraph 2 of Legislative Decree No. 286 of 25 July 1998 is to be understood as supplemented by the most recent provision, thanks to the prudent interpretation of the court of merit.
Nor does it help the appellants to refer to the allegedly purely political value of the message conveyed by the poster in question, the sole purpose of which was to express dissent against the choices made by the then Prime Minister and Minister of the Interior. This is obviously not the place to recall the conspicuous case law of this Court concerning the boundaries within which political criticism must be maintained; This is obviously not the place to recall the considerable case law of this Court concerning the boundaries within which political criticism must be kept; here it is only worth recalling that it is not permitted, in any case, in the name of the right to express a position of legitimate dissent, to act in a discriminatory manner towards, among others, persons who are very often not even aware of their rights and, therefore, in an objective position of weakness (and it does not appear accidental that none of them, in the case under examination, acted to protect their right).
Lastly, the Court cannot fail to point out that the assertion - contained in particular in the second plea in the Lega Nord per l'indipendenza della Padania's application - that discriminatory conduct must have as its purpose the impairment of the enjoyment or exercise of fundamental rights is totally unfounded. Such an assertion clearly contrasts with the letter of the law, which sought to recognise the unlawful nature of conduct characterised by the common denominator of the creation of a context that is hostile in various ways, even irrespective of the ascertainment of the infringement of a fundamental right.
15. The Court must proceed, at this point, to examine the fourth ground of appeal of Lega Nord-Lega Lombarda and the fifth ground of appeal of Lega Nord per l'indipendenza della Padania, both concerning the active legitimacy of the appellant associations and the issue of proof of damage.
15.1. The grounds are both unfounded.
As mentioned above in reconstructing the regulatory framework of reference, both the legitimacy of the associations referred to in Legislative Decree no. 215 of 2003, art. 5 of Legislative Decree No. 215 of 2003, Article 28, paragraphs 4 and 5).
The Court of Appeal illustrated, with correct arguments free of logical flaws, the reasons why it considered that the existence of damage had been proved; it also referred, in support of the decision, to the judgment of 8 May 2017, no. 11165, of this Court, pointing out that in the specific case it was a matter of collective discrimination and that therefore the associations were also legitimated to act for non-pecuniary damage, since the persons who were the subject of the protest poster had not been identified (in this sense, see also the subsequent sentence of 8 November 2021, no. 32388).
It should also be noted, in this regard, that "in the matter of the protection against collective discrimination, the legitimacy of a collective subject to act is not an exception but a rule functional to the need to provide protection, through a remedy of an injunctive nature, to an indeterminate series of subjects to counter the risk of an injury having a diffusive nature and which must therefore be, as far as possible, prevented or circumscribed in its offensive scope" (thus judgment 7 November 2019, no. 28745).
In the face of this reconstruction, the grounds at issue here break down; and the Court considers that it must expressly point out the manifest groundlessness of the consideration, contained in the Lega Nord per l'indipendenza della Padania's appeal, according to which the active legitimacy of the associations with an interest in bringing proceedings is limited to the prohibitory phase, without being able to extend to the subsequent compensatory phase. This is a manifestly eccentric finding, which has no counterpart in the letter of the law - the text of which proves the exact opposite - and which, if it were correct, would end up emptying the legislative provision itself of content.
16. Lastly, the fifth plea in the Lega Nord-Lega Lombarda's appeal and the fourth plea in the Lega Nord per l'indipendenza della Padania's appeal remain to be examined, both of which must be dealt with together since they both concern the alleged balancing of constitutional values underlying the case in question.
The grounds under consideration here underline, as mentioned above, the importance of coordinating the protection of the rights of foreigners and immigrants with the constitutional principles of freedom of expression (Article 21 of the Constitution) and the freedom of citizens to freely associate in political parties (Article 49 of the Constitution).
16.1. The grounds are both unfounded.
The problem of the balancing of values both of constitutional importance is a complex issue, which would require a much broader and more articulate treatment than that of the present judgment, also in the light of the numerous judgments of the Constitutional Court that have dealt with the issue in different disciplines (it may be mentioned, by way of example only, judgment no. 162 of 2016, on assisted negotiation in cases of compensation for damage caused by the use of vehicles and boats, and judgment no. 210 of 2015, on the limits to the freedom of economic initiative in the context of a balancing with other constitutionally relevant interests).
The College observes that the judgment under appeal examined the issue in depth and, with a reasoning characterised by fairness and balance, highlighted how the protection against discriminatory acts is based "on the fundamental principles of the Constitution on the subject of the inviolable rights of the person", i.e. on the principles of equal dignity and equality before the law, which are reflected in Article 14 of the ECHR on the prohibition of discrimination. And he added that the exercise of freedom of political expression 'must necessarily be balanced with respect for and protection of the dignity of persons'.
These arguments deserve full confirmation.
The European Court of Human Rights (Gunduz v. Turkey, Application No. 35071/97, 4 December 2003, pp. 40-41), called upon to rule on concrete expressions of incitement to hatred, stated that "tolerance and respect for the equal dignity of all human beings is the foundation of a democratic and pluralist society. In view of this, it may be necessary as a matter of principle in certain democratic societies to sanction or even preclude any form of expression that spreads, incites, promotes or justifies hatred based on intolerance'.
Without prejudice to the fact that the balancing of values of constitutional importance is entrusted to the concrete assessment of the court of merit, the College observes that in the present case such balancing was correctly carried out. In fact, the right to free expression of thought, which is accompanied by the right to organise oneself in political parties, cannot be considered equivalent to, or even prevailing over, the fundamental principle of respect for the personal dignity of individuals.
In the specific case, in fact, it is clear that the unquestionable right to express dissent in relation to a certain management of the phenomenon of asylum seekers could have been carried out, correctly, by omitting those considerations, rightly highlighted by the Court of Appeal, which created around the 32 non-EU citizens a climate of humiliation and hostility. And it is clear that the right to free manifestation of thought, if carried out in an intolerant manner, as in the present case, must be considered recessive with respect to the right of individuals to respect for their personal dignity.
17. In conclusion, the appeals are both dismissed.
This outcome is followed by an order that the appellants be ordered to pay the costs of the proceedings in cassation, settled pursuant to Ministerial Decree No 55 of 10 March 2014, to be deducted in favour of the lawyers Alberto Guariso and Livio Neri, who have declared themselves to be against the appellants.
The conditions set out in Article 13(1c) of Presidential Decree No 115 of 2002 for the payment by each of the appellants of the further amount of the unified contribution equal to that paid for the appeal, if due, are also met.
The Court dismisses both appeals and orders the appellants jointly and severally to pay the costs of the appeal, assessed for each counter-appeal in a total amount of Euro 3,300, of which Euro 200 for disbursements, plus general costs and accessories as per law, to be distracted in favour of the lawyers Alberto Guariso and Livio Neri, who declared themselves antistatists.
Pursuant to Article 13(1c) of Presidential Decree No 115 of 2002, the Court declares that the conditions exist for the payment by each appellant of the further amount of the unified contribution equal to that paid for the appeal, if due.
Form of order sought
Done at Rome, in the Council Chamber of the Third Civil Section, on 22 May 2023.
Filed at the Registry on 16 August 2023