Re Fiordelli and Ajazzi

CourtCourt of Appeal of Florence (Italy)
Date25 Ottobre 1958
Italy, Court of Florence.
Court of Appeal of Florence.
Re Fiordelli and Ajazzi.

Jurisdiction Exemptions from Foreign States The Holy See Status of church dignitaries in Italy Prosecution for defamation Contention that offence was committed in spiritual capacity Whether accused exempt from jurisdiction of Italian courts or from application of Italian law Concordat and Lateran Treaty between Holy See and Italy, 1929 The law of Italy.

The Facts.The parish priest of an Italian parish, acting on the instructions of the bishop of the diocese, announced from the pulpit of his church that a civil marriage contracted between two of his parishioners was a grave sin, that their so-called civil marriage was a nullity, and that cohabitation between them must be regarded as concubinage. Acting again on the bishop's instructions, the priest also branded the parents of the two parishioners as sinners who should be denied the holy water at Easter. The announcement was subsequently repeated in print in the local newspaper, and the bishop and the priest were thereupon prosecuted for defamation. They contended that as they had acted in their spiritual capacity they were exempt from the jurisdiction of the Italian courts by virtue of the Concordat and the Lateran Treaties between the Holy See and Italy.

Held (by the Court of Florence): that the accused were not exempt from the jurisdiction of the Italian courts. The bishop was guilty of defamation but there were mitigating circumstances seeing that the offence had been committed for motives of special moral or social value (Article 62 (1) of the Penal Code).

The parish priest was acquitted on the ground that he had acted in obedience to the orders of a superior (Article 51 of the Penal Code).

The Court said (in part): In substance, the question before us is whether an act of this nature, performed in the exercise of the powers granted by the State to the Catholic Church in pursuance of Article 1 of the Concordat between the Holy See and Italy is, for that reason alone and having regard to the Concordat and the Lateran Treaties, beyond the jurisdiction of the State and the laws governing the violation of rights protected by State law. The defence answers this question in that sense and contends that the State, by virtue of these agreements, grants the fullest and most extensive freedom to the Church to act in spiritual matters in such manner that these matters are not subject to State law. The defence further contends that the State thus merely confirms the rule which is recognized by the Law of Guarantee, viz., that in spiritual and disciplinary matters the Church is free to act in accordance with the rules of its own law.

This Court recognizesand it could not do otherwisethe full legal effect of the agreements governing the relations between the State and the Catholic Church in Italy which finds its confirmation in Article 7 of the Constitution. Within the limits presently to be defined, this contention of the defence is correct, but this Court cannot draw from it the drastic inferences drawn by the defence.

The premises are correct, and there is no doubt that the agreements intended, on the one hand, to grant to the Catholic Church the free exercise of spiritual power and the free and public exercise of religious services and, on the other hand, to provide a dividing line between the respective activities of Church and State in their mutual relations. Such are, for example, the rules governing the status and prerogatives of the Catholic religion in Italy (Article 1 of the Treaty, and Articles 2, 11, 12, 33 and 41 of the Concordat), the rules governing the territorial organization of the Church (Articles 16, 17 and 18 of the Treaty, and Articles 15,19,2025 and 29 (G) of the Concordat), [and others].

The contention of the defence, however, that, in cases where no express legal provision is made, all religious and spiritual matters are outside the province of the State and cannot give rise to rights that are entitled to the protection of the State, is not correct.

If it were so, the question of determining the boundaries between the respective spheres of State and Church, in so far as concerns the exercise of the rights granted in Article 1 of the Concordat by the State to the Church, would be within the competence of the Church. The latter would in that case be regarded as the societas suprema, invested with jurisdiction to determine jurisdiction (...

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