Abstract
The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed in Rome on November 4, 1950, and entered into force on September 3, 1953, was ratified by Italy in 1955. Only years later, in 1973, Italy accepted through an ad hoc declaration the competence of the existing supervisory bodies—then the European Commission of Human Rights, an inquiry body that supported the Court, and the Court as a deciding organ—to receive individual applications filed against Italy by any person, nongovernmental organization, or group of individuals claiming to be victims of a violation of the rights and freedoms recognized by the Convention. This chapter discusses certain important judgments of the European Court of Human Rights (ECtHR) that have condemned Italy. It then focuses on the responses given by the Italian legislator and judiciary, respectively, to this case law, with a focus on the judgments of the Constitutional Court.
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- 1.
- 2.
See, Guzzardi v Italy, Ser A 39 (1980), para 102; Ciulla v Italy, Ser A 148 (1989), para 40. Currently, the law lays down the maximum periods of preventive detention in relation to individual crimes.
- 3.
See e.g. ECtHR, Gaglione et al. v Italy, judgment of 21 Dec 2010, no 45867/07, requiring Italy to take general measures to remedy structural problems. In the list of the countries that most often violate Art 6, prepared by the ECtHR, Italy tops the list with regard to the length of proceedings and figures as fifth as regards the violation of other parameters of fair trial.
- 4.
See, for instance, ECtHR, Scordino v Italy (No. 1), judgment of 29 Mar 2006, no 36813/97, para 82.
- 5.
ECtHR, Hirsi Jamaa and others v Italy, judgment of 23 February 2012, no 27765/09. For these reasons, and considering the other violations ascertained, the Court ordered Italy to pay the sum of € 15,000 to each of the applicants. More specifically, in this interesting decision, the ECtHR recognized, in line with what Italy argued, that Art 3 ECHR and Art 4 of Protocol No 4 on the prohibition of collective expulsion refer to the territory of the State. Nevertheless, the ECtHR used the opportunity of an extraterritorial interpretation of Art 4 of Protocol 4 to safeguard its useful effect in the specific circumstances. In fact, according to the Court, if the provision at issue applied only to the expulsion from the territory of the State, a typical aspect of the contemporary migration phenomenon would remain outside the scope of application of the provision. Otherwise, migrants deciding to cross over the sea risking their lives without any chance of reaching the territory of the State would not be entitled, before suffering a possible expulsion, to be considered for a protection grant (as refugees or asylum seekers), in contrast to migrants travelling on land.
- 6.
Cf ECtHR, Sharifi and others v Italy and Greece, judgment of 21 Oct 2014, no 16643/09 and Khlaifia and others v Italy, judgment of 15 Dec 2016, no 16483/12.
- 7.
ECtHR, Torreggiani and others v Italy, judgment of 8 Jan 2013, no 43517/09.
- 8.
The law establishes one day of reduction, for every ten days spent in detention conditions which were not compliant with Art 3 ECHR.
- 9.
The due compensation is eight Euros per day for the time spent in detention conditions not in compliance with Art 3 ECHR. The pecuniary compensation remedy also applies to persons who spent less than 15 days in such conditions or if the sentence remaining to be served is shorter than a period which could be deducted. Some additional initiatives have been adopted, concerning: (1) legislative measures aimed at increasing the use of alternative measures to imprisonment by removing mandatory imprisonment for a number of minor offenses, limiting the use of detention for minor offenses and increasing possibilities for prisoners to benefit from early release in certain circumstances; (2) organizational measures, mainly focused on improving living conditions by increasing freedom of movement of prisoners outside their cells; (3) renovation of prisons (Progress of the Action Plan Submitted to the Committee of Execution of Sentences).
- 10.
ECtHR, Cestaro v Italy, judgment of 7 Apr 2015, no 6884/11.
- 11.
The Italian Parliament discussed the adoption of the crime of torture as a domestic criminal offense within the Italian criminal law system on various occasions in the last five legislatures, the most recent being Draft Bill C. 2168, discussed and approved by the Chamber of Deputies on 9 Apr 2015. The draft bill was sent to the Senate, and here discussion has stalled on 19 Jul 2016. Later on, the discussion was resumed and the Italian Parliament adopted a new statute on torture in July 2017. In several respects, however, Law n° 110/2017, which entered into force on 18 July 2017, does not comply satisfactorily with the international obligations of Italy. See Lattanzi (2018).
- 12.
ECtHR, Nasr and Ghali v Italy (Abu Omar case), judgment of 23 Feb 2016, no 44883/09.
- 13.
See ECtHR, Talpis v Italy, judgment of 2 March 2017, no 41237/14.
- 14.
The Pinto law, No 89 of 24 Mar 2001, provides that the suit may be brought to the Court of Appeal (with the possibility of a further appeal to the Supreme Court) against the authorities involved. Those are the Ministry of Justice, for proceedings before the ordinary courts; the Ministry of Defence, for proceedings before the military judge; the Ministry of Economy and Finance, for tax proceedings; the President of the Council of Ministers, in other cases. The Court of Appeal must decide on the application within 4 months. If a violation is ascertained, a ‘fair compensation’ to the applicant is granted. Formally, the legislative measure does not forbid the subsequent appeal to the Strasbourg Court.
- 15.
See, for example, ECtHR, Scordino v Italy (No. 1), judgment of 29 Mar 2006, no 36813/97.
- 16.
See e.g. ECtHR, Olivieri and others v Italy, judgment of 25 February 2016, no 17708/12.
- 17.
Law No 12 of 9 Jan, containing “provisions on the execution of judgments of the ECtHR.”
- 18.
Cf the “twin judgments” No 348 and 349 (22 Oct 2007).
- 19.
Since the approval of Protocol No 14 and the adoption of the domestic legislative measures authorizing its ratification and implementation, the Supreme Court of Cassation developed an approach aimed at recognizing direct effect to the ECtHR’s judgments, in clear contrast with its previous case law. The internal system of sources of law did not provide for mechanisms giving binding effect to ECtHR judgments for the national judge. However, in Drassich, judgment of 11 Dec 2008, no 45807, for example, the Court, analogically applying Art 625 of the Code of Criminal Procedure providing for the extraordinary appeal against judgments of the Supreme Court of Cassation for material or factual error, has partially removed the effect of res judicata of a previous judgment. It ordered the partial reopening of the case as a result of an ECtHR judgment declaring the process unfair because of a violation of Art 6 ECHR. In a previous judgment of 27 Jan 2007, no 2800 (Dorigo), the Supreme Court of Cassation annulled a criminal conviction formulated as a result of a process that the ECtHR had declared unfair because of the violation of Art 6 of the Convention (in particular, with regard to the right to defence of the applicant). Accordingly, the Court provided for the release of the applicant despite a final criminal conviction. Decisions by the Supreme Court of Cassation can be found at https://pst.giustizia.it.
- 20.
See the well known judgment no 232, I.N.C.I.C. S.p.a. v Ministry of Foreign Trade (10 Oct 1975) and order no 170, Granital Spa. (5 June 1984); all cases of the Italian Constitutional Court are found at www.giurcost.org. Accessed 11 July 2017.
- 21.
This is said without prejudice the discussion below, Sect. 5.
- 22.
Const Court, no 349 (22 Oct 2007), para 6.1.
- 23.
This fundamental conclusion of the Constitutional Court has remained applicable even after the entry into force of the Lisbon Treaty, which qualifies the fundamental rights recognized by the European Convention as “general principles” of EU law (Art 6 (3) TEU). In the opinion of the Court, the principles at issue only count with respect to cases where EU law applies and not to the cases that are solely governed by national law. Cf Const Court, no 80 (7 Mar 2011).
- 24.
See Const. Court judgment, no 349 (22 Oct 2007), para 6.1.
- 25.
The internal legal order adjusts to conventional international norms usually through an ordine di esecuzione on the level of ordinary law. Following the ordine di esecuzione in the internal legal order, norms corresponding in toto to the provisions of the relevant treaty would arise. Art 117 (1) also regulates the internal rank of these provisions. Therefore, it assumes that the treaty has been “transferred” into the internal legal order through the adjustment procedures.
- 26.
Const Court, no 349 (22 Oct 2007), para 6.2.
- 27.
In judgment no 187 (28 May 2010), the Constitutional Court ruled out an internal law, which made the granting to non EU-foreigners of social and economic benefits dependent on the possession of a residence permit (i.e. a certificate that a foreigner can obtain only after 5 years of continuous presence on the territory of the State). The Court concluded that the distinction between citizens and non-EU foreigners regularly living in the State was not in conformity with constitutional standards, the more so considering that the measure concerned was inconsistent with the principle of nondiscrimination enshrined in Art 14 ECHR as clarified by the ECtHR case law. In a subsequent judgment (no 245, 25 Jul 2011), the Constitutional Court declared a legislative measure unconstitutional preventing non-EU foreigners from getting married in Italy with an Italian citizen unless submitting to the registrar a document certifying the regularity of their residence in the Italian territory. According to the Constitutional Court, the contested measure was contrary to constitutional principles and standards both because of a disproportionate breach caused to the fundamental freedom to marry, vis-à-vis the need of ensuring the security interests of the State, and because of a conflict with the right to marriage as recognized in Art 12 ECHR.
- 28.
Indeed, that principle has been expressly recognized by the Court of Strasbourg (see the case Scordino v Italy, supra, n 4), according to which the character of subsidiarity, which the international protection possesses with respect to the primary protection offered by domestic law, implies that the latter has to be interpreted and applied consistently with Convention standards.
- 29.
One example is a recent Court of Cassation decision concerning the application Art 44 (2) of the law on construction and urban planning, no 380 (6 June 2001). This rule provides the confiscation of property as a criminal sanction for confirmed abusive parcelling; nevertheless, this expropriation measure has traditionally been classified as an administrative sanction in the internal case law and, as such, it has been applied even in the absence of a judgment of conviction, against the property belonging to a third party acting in good faith. The ECtHR in Sud Fondi and others v Italy, judgment of 20 January 2009, no 75909/01, qualified the confiscation as a criminal sanction and found a violation of Art 7 ECHR and Art 1 AP No 1 to the extent that the measure was not accompanied by appropriate compensation; see Sciso (2009). Following the ECtHR decision, the Court of Cassation made a substantive interpretative revirement to remedy what appeared to be a “systemic violation” with the potential to repeat itself until repeal of the contested legislative measure or a radical correction of the interpretative approach. The Court, formally, did not leave its traditional line of interpretation and in fact confirmed the independence of the qualification criteria adopted in domestic law against those used by the ECtHR; it stated, accordingly, that the notion of punishment adopted within the Convention does not necessary correspond with that embodied within domestic law. Nevertheless, on the basis of a consistent interpretation by the ECtHR as well as related domestic law, the Cassation Court has excluded that the confiscation measure can be imposed on third parties. On the other hand, the Court ruled that the confiscation, where otherwise justified by an overriding public interest, must be accompanied by an appropriate compensation measure, in line with the indication of the Strasbourg Court (Criminal Court of Cassation, no 23761, 22 Oct 2010). See Sciso (2010).
- 30.
The prior interpretative assessment constitutes a condition of admissibility of the issue of constitutionality, as the Constitutional Court explicitly asserted in judgment no 239 (15 Jul 2009), considering that the ordinary judge failed to conform to the supervening ECtHR’s case-law in the exercise of its interpretative powers, notwithstanding the fact that the contested provision did not expressly prevent him to do so.
- 31.
See Const Court judgment, no 317 (30 Nov 2009).
- 32.
Ibid.
- 33.
According to Art 53 ECHR, the Convention shall not limit nor derogate from any of the human rights and fundamental freedoms ensured under the laws of any State Party or under any other agreement to which it is a party if the latter guarantee a higher level of protection than the Convention.
- 34.
Const Court, judgment no 49 (14 Jan 2015).
- 35.
Ibid., para. 7.
- 36.
In this context, the reopening of the case has been indicated as the most appropriate mechanism for the restitutio in integrum in cases of violations of the procedural guarantees provided for in Art 6 ECHR (see Recommendation R (2000) 2).
- 37.
See Const Court, judgment no 129 (16 Apr 2008).
- 38.
See Const Court, judgment no 113 (4 Apr 2011).
- 39.
See, as a recent example, the Constitutional Court’s judgment no 36 (19 Feb 2016). With this judgment, the Court declares unconstitutional a provision of Legge Pinto (supra, n 14) because of the excessive length of the remedial procedure, according to relevant case law of the European Court.
- 40.
A good example of that reasoning is the Constitutional Court decision no 238 (22 Oct 2014). By an interpretative judgment of dismissal, the Italian Constitutional Court declared that the customary rule on State immunity, as interpreted by the ICJ judgment in Jurisdictional Immunities of the State (Germany v Italy, ICJ Rep. 2012, 99), has never entered the domestic legal order because of its inconsistency with constitutional core values and principles (such as the right to a judge, Art 24, and the protection of fundamental human rights, Art 2). Consequently, the Court declared the unconstitutionality of the legislative measures enacted by Art 3 of Law 14 Jan 2013 no 5 to give effect to the ICJ judgment.
- 41.
See ECJ, case C-105/15, Taricco (8 Sep 2015).
- 42.
See Const Court order, no 24 (26 Jan 2017). In the same perspective, see Const Court judgments, no 183 (27 Dec 1973) and no 232 (10 Jan 1989) and more recently no 269 (14 Dec. 2017).
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Sciso, E. (2019). Italy. In: Kadelbach, S., Rensmann, T., Rieter, E. (eds) Judging International Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-94848-5_20
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