Riccardo Perona, "The Internationally-Oriented Automatisms Prohibition: Reading a Doctrine of the Italian Constitutional Court as Instrument in the ‘Multi-Level’ Landscape" (Accepted Papers for Workshop 17, World Congress of Constitutional Law 2014) (original) (raw)
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Revue générale de droit, 2019
This paper deals with a peculiar doctrine of the Italian Constitutional Court, the “prohibition of legislative automatisms,” which is used, in some judgments, in an internationally oriented form. My argument is that this doctrine can be seen as an effective legal and constitutional instrument operating in the “multi-level” scenario and namely in the framework of international systems and treaties of human rights protection. Indeed, it provides a good degree of flexibility and a good balancing point between international integration and national autonomy in light of the need to reach an adequate and “fair” solution in the concrete case and, therefore, in favour of the enhancement of human rights protection at the practical level.
Law as a global entity through Italian eyes and minds
Ethics & Global Politics
This contribution discusses, from the perspective of global comparative law, how Mariano Croce's English translation of a major book by an important early-Italian scholar, Santi Romano, allows helpful insights into early twentieth-century Italian thinking about the intrinsically plural nature of law. This debate connects directly to current worldwide discourses about legal pluralism, showing how Romano's exciting project forms an early precursor of the gradual movement towards obtaining a better grasp of the inner nature of the deeply plural concept of law. Romano's work, as a remarkably pertinent early contribution, of lasting relevance to global legal theorizing, indicates that a reductionist, positivistic conceptualization of law that ignores the legal agency of common citizens could easily lead to disastrous outcomes through abuses of state-centric powers. Connecting Romano's early theorizing to many currently ongoing debates in different jurisdictions and legal orders about the plurality of laws, this article seeks to demonstrate the powerful impact that such kind of pioneering work can have even today. It strengthens, above all, the currently growing realization that law is certainly much more than state law, and that people's laws and their diverse values and ethics should be treated with more respect by legal orders.
2014
The essay analyses an ongoing tendency that is transforming a traditional cornerstone of constitutional and administrative law in Italy, such as the principle of legality. This progressive makeover is given by the reflections in the internal legal order of the joint effect of the jurisprudence of the European Court of Human Rights, together with the integration in the European Union, that are producing a progressive shift to a more substantial and comprehensive concept of the "rule of law". The main reason for this seems to derive from the so-called "democratic disconnect" that affects the supranational legal orders and weakens the preference traditionally acknowledged to parliamentary legislation. Due also to the low quality of the internal legislation, the Italian Highest Courts are following the hints coming from the outside and both the Court of Cassation and the Constitutional court are slowly embracing a more comprehensive idea of what "law" is, closer to the idea typical of the "common law" systems. The results of this evolution are a progressive decline of the formal categories that dominated the literature in the past decades as well as, at the same time, the risk of losing also the democratic meaning of legality, represented by the necessary linkage between the system of sources of law and the form of government. In other words, relocating the role of parliamentary legislation means rethinking the role of Parliaments vis-à-vis both the Government and the courts in the contemporary State. The essay fosters the reflection on this process and on its potential disadvantages for the good functioning of the democracy.
On 22 October 2014, the Italian Constitutional Court (hereafter, the ‘ICC’) issued judgment No. 238 of 2014 in which it declared unconstitutional certain domestic provisions that obliged Italian courts to comply with the judgment of the International Court of Justice (hereafter, the ‘ICJ’) in the case of Germany v. Italy, thereby excluding the jurisdiction of the national courts in cases concerning actions for civil damag resulting from war crimes and crimes against humanity committed by German military forces during World War II. If there were a competition for the title of ‘judgment of the year’ of the ICC, there is no doubt that judgment No. 238 would win top spot for 2014 hands down. It is difficult to remember any other judgment of the Italian Constitutional Court that has attracted discussion on the same scale within only a few months of its adoption, from both national and international observers.
On the Relations between International Law and Italian …
in italiano Contents: 1. Introduction. -2. The transformation of internationallaw in internal Law in the Italian Constitutional System. -2.1. Article 10 of the Italian Constitution and the automatic validity of general internationallaw in the Italian Constitution. -3. The procedure for the implementation of the international treaties. 3.1. The question of the non self-executing treaties. -3.2. The opposite hypothesis: a treaty fully authorized but not operative in internationallaw. -4. The particular problems of the application in Italy of EU law and article 11 of the Italian Constitution. -5. The effects on the Italian Law of article 6.3 of the Lisbon treaty on EU. -6. The introduction in the Italian Constitution of Article 117.1. -6.1. The order of the Italian Constitutional Court n. 103/2008. -7. The feasible interpretations and applications of article 117.1 in some significant cicumstances. 7.1. The "limits" to the powers of the Parliament as expression of the people's sovereignty. -7.2. The hypothesis of nonapplication of internal laws contrary to international treaties. -7.3. The interpretation by the European Court of a European rule in application of article 6.3 of the EU, Lisbon version.
2011
The article analyses the first Italian doctrine and jurisprudence on European integration, concentrating on the Corte costituzionale’s decisions in the cases Costa [1964], Acciaierie S. Michele [1965] and Frontini [1973]. The account shows that the general attitude of Italian legal culture toward European integration was more European-friendly than it is suggested by the traditional image of the long-lasting confrontation with the European Court of Justice on the issue of supremacy of Community law. The account points out the three main instruments developed by Italian legal culture in order to manage the constitutional transformation: the interpretation of Article 11 Cositituzione as norm which allows the acceptance of limitations of sovereignty by means of ordinary statutes; the building of a “pluralist” doctrine on the relationships between domestic law and external law (here distinguished from dualism, as well as from monism); the establishment of the doctrine of supreme values ...
ZaöRV 76 (2016) This paper follows up on the effects of Judgment No. 238/2014 by the Italian Constitutional Court. On grounds of both the substantive and procedural legal ambiguity of the ruling, Italian municipal courts have been confronted with the dilemma of either upholding State immunity and complying with the International Court of Justice's judgment or denying State immunity and following the decision of the Constitutional Court. It is condended that the Constitutional Court would have had jurisdiction to carry out a reassessment of customary international law on State immunity without taking for granted the appraisal by the International Court of Justice. On this basis, it could have avoided to resort to the so-called “counter-limits” doctrine for refraining from giving application to international law, finding instead that State immunity for international crimes committed on the territory of the forum State can be denied under both international and domestic constitutional law. Even if this did not amount to full adherence to Article 59 of the ICJ's Statute in procedural terms, it would have meant compliance with the substance of international law at issue. Yet, an attempt to overcome the “Triepelian approach” of the Constitutional Court has recently been made along most original, albeit problematic lines by Italian municipal courts.
European Law Open, 2022
This work aims to investigate the stance of the Italian Constitutional Court (ItCC) on ECHR and CFREU and their respective Courts, ECtHR and CJEU. The aim is to verify if the attitude of the ItCC could be described in terms of openness or closedness, understanding openness as an effort to practise loyal cooperation through procedural means and, substantively, as greater attention for the norms of supranational orders, and closedness as the setting aside of all forms of procedural ties with the supranational Courts and the voluntary dissociation from their outcome, with the purpose of prioritising domestic constitutional provisions. To conduct the analysis, the article refers to the theory of interlegality, questioning whether ItCC, operating 'on the borders between several normative orders', has a broader accountability to these different orders. The first part of the paper is devoted to some elements drawn from the case law indicating openness, such as the language use by the ItCC, the procedures, the legal reasoning, and the effects of judgements. Attention is given to the contextual reference to the recognition norms of both the Italian Constitution and European Union (EU) Treaties and to the increasing use of preliminary rulings to the CJEU. The second part of the paper discusses a substantive criterion created by the ItCC, the 'greatest extension of guarantees', demonstrating that it does not refer to the level of protection of individual rights, but to the balance of the entire constitutional system. Our conclusion is that the ItCC trends concerning supranational rights express a deferent and operational, but vigilant cooperation, retaining a margin to ensure the vitality of the domestic Constitution.
Saura-Freixes, N. (coord.), "Human Rights, Constitutional Law and International Law: Contemporary Synergies", CEPC, Madrid, 2021., 2021
ABSTRACT Article 6 is arguably one of the most important and most often discussed articles of the European Convention on Human Rights. It enshrines the key-principles of due process of law by defining a minimum core of guarantees capable of ensuring effective protection of the rights of the individual when party to judiciary proceedings. Through Italy’s signing of the European Convention on Human Rights in 1950, this set of minimum guarantees became part of the Italian legal system. However, these principles essentially remained "dead letter” until 1999, when Article 111 was amended following a constitutional reform, and was subsequently adapted to the existing conventions ratified on the subject. Italy’s adaptation to the international canons of due process was, in fact, far from straightforward; it required, first and foremost, a thorough “cultural change”, quite difficult to achieve in the Italian context of the 1990s, given that the government was, at the time, struggling with the growing threat of the Cosa Nostra. The tumultuous social context of the 1990s will serve, therefore, as a backdrop to a historical reflection on the most significant events of the Italian evolution in the field of criminal law, which led to the constitutionalization of the principles of due process. Without taking into consideration this context, it would be difficult to fully appreciate the impact that such a principle had on the Italian legal culture; not only did it trigger deep synergies between domestic jurisdiction and the ECHR, it also brought to light those aspects of the Italian legal system that, almost 20 years after the reform of Article 111, still present a series of criticisms. KEY WORDS: Due Process of Law; Reasonable Duration of Trials; the Italian Constitution; Rights of Defense; European Convention on Human Rights.
C. Petta - Res Iudicata in Breach of the ECHR: The Italian Constitutional Court's Point of View
In the judgment no 123 of 2017 the Italian Constitutional Court declared inadmissible the question of constitutionality stemming from a Code of Administrative Procedure provision (Art 106) in the part in which it does not provide for the possibility to review a ruling in cases of conflict between domestic judgments and judgments of the Court of Strasbourg. The paper firstly introduces the obligation of the Contracting States to conform their legal systems to judgments of the Court of Strasbourg (according to Arts 46, para 1, and 41 of the ECHR). Secondly, it focuses on the case-law and the systematic evolution that has recently led to overcome national res iudicata, especially in case of conflict between criminal judgments. Thirdly, the paper proceeds to analyse the arguments of decision no 123 of 2017, which will lastly be the subject of some final considerations. The author, similarly to the ruling of the Constitutional Court, duly considers the jurisprudence of the European Court of Human Rights and the legal systems of the main continental systems referred.