The influence of the ECHR jurisprudence on the national criminal procedure system. The italian perspective: from divergence to realignment

AuthorClara Tracogna

Clara Tracogna. PhD Candidate in Criminal Procedure, University of Padova. Email address:,

I would like to thank Mr Mark Lasley for his invaluable suggestions while I was writing the paper for the CKS 2010 Conference.

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One of the most important and up-to-date matters that involve lawyers is to understand at which level the European Convention of Human Rights should be placed among the Italian sources of law. The matter intersects several fields, including International law, European law, Constitutional law, Criminal and Criminal Procedure law. After many years of debate and after changing its perspective several times, in the last two years four decisions passed by the Constitutional Court seemed to acknowledge a new position for the rules of the Convention and, at the same time, paved the way for a forthcoming constitutionalization of the Convention as a Constitutional charter of fundamental rights. Aim of the essay is to point out which are the rules of the Constitution through which the Convention enters in the Italian legal system and, according to Constitutional Court decisions, which is the role of the Trial Courts in case a national law violates a rule of the Convention.

Once this matter will be solved, the research will focus on other topics in the field of criminal procedure which are related especially on the effects of ECHR decisions which sentenced Italy because of the unlawfulness of a trial. The core question is: if a trial whose decision is final didn’t respect an article of the Convention, how and through which legal instruments should that trial be renewed? After pointing out the rules in force both at European Council and national law level, the essay will offer a case study on recent and relevant decisions, offering a perspective for a new law that Italy cannot put off any longer.

Afterwards, the survey will analyze the legislative reforms that have been approved and entered into force after ECHR sentenced Italy on in absentia trials, pointing out which are the problems still pending.

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The essay will show a law case in which the Courts play a relevant role in avoiding the violations of the Convention interpreting the Italian laws according to the principles carried out by ECHR decisions.

Offering an overview of the above mentioned issues and formulating hypothesis for matters that have not been solved yet, the aim of the study is to put on the floor the core matters in order to provoke a debate with Scholars from other Countries, in light of the harmonization pursued by the ECHR jurisprudence.

1. The position of the European Convention of Human Rights in the hierarchy of the Italian sources of law

Since Italy implemented the European Convention of Human Rights1, judges and Scholars had to face the problem of the relationship between the rules of the Convention and those of the national sources of law. In particular, the core question is where to place the European Convention among the Italian sources of law2.

In analogy with all other European Council member States, Italy was entitled to choose among four options: first, to either be bounded by the European Convention at the international level only, or, second, to recognize a constitutional significance to the Convention’s rules, or, third, to regard them at an intermediate level between the Constitution and the statutory laws approved by Parliament or, finally, to consider them au par with statutory law3.

To better understand the current Italian approach to the rules of the Convention, it is useful to offer a short overview on the previous ways, that can be summarized as follows:

1) At a first stage, in light of the theory that states that the national and the Convention systems are separated, the Convention, as any other international treaty that Italy has signed, has been considered as a law issued by the Italian Parliament. The main reason is that the legal instrument through which an international treaty enters into force in Italy is in fact a law of the Parliament.

2) At a second stage, all levels of Courts’ jurisprudence set forth several solutions in order to assure to the rules of the Convention an acknowledgment by the rules of the Constitution as well as the respect of the national statutory laws. However, the varied solutions brought to very different decisions, which cannot be accepted inside a unique and coherent legal system.

3) Finally, further to the constitutional reform approved in 2001 together with the interpretation proposed by the Constitutional Court on the new articles in 2007, the relationship between the Italian system and the Convention changed: in the sources of law hierarchy, thePage 86 Convention took a higher placement with respect to the law of the Parliament, but still lower than the Constitution4.

The articles of the Constitution by means of which the Convention could receive acknowledgement in our legal system are four: art. 10, paragraph 1, which states that «The legal system of Italy conforms to the generally recognized principles of international law»; art. 11, on the basis of which «Italy […] agrees to limitations of sovereignty where they are necessary to allow for a legal system of peace and justice between nations, provided the principle of reciprocity is guaranteed; it promotes and encourages international organizations furthering such ends»; art. 2, which states that «The republic recognizes and guarantees the inviolable human rights, be it as an individual or in social groups expressing their personality, and it ensures the performance of the unalterable duty to political, economic, and social solidarity»; art. 117, paragraph 1 on the Legislative power, which has been modified in the year 2001 and whose wording is: «Legislative power belongs to the state and the regions in accordance with the constitution and within the limits set by European union law and international obligations».

The turning point for Italy is represented by two “twin” decisions that the Constitutional Court handed down in 2007: the Court passed the interpretation that, due to the new art. 117, paragraph 1 of the Constitution, the Convention can be used as a criteria to check the respect of the Constitution by a law of the Parliament5. In other words, as art. 117, paragraph 1 mentions «European union law and international obligations» and as the Convention is, as a matter of fact, an international obligation, a law of the Parliament or a law of a local Parliament (which exist in each Italian region) must respect, apart of course from the Constitution, even the rules of the European Convention of Human Rights. This means that a law of the Parliament can’t change thePage 87 law which implemented the Convention and can’t breach its rules without being declared unconstitutional.

From the point of view of the Italian Courts, the decision means that, as the control of the respect of the Constitution belongs only to the Constitutional Court, a judge who has to apply in a trial a law which seems to violate the European Convention of Human Rights’ rules must ask to the Constitutional Court to check its constitutionality and eventually declare the annulment of the law.

The only thing that a judge can do by itself in order to avoid an appeal for the intervention of the Constitutional Court is, while interpreting the national law, to do the utmost to save the constitutionality of the law, which means to find an interpretation which could be coherent with the European Convention of Human Rights. If this is not possible unless causing a breach in the system, the judge should ask to the Constitutional Court the annulment of the statutory law.

The Constitutional Court itself, prior to declare the unconstitutionality of the law, should try to offer an interpretation coherent with the Convention.

The outcome of this decisions is that the Constitutional Court will check the Convention respect of the rules of the Constitution. On the other hand, the rules of the Convention itself should be applied in light of the interpretation given by ECHR decisions.

As stressed by the Court itself, this is pretty different from what happens when a national rule breaks the European union law: after many years of debate between the Constitutional Court and the European Court of Justice, the outcome is that, in case a law violates the European Union law, a judge (both at Trial Courts level and at the Supreme Court level) can decide not to apply that law in the concrete case in order to save the respect of the European union law, which deserves a special position in the hierarchy of the sources of law and is able to produce direct effects on our legal system6.

Recently, the Constitutional Court passed two new decision in which it is stated that, depending on their content, the rules of the Convention find their acknowledgement not only in art. 117, paragraph 1, but also in art. 10, paragraph 1, of the Constitution: as a matter of fact, art. 117, paragraph 1, will be the basis of the acknowledgment in our legal order when referring to rules of the Convention which are new in the international landscape, while art. 10, paragraph 1, will be the basis when the rules of the Convention are only reproducing through their wordings a generally recognized principle of international law (i.e. prohibition of torture)7.

The framework resulting from the above mentioned decisions shows that the Convention rules cannot breach any of the rules of the Constitution. On the other hand, as the Convention still keeps its nature of international treaty, its rules cannot...

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