A. Marini

Judge of the
Constitutional Court of Italy

Constitutional Court of Italy and Human Rights Protection

1. Judicial review of the constitutional legitimacy of state and regional laws, and enactments having the force of law, makes up the principal, and quantitatively the most important, function of the Italian Constitutional Court (art. 134 of the Constitution).

It is said, therefore, that the Constitutional Court is the "judge of the laws'', in the sense, precisely, that it is called upon to judge the conformity of ordinary State and Regional laws with constitutional norms, rather than to apply the law to concrete facts. Should this review turn out negative, meaning that the Court should find a discrepancy between the constitutional norm and the ordinary law, the law is declared constitutionally illegitimate, and, as a consequence, it is immediately voided.

In choosing the legitimate actors to initiate constitutional review, the Italian Founding Fathers opted for a review that was incidental to the judgment of the case itself. The question of a law's constitutionality is raised -officially, or on the petition of a party -by a judge in the course of a trial, whenever he holds that the question of the norm's constitutional illegitimacy is not manifestly unfounded, and that the question is itself relevant, and thus that its resolution is indispensable to the decision that he will have to make.

If, therefore, we speak of human rights protection as immediate and direct protection, we must say that such is not the work of the Constitutional Court. The Italian legal order assigns this task to the common judge, whose independence from the executive power is guaranteed by the Constitution.

The Constitution does not provide the possibility that an individual rights-bearer might petition the Constitutional Court directly, after having exhausted the ordinary remedies, as happens in the legal orders that recognize individual constitutional petitions (Veifassungsbeschwerde; amparo). The concrete protection of individual rights unfolds and exhausts itself before the common judge, and then passes through two levels of appeal, to which may be added -for the proceedings falling within the competence of the ordinary or military judge -a hearing before the Court of Cassation for violation of legal norms.

Once the remedies before the common judge have been exhausted, the citizen can only petition the European Court of Human Rights in Strasbourg, on the basis of the European Convention for the Protection of Human Rights and Fundamental Liberties of 1950, to which Italy has adhered since the beginning, and the 1998 Added Protocol n. 11 to this Convention, which provides for direct recourse to the Court by a person who alleges a violation of a Convention right. The possible condemnation of a State by the Strasbourg Court cannot always remedy the violation suffered by the individual, because of situations of fact which cannot be changed or final judicial decisions which cannot be revisited. The citizen may win monetary reparations to be paid by the State.

On this subject, I call your attention to the fact that Italy -in the face of thousands of petitions to the Court of Strasbourg in which the violation of the right to a hearing within a reasonable time was alleged, a right guaranteed by Art. 6, paragraph 1 of the European Convention (and now by Article 11 of the Italian Constitution), and numerous condemnations, which verified the existence of an endemic delay of the domestic legal procedures in our country -has introduced a new domestic law remedy, which an individual may make use of in order to obtain fair reparations for the viola1 at ion of this right (law n. 89 of 2001). The Strasbourg Court will not review a claim based on this right unless the domestic remedy has been exhausted.

The efficacy of the human rights ' protection in Italy depends first of all on the efficacy of the ordinary justice system. And, even before that, it depends on the possibility that the legal system enables individuals to pursue legal remedies in the face of acts or practices that violate such rights. On this point, the Italian Constitution provides a comprehensive guarantee: whenever an individual complains that a right is being violated or is in danger of violation, he ought to find a competent judge to hear his claim. If there is a substantial right, there must be a judge competent to know of it; protection gaps or "free trade zones" are not admissible. Indeed, Article 24 of the Constitution provides that "everyone may take legal action to protect individual rights and legitimate interests" (the "legitimate interests" are, in Italian legal terminology, those individual situations protected by norms that regulate government action); Article 113 declares that "the judicial protection of rights and legitimate interests against government violations, before ordinary or administrative judges, is always permitted," and that "such judicial protection may not be limited to particular kinds of appeal or to particular categories of acts."

In practice, the only gaps in protection regard the remedies for the non-legislative acts of organs- like the Parliament -which the jurisprudence does not recognize as administrative acts, and for which there is no possibility of legal recourse. But these are situations of quite dubious constitutional legitimacy. The Constitutional Court considers the principle of judicial protection, and therefore the "right to a judge'', to be one of the "supreme principles" of the constitutional order, which cannot be compromised even by constitutional amendment, because "the guarantee of a judge and a judgment, to everyone, always, for whatever controversy, is intimately connected with the very principle of democracy" (Decision n. 18 of 1982). If it were therefore to happen that the law did not expressly provide a remedy for the violation of a substantial right before an independent and impartial judge, the Constitutional Court, called upon by a judge, though not considered competent by the law, could review the constitutionality of the situation and affirm the possibility of petitioning existing judges, even though the legislature can always regulate or amend the competences (cfr. for example Decision n. 26 of 1999).

2. On the normative level, the Constitutional Court performs an important function of protection in the very delicate area of human rights, understood as those fundamental rights that modern consciousness increasingly recognizes to be an essential feature of human dignity .It is worth being reminded that such rights, in addition to constituting the object of international conventions, also signed by Italy, are expressed and guaranteed in the Constitution: here, not only the general recognition of the inviolable rights of man, contained in Art. 2 ("The Republic recognizes and guarantees the inviolable rights of man, as an individual, and in the social groups where he expresses his personality") comes into play, but also more importantly, the protection specifically accorded to the individual rights themselves: either classical civil rights, like religious liberty (articles 8 and 19), personal freedom (Art. 13), the inviolability of the home (Art. 14), freedom of correspondence (Art. 15), freedom of movement and residence (Art. 16), free assembly (Art.17), freedom of association (Art. 18), freedom of speech (Art. 21); or rights tied to "social and ethical relationships" (family, articles 29-31; health, Art. 32; school, articles 33-34); economic relations (right to work, right to economic freedom and property, articles 35-47); to political relations (active and passive electorate, access to public offices; articles 48-51).

Now it has to be taken into account that Italian judges -before whom, as we have seen, all individual rights may be protected, and whose independence from the executive power is guaranteed by the Constitution-manifest, in general, a significant sensitivity in the area of constitutionally protected rights.

The risk is therefore quite remote that a law, which might only be suspected of harming fundamental human rights, would not be immediately submitted to constitutional review, in the course of any concrete judgement in which that law must be applied cases: that can also be initiated precisely for this purpose, as long as the plaintiff has legally cognizable interest.

The catalogue of rights guaranteed by the Constitution mostly coincide with those contained in the Universal Declaration of Human Rights of 1948, the International Covenant for the protection of Civil and Political Rights of 1966, the European Convention for the protection of Human Rights and Fundamental Freedoms of 1950, and now the Nice Charter of Rights of the European Union of 2001.

The Court, when it is judging the laws, uses only the constitutional dispositions as its parameter: the international conventions, made executive in Italy by ordinary laws, have not yet been considered as sources of law standing above legislative acts, prevailing upon ordinary laws (even though on one occasion the Constitutional Court affirmed that international rights norms occupy a separate position within the legal order, because they derive from a "source that traces back to an atypical competence'', and they are not susceptible of being amended or modified by an ordinary law: Decision n. 10 of 1993; and even though it is possible that the Court might one day return to the issue). Often, the judges, raising questions of the constitutionality of domestic laws, invoke these international norms alongside the Constitution: and the Court generally takes the content of these norms into account in its reasoning.

The system of the incidental review of laws makes it such that the Court is called upon, not only to compare a law's abstract terms with constitutional provisions, but also to judge the conformity of constitutional principles with various legal situations that derive from the application of the laws to concrete cases. It follows that the Court is often induced to interpret the laws, and likewise to confront factual situations that are not expressly covered by the provision of the laws, or pose particular problems. Turning to the interpretation of laws, the Court does not only proceed autonomously, even detaching itself from the conclusions reached by the judge raising the constitutional question; but it has always affirmed the duty -of everyone, therefore judges too -to construe the laws as consistent with the constitution, rejecting those interpretations that lead to unconstitutional consequences. In this way, the Court's jurisprudence approaches the jurisprudence of common judges, so as to give effective application to the rights protected by the Constitution. In the same way, in the case of real or apparent "lacuna" in the laws, the Court avails itself, or exhorts the judges to avail themselves, of constitutional principles, in order to arrive at constitutionally valid resolutions of concrete cases.

In the face of laws that are constitutionally defective, the Court does not have to choose just between striking down or upholding the law in toto. The Court often adopts interpretative or "manipulative'' judgments, which adjust the law's scope to the minimum requirements of constitutionality.

The Court has often proceeded in this way in reviewing laws, including penal laws, from the period prior to the Constitution, that were inspired by principles conflicting with constitutional principles, and that were left on the books, by interpreting them restrictively, or eliminating some of their individual provisions, thereby tailoring their contents to the Constitution.

3. Still, the most interesting insights on the topic of human rights protection are drawn less from our legal system's model of judicial review, than from an analysis of the Court's jurisprudence.

The Court's jurisprudence seems to be inspired on the whole by a generally extensive, protectionist approach to the constitution' s fundamental rights provisions. This can be seen in many areas (from freedom of speech to personal freedom, from the inviolability of the house, to freedom of communications), having recently become quite evident in the area of defendants, rights in the new criminal trial.

The same has happened in the area of social rights (like the right to social security, the right to health or the right to education), in relation to which the Court, mainly through its review of the law's reasonableness, has invoked the principle of formal and substantial equality. In the area of social rights, the Court has faced the very grave problem of the consequences of burdening the public finance, that can follow from recognizing a broader right than that embodied in the governing law, itself accused of unconstitutionality for its violation of the principle of equality. In several cases the Court did not hesitate from making immediately operative decisions, which were criticized for burdening the public budget: though recognizing the legislature's possibility to intervene in order to attenuate such effects, above all with respect to the past, through an appropriate adaptation of the social security rights derived from the Court's decisions.

It must likewise be mentioned that often the wider consideration of the interests and values underlying the constitutional area is not extraneous to the constitutional review of individual laws.

This is catrried out on the one hand by the determination of the essential content of the constitutional rights, on the other hand by the determination of new rights. The Constitutional Court finally recognized the appeal to principles, and went so far as to determine a core of supreme, inviolable principles, which even constitutional amendments cannot modify; at the same time, it has drawn from such liberty norms some "new rights", not expressly provided by, but implicitly deducible from, the Constitution. Limiting ourselves to the most noted cases, one can mention the right to privacy, the right to personal and sexual identity, the right to the life of relation, environmental rights, or the right to information.

It is also worth adding that the Constitutional Court has, in recent years, practically disposed of all the pending questions, so that the judgment has its effect pretty rapidly. It is clear that the citizen senses in the quickness of the constitutional decision a greater protection, without considering the possibility that this may positively influence the judicial system as a whole.

4.Especially in recent years, many academics and politicians have advanced proposals for direct recourse to the Constitutional Court, by individuals or groups, like that provided by other legal systems, for the protection of fundamental rights.

The arguments put forward in favour of such proposals underscore the possibility of offering citizens a "residual" remedy, before a body like the Court, that is charged precisely with safeguarding constitutional principles, for all claims in which the violation of rights cannot be traced back to provisions of ordinary law (in which case the mechanism of the "incidental" review provides a sufficient remedy), but to the concrete functioning of administrative and judicial apparatuses, or to the interpretations and implementations of law, coming precisely from the judicial branch, that departs from those principles; or for claims in which the violation comes from organizational malfunctioning of public apparatuses or improper action of public officials, more than from particular legal acts or judicial decisions.

The experience in countries like Germany and Spain, which have long recognized this remedy, demonstrate that the number of petitions that turn out to be admissible and well-founded is generally few: but this does not exclude that it might be important to provide a remedy even in those few situations, also because the very possibility of the petition is a factor able to guide the whole administrative, judicial and legal system towards being concretely more responsive to the needs of protecting human rights.

It must however be said that there are many who fear that the provision of the possibility of direct access to the Constitutional Court may have an effect actually opposite to the desired one, rendering the Court's operation less prompt and therefore less effective, for the lengthening the time it takes to get a decision that could result from a great number of direct petitions lacking foundation, and not passed through any filter. Some people observe that this risk might not be avoided by the introduction of forms of preliminary evaluation regarding the manifestly unfounded nature of the petition, insofar as the relative evaluation would always follow a judgment that, however summary, could significantly burden the work of the Court.