n. 3
July
2008


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Palomar non rappresenta una testata giornalistica, viene aggiornato senza alcuna periodicità, esclusivamente sulla base della disponibilità del materiale e delle news ; non è, pertanto, un prodotto editoriale sottoposto alla disciplina di cui all'art. 1, c. 3, l. n. 62 del 7 marzo 2001 .
The Constitutional Court’s judgment in the Dorigo affaire (decision n. 129/2008): the hoary problem of renewing proceedings after a condemnation of The Court of Strasbourg
The Italian Constitutional Court declares unconstitutional a law-decree for lack of the requirements of necessity and urgency required by the Constitution
Precautionary custody abroad and implementation of the European Arrest Warrant





The Constitutional Court’s judgment in the Dorigo affaire (decision n. 129/2008): the hoary problem of renewing proceedings after a condemnation of The Court of Strasbourg

On April 30, 2008, the Italian Constitutional Court published its judgement n. 129 in a pivotal case dealing with an incompatibility between the ECHR and the Italian legal system.
The decision deals with one of the major cases ECtHR has ever faced: the need to renew a trial after the ECtHR found Italy in violation of art. 6, cl. 1 and 6, cl. 3d of the Convention.
In 1998 the European Commission of Human Right (which will eventually yield most of its competences to the ECtHR) found Italy in violation of art. 6 (right to a fair trial) of the ECHR, with regard to an order of detention issued as a consequence of a conviction occurred in an Italian trial. The Human Rights Institutions found that the conviction was issued on the basis of evidence admitted in violation of the principle of fair trial and without cross-examination. The opinion was issued in response of Mr. Dorigo’s claim, convicted of terrorism on the basis of testimony not confirmed during the Italian trial. After the opinion was handed down, problems arose out of its enforcement in the domestic legal system, given that the Italian Code of Criminal Procedure lacks any provision allowing for the rehearing of a case after an infringement of Art. 6 of the ECHR has been ascertained. This gap had been repeatedly pointed out by the European institutions and qualified as a violation of art. 46 ECHR. Significantly enough, Italy and Turkey, among all the signatories to the ECHR, are the only two countries which have not yet harmonized their legal systems with regard to the obligation to renew proceedings, and that are currently under screening by the Committee of Ministers for this reason.
While waiting for the Italian Parliament to amend the Code of Criminal Procedure accordingly, both the Italian Court of Cassation and the Italian Constitutional Court got involved in the Dorigo case.
Indeed, after issuance of the opinion, Mr. Dorigo applied to the Italian judge of the execution for a declaration of invalidity of the title of detention. Facing the judge’s denial, Mr. Dorigo appealed to the Court of Cassation. The decision issued by the Italian Supreme Court represents a major contribution to the definition of Italy’s obligations towards the system established by the ECHR. Reversing the decision issued by the judge of the execution, the Italian Court of Cassation stated the possibility for a judge to enforce a decision by the ECtHR declaring that a conviction was issued on the basis of an unfair proceeding, even when the legislator had omitted to introduce a mechanism for rehearing a case. Moreover, according to the Court of Cassation, the Italian attitude could indeed be considered in violation of art. 46 of the ECHR.
The Court of Appeal in Bologna was then asked by Mr. Dorigo to review the trial on the basis of the Supreme Court’s judgment. The Court of Appeal decided to apply to the Italian Constitutional Court, in order to ascertain the consistency of the current text of Art. 630, cl. 1a of the Italian Code of Criminal Procedure with the Italian Constitution and the ECHR. Indeed, in the opinion of the Court of Appeal, the gap in the Code of Criminal Procedure was in conflict with Art. 3 (principle of equality), art. 10 (compliance with the international customary law) and art. 27 (equity of penalty) of the Constitution.
The Constitutional Court in the decision n. 129/2008 has eventually declared unfounded all the questions of constitutionality, stating that the constitutional parameters invoked were erroneous and that the incompatibility between the obligation to renew trials in order to enforce a decision of the ECtHR and the lack of instruments in the Italian system had to be resolved by the legislator, and not by the judiciary.
The Constitutional Court could indeed have adopted a decision providing for the addition to the Code of Criminal Procedure of such a provision. However, in one rare example of judicial self-restraint, the Court preferred to stress to the legislator the important of such a reform. This was probably due to two main factors: the wide discretion in choosing the best mechanism for renewal of a trial and the willingness to call  underline responsibility to the Parliament.
As regards the first reason, the wide range of remedies available for enforcement of a decision by the ECtHR and the need to provide for several procedural rules has suggested the Court to recommend a legislative action. Indeed, only a legislative reform, could strike a correct balance between the need to ensure jurisdictional remedies for miscarriages of justice and the need to preserve legal certainty.
From the political point of view, the strong calling for legislative action expressed in Court’s judgment is justified in light of the need to stimulate the Parliament to accomplish its duties before the European institutions, approving a mostly needed reform of the Code of Criminal Procedure. (Serena Sileoni)



The Italian Constitutional Court declares unconstitutional a law-decree for lack of the requirements of necessity and urgency required by the Constitution

In the decision n. 128/2008 issued on April 30, 2008, the Italian Constitutional Court has declared unconstitutional Art. 18, clauses 2, 3, and Art. 2, clauses 105, 106 of the law-decree n. 262/2006 (“Urgent Provisions on taxation and finance”). The provisions, providing for the dispossession of a famous theatre (Teatro Petruzzelli of Bari, Italy), were challenged on the ground of the existence of the mandatory requirements of necessity and urgency as stated in Art. art. 77 of the Italian Constitution for a delegation of the legislative function to the Government and issuance of a law-decree.
The judgement of the Court comes just after few months from another major decision on topic issued by the Constitutional Court (decision n. 171/2007), where the Court – for the first time – had declared unconstitutional a law-decree for lack of the conditions of necessity and urgency. In that occasion the Court, while declaring the unconstitutionality of a law-decree (converted into law with some modifications) for lack of the two constitutional requirements mentioned in the foregoing, stated that the prolonged existence of a factual situation characterized by necessity and urgency to provide through the use of an exceptional instrument (the law-decree), it was a necessary requirement for the constitutional validity of process leading to the adoption of that act.
The decision n. 171/2007 also stated that the assessment of the constitutionality of the law-decree “must take place on a different level”, and take into account also its power and attitude to effectively legislate, in which “the political assessments could be prevailing”. The Court, moreover, went further: it also added that “the absence of the conditions provided for the constitutionality of the law-decree must be clear” and that the lack of these conditions, if the law-degree is eventually converted in to law, becomes a defect in procedendo of the converting law which, by its own nature, excludes any possibility to save the law.
Along the years, the evolution of the constitutional jurisprudence on the law-decree has been complex and articulated. Many conflicting decisions have been issued, sometimes denying, some others admitting, the possibility for the Constitutional Court to verify the presence of the mandatory requirements listed in art. 77 Const. even after its conversion into law (decisions nn. 419/2000, 376/2001, 16/2002, 29/2002).
However, despite the Court tried to single out some of the paths of this decisions, it seems that no one would have reached the annulment of a decree for lack of presumptions.
With decision n. 171/2007, and even more with the decision n. 128/2008, the Italian Constitutional Court seem to have overcome its own reluctance. (Chiara Meoli)



Precautionary custody abroad and implementation of the European Arrest Warrant

In the decision n. 143/2008 issued on May 16, 2008, the Italian Constitutional Court has declared unconstitutional Art. 33 of the law n. 69/2005 (“Provisions to implement into domestic law the Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and procedures between Member States”), in the part where it does not provide that the custody abroad, in application of the European arrest warrant, must be taken into account in determining the terms which are indicated in art. 303, cl. 1, 2 and 3 of the Code of Criminal Procedure.
Art. 33 of law n. 69/2005 provides that the period of custody abroad (as a consequence of the application of the European arrest warrant) is taken into account only to the effects of art. 303, cl. 4 and artt. 304 and 657 of the Code of Criminal Procedure, and therefore is excluded any relevance of that period of detention with regard to the maximum terms indicated in art. 303, cl. 1, 2 and 3 of the Code of Criminal Procedure.
Since the equivalence between custody abroad and pre-trial detention in Italy had been established with regard to expulsion, according to the Court it must operate with regard to an instrument (the European Arrest Warrant), which is based on the principle of mutual and immediate recognition of judicial measures. Indeed, this mechanism, by way of difference with the expulsion, does not include any intergovernmental relationship. At the opposite, it is based on direct relations between various courts of the Member States. It also provides for the introduction of a new simplified system of delivery of persons convicted or suspected.
In light of all the foregoing, it is even less acceptable, on a constitutional level, the resulting difference in the guarantees related to the length of detention, determined by the place – inside or outside the State – where the detention itself has started.
Indeed, given that arrest and detention share one common basis of legitimacy, and that the procedure for delivery is not based on States’ relations but, by way of difference, on relation between judicial authorities, it is even more compelling that the length of the administrative detention  and the one of the remand in custody will be disciplined by a single common basis, so as to attract the "time of delivery" within the "time of trial".
The condition of the recipient of a restrictive measure, in application of a European arrest warrant, cannot be characterized by a lower level of guarantees than those granted to the recipient of a precautionary measure in Italy or the person who will face expulsion. Many reason are given for justifying a different and less favourable treatment to the subject in question. (Chiara Meoli)