n. 15
July
2011


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Palomar is not a newspaper, it is updated without a fixed periodicity, exclusively on the basis of the available materials and news; it is not, therefore, an editorial project subject to the discipline of Art. 1, c. 3, Law n. 62 of March 7, 2001.
The Constitutional Court declares unconstitutional the article not providing for the reopening of domestic proceedings following a judgment of the ECtHR for violation of the right to fair trial. (Const. Court decision no. 113/2011)
The Italian Constitutional Court declares unconstitutional the provision on the Mayor's power to issue ordinances (Constitutional Court decision no. 115/2011)
The Constitutional Court, confirming its jurisprudence, declares unconstitutional a provision regulating the spoil system (Constitutional Court decision no. 124/2011)
The Italian Constitutional Court denies to Eurojust the nature of judicial body (Constitutional Court decision no. 136/2011)
Italian citizens approve four abrogative referendum on June 12 and 13, 2011







The Constitutional Court declares unconstitutional the article not providing for the reopening of domestic proceedings following a judgment of the ECtHR for violation of the right to fair trial. (Const. Court decision no. 113/2011)

The Dorigo case might eventually come to an end after the recent decision issued by the Constitutional Court on the possibility to re-opening a criminal trial following a judgment of the European Court of Human Rights (hereinafter, ECtHR) finding a violation of art. 6 of the European Convention on Human Rights (Right to a fair trial), hereinafter ECHR.
As a matter of fact, with decision no. 113/2011 issued on April 4, 2011, the Constitutional Judges found article 630 of the Italian Criminal Procedure Code (c.p.p.) unconstitutional because it does not include an obligation of compliance with a sentence issued by the ECtHR among the hypothesis of reopening a trial.
The case finds its roots in the long judicial affair concerning Mr. Dorigo (See Palomar Italy no. 3), but it is also deeply linked to a broader issue, i.e. the matter of the execution of ECtHR decisions in the Italian legal system.
In fact, article 46 ECHR (Binding force and execution of judgments) states that «The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties».
The main avenue for implementing a decision of the ECtHR should be the so-called restitutio in integrum, the just satisfaction established by art. 41 playing a residual role and being applicable only when the domestic legal system does not permit a complete reparation. However, in case of judgments against Italy for violation of art. 6, the just satisfaction has been the only way of execution for a long time, because the restitutio in integrum would have implied the reopening of a trial and the re-examination of a final judgment (res iudicata), which, according to art. 630 c.p.p., is exclusively allowed in Italy in case of new findings of fact previously unknown.
The problem of an insufficient reparation provided through the just satisfaction, in case of judgment against a Member State for violation of the right to a fair trial has been addressed both by the ECtHR and the Committee of Ministers of the Council of Europe. The latter, in its Recommendation no. R(2000) 2 urged the States to take active and timely action to address this issue, underlining the following: «Although the Convention contains no provision imposing an obligation on Contracting Parties to provide in their national law for the re-examination or reopening of proceedings, the existence of such possibilities have, in special circumstances, proven to be important, and indeed in some cases the only, means to achieve restitutio in integrum».
While the legal systems of many European countries already provided for the possibility to reopen a trial, others have adapted their legal systems as a consequence of this exhortation, either through normative or judicial action. Italy though, despite many propositions of law on the matter, has not yet foreseen an hypothesis of reopening of a criminal trial following a judgment of the ECtHR.
The case generating the decision in comment is a leading case because its judicial path has been marking the steps in the Italian jurisprudence towards the execution of ECtHR sentences on article 6.
Mr. Dorigo was convicted by the Court of Udine to thirteen years imprisonment for taking part in the Aviano base attack, on the basis of the accusations made by three co-defendants, without the possibility to conduct before the judge a cross-examination of the persons making accusations, as required by art. 6 ECHR.
After the sentence became res iudicata, Mr. Dorigo filed an appeal to the European Commission of Human Rights for violation of the right to a fair trial. In 1998 the European Commission stated that the Italian authorities had violated art. 6 ECHR, and the Committee of Ministers adopted the Commission’s statement in its decision of 1999 (such decision, before the entry into force of Protocol no. 11, had the same binding force that a decision of the Court has today).
Following this judgment, the General Prosecutor at the Court of Udine requested the suspension of the execution of the sentence until the evaluation of its legitimacy, in light of the European judgment. In 2007, the Court of Cassation, with decision no. 2800, declared the order of imprisonment invalid and thus ordered the liberation of the convicted, stating the following principle: «the judge of the execution must declare the unenforceability of the sentence if the ECtHR established that the conviction had been issued in violation of the right to fair trial established by art. 6 ECHR and that the convicted shall have the right to the reopening of the proceedings, even if the Legislator has not yet provided for the introduction of a proper possibility of re-examination».
In the meantime, Mr. Dorigo proposed a request of re-examination and, in that proceeding, filed a request to the judge to raise an issue of constitutionality for the lack of provisions allowing the reopening of a trial after a judgment of the ECtHR.
The Constitutional Court, with decision no. 129/2008 (See Palomar Italy no. 3), rejected the issue, although it urged the Legislative branch to adopt all necessary measures for giving execution to ECtHR decisions.
Before the Court of Appeal, another issue of constitutionality was raised, for violation of art. 117 Const. and of art. 46 ECHR, this latter as an “interposed” parameter referred to by art. 117 Const (on the “quasi-constitutional” status of the ECHR in the Italian constitutional jurisprudence, see Palomar Italy no. 14).
This time the Constitutional Court went farer than it previously did and, instead of making an exhortation, issued an “additive” decision, declaring art. 630 cpp unconstitutional for not providing a possibility of reopening of the criminal proceeding «when it is necessary, under art. 46 cl. 1 ECHR, in order to enforce a final decision issued by the ECtHR». (Anna Maria Lecis)


The Italian Constitutional Court declares unconstitutional the provision on the Mayor's power to issue ordinances (Constitutional Court decision no. 115/2011)

On April 4, 2011 the Italian Constitutional Court, with decision no. 115/2011, addressed the issues of constitutionality raised by the Veneto Regional Administrative Tribunal (TAR) against article 54 of Legislative Decree no. 267/2000 (
«Consolidated Law on the Local Authorities» also known as TUEL) as modified by article 6 of Decree Law no. 92/2008 («Urgent provisions for the public safety») as converted and modified by Law no. 125/2008.
The challenged rule provides that «the mayor, in its functions as Governmental officer, may issue ordinances, also with temporary and urgent character, in accordance with the general principles of the Italian legal system, in order to prevent and face serious threats to public safety and urban security».
The Constitutional Court found unconstitutional the use of the expression 
«also» before the words «temporary and urgent», because it authorizes the mayor, as Governmental officer, to adopt permanent normative measures, even outside of specific temporary and urgent cases.
The Court held that, through a literal interpretation of article 54 TUEL, the constitutional judgment regards ordinances other than those 
«temporary and urgent», and underlines that only the latter type of ordinances can derogate ordinary legislation, while the former cannot.
The Constitutional Court recalls the principle, established in previous decisions, that the administrative authority can derogate the ordinary law only by way of an ordinance whose effect is limited in time and in relation with a real danger. Conversely, in this case, the judgment does not concern temporary and urgent ordinances, but ordinary measures to protect public safety and urban security. Therefore, the Constitutional Court declared the unconstitutionality of article 54 TUEL for violation of article 23 of the Italian Constitution, because, in introducing this kind of ordinances affecting personal freedom and community freedom, the article violates the principle of the rule of law as it does not clearly define the limits of administrative discretion. On the basis of this motivation, the Constitutional Court declared also the violation of article 97 of the Italian Constitution providing that «the administrative functions must be carry out according to the provisions of law, in order to ensure the efficiency and impartiality of administration».
Finally, the Court held that the mayor's power does not have a valid legal basis and  violates article 3 cl. 1 of  the Italian Constitution because it creates an unequal treatment of persons.  (Marta Cerroni)


The Constitutional Court, confirming its jurisprudence, declares unconstitutional a provision regulating the spoil system (Constitutional Court decision no. 124/2011)

With decision no. 124, issued on April 4, 2011, the Italian Constitutional Court declared unconstitutional article 19.8 of Legislative Decree no. 165/2001. The provision established that it was possible to confirm, revoke, modify or renew the appointments of chief executive officers working within governmental agencies within ninety days since the vote on the motion of confidence to the new Government. The provision thus embodied the spoil system theory, according to which it is possible to revoke or change chief administrative officers when the Government changes, as those chief executive offices are strongly linked to the general policy of the government.
Even though the provision at issue had been modified by art. 40 of Legislative Decree no. 150/2009, the litigation was relevant as the challenged provision still had to be applied to all the cases arose between March 2001 and October 2009.
The Court stated the provision was unconstitutional as it violated art. 97 of the Italian Constitution, which establishes the principles of impartiality and efficiency of the Public Administration.
The decision does not represent an innovation as it follows the line drawn by the previous jurisprudence of the Constitutional Court. As a matter of fact, the Court itself mentioned some of its previous decisions in the motivation.
First of all, the Court said that the spoil system is unconstitutional when it is linked to directive offices that simply carry out the general policy of the government through their administrative functions (decisions no. 224/2010, no. 34/2010, no. 390/2008, no. 351/2008, no. 104/2007, no. 103/2007). Conversely, the spoil system is consistent with the principles and provisions of the Italian Constitution when it is applied with regard to chief executive officers that cooperate with the Government in the developing of the administrative general policy (decisions no. 304/2010 and no. 233/2006).
The Constitutional Court also recalled its decisions no. 81/2010 and no. 161/2008, where it declared unconstitutional a spoil system mechanism very similar to the one designed by art. 19.8, Legislative Decree no. 165/2001, except for the fact that the former was temporary (and had to be enforced only once - una tantum), while the one at issue in this case was supposed to be permanent, in full-swing. (Elena Sorda)


The Italian Constitutional Court denies to Eurojust the nature of judicial body (Constitutional Court decision no. 136/2011)

In its decision no. 136/2011 of April 6, 2011, the Constitutional Court dismissed the challenge to the constitutionality of Article 2, parr. 1 and 2, of Law no. 41/2005, implementing Decision no. 2002/187/JHA and providing the appointment of the Italian member of Eurojust by the Minister of Justice, with reference to Articles 105 and 110 of the Constitution: pursuant to the principle of separation of powers, these constitutional provisions assign the adoption of measures affecting the position of judges to the self-governing body of the judiciary and the decisions on the organization and functioning of the services related to justice to the Executive.
Thus the Constitutional Court, according to Article 23 of Law no.87/1953, was requested by the Latium Administrative Tribunal, to decide upon the legal nature - whether purely administrative or judicial - of Eurojust, the European body set up by the Council Decision of February 28, 2002, 2002/187/JHA originally aimed at coordinating the activity of criminal judges of the Member States for the prevention and the fight against transnational crimes within the European Union.
The case-law originated from a suit brought before the Latium Administrative Tribunal by an Italian judge, Ms. Carmen Manfredda, former candidate to the role of Italian member of Eurojust, but eventually excluded by the decree issued by the Italian Minister of Justice, who finally appointed Mr. Lo Voi to that office. Then, Ms. Manfredda challenged the validity of Article 2, par. 1 establishing the requirements that national judges need to fulfil in order to be appointed by the Minister of Justice as national member of Eurojust. Particularly, it provides for the status of national judge and, in case of appointment, the suspension of the performance of this activity at the State level. She also challenged the validity of Article 2, par. 2 regulating the procedure of appointment. This procedure relies upon the decision of the Minister of Justice on the basis of a list of candidates defined by the same Minister and on which the Italian High Council of Judiciary (Consiglio Superiore della Magistratura, CSM, the Italian self-governing body of the judiciary) is consulted.
However, as mentioned in the foregoing, according to Ms. Manfredda and the Latium Administrative Tribunal, these provisions violated Article 105 Const., which gives the High Council of the Judiciary – not the Minister of Justice – «jurisdiction for employments, assignments and transfers (…) of judges», in order to protect the independence of the judiciary, and also violates Article 110 Const., which limits the competence of that Minister only to «the organisation and functioning of those services involved with justice».
The Constitutional Court did not deemed these arguments constitutionally founded. The reasoning of the Court, in fact, is based on the administrative nature of Eurojust, that does justify the involvement of the Minister of Justice.
By the same token, according to the Court, Eurojust plays an instrumental role vis-à-vis national judges, promoting their coordination, but it is devoid of any judging function. Indeed, Eurojust is enabled to: a) request the adoption of certain measures to national judges in the Member States, but it does not have binding powers; b) assist national authorities in collecting information about investigations; c) support the carrying out of criminal investigations, in a limited range of cases, in one Member State only (while its action is usually requested for crimes having transnational implications); d) access information contained in national criminal registers.
Neither the Italian member of Eurojust can be considered as performing judicial function: Decision no. 2002/187/JHA, according to the Court, allows Member States to define the nature and the extent of the «judicial powers» conferred to their members within Eurojust. Due to this discretionary decision of national authorities – with regard to the an and the quantum of powers assigned -, Law no. 41/2005 has legitimately opted not to grant this kind of powers altogether.
Finally, it is remarkable that the decision of the Constitutional Court completely disregarded both Council Decision no. 2009/426/JHA, still awaiting transposition in Italy at that time (Decision no. 136/2011 of the Constitutional Court was issued on April 15, 2011 while the deadline for the implementation of the decision was fixed on June 4, 2011), and Article 85, par. 1 TFEU, that strongly strengthens the judicial functions of Eurojust. For instance, Decision no. 2009/426/JHA acknowledges the power of Eurojust to initiate criminal investigations and prosecutions, as well as to resolve conflicts of jurisdiction between judges in different Member States. The Constitutional Court has explicitly claimed that these legal basis fall outside the thema decidendum, in spite of the jurisprudence of the European Court of Justice (see the Decision of the ECJ C-105/03 of June 16, 2005, Pupino) affirming the enforcement of the obligation of consistent interpretation also for acts falling within the former “Third Pillar”, like Decision no. 2009/426/JHA, which is not self-executing. (Cristina Fasone)


Italian citizens approve four abrogative referendum on June 12 and 13, 2011

On June 12 and 13, 2011 the Italian electors approved four different referendum petitions addressing the abrogation of as many legislative provisions concerning private management of water supply, profits of water supply, production of nuclear energy and the so-called “legitimate impediment”.
Particularly, this fourth referendum petition proposed the repeal of those statutory provision dispensing the President of the Council of Ministers from appearing in criminal court (Law no. 51/2010) every time that s/he would invoke a “legitimate impediment,” that is, a conflicting activity to be attended to, connected with the duties of the institutional role. However, the most problematic profiles of Law no. 51/2010 had already been repealed by the Constitutional Court by way of interpretation with decision no. 23/2010, issued on January 13, 2011, determining an interpretation of these provisions consistent with the Italian Constitution (see Palomar Italy no. 13).
According to the Italian Constitution, a popular referendum may be held to repeal, in whole or in part, a provision having the force of law when it is requested by five hundred thousand electors or five regional legislative assemblies (article 75, cl. 1). However, “no referendum may be held on a law regulating taxes, the budget, amnesty or pardon, or a law ratifying an international treaty” (article 75, cl. 2).
The Constitutional Court supervises the respect of these constitutional limits and can declare admissible only those referendum proposals concerning matters not related to those laws referred to under art. 75, cl. 2. Furthermore, the jurisprudence of the Court established that the referendum petitions must be homogeneous, clear and plain, complete, coherent, appropriate to reach their scope, and compatible with the abrogative nature of the referendum itself.
The central electoral office of the Court of Cassation, instead, ensures the compliance with the procedure established by Law no. 352/1970.
In this case, the Constitutional Court, with Decisions nos. 24, 25, 26, 27, 28, 29/2011, declared admissible all four abrogative referendum (see Palomar Italy no. 14). However, the referendum concerning the production of nuclear energy was about to be cancelled after the Parliament amended the provisions targeted by it. As a matter of fact, on April 20, the Parliament approved a law by which all provisions concerning the production of nuclear energy and the building of nuclear power plants in Italy were temporarily suspended. The Court of Cassation, however, declared that the new law had not completely excluded a possible, future establishment of nuclear plants and thus reformulated the petition in order to allow the referendum to be held.
Concerning the results of the referendum, the Constitution requires a necessary minimum turnout in order for the referendum to be validly held (quorum). Particularly, it specifies that «the referendum shall be considered to have been validly carried out, if the majority of those eligible has voted and a majority of valid votes has been reached» (article 75, c. 4). In this case, the petitions obtained a majority of 94%, with a turnout of 27,622,369 voters (approximately 57% of electors). Therefore, the petitions met the minimum turnout necessary to obtain the quorum and the provisions targeted by the proposals are now therefore repealed. (Renato Ibrido)