Dialogue II: Open and Closed Forms of Constitutional Adjudication

Openness and Transparency in Constitutional Adjudication: Amici Curiae, Third-Party Intervention, and Fact-Finding Powers


Tania Groppi and Anna Maria Lecis Cocco Ortu *

SUMMARY: 4.1. The legislative and autonomous framework. - 4.2. Third-parties and amici curiae', case-law and scholarly debate. - 4.2.1. The established case-law on third-party interventions. - 4.2.2. The scholarly debate on amici curiae briefs.

- 4.3. Case law and scholarly debate on fact-finding. - 4.4. Conclusion. - 4.5.

Post scriptum'. “The Court Opens to Hearing the Voice of Civil Society”.

During the constitutional review of legislation, factual information (especially on “legislative facts”) is not irrelevant. It is normally gathered by courts by relying both on amici curiae and on third-party briefs, or by using their evidence-gathering powers.

Notwithstanding the growing importance of the topic, the taxonomies concerning the different constitutional justice systems fail to consider this aspect of constitutional review. Neither the openness (or closure) to third-parties and amici curiae nor the way courts use their fact-finding powers are taken into account by comparative constitutional scholars.

Despite this gap in the literature, we would like to suggest that this is an important feature of constitutional justice, strongly influencing its relational approach. Far from being confined to the realm of experts of constitutional proceedings, it can contribute to better understanding the relational attitude of a court, bringing to light its relations with the surrounding environment and especially with experts, civil society and public opinion.

Furthermore, these also exert a significant influence on the Court’s judgments, since openness leads normally to a more transparent and developed reasoning, which, in turn, can enhance the legitimacy of the court.

In Italy, amicus curiae briefs are not taken into consideration. Nonethe-

This chapter is the result of a joint work of both authors. Nonetheless, in the drafting, Tania Groppi wrote the introduction and the fourth section, Anna Maria Lecis Cocco Ortu wrote the second and third sections, while the final section was written by both authors.

less, experts and civil society can give their contribution as “friends of the Court” through third-party intervention or fact-finding power. Through the first channel, a person can voluntarily address its observations to the Court, which will decide on their admissibility; if admitted, the individual becomes party to the process. Through the second channel, experts can be consulted by the Court through the exercise of its fact-finding powers; this method recalls the original notion of the amicus curiae.

We will analyse the mechanisms of third-party intervention and fact-finding powers in order to understand if, and to what extent, the Court uses them to open its proceeding to external contributions and thus implement its relational approach. We will focus only on the incidental system of judicial review (or incidenter judicial review), considering it as the core of the Italian system of constitutional justice.

This chapter is divided into three sections. In the first section, we will present the legislative and autonomous framework on third-party interventions and fact-finding powers. In the following two sections, we will examine the case law and the scholarly debate on, respectively, third-party interventions and fact-finding powers.

We conclude that the Constitutional Court’s approach to third-party intervention and to the fact-finding powers is highly “flexible”, with the Court normally preferring to use informal channels to gather information. Finally, we will present some critical remarks asking the Court to re-think its attitude - to reinforce the “relational approach” that characterizes many aspects of its activity1 - by entering into an open and formal dialogue with interest groups and experts.

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