The direct complaint within constitutional literature. A rarefied yet not a sterile debate

Since the adoption of the republican Constitution, there have been sporadic debates between Italian scholars concerning the issue of direct complaint. The brief periods during which authors have contributed to the debate in large numbers have been followed by extended periods of silence, in which the issue has been entirely ignored. So, the direction of the debate has been compared to that of an underground river, which disappears for long stretches, re-emerging only to disappear once again shortly afterwards.

The principal periods during which the river has re-surfaced have coincided in temporal terms with the proposed constitutional amendments that have called for the introduction of new forms of access to the ItCC.[1] In particular, at the end of 1965, a group of scholars discussed the possibility of direct complaints during a seminar held to mark the tenth anniversary of the establishment of the ItCC. The seminar was parallel to the tabling of a first constitutional bill sponsored by the Deputy Francesco Cossiga (the future President of the Republic). In 1989 another constitutional bill was tabled and, in response, the ItCC itself organised a seminar to study the issue. In 1997, the issue was broached once again in Ferrara during commemorations to mark the two hundredth anniversary of the creation of the first chair of constitutional law in Europe. At the same time, the 'bicameral commission’, which had been established to present a project for far-sweeping constitutional reform, introduced the possibility of direct complaints into the project. This was followed by a number of academic initiatives, in addition to various sporadic individual articles on the issue.

The scholarly debate has not only been discontinuous but may also appear to be substantially sterile, given that the proposals for constitutional amendment have never been acted upon.[2] However, a closer consideration reveals that the debate has in fact brought some results.

Over the last thirty years, discussion within the literature has aimed to advise constitutional lawmakers to be cautious. Scholars have pointed politicians (whenever this was necessary) to the the costs of introducing a mechanism for direct complaints, which they argue would exceed the benefits.

Moreover, when pointing to the shortcomings of the system of incidental constitutional review (which the possibility of direct complaints could eliminate), the literature has often simultaneously suggested ways in which these shortcomings could be remedied through case law, even in the absence of a mechanism for direct review. From this point of view, it is significant that the very same contrivance used in 2014 in order to review the constitutionality of electoral legislation (discussed above) had been proposed sixty years before by the far-sighted Italian scholar, Mauro Cappelletti, in his famous book entitled La giurisdizione costituzionale delle lihertd.

In a nutshell, only three authors - Cappelletti, Paladin and Mezza-notte - asserted that the lack of a mechanism for direct complaints in Italy negatively impacts the very nature of the ItCC, by preventing it from being classified as a court charged with the task of defending human rights and classifies it, instead, only as a “judge of the law”. All of these opinions were adopted independently of any political proposals to reform the procedure, at times when the issue was not being widely discussed.

The first of these arguments was put forward by Mauro Cappelletti, precisely in La giurisdizione costituzionale delle libertd. He complained that Italy had not made provision for any “way” to effectively invoke fundamental human rights that was “differentiated” and “reinforced” compared to ordinary judicial instruments. Consequently, the ItCC could not be said to be a “constitutional court of freedoms” in a strict sense (a ‘giurisdizione costituzionale delle lihertd’, as Cappelletti said[3]). On the other hand, according to the author, the mechanism of direct constitutional complaint recognised within other legal systems is not only an instrument that is capable of giving effect to fundamental rights but is, above all, “an effective instrument for ensuring a balance between branches of state”. It thus represents the “capstone of the rule of law”.

The second argument was presented by Livio Paladin, an important constitutional scholar and ItCC judge who also served as its President. Paladin revisited Cappelletti’s argument a number of years later in order to reiterate the point that, within the Italian system, “it cannot be asserted that there is a ‘giurisdizione costituzionale delle lihertd’ in the technical sense of the term; and this is not because the ItCC does not provide any guarantees in this area, but because the guarantee is indirect or - better put - is implemented insofar as is made possible by the achievement of other purposes”.50 According to the author, the lack of any Verfassungsbeschwerde and amparo in Italy has resulted in “noticeable” and “negative” consequences for Italian constitutional case law. In particular, the ItCC has taken on the status of “a court charged with reviewing the reasonableness of legislative choices” more than with protecting fundamental human rights. It has, in fact, very often been the case that proceedings concerning the constitutionality of legislation, which have arisen on an incidental basis, “have been conducted and concluded with reference to a highly peculiar principle of constitutional law, such as that resulting from Article 3 It. Const, (the constitutional principle asserting the equality of citizens, and individuals in general, before the law). This has ended up interfering with the very functions of the ItCC, which had originally been conceived of as the guarantor of a specific schedule of values directly enumerated and coordinated within the Constitution. Instead, the ItCC is now called upon - from the perspective of equal treatment - to resolve a range of problems which do not ultimately have constitutional status, applying criteria which at first sight might appear immune to any attempt at prior definition”.51

Finally, it is necessary to mention the stance taken by Carlo Mezzanotte, also an authoritative constitutional scholar and judge of the ItCC. For Mezzanotte, as had been argued previously by Paladin, the Italian experience provides evidence that a system of constitutional justice that is focused on incidental review is capable of giving effect to the individual values and rights enshrined in the Constitution. Nevertheless, the author does not believe that the incidental system and the direct complaint are “equally efficient and thus fungible” for the purposes of the protection of constitutional rights. In other words, he does not believe that “for a citizen who considers that a law has violated one of his/her constitutional rights, it is really the same thing to apply directly to the ItCC or to pass through the filter of ordinary proceedings”.[4] According to Mezzanotte, the assertion that the two remedies are equivalent is not only problematic in theoretical terms but is also not corroborated by the historical record in Italy, as the Italian courts “are much more than a filter for objections of unconstitutionality raised by the parties; they are essentially the exclusive holders of the power to apply to the ItCC. In Italy, an unconstitutionality action is increasingly an action brought by a judge on the assumption that he/she is fully empowered to interpret also the Constitution”.

Except for these three opinions, the majority of the authors does not consider it necessary to introduce a mechanism for direct complaints by citizens precisely because it takes the view that the Italian system of constitutional justice has proven and continues to prove its worth in both objective terms (the guarantee of the constitutional integrity of the legal order) and in subjective terms (the guarantee of individual rights).

Only a few commentators take the view that the possibility of direct complaints would perfect the system, meanwhile assessing the efficacy of incidental review in highly positive terms. This has been the essence of the arguments of constitutional scholar Valerio Onida, one of which was presented in his official capacity as President of the ItCC during the customary annual press conference with journalists. Onida identified certain areas in which it is de facto difficult for the ItCC to engage in review according to the incidental mechanism - such as the review of spending legislation and laws with organisatory content - and asserted that the ItCC could more easily operate in these areas if the possibility for direct complaints existed. He argued that, in some cases, the ItCC would operate more effectively if it were able to ‘tailor’ its decision specifically to the concrete facts invoked directly by the injured party. He went on to assert that individual constitutional complaints could also be used in order to “avoid errors or defects in the application of the law by the ordinary courts, operating on a preventive basis -at least in some cases - compared to the indirect and only compensator}' relief offered by the European Court of Human Rights in Strasbourg’’.[5]

However, it is highly significant that two of the most prominent supporters of direct complaint as a necessary complement to the system of incidental review - Cappelletti and Paladin - changed their mind at a time when there were real prospects of the constitutional reform they had called for. It is thus important to examine in detail the arguments that convinced them to change their stance.

In 1989, during the seminar held at the Palazzo della Consulta, the seat of the ItCC, Cappelletti stated that his “youthful enthusiasm” had given way to “a prudent scepticism”, which led him to question whether it would be “wise” to add this further task to the current system of constitutional justice. He offered three considerations in support of his remarks, each of which is particularly significant.

First and foremost, he commented that the system of incidental review had worked, in historical terms, to render “possible a form of constitutional review that lacks any substantial gaps” because whenever any gaps arose the ItCC had been able to fill them.

Secondly, he considered that the understandable desire of every citizen to be able to object directly and without intermediation before the ItCC could be considered to be satisfied by the possibility of applying directly to the European Court of Human Rights. This second argument became even more convincing when, ten years after his comments, Protocol 11 to the ECHR altered the system governing appeals by individuals to the ECtHR by removing the intermediary stage of the committee.

Thirdly, Cappelletti noted that over the years there had been a “deepening” and “reinforcement” of the links between the ItCC and other courts.

The ordinary courts had acquired a significant “constitutional awareness”, and therefore the interpretation of the law in a manner consistent with the Constitution is now commonplace throughout all courts. He argued further that “all courts are to some extent also constitutional courts, which are empowered - and in fact obliged - to apply the Constitution when interpreting the law”. Consequently, “while in the 1950s it might have appeared preferable to concentrate within the ItCC all powers of constitutional review, now by contrast it is advisable to extend them, as far as permitted by the fundamental structures of the centralised system, to all courts throughout the land”.[6]

Paladin, on the other hand, revisited his position drawing on the experiences of other European legal systems that provide for the possibility of direct complaints. According to the author, the need for caution results from the fact that in Spain and Germany the number of complaints is “innumerable, and in the vast majority of cases are not accepted”. The situations in which the mechanism has proven its worth in those countries are, according to Paladin, “isolated, as against on the other hand a plethora of disputes which the court tends to dismiss in a summary manner, with the result that the guarantee of fundamental rights, which may apparently have been emphasised, in actual fact ends up being deprived of any substance”.

Over the last thirty years the reasons why scholars have called for extreme caution in relation to the institute of direct complaints to the ItCC have all centred on the arguments set out above.

The greatest perplexities relate to the high number of complaints which would be expected in Italy were this mechanism to be introduced and the consequent risk of paralysis of the ItCC. This is based on a comparative law perspective and has been expressed from all sides, including by those scholars who recognise the benefits of direct complaints.

Moreover, it must be considered that the two undisputed benefits of the Italian system are the timely manner of responses obtained from the ItCC, and the collegial nature of its work. The ItCC deals with all applications received each year and essentially works without any backlog, and all fifteen members work together on all questions without any need to divide the ItCC into sections or committees. Both of these appreciable characteristics could evidently be jeopardized following an exponential increase in the workload resulting from the new access route.

Furthermore, given that the ItCC would be forced to make selections if confronted with very high numbers, the mechanism of the direct complaint would only be capable of offering occasional - and not timely - relief to the vast majority of complainants. It would thus turn out to be essentially a demagogic instrument of propaganda, which would not be genuinely conducive to achieving enhanced protection for fundamental individual rights.

Further detailed considerations have been offered by Roberto Romboli, who, drawing on the Spanish experience, has shifted attention to the systemic consequences which the provision for direct access by individuals to the ItCC following the exhaustion of ordinary forms of judicial redress would entail. When construed in these terms, the direct complaint process would operate as a fourth istance judgment, and it would enable the permanent control of the judiciary’s actions by the ItCC. This would also negate another peculiarity of the Italian incidental system, which is perhaps the most important: the relationship of mutual trust which has been painstakingly built up over time between the ItCC and the judiciary. The two bodies share a great sense of responsibility, working to achieve shared objectives, as mentioned above. Romboli in fact asserts, in an entirely plausible manner, that, “while incidental proceedings lie in the hands of the ordinary' courts, direct complaints are made ‘against’ the courts”. Consequently, adding a direct form of access could mean breaking the “virtuous link” between the ItCC and the ordinary courts and thus destroy the good level of performance achieved by the incidental system over the years.[7]

Chapter IX

THE POTENTIAL VIRTUES AND RISKS OF ABSTRACT CONSTITUTIONAL CHALLENGES

AND INDIVIDUAL COMPLAINTS:

  • [1] For an overview see P. CARROZZA, R. RoMBOLI, E. ROSSI, I limiti all’accesso al giu-dizio suite leggi e le prospettive per il loro superamento, op. cit., 759 if. and G. GENTILI, Una prospettiva comparata sui sistemi europei di ricorso diretto al giudice costituzionale: suggestion e spunti per la Corte costituzionale italiana, in Revista de Estudios Juridicos, No. 11, 1 (2011), 25 ff. 2 The acts of the seminar were published in G. MARANINI (eds.), La giustizia costituzionale, Florence, Vallecchi, 1966. 3 The acts of the seminar were published in Corte costituzionale (eds.), Giudizio "a 4 quo” e promovimento del processo costituzionale. Atti del seminario svoltosi in Roma 5 Palazzo della Consulta nei giorni 13 e 14 novembre 1989, Milan, Giuffre Editore, 1990. 6 Including the volume L’accesso alia giustizia costituzionale, published in 2006 on the occasion of the fiftieth anniversary of the ItCC, along with the acts of a seminar organised by the Pisa Group Association in 1999, which were brought together in the volume Prospettive di accesso alia giustizia costituzionale, published in 2000.
  • [2] R. TARCHI (eds.), Patrimonio costituzionale europeo e tutela dei diritti fondamen-tali. Ilricorso diretto dicostituzionalita, Turin, Giappichelli Editore, 2012, 64. 2 See inter alia regarding this issue F. TlRIO, “Maschera" e “volto” del ricorso individuate di costituzionalita, in P. COSTANZO (eds.), Percorsi attuali della giustizia costituzionale, Milan, Giuffrè Editore, 1995, 127 ff. and G. BRUNELLI, Idna riforma non necessària: I’accesso diretto delle minoranze parlamentari al giudizio sulle leggi, in A. ANZON, P. CARETTI, S. GRASS! (eds.), Prospettive di accesso alia giustizia costituzionale, Turin, Giappichelli Editore, 2000, 188 ff. 3 See inter alia, for example, L. CARLASSARE, I diritti davanti alia Corte costituzionale: ricorso individuate o rilettura dell’art. 27 L. n. 87/1953?, in Diritto e società (1997), 445 ff. 4 M. CAPPELLETTI, La giurisdizione costituzionale delle libertà. Primo studio sul ricorso costituzionale (con particolare riguardo agli ordinamenti tedesco, svizzero e austria-co), Milan, Giuffrè Editore, 1955, 12.
  • [3] M. CAPPELLETTI, La giurisdizione costituzionale delle liberta. Primo studio sul ri-corso costituzionale (con particolare riguardo agli ordinamenti tedesco, svizzero e austríaco), op. cit., 6. 2 M. CAPPELLETTI, La giurisdizione costituzionale delle liberta. Primo studio sul ri-corso costituzionale (con particolare riguardo agli ordinamenti tedesco, svizzero e austríaco), op. cit., 134. 50 L. PALADIN, La tutela delle liberta fondamentali offerta dalle Corti costituzionali europee: spunti comparatistici, in L. CARLASSARE (eds.), Le garanzie giurisdizionali dei dirittifondamentali, Padua, Cedam, 1988, 12-13. L. PALADIN, La tutela delle liberta fondamentali offerta dalle Corti costituzionali europee: spunticomparatistici, op. cit., 18-19.
  • [4] 52 C. MEZZANOTTE, Il problema della fungibilitd tra eccezione di incostituzionalitd e ri-corso diretto alia Corte costituzionale, in Giustizia e Costituzione, No. 2,77 (1991), 77 ff.
  • [5] 55 V. ONIDA, Relazione di sintesi, in Corte costituzionale (eds.), Giudizio “a quo’’ e promovimento del processo costituzionale. Atti del seminario svoltosi in Roma Palazzo della Consulta nei giorni 13 e 14 novembre 1989, op. cit., 303; V. ONIDA, La giustizia costituzionale nel 2004, in www.cortecostituzionale.it, 2005; see also E. CRIVELLI, La tutela dei diritti fondamentali e I’accesso alia giustizia costituzionale, Padua, Cedam, 2003, passim. 2 M M. CAPPELLETTI, Question! nuove (e veccbie) sulla giustizia costituzionale, in Corte costituzionale (eds.), Giudizio “a quo’’ e promovimento del processo costituzionale. Atti del seminario svoltosi in Roma Palazzo della Consulta nei giorni 13 e 14 novembre 1989, op. cit., 32; the example provided by the author may be added to those mentioned above and concerns the constitutional review of criminal laws that are favourable to the accused. 3 ,5 M. CAPPELLETTI, Question! nuove (e veccbie) sulla giustizia costituzionale, ibidem, 32-33.
  • [6] M. CAPPELLETTI, Qüestioni nuove (e vecchie) sulla giustizia costituzionale, ibidem, 33-34. 2 3' L. PALADIN, Corte costituzionale: aumentano le funzioni ma il futuro potrebbe portaré la “paralisi”, in Guida aldiritto, No. 43, (1997) 64-66. 3 For example, A. ANZON, Per una piü ampia garanzia dei diritti costituzionali dinan-zi alia Corte: il ricorso indivduale diretto, in V. ANGIOLINI (eds.), Libertà e giurispruden-za costituzionale, Turin, Giappichelli Editore, 1992,28.
  • [7] E. MaLFATTI, S. FANIZZA, R. Romboli, Giustizia costituzionale, Fifth edition, Turin, Giappichelli Editore, 2016, 362; however, see also, among the numerous contributions by this author, R. ROMBOLI, "Forniamo alia Costituente?”: considerazioni in ordine all’introduzione di un ricorso diretto del singolo e delle minoranze parlamentari alla Corte costituzionale, in A. BARBERA, A. LOIODICE, M. SCUDIERO, P. STANZIONE (eds.), Scritti in memoria di Fulvio Fenucci, Soveria Mannelli, Rubbettino, 2010 and R. ROMBOLI, Le oscillazioni della Corte costituzionale tra l’anima "politica” e quella “giurisdizionale”. Una tavola rotonda per ricordare Alessandro Pizzorusso ad un anno dalla sua scomparsa, op. cit., 29.
 
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