Persuasion and resistance

Besides pride and respect, there is a third posture that, although often intertwined with the other two, stands out among the ItCC’s 2016 case law as distinctive. I am referring to the delicate but firm defence of the specificities of the Italian context - a defence which in some instances seems to inspire the ItCC’s emphasis on the national space of autonomy within European legal orders, and on other occasions takes the tone of an open resistance, especially vis-a-vis the ECtHR.

From this perspective, we find many judgments in which the ItCC has emphasised the margins of discretion accorded to the Italian state by both EU and the ECHR law.3 But we also find many decisions in which the ItCC engaged in a careful review of the ECtHR’s case law against Italy to prevent too literal or generous an interpretation of these rulings to trump defensible (if not laudable) features of the Italian legal system. The most illustrative decision in this regard is perhaps judgment n. 193/2016, in which the ItCC had to verify the compatibility of the Italian general law on administrative sanctions (law n. 689/1981) with the ECtHR’s case law (especially the one against Italy) according to which administrative sanctions of criminal nature can trigger the application of the ECHR’s procedural guarantees (such as ne bis in idem) applicable in criminal matters.[1]

Although the judgment starts by stating that “ECHR provisions should be applied according to the interpretation given by the ECtHR”, the ItCC immediately specified that “it is within the competence of this court to appreciate how and to what extent the interpretation offered by the ECtHR fits the domestic constitutional order. The ECHR provisions, insofar as they complement Art. 117 of the [Italian] Constitution, enjoy constitutional status within the domestic system of legal sources [...]. It is within the competence of this court, in other words, to appreciate the European case law on the concerned provisions, in a way that should be substantially respectful of the ECtHR, but that should also include a margin of appreciation and adjustment allowing the court to take into account the specificity of the national legal order where the concerned provision is bound to apply”.

After engaging in a detailed analysis of the ECtHR’s case law and of its possible application in the Italian context, the ItCC held that law n. 689/1981 was not in conflict with the guidelines laid down by the ECtHR. From the quoted passage, one can sense the clash between the wide interpretation given by the ECtHR to criminal law guarantees, and the traditional Italian understanding of the boundaries between administrative and criminal measures. Underlying this clash are the never-ending tensions in the field of fundamental rights protection between the advancement of rights and the risks of excessive judicialization of policy choices, as well as between the drive for uniformity and the need to respect local diversity.

  • [1] See esp. ECtHR, 27 September 2011, Menarini Diagnostic S.r. I. v. Italy, 4 March 2014, Grande Stevens et al. v. Italy. 2 ItCC judgment 193/2016, n. 3. 3 Ibid, (quoting previous ItCC’s case law on the same points).
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