Londra 28-02 Giugno 2011
Sovereignty in Question
Professor Giuseppe Ferrari and Professor Oreste Pollicino, Università Bocconi, Milan:
“The impact of the Supranational Laws on the National Sovereignity of Member States, with Particular Regard to the Judicial Reaction of UK and Italy to the New Aggressive Approach of the European Court of Human Rights”
The Impact of Supranational Laws on the National Sovereignty of Member States, with Particular Regard to the Judicial Reaction of UK and Italy to the New Aggressive Approach of the European Court of Human Rights
By Giuseppe Franco Ferrari and Oreste Pollicino
Summary: 1. Introduction. First part: (the supranational scenario): toward a convergence between the judicial attitude of the two European Courts? 2. The vertical dimension between the two European Courts: a focus on the more recent judicial attitudes of the European Court of Human Rights and the European Court of Justice with regard to their respective own “idea” of the domestic impact of EU law and European Convention Human Rights Law; 2.1. The reaction of the European Court of Human Rights to the enlargement of the Council of Europe to the East. 3.2. The reaction of the European Court of Justice to the enlargement of the European Union to the East. 3.3. The Member States’ political bodies as European Court of Justice’s interlocutors.
Second part (the comparative public law scenario): the impact of the European Convention of Human Rights on the Italian and UK legal systems, with particular regard to the recent aggressive season of the case law of the European Court of Human Rights; 3.The Italian context: the relationship between the European Convention of Human Rights and the national legal order before and after the introduction of article 117, par. 1, of Italian Constitution and the decisions nn. 348 and 349 of 2007 of the Italian Constitutional Court. 3.1. The political reaction: the Italian Government appeal before the Grande Chamber of the Lautsi case and the (too) deferent answer of the European Court of Human Rights; 4 The UK context: the relationship between the European Convention of Human Rights and the domestic legal order before and after the Human Rights Act; 4.1 The Prisoners’ right to vote saga between London and Strasbourg.
Our paper is divided in two parts; the first deals with the European dimension in comparative terms; the second with the Member States constitutional dimension in a comparative perspective.
The first part will compare, from a vertical perspective, how the two European courts, have changed their own idea of the impact of the ECHR and EU laws vis-à-vis the sovereignty of the national legal orders of the ECHR and the EU Member States. This trend has mainly become apparent through recent challenges largely due to the enlargement of Europe to the East
More specifically, the aim of subsection the first part is to show the existence of a growing trend in more recent case law of the ECJ and the ECtHR.
In this regard it will be argued that the above mentioned trend of convergence finds its roots in the opposite ways in which the two European Courts reacted to the challenges emerging from the enlargement of the European Union and of the Council of Europe towards Eastern Europe. In fact, on the one hand, the ECtHR has opted for an acceleration of judicial activism according to which the Strasbourg judges have started to amplify the direct and indirect effect of their case law on the domestic legal orders; on the other hand, the ECJ seems to have privileged, since the great enlargement of 2004, the appraisal of national constitutional values even of the single Member State.
Against this background, an emerging hypothesis is that the ECJ’s recent attitude to the exploitation of EU primacy, combined with the opposite tendency of further centralisation of the adjudicatory powers, favoured by the ECtHR, seems to have reduced the distance between EU law and ECHR law with regard to their relation with domestic law.
First of all, absolute, radical supremacy no longer seems to be a cornerstone of EU law and the ECJ is more and more committed to (working on) a self-restriction of the principle of primacy when it comes to the protection of the fundamental principles of one or more Member States.Second, the progressive self-perception of the European Court of Strasbourg’s constitutional role has led to the consequence of increasing the acknowledgement of the (relative) primacy of the European Court of Human Rights’ interpretation of domestic national law.
In the second part of the paper our aim is to verify which has been the impact on the domestic legal orders of the new aggressive approach of the ECtHR, which seems ready to use the doctrine of margine of appreciation in a much less deferent way towards the costitutional values of the Contracting States.
More precisely we have decided to compare, to this regard, the reactions of the Italian and UK legal orders, and in particular of their respective highest jurisdictions, to the new judicial attitude of the Court of Strasbourg which takes too little account of national systems.
This choice is based on, at least, two complementary levels; the first one is based on the structural parameter, the second one on judicial decisions.
In relation to their structural disposition, the two above mentioned legal orders experimented, in the same period, a real “revolution”, with regard to the rank of the ECHR in their respective sources of law legal systems. A revolution that, according to some scholars, has provoked a process of “constitutionalization” of the ECHR in the UK and Italian legal orders.
In particular, with respect to the UK legal order, the Human Rights Act of 1998 has incorporated the European Convention on Human Rights into domestic law. The former Lord Chancellor and Minister for Justice, Jack Straw, then commented that the Act preserved ‘the fundamental position established in our constitution: the sovereignty of Parliament… one of the profound strengths of our system’. The Act commenced operation in October 2000 and, as it will be shown in the paper, the Parliament sovereignty has really been recently challenged by a very activist approach of the Court of Strasbourg.
With regard to the Italian legal order, article 117, paragraph 1 of the Constitution, which was added by the constitutional revision of 2001, provides that “legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU legal order and international obligations”.
Despite there have been three main readings of this provision by Italian constitutional scholars, there is not doubt that it has had big impact on the rank of the ECHR in the Italian legal system. A status which has been recently clarified by the two pivotal decisions n. 348 and n. 349 of 2007 and by the two important decisions n. 311 and n. 317 of 2009.
With regard to the judicial dimension, the two legal systems have experimented recently a concrete expression of the more robust approach of the Court of Strasbourg. With regard to the Italian system, the reference is to the famous Lautsi case adopted the 3th of September 2009 by the European Court of Strasbourg in which it was held that the obligation to display the crucifix in Italian public schools is in violation of art. 2 of ECHR, of protocol 1 (right to education) taken jointly with article 9 of the European Convention, which includes also the freedom not to believe in any religion.
Such decision has been strongly criticised by many constitutional scholars as disregarding not only the Christian roots of the Italian State but the margin of appreciation which should be left to the single Member State. The decision has been also criticised because of its intrusiveness against State sovereignty and national values which should be regulated and protected at the national level. The Italian Government has challenged the case before the “Grande Chambre”, whose decision is expected in the next days.
With respect to the UK legal system, the reference is to the even more recent decision of the European Court of Strasbourg which ruled illegal the U.K.’s blanket denial of the vote to all prisoners. The domestic reaction has been even more dramatic. National media have openly spoken about the concrete possibility to withdraw from the ECHR system and, ever more crucially, British members of Parliament in the House of Commons, at the beginning of February, by 212 votes to reject a proposal based upon a European Court of Human Rights demand that Britain give prisoners the vote. In this respect, it should also be mentioned the recent decision of the High Court under the HRA on prisoners voting rights in the case Tovey and Hydes v Secretary of State for Justice. In this case the High Court has held not possible to use s.3 of the Human Rights Act 1998 to interpret s.3 of the 1983 Act and s.8 of the 2002 Act so as compatible with the Convention. It was not possible to read a provision which provides that a prisoner is “legally incapable” of exercising the vote as though it provided instead that he was “legally capable”.
First part: the supranational scenario toward a convergence between the judicial attitudes of the two European Courts?
The vertical dimension between the two European Courts: a focus on the more recent judicial attitudes of the European Court of Human Rights and the European Court of Justice with regard to their respective own “idea” of the domestic impact of EU law and European Convention Human Rights law;
As it has been anticipated in the first part of the paper, we focus on the reactions of the two European Courts to the potential increase in the risk of constitutional conflict between national and supranational levels caused by the Europe’s enlargement to the east.
In this regard, in spite of the risk of simplification implied in every attempt at synthesis, it is possible to identify two potentially alternative judicial routes. On the one hand, a further centralisation of adjudication powers, which the ECtHR seems to be favouring after the enlargement of the Council of Europe to the East, and, on the other hand, the appraisal of national constitutional values, which the ECJ seems to have privileged since the major EU enlargement of 2004. A comparison of the different responses of the two European Courts to the same phenomenon appears instrumental to our main conceptual file rouge which attempts to analyse the consequences of the enlargement, taking into account multiple, interacting legal regimes.
2..1. The reaction of the European Court of Human Rights to the enlargement of the Council of Europe to the East
Beginning with the reaction of the ECtHR to the enlargement, as has been stressed, since the end of the Cold War, the Council of Europe has experienced a dramatic increase in the number of members. In 1989, the Council of Europe was an exclusively Western European organisation counting 23 Member States. By 2007, its membership had grown to 47 countries, including almost all of the former communist States of Central and Eastern Europe. Here, our main assumption is that the ECtHR has reacted to the Council of Europe’s enlargement to the East with a more explicit understanding of itself as a pan-European constitutional court, as a result of both the exponential growth of its load case and the realistic possibility for it to ascertain systemic human rights violations in Central and Estern European Countries (hereafter CEE) has implied a shifting away from an exclusively subsidiary role as “secondary guarantor of human rights” to a more central and crucial position as a constitutional adjudicator.
It is arguable that this change in the judicial attitude of the ECtHR emerged for the first time in 1993, in Judge Martens’ concurring opinion in the Branningan case.On that occasion, the majority of the Court, recalling a judgment from 1978, stated that the choice to determine whether the life of nations may be threatened by a “public emergency” has to be left to the wider margin of the Member States. By reason of their direct and constant contact with the current, pressing needs of the moment, in fact, it was observed, national authorities are in a better position than international judges to decide both on the actual occurrence of such an emergency, and on the nature and scope of the necessary derogations to avert it. Conversely, in his concurring opinion, Judge Martens argued:
Since 1978 “present day conditions” have considerably changed. The situation within the Council of Europe has changed dramatically. It is therefore by no means self-evident that standards which may have been acceptable in 1978 are still so. The 1978 view of the Court as to the margin of appreciation under Article 15 was, presumably, influenced by the view that the majority of the then Member States of the Council of Europe might be assumed to be societies which (as I put it in my aforementioned dissenting opinion) had been democracies for a long time and, as such, were fully aware both of the importance of the individual right to liberty and of the inherent danger of giving too wide a power of detention to the executive. Since the accession of Eastern and Central European States that assumption has lost its pertinence.
Another call for a more proactive role for the ECtHR as a reaction to the Council of Europe’s enlargement came from (again, the same) Judge Martens’ separate opinion on the Court’s 1995 decision in the Fisher v. Austria case. To the then typical self-restraint of the Strasbourg Court, according to which “the European Court should confine itself as far as possible to examining the question raised by the Court before it”, Judge Martens objected that:
No provision of the Convention compels the Court to decide in this way on a strict case by case basis. This self-imposed restriction may have been a wise policy when the Court began its career, but it is no longer appropriate. A case law that is developed on a strict case-by-case basis necessarily leads to uncertainty as to both the exact purport of the Court’s judgment and the precise content of the Court’s doctrine.
The message was indeed quite clear: an explicit invitation addressed to the Court to assume a more general constitutional and centralised role. But it was only some years later (very recently indeed), that the ECtHR seemed ready to accept that invitation. Since 2004, in fact, with regard to some areas of the law and not surprisingly especially in certain judgments directed to CEE Member States, the Strasbourg Court has started to go beyond the strict case-by-case approach of former years. More precisely, in a decision of 2004, the Court held that a violation of the ECHR had instead seem originated in a systemic problem connected with the malfunctioning of domestic legislation which involved 80,000 persons. The Court suspended 167 complaints pending before it on the same issue until the respondent State secured, through appropriate legal measures and administrative practices, the implementation of the fundamental rights protected by the ECHR (in that case the right to property). In particular, the Court declared that:
Although it is in principle not for the Court to determine what remedial measures may be appropriate to satisfy the respondent State’s obligations under Article 46 of the Convention, in view of the systemic situation which it has identified, the Court would observe that general measures at national level are undoubtedly called for in execution of the present judgment, measures which must take into account the many people affected. Above all, the measures adopted must be such as to remedy the systemic defect underlying the Court’s finding of a violation so as not to overburden the Convention system with large numbers of applications deriving from the same cause… In this context the Court’s concern is to facilitate the most speedy and effective resolution of a dysfunction established in national human rights protection (par. 193).
Consequently, the impression is that recently, as a (late) reaction to the enlargement of the Council of Europe to the east, the ECtHR, with a view to supporting the respondent, very often a CEE State, in fulfilling its obligations under Article 46, has sought to indicate the type of measure the same State might take to put an end to the systemic situation identified in the present case. In doing so, the Court seems to welcome a new activist approach, suitable with the enlargement of the Council of Europe, towards Member States’ legislative and judicial powers. Those States, in turn, seem gradually to lose freedom of choice as to the appropriate means to comply with a judgment notifying a breach of the ECHR and determine the appropriate remedial measures to satisfy the respondent State’s obligations under Article 46. It is no coincidence, then, that this approach was introduced in certain decisions addressed to CEE Member States.
In the last pages we have describing growing consolidation of the direct effect of ECtHR case-law and, consequently, a greater pervasiveness of the ECHR within the national legal orders that are defendants in Strasbourg.
A second, complementary attitude of the more recent, post-enlargment Strasbourg’ case-law has the effect to reinforce the indirect effect of the ECtHR jurisprudence. More precisely, this attitude is not specifically intended to intensify and amplify the scope of the obligations the condemned member State had to fulfill as provided for by Article 46 of the Convention. Instead, it is related to the question of the asserted existence of the obligation for the other contracting States and national judges to respect the dictum of ECtHR judgments.
Although Article 46 is used to provide a not too solid legal basis for extending the direct effect of Strasbourg judgments, the same provision – by attributing, in fact, the obligation of conformity to ECtHR judgments exclusively to the State the judgment of condemnation is delivered – is decidedly contrary to the enhancement of the indirect effect of the Strasbourg case law.
It was recently proposed to link this extension to the principle of solidarity. Solemnly provided in Article 3 of the Statute of the Council of Europe, this is one of the founding principles of the entire ECHR legal order.
Now, it will be analyzed the most evident expression of the said attitude: the emerging indifference of the ECHR case law towards the constitutional structure of the member States
Even in this case, the Court of Strasbourg’s strong stance seems to represent an answer, years later, to one of the most renown passages of Community case-law. In 1970 the Luxembourg judge stated that «the validity of a community measure or its effect within a member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principle of a national constitutional structure».
Twenty-eight years later a provision of the Turkish Constitution as interpreted by the Turkish Constitutional Court was brought to the attention of the ECtHR because it contrasted the Convention. The ECtHR pointed out that the latter «The political and institutional organisation of the member States must accordingly respect the rights and principles enshrined in the Convention. It matters little in this context whether the provisions in issue are constitutional…or merely legislative…From the moment that such provisions are the means by which the State concerned exercises its jurisdiction, they are subject to review under the Convention ».
Here the ECtHR attempted to legitimise ex post a series of assumptions that had begun to emerge in its case law some time prior. These assumptions led it to question the legitimacy of constitutional provisions and/or orientations of contracting State Constitutional Courts.
Already in the early ‘90s, the Court ruled that Article 40, par. 3 of the Irish Constitution, as interpreted by the Supreme Court of Dublin, contrasted the Convention and in particular Article 10, par. 1, regarding freedom of expression. According to the provisions of Article 40, in fact, it was prohibited to give Irish women information about the possibility of having an abortion abroad.
In the second half of the ‘90s, following the Strasbourg judgment in Vogt, the German Constitutional Court was obliged to modify its constitutional provisions whereby active members of “extremist parties”, such as Communists or the far right, were excluded from any job in the public services sector.
In 1999 in a case that concerned France as defendant State, the claimants complained that the intervention of the State in a pending procedure where they were involved due to the retroactivity of the law, violated the principle of equality of arms and legal certainty.
Even though the Conseil Constitutionnel found no violation of the French Constitution, the ECtHR ruled that French law contrasted Article 6 of the Convention.
More recently the ECtHR adopted an even bolder orientation. In the famous case of the Princess of Monaco, its evaluation was antithetical to the one adopted by Europe’s most prestigious and feared Constitutional Court.
According to the German Federal Court, the photos of Princess Caroline taken in a public place came under the constitutionally guaranteed right of freedom of the press (Article 5 of the German Constitution). Because she was a public figure, the German Court decided that the photos did not violate her right to privacy. The Court of Strasbourg interpreted the case differently and ruled instead that there had been a breach of Article 8 of the Convention.
Jean Paul Costa, President of the ECtHR, recently gave an authentic interpretation of the described orientation that confirms its tendency to raise the constitutional tone of its jurisprudence. As a consequence this also increases ECHR impingement on legal orders. In fact, commenting on some of the aforementioned judgments, he stated that «this reasoning is important because it suggests that the Convention prevails over national constitutions, even if it does not state it as directly as the Luxembourg Court has done in relation to the primacy of Community law (here I would refer, for example, to its 1970 Internationale Handelsgesellschaft judgment)».
Italy recently saw its margin of appreciation initially reduced, and then again amplified, in the well-known Lautsi saga. In Lautsi 1, adopted in November 2009, the ECtHR ruled that the obligation to place a crucifix in school classrooms violated ECHR Article 2, Protocol No. 1 which provided for the right to education and Article 9 that safeguards freedom of conscience, thought and religion.
Here is only important to note that the Court kept its distance from its precedent related to the relationship between religious symbols and the principle of secularism. In particular, the ECtHR, in this respect, had previously recognised, in Sahin,with regard to the issue related to the right for a female student to wear a veil in class, that «it is not for the Court to substitute its view for that of the university authorities. By reason of their direct and continuous contact with the education community, the university authorities are in principle better placed than an international court to evaluate local needs and conditions or the requirements of a particular course ».
It was no accident that the ECtHR failed, in Lautsi 1, to include an analysis of comparative law, which in general characterizes the reasoning of its judgments dealing with the ECHR conformity of religious symbols. Such an analysis would have revealed, also in Lautsi what emerged in the reasoning of the previous judgments, i.e. the lack of consensus in Europe over the matter which meant that a conspicuous margin of appreciation was left up to local decision.
In Lautsi 1, to the contrary, the ECtHR gave an anomalous evaluation of “local dimension” of the matter, in particular referring to the “special” role which Christianity occupies the Italian society and, in particular, how difficult is the question of a crucifix is in a country such as Italy with its strong Catholic traditions and how, consequently, even more difficult it is to protect non-believers in need of protection.
Despite the intentions of the Strasbourg judges to support, by underlining the local dimension of the problem, the persuasiveness of its reasoning, the said technique ended up having a boomerang effect because of the risk of further enhancing both the local specificity of the question and the need to evaluate and resolve conflicting interests by State decision.
It has been stated that the ECtHR’s antimajoritarian role played in Lautsi 1 was a positive factor, useful to correct some deficiencies of the majoritarian democracy. It may be, but such a role seems also not only to cause a substantial annulment of the national margin of appreciation but also to radically transform the very nature of the European Court of Human Rights (from an international Court to a quasi-constitutional one) and the rationale at the basis of the ECtHR system (from individual justice to constitutional justice), especially after the entry into force of protocol 14.
The judgment, in Lautsi 1, exactly for those reasons, as it will be seen in the second part of the paper, has been fierily stigmatized by many constitutional scholars as disregarding the Christian roots of our State and because of its intrusiveness against State sovereignty and national values which should be regulated and protected at the national level.
The reaction of the European Court of Justice to the enlargement of the European Union.
The further centralisation of the ECtHR’s adjudication powers, along with the reduction of the appreciation margin, namely at the level of CEE Member States, may not be regarded as a foolish activist jump but rather as a measured step aimed at reducing the exploding case load, bearing in mind Sadursky’s words: “If there is a domain in which concern over national identity and accompanying notions of sovereignty are obviously weak in Central and Eastern Europe it is in the field of protection of individual rights”. The same does not apply to the different scenario of the EU constitutional dimension. In that area the penetration of European law into the domestic legal orders and the constitutional conflict between national and supranational levels do not seem destined always to expand. as in the case of the ECtHR intervention, the content of the constitutional rights. Rather, to the contrary, as the saga of the European Arrest Warrant shows, at least sometimes, it operates to force constitutional change with a restrictive result for certain Member States.
Against this background, and with regard to the new “season” of a centralised judicial activism of the ECtHR, the relevant question is whether (and if so, in which direction) the ECJ has somehow developed a new judicial sensitivity after the 2004 and 2007 enlargements. The addition of twelve, not always homogeneous, constitutional identities seems in fact to entail that the ECJ’s exclusive reference to the concept of common constitutional traditions is starting to become progressively less suitable, especially if it is considered, with particular emphasis on CEE Member States, that:
After the fall of communism, national identity (often perceived in an ethnic rather than civic fashion) has been either the only or the most powerful social factor, other than those identified with social foundations of the ancien regime, capable of injecting a necessary degree of coherence into society and of countervailing the anomie of a disintegrated, decentralised and demoralised society.
The situation is even more complicated because, within the CEE, more identities exist asking for recognition: the majority ones and many minorities.
Bearing these considerations in mind, the key question may be: how is the ECJ responding to the change, in a pluralistic identity-based direction, of the dynamic nature of constitutional tolerance? It has been argued that, before the enlargement, the ECJ, in order to foster constitutional tolerance by Member States, applied a two-level argumentative strategy: the first level approach addressed national legislative and executive bodies, and the second the national courts. Briefly, it appears that, with regard to that first aspect, the ECJ seems to have understood the extent of the change in the relationship between the European dimension and the Member States’ constitutional dimensions after 2004. As to the second, however, there is still a long way to go, even if certain steps in the right direction have already been taken. The next section of the paper is dedicated to the attempt to find some empirical support of these assumptions.
. The E.U. Member States’ political bodies as ECJ interlocutors
It has been argued that in order to prevent potential “sovereignist” reactions by Member States, and namely in order to enhance this miraculous “voluntary obedience”, in the last few decades the ECJ has resorted to applying the “majoritarian activist approach”. According to this approach, among the various solutions to a case, European judges may opt for the final ruling that is most likely to meet the highest degree of consensus in the majority of Member States. European judges seem to have understood that if such an approach had been partially able to convince Germans and Italians when they were “invited” to obey the European discipline in the name of the peoples of Europe, the same “invitation” would have proven much less successful when applied to Estonians or Hungarians.
The post-2004 era has called, then, for a new ad hoc judicial strategy to combine with the pre-2004 majoritarian activist approach. After all, what new Member States need to be reassured about seems to be that even if, with regard to those national values relating to a peculiar constitutional identity to protect, they found themselves in a minority or isolated position, the European judges would not sacrifice them on the altar of the majoritarian-activist approach. It does not seem a coincidence, indeed, that some months after the 2004 enlargement, the Court stated, against an exclusively majoritarian logic, for the very first time, that “it is not indispensable in that respect for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected”.
The factual background of the Omega decision mentioned above is too well-known to iterate. It is enough to recall here that the question was whether the aim of protecting a constitutional right, in that case the right of human dignity, representing a top priority issue for one Member State (in that case, Germany), could possibly justify a restriction of freedom of services, a fundamental freedom but also a fundamental right of the European economic constitution. The outcome of the decision is even more famous: “Community law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason of the fact that that activity is an affront to human dignity”. What seems instead to have been undervalued in several commentaries on the case is the circumstance that European judges, in order to acknowledge the protection of the single Member State’s constitutional values, had to manipulate their previous judgment, which clearly reflected the then prevailing approach of the majoritarian (if not unanimous) logic at the heart of the justification grounds for the restriction of fundamental freedoms. The ECJ was then able to give an authentic (manipulated) interpretation of its precedent explaining how:
Although, in paragraph 60 of Schindler the Court referred to moral, religious or cultural considerations which lead all Member States to make the organisation of lotteries and other games with money subject to restrictions, it was not its intention, by mentioning that common conception, to formulate a general criterion for assessing the proportionality of any national measure which restricts the exercise of an economic activity.
In other words, there emerges a shift in the judicial reasoning of the ECJ, from a pre-accession majoritarian activist approach to a post-accession reference to the necessary protection, at least in the most sensitive cases, of the fundamental rights peculiar even to a single Member State’s constitutional identity. Upon closer inspection, the attention to national values, far from being a post-2004 accession novelty, has always been a main feature of the ECJ case-law related to the achievement of a European single market. This is, in particular, with regard to consumer protection and the preservation of public order as legitimate national justification for the hindrance to fundamental freedoms, especially freedom of establishment and freedom to provide services. It is enough to consider the case-law related to gambling. Here, since 1994, the Court has admitted that moral, religious and cultural factors, and the morally and financially harmful consequences for individuals and societies associated with gambling, could serve to justify the existence, on the part of the national authorities, of an appreciation margin sufficient to enable them to determine what kind of consumer protection and public order preservation they should apply. The innovative element of the post-accession phase, connected mainly with the need to provide a reassurance argument for the strong, identity-based demand for recognition coming from the new CEE Member States, is instead the willingness of the ECJ to take a step back if the protection of a national constitutional right is at stake. As it has been objected that “the phase of justification before the ECJ is a phase in which the Court strikes a balance between competing values of the Member States and the economic values of the Union and makes the final determination”, the added value of the relevant post-accession case-law is that fundamental rights become a legitimate justified obstacle to the further enhancement of the European economic constitution even if that ground of justification it is not at all enshrined in the founding Treaties.
The same vision, even more clearly expressed, was confirmed in a judgment of 14 February 2008, which so far has gone strangely unnoticed. Since it is not well known, we begin with a brief overview of the case might be useful. The dispute in the main proceedings concerned the importation by a German company of Japanese cartoons known as animé in DVD or videocassette format from the United Kingdom to Germany. The cartoons were examined before importation by the British Board of Film Classification (BBFC). The latter checked the audience targeted by the image storage media by applying the provisions relating to the protection of young persons in force in the United Kingdom and classified them in the category “suitable only for 15 years and over”. The image storage media therefore bore a BBFC label stating that they may be viewed only by persons aged 15 years or older. Dynamic Medien, a competitor of Avides Media, brought proceedings for interim relief before the Landgericht (Regional Court) of Koblenz (Germany) with a view to prohibiting Avides Media from selling such image storage media by mail order. Dynamic Medien submitted that the legislation on the protection of young persons prohibits the sale by mail order of image storage media which have not been examined in Germany in accordance with that law, and which do not bear an age-limit label corresponding to a classification decision from a German higher regional authority or a national self-regulation body (the “competent authority”). By a decision of 8 June 2004, the Koblenz Landgericht held that mail-order sales of image storage media bearing an age-limit label from the BBFC alone was contrary to the provisions of the law on the protection of young persons and constituted anti-competitive conduct. On 21 December 2004, the Oberlandesgericht (Higher Regional Court) of Koblenz, ruling in an application for interim relief, confirmed that decision. The Koblenz Landgericht, called to rule on the merits of the dispute and unsure whether the prohibition provided for by the law on the protection of young persons complied with the provisions of (former) Article 28 TEC, decided to stay the proceedings and to refer to the ECJ for a preliminary ruling. The German Court asked the ECJ whether the principle of free movement of goods precludes the German law prohibiting the sale by mail order of DVDs and videos that are not labelled as having been vetted by the German authorities as to their suitability for young people. The German Court also asked whether the German prohibition could be justified under (former) Article 30 TEC.
The ECJ held, in the first place, that German rules constitute a measure having an effect equivalent to quantitative restrictions within the meaning of (former) Article 28 TEC, which in principle is incompatible with the obligations arising from that article unless it can be objectively justified. The Court then considered whether the German measures could be justified as being necessary to protect young people, being an objective linked to public morality and public policy, which are recognised as grounds for justification in (former) Article 30 TEC. The Court held that the German measures were so justified. The Court stated in particular:
…that it is not indispensable that restrictive measures laid down by the authorities of a Member State to protect the rights of the child, correspond to a conception shared by all Member States as regards the level of protection and the detailed rules relating to it (see, by analogy, Omega, paragraph 37). As that conception may vary from one Member State to another on the basis of, inter alia, moral or cultural views, Member States must be recognised as having a definite margin of discretion.
Despite the reference to the analogy of the Omega case, in Dynamic Medien the ECJ seems to have gone further with the appraisal of the national constitutional values of the particular Member State, in the direction of indirect reassurance towards the new Member States. The case presents a twofold innovation. Firstly, by making express reference to different levels of the protection of fundamental rights within Member States (rather than by way of protection as in Omega), and by acknowledging for the first time a definite margin of discretion to the individual Member State, the ECJ has achieved a double objective. On one hand, the Court refused to follow the highest standard-based conception of fundamental human rights whilst, on the other, it has explicitly confirmed its willingness to adhere to the substantive nature of fundamental rights. In Alexy’s words, they are substantively fundamental because they enshrine the basic normative structures of state and society.
It would be difficult not to catch the link between, on one hand, the Court’s step back, facing the fundamental boundaries of basic value-oriented choices of the Member States, in its obsessive enhancement of European law uniformity and, on the other hand, the aim to reassure (also) CEE States that their constitutional identity is not going to be sacrificed in the name of the achievement of European economic values.
Secondly, the reference to the European Charter of Fundamental Rights is also very innovative in this regard. Departing from other cases where the ECJ has made explicit reference to the Charter, here the mentioned reference is the sole means to assert European primary legal protection of the fundamental right in question. It is not a coincidence that, in light of this judicial strategy of reassurance being put in place, and after years of indifference, the ECJ started to make express reference in its reasoning to the Charter almost immediately after the accession of the CEE Member States. As it has been astutely argued: “There is a high degree of congruence between the structure of constitutional rights in the post-communist countries of Central and Eastern Europe and the structure of the rights as displayed in the EU Charter”.
In light of the scenario that the last pages have tried to delineate, it is perhaps possible to advance further in the attempt to systematise the reactions to the enlargement that have characterised the judicial approach of the ECJ. The Court of Luxembourg seems in fact increasingly committed to work on a self-restriction of the EC primacy principle, when it comes to the protection of identity-based constitutional dimensions of one or more Member States. It is a precise strategy of the ECJ, whose aim seems, in line with the Solange approach, to prevent further positions (also) of the CEE Courts by somehow “internalising”, as in Omega and Dynamic Medien, the “counterlimits” doctrine in its case law.
In other words, the “evolutionary nature of the doctrine of supremacy” seems to have undergone another transfiguration phase after the 2004 enlargement, from an uncompromising version to a compromising one. It is not a coincidence that the Treaty establishing the European Constitution of 2004 provided, immediately prior to the EC primacy principle codification, at Article I-6, the following complementary principle:
The Union shall respect the equality of the Member States before the constitution as well as their national identity, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect the entire state functions, including the territorial integrity of the state, maintaining law and order and safeguarding national security.
Moreover, it does not appear to be any coincidence either that, in the “substantial reincarnation” of that Treaty agreed in Lisbon in December 2007, notwithstanding the lack of an express codification of the principle of primacy of EC law, the principle enshrined in Article 1-5 of the Treaty establishing the European Constitution has been textually provided by Article 4.2 of the Lisbon Treaty (with the further specification that national security remains the sole responsibility of each Member State).
In a different context, Mattias Kumm has stated that the primacy principle’s new “season” following the 2004 enlargement, with a view to the new Treaty of Lisbon, which should came into force on 1 January 2009, requires that: “When EU law conflicts with clear and specific national constitutional norms that reflect a national commitment to a constitutional essential, concerns related to democratic legitimacy override considerations relating to the uniform and effective enforcement of EU law”. In other words: “Guarantee of the constitutional identities of Member States in the constitutional Treaty should be interpreted by the ECJ to authorise national Courts to set aside EU law on certain limited grounds that derive from the national constitutions”.
If this impression is to be confirmed in the future, then the ECJ has found, thanks to the new parameter provided by Article 4.2 of the EU Treaty, as amended by the Lisbon Treaty, the appropriate judicial mechanism to prevent the occurrence of the most frequent constitutional conflict between the EC and national levels – the dualistic tension between the irresistible, overriding vocation of the ECJ’s Simmenthal mandate and the equally monolithic national constitutional mandate to preserve the core of fundamental rights from EC “invasion”.
As a matter of example, an EU norm that took precedence over a Member State’s constitutional provision which asserts its constitutional identity, would clash, in fact, with EU law itself, and with Article 4.2 of the new EU Treaty, which requires, as we have seen, that EU Law respects the national identity of the Member States. Consequently, in case of such a conflict, the hypothesis of annulment of a piece of EU law by the Member States’ constitutional courts would appear even less realistic. Conversely, the circumstance that a parameter of European law is violated would imply the competence of national ordinary judges, in their European mandate role, to set aside that piece of EC law clashing with the principle enshrined in Article 4.2 of the EU Treaty as amended by the Lisbon Treaty.
Second part: Second part (the comparative public law scenario): the impact of the European Convention of Human Rights on the Italian and UK legal systems, with particular regard to the recent aggressive season of the case law of the European Court of Human Rights
The Italian context: the relationship between the European Convention of Human Rights and national legal order before and after the introduction of article 117, par. 1, of the Italian Constitution and decisions nn. 348 and 349 of 2007 of the Italian Constitutional Court.
It is never too late. In two decisions handed down at the end of October 2007, the Italian Constitutional Court seems finally to have begun to take seriously one of the Italian Constitution’s fundamental principles: the openness to international law which is embodied in Articles 10, 11 and – the provision chosen by the Constitutional Court in the judgments being examined – 117, paragraph 1 of the Constitution, which was added by the constitutional revision of 2001. In the past the Italian Constitutional Court had been already asked to identify the role played by the ECHR in the Italian legal system. In this regard, an important distinction in time should be drawn between the situation before and after the constitutional revision of 2001, which added Article 117, paragraph 1.
In order fully to understand the reasoning and the final outcome of the two decisions mentioned here, it is important to set them in the context of previous case-law in the light of the meaning attributed by Italian constitutional scholars and by the Constitutional Court to the relevant constitutional provisions.
Starting with the first relevant judgments, the Constitutional Court has substantially argued that, in keeping with the dualistic matrix of the Italian legal system, the ECHR, as well as all ratified international Treaties, has the same position in the hierarchy of Italian sources of law as that assigned to the national Act through which it has been included in the internal legal order.
Given the fact this has happened for the ECHR – as for all other international Treaties – via an ordinary statute the Constitutional Court, apart from an isolated decision, has, prior to the judgments analysed here, attributed to the ECHR the legal value proper to an ordinary statutory law.
To put it simply, according to this jurisprudential orientation, the ECHR could be abrogated by any successive statutory law that conflicted with it. The abrogative effect, in the absence of any constitutional protection for the ECHR, would result in the lex posterior derogat legi priori rule being applied in order to solve the conflict between two statutes placed in the same position on the scale of the sources of law.
Long before the adoption of Article 117, paragraph 1, legal scholars had tried to find a constitutional basis for the ECHR in order to justify a higher position for the Convention in the hierarchy of law. That basis has been identified by a first group of authors in Article 10 of the Italian Constitution, by a second group in Article 11 and by third group in Article 2 of the Italian Constitution. According to the first thesis, the ECHR would include general rules which are part of the generally recognised tenets of international law, to which Article 10 attributes a special status. This would imply that the ECHR rules, independently of any formal ratification, could find direct access, at a constitutional level, to the Italian legal system through its duty, provided by Article 10, to conform to the tenets of international law.
According to the second group of authors, the ECHR’s constitutional foundation could be found in Article 11 of the Italian Constitution, which admits «the limitations of sovereignty necessary for an order that ensures peace and justice among Nations». This provision, which was originally intended to represent the constitutional authorisation to join the United Nations, has been used by the Italian Constitutional Court to combine the European Court of Justice primacy doctrine over national (even constitutional) law with the need to protect fundamental rights on a constitutional level. On this view, the same treatment could be accorded, under the same provision, to the ECHR.
With regard to the third view, the reference to the inviolable rights recognized and guaranteed by Article 2 of the Constitution is taken into consideration. This clause would allow constitutional protection for the ‘new fundamental rights’ arising after the adoption of the Constitution of 1948. Among these rights, those provided by the ECHR would find a (constitutional) place.
In its case-law, the Constitutional Court has not shown any great enthusiasm towards these attempts to give special constitutional protection to the ECHR. In relation to Article 10 of the Constitution, the Constitutional Court has specified that the privileged constitutional status enjoyed by the tenets of international law as generally recognised rules is not extendable to international obligations – as is the case of the ECHR – undertaken by the State with an international Treaty.
Regarding Article 11, the Constitutional Court, treating the issue as if it were beyond dispute and recalling a 27-year old precedent , affirmed that no international Treaty – irrespective of its subject area – can entail any limitation on sovereignty under the terms provided by Article 11 of the Constitution. In relation to interpreting Article 2 of the Constitution as an open clause suitable to give constitutional protection to new fundamental rights, the Constitutional Court did not assess the issue with specific reference to the ECHR. In more general terms, it clarified that the guarantee provided by Article 2 is intended to refer only to the rights expressly enunciated in the Constitution and to those directly connected to them.
At the end of the 1990s, the Constitutional Court, without changing its opinion about the place occupied by the ECHR in the Italian sources of law hierarchy, began looking at the relationship between the Italian constitutional legal system and the ECHR in a different and complementary way.
In particular, in decision No. 388/1999 the Court seems to have drawn a distinction, in relation to the sources of international law, between the content, the material area on which the international Treaty is concluded, and its container, the ordinary statute which transforms the international source into a national law. In this regard, it is argued by the Constitutional Court that, in the case in which the content is characterized by the aim to protect human rights, those rights, independently from the position of the container, should enjoy a constitutional guarantee. In other words, starting from this decision, the Constitutional Court seems more interested in looking not only, from a formal(istic) point of view, at the static position of the ECHR in the hierarchy of the sources of law, but, from a substantial and axiological point of view, and due to its fundamental rights-based content, at its suitability to complement the recognition of inviolable fundamental rights protected by Article 2 of the Constitution.
The constitutional scenario thus described has been integrated by the adoption, in 2001, of new Article 117, paragraph 1, which provides, as already noted, that ‘legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from the EU legal order and international obligations.’
There have been three main readings of this provision by Italian constitutional scholars.
According to the first thesis, nothing really has changed in the relationship between the Italian legal order and the sources of international law. From this point of view, Article 117 paragraph 1 only refers to the relationship between state laws and regional laws and its purpose would not have been that of governing the new hierarchy of their respective sources of law.
A second, different interpretation has identified in the new provision the cause for a radical change from a dualistic to a monistic matrix of the Italian legal system. In other words, pursuant to Article 117, paragraph 1, all international Treaties to which the Italian State is a party, and the ECHR in particular, would enjoy the same special status in the national legal order as that awarded to general norms of international law by Article 10.
A third thesis argues the ‘middle way’. The constitutional provision grants immunity to abrogation by subsequent domestic law to international Treaties which have been incorporated into the Italian legal order by Act of Parliament. In this view the dualistic matrix of the Italian legal system remains intact. This means that an ordinary law in conflict with the ECHR would be subject to review by the Constitutional Court for its potential violation of Article 117, paragraph 1 of the Constitution.
Until the decisions analysed here, the Constitutional Court never had the opportunity to clarify whether or not Article 117, paragraph 1 of the Constitution changed the relationship between the Italian constitutional legal order and the sources of international law.
In the meanwhile, making almost no reference to ‘new’ Article 117, paragraph 1, some ordinary judges, in the new millennium, have started looking at the relationship between the ECHR and the national legal order in a surprising, if not revolutionary, way.
The Tribunal of Genoa, followed by other Courts of first and second instance, in order to solve a conflict between ordinary national laws and ECHR principles, has started to apply the same solution according to which, since the adoption of the historic decision of the Constitutional Court in Granital in 1984, ordinary judges have acknowledge the priority of EC law in cases of conflict between national law and EC law.
The latter approach, supported also by the highest ordinary and administrative Courts, has mainly been founded on the consideration that, due to the incorporation of the ECHR in the European dimension through the bridge provided for by the general principles of EC law mentioned in Article 6 of the Treaty of the European Union, it seems logical to provide the same constitutional protection to EU and ECHR law.
In other words, this brave new judicial approach interpreted the famous paragraph 16 of the landmark decision of the European Court of Justice in Simmenthal as applying also to ECHR law by analogy.
By looking at how the Constitutional Court reacted the first time it had the opportunity to take the floor again in the debate, it is possible to imagine that it did not much like the period of its forced silence on the interpretation of the new Article 117 paragraph 1 of the Italian Constitution with regard to the relationship between national law and the ECHR.
The final output of the decisions being considered may be summarised as follows.
(a) Article 117, paragraph 1 of the Constitution is identified by the constitutional judges as the correct parameter to give the ECHR a higher status than domestic ordinary laws. This means that in case of conflict between the ECHR and a national statute subsequent to the statute (n. 848/1955) which gave the ECHR effect in the domestic legal system, the judge hearing the case must suspend it and request the intervention of the Constitutional Court.
(b) The Constitutional Court clearly specifies that the exact meaning of the ECHR can be ascertained only as it is interpreted by the European Court of Human Rights. In the cases under discussion, it is the right to property, provided by Protocol 1 and the right to a fair process, contemplated in Article 6, as ‘living in the case-law of the European Court of Human Rights’, that are taken as parameters to value the constitutionality of the domestic law under judicial scrutiny.
Each of the points mentioned deserves a separate analysis, with a special focus on the first one.
The Constitutional Court’s adherence to the third thesis analysed above in relation to the meaning to be attributed to Article 117, paragraph 1 of the Constitution has a specific goal. It is in fact evident that, by identifying the latter provision as the constitutional parameter which enables the Constitutional Court to ascertain a possible violation of the ECHR by a successive domestic statute, the Court has managed to halt the activist approach adopted in recent years by the ordinary courts. This approach involved putting aside the statutory law conflicting with the ECHR, applying by analogy that which the Constitutional Court finally authorized ordinary judges to do with statutes in violation of Community law, after 20 years of ‘bloody war’ with the European Court of Justice In other words, with regard to the interpretation of the ECHR, the Constitutional Court is not willing to be bypassed by the ordinary courts. The first point of the constitutional judges – quoting the relevant decisions of Corte di Cassazione – is therefore dedicated to correcting their (ordinary) colleagues, stating how the difficulty of identifying the ECHR role wrongly gave rise to the judicial attitude of directly setting aside any statute in conflict with the ECHR on the main basis of the asserted communitarisation of the ECHR through its reference contained in Article 6 EU.
All the remaining arguments of the Constitutional Court focus on trying to explain why this approach is not constitutionally correct.
The constitutional judges recognised that the consolidated case-law of the European Court of Justice has affirmed that the fundamental rights protected by the ECHR are part of the general principles of European law, and that this orientation has been codified in Article 6 of the Treaty of the European Union and extensively in the provisions of the European Charter of fundamental rights. Directly challenging the main grounds of reasoning used by ordinary judges, the constitutional judges argued, however, that it is nonetheless impossible to apply by analogy to ECHR law the same treatment as reserved to EC law.
This is because, according to the constitutional judges, the ECHR legal system has distinct structural and functional legal features as compared to the European legal order. This difference is confirmed, according to the constitutional judges, by the language of Article 117, paragraph 1, which distinguishes between the constraints deriving ‘from the European legal order’ and those deriving – only – from ‘international obligations’. On this point, the Constitutional Court draws an unconvincing distinction, to which we will return later, between «the EC provisions, which have direct effect, and the ECHR provisions, which are international law sources binding only States, without providing any direct effect in the internal legal order such as to make the national judges competent to put aside the national provisions in conflict with them».
The fact that, in contrast with all other international Treaties, the ECHR legal system has attributed to a Court, to which individuals have access, the competence to interpret the ECHR dispositions and to condemn the States which are not respecting those dispositions, even if it has recognised by the Constitutional Court, is not enough to perceive any transfer of sovereignty in the terms provided by Article 11 of the Italian Constitution. In any case, the Constitutional Court adds, also quoting in this case the relevant case-law of Luxembourg, that the fundamental rights of the ECHR enjoy the status of general principles of EC law only in relation to national rules that are within the scope of Community law. In other words, according to the Constitutional Court, in the situation under discussion, characterized by only a domestic relevance, the Court of Justice would have denied its jurisdiction to ascertain the eventual violation by national law of ECHR fundamental rights in their role of general principles of EC law.
Even though the Constitutional Court is perfectly aware of the ‘schizophrenic’ nature of the ECHR in domestic law – ordinary law from a formal point of view and constitutional law in its substance – it denies that the Convention deserves privileged constitutional protection with respect to ‘ordinary international law’.
Constitutional scholarship, as we seen, has proposed three possible interpretations in this regard: Article 10, Article 11 and Article 2 of the Constitution.
In relation to the first option, the Constitutional Court, confirming its previous case-law, argues that the privileged constitutional status enjoyed by the tenets of international law as generally recognised is not extendable to international obligations
based, like the ECHR, on an international treaty. A different conclusion is possible, according to the constitutional judges and this is a small opening to a pluralistic and values-based vision in a reasoning dominated by a formal hierarchical approach, only if the international Treaty in question «reproduces general consuetudinary principles of international law».
With regard to the second interpretive option, the Constitutional Court states that only the European legal system has the character of an autonomous legal order which implies the transfer of a portion of sovereignty from the national to the supranational dimension under Article 11 of the Constitution. In order to support this statement, the constitutional judges, quoting the clearly established precedent mentioned above, emphasised that the constitutional parameter (Article 11) used by the ordinary judges in order to give constitutional protection to EC law is not apt to obtain the same effect for the ECHR, because the latter, just as every international Treaty (irrespective of its subject-matter), cannot entail a limitation on sovereignty under Article 11. Therefore, according to the constitutional judges «the ECHR is “only” a multilateral international public law Treaty which does not entail and cannot entail any limitation on sovereignty in the terms provided by Article 11 of the Constitution».
In relation to the possible identification of a constitutional basis for the ECHR in Article 2 of the Constitution, and with reference to inviolable constitutionally protected rights, the hope had been expressed that after a long silence on this subject, the Constitutional Court would finally follow the thesis of the speciality ratione materiae of the Treaties in the human rights area in relation to all other international Treaties.
The truth is that, by basing the priority of the ECHR over conflicting national law on Article 2, the Constitutional Court would have shifted from a formal hierarchy to a substantial one and, consequently, it would have legitimated the judicial trend, inaugurated by the ordinary judges, of setting aside domestic national legislation in conflict with the ECHR. This is exactly what the Constitutional Court wanted to avoid. The silence of the Court in relation to Article 2 of the Constitution is, then, not surprising The second point in the decisions, as mentioned at the beginning of this section, concerns the importance that the constitutional judges have attributed to the interpretation of the ECHR by the European Court of Human Rights. According to the Constitutional Court, the ECHR provisions take shape in the interpretations of the European Court of Strasbourg, characterized as follows: «the constitutional scrutiny is not based on the text of the ECHR provision, but rather on the interpretation of the provision by the European Court of Strasbourg» .
This approach results in a circuit of judicial interpretations on two levels.
First the level of ordinary judges: before raising a question about the constitutionality of a national law in conflict with the ECHR, they are obliged to interpret the national law, insofar as it is possible, in conformity with the ECHR. It is an important reference to the interpretative role played by the ordinary judge as a decentralised ECHR judge who, for the first time in such a clear way, has been assigned a clear constitutional duty to interpret the domestic law in conformity with the international law of human rights.
On a second level, if ordinary courts do not succeed, they are obliged to refer the matter to the Constitutional Court. The constitutional judges, if they themselves cannot solve the conflict by the consistent interpretation doctrine, must verify if the protection offered to fundamental rights by the European Court of Human Rights is equivalent to that guaranteed by the Italian Constitution.
By thwarting any attempt by the ordinary judges to set aside any national law in conflict with the Convention, the Constitutional Court clearly specifies that, on the one hand, the provision of the ‘new’ Article 117, paragraph 1, has determined the ECHR’s passive strength with respect to subsequent national ordinary statutes, but, on the other hand, it has the effect of giving the constitutional Court competence to ascertain an eventual collision between the ECHR and national law. «The said collision, in fact, does not imply any problem of chronological succession of laws, neither a question of sources of law hierarchy, but rather issues of constitutional illegitimacy». The Court rhetorically concludes that Article 117, paragraph 1 «now fills a constitutional gap that existed before its adoption» .
This gap arose from the conflict between the constitutional principle of openness to international law as embodied in Articles 10 and 11 (now also in Article 117, paragraph 1) of the Constitution and the unfortunate consequence of the status of treaty law in the Italian legal order, in particular of the ECHR, which ran the serious risk of being overtaken by subsequent ordinary domestic law.
Nevertheless, it is doubtful whether that gap has been filled; it could have been done in at least two alternative ways. The Constitutional Court, following the line emerging from its latest precedent (in case 388/1999, supra) could have taken a different, values-based approach, and, by recognising the substantial constitutional character of the ECHR, could have differentiated its status from that of ‘ordinary’ international Treaties. Instead, the Constitutional Court decided to follow an interpretation based on formal logic within the perspective of a hierarchy of sources of law according to which all international Treaties, the ECHR included, are a step higher in that hierarchy. They no longer have the same status as ordinary laws, but, as the Constitutional Court explained: «they are to a degree subordinated to the Constitution, but are intermediate between the Constitution and ordinary status». This upgrade applies to all international Treaties ratified by Italy. Subject to the condition that they are not in conflict with the Constitution, they can then lead to the annulment by the Constitutional Court of all subsequent ordinary statutes in conflict with them.
The clarity of this formal hierarchically-based approach has a number of drawbacks.
The first one we have already seen: the exclusion of any power for common judges to set aside national legislation in conflict with ECHR and the consequent risk of losing the effectiveness of ECHR law. It would be naïve to think, in this regard, that the effet utile is an exclusive prerogative of EC law. If it were possible to agree that the protection of fundamental rights must be assured in the domestic legal order in the most timely and direct way, then the same logic seems, a fortiori, applicable to domestic legislation conflicting with ECHR law. The second drawback is the unavoidable generalisation that every judicial approach based on a certain degree of simplification implies. Is it not quite confusing to put on the same level the ECHR and the ‘Treaty on Principles Governing theActivities of States in the Exploration and Use of Outer Space, Including the Moon and OtherCelestial Bodies’, only because they are formally both international Treaties ratified by Italy?
More problematically, the choice of putting all international agreements on the same level has the consequence that a hypothetical international treaty ratified by Italy after the ECHR and in conflict with it, because, for example, of a lesser guarantee of the freedom of expression, will have to be considered, by the mere application of chronological criteria, as prevailing over the protection accorded by Article 10 of the ECHR.
Even more problematic is that equating all treaties elevates international treaties concluded by the government in the so-called simplified form to the level of ordinary treaties. According to authoritative doctrine these treaties in simplified form are binding on the State when they are concluded on the international level, notwithstanding the absence of Parliamentary approval and ratification by the President.
Following the interpretation of the Constitutional Court, these treaties will be on the same level as ordinary treaties and will equally limit the normative powers of Parliament, with the little detail that, differently from the former, the latter have never received Parliamentary approval.
The truth is that behind the form, there is the substance, and in the case of the EHCR, the latter has a constitutional character, as the Constitutional Court itself has substantially admitted, when it noticed the ‘substantial coincidence’ between the principles contained in the EHCR and those included in the Constitution.
The fact that the ECHR is accorded a higher value in the hierarchy of law sources than ordinary statutes does not mean that it occupies a level equal to that of the Constitution. On the contrary, the Constitutional Court clearly specifies that the status of the ECHR is intermediate, between ordinary law and the Constitution. It is for this reason that, in the judgments being discussed, the Constitutional Court, having established that ordinary law was in conflict with Article 6 and Protocol 1 of the ECHR, examined the question whether these provisions and the relevant case-law conformed to the Constitution, with a positive result.
The final step of the Constitutional Court’s reasoning was then, as has been argued above, to declare the Law unconstitutional.
Then again, there is a difference of treatment with European law, which is considered to have constitutional status, and is thus consequently subordinated not to the entire Constitution, but only to its fundamental principles. The emphasis on the above-mentioned differentiation between the obligations stemming from the EU legal order and those deriving from the ECHR is perhaps the weakest point of the decisions. Instead of equating (under Article 117 paragraph 1) ECHR law to every other international law, the Constitutional Court could perhaps have looked better, not to the end, but to the beginning of the Constitution, in order to identify in Article 11 the adequate constitutional parameter for the ECHR, as it has done in the past with regard to European law, thereby adopting a substantial approach aimed at underlining the constitutional nature of the ECHR provisions. The reasons adduced by the Court to justify the exclusion from Article 11 are indeed not completely convincing, to be honest. The formalistic approach according to which, as we saw earlier, the ECHR, «as every international Treaty cannot entail any limitation on sovereignty in the terms provided by Article 11 of the Constitution», seems to forget several key ‘small details’. When the Constitution was drafted, the Founding Fathers who wrote about limitations of sovereignty in Article 11 had Italy’s entrance into the United Nations in mind. In this respect, it is possible to argue that, especially in the light of the latest reforms in ECHR judicial procedures, the latter has a greater impact on the limitation of national sovereignty than the United Nations. Moreover, it is possible seriously to doubt the Constitutional Court’s qualification of the ECHR as a «multilateral international public law Treaty», since the European Court of Human Rights has underlined the peculiar nature of the ECHR in relation to other Treaties, defining it as ‘a constitutional instrument of European public order (ordre public)’. Apart from this ‘self-qualification argument’, it should be objectively noted that it does not seem enough to cite, as the constitutional judges did, a 27-year old precedent, pursuant to which the ECHR may not entail any limitations on sovereignty in the terms provided by Article 11 of the Constitution, in order to justify the exclusion of the constitutional protection provided by the said constitutional provision.
In 27 years many things have changed, thanks mainly to Protocol XI, which in 1998 made European Court jurisdiction compulsory over individual complaints, eliminated the jurisdiction of the Council of Ministers to decide complaints on their merits, suppressed the role of the Commission to filter claims, and made the hearing procedure entirely public (earlier, 95% of complaints were decided in a confidential way). In this sense, the Constitutional Court seems to forget that ECHR law, more than a legal act which could be statically ‘photographed’, is a dynamic process, a constitutional work in progress, which is constantly emerging, thanks mainly to the growing constitutional character of Strasbourg case-law, and which is slowly showing more of its constitutional nature.
Another ‘historical’ component undervalued by the Constitutional Court is that, as has been noted, the Italian participation in the system of protection of fundamental rights provided by the ECHR might be considered more functional to the achievement of constitutional goals, embodied in Article 11, of the guarantee of peace and justice among nations, than the European Economic Community originally was, as it was oriented, at least directly, to economic-based goals.
Most of all, the refusal of the Constitutional Court to assimilate the status of European law and ECHR law under the ‘common constitutional roof’ of Article 11 has the consequence of creating a double standard with the protection of the fundamental rights embodied in the ECHR, depending upon whether they apply only to domestic situations (in which case they have an intermediate level between ordinary statutes and constitutional law) or to situations of European law relevance (where, through their qualification as general principles of European law, they have a constitutional status). It is evident that, by creating a situation of reverse discrimination, this may lead to a violation of the constitutional principle of equality embodied in Article 3 of the Italian Constitution.
In the end, despite these criticisms, it would not be fair to underline only the negative sides of the path taken by the Constitutional Court with these decisions. Its main positive effects could be that now the Constitutional Court, qualifying itself as the only Tribunal competent in Italy to solve conflicts between ordinary laws and the ECHR, is forced to take up the challenge to become the arbiter of the protection of fundamental rights in that critical area in which the constitutional dimension encounters the supranational and the international ones. This could, perhaps, lead to an attenuation of the judicial hesitation which the Court has, up to now, shown, and to its taking an active role in the new season of European co-operative constitutionalism. It is not a coincidence that 4 months later, after 50 years, in the middle of February 2008 the Constitutional Court requested a preliminary ruling.
During the years following the decisions above commented, the Italian Constitutional Court had the opportunity to clarify the position taken in the judgments of 2007. The Italian Constitutional Court in particular found the way to react, in the decision n. 317/2009, to the new aggressive approach, commented above, of the European Court of Human Rights aimed always in a more intrusive way to disregard the margin of appreciation which should be granted to the Contracting States. In particular, the Italian Constitutional Court underlined as «The reference to the national “margin of appreciation” – elaborated by the Strasbourg Court in order to temper the rigidity of the principles formulated on European level – is primarily manifested through the legislative function of Parliament, though it must always be present in the assessments of this Court, which is not unaware that the protection of fundamental rights must be systematic and not broken down into a series of provisions that are uncoordinated and potentially in conflict with one another..In summary, the national “margin of appreciation” can be determined having regard above all to the overall body of fundamental rights, the detailed and overall consideration of which is a matter for the legislature, the Constitutional Court and the ordinary courts, each within the ambit of its own jurisdiction». Not exactly a cryptic message sent to Strasbourg, in which it is made clear that the Member State are always in a better position to decide upon the right balancing between national an constitutional values and that the Constitutional Courts, within each Member State, are even in the best position to assess the said balancing.
The answer of the Italian State to the new aggressive and intrusive judicial approach of the Strasbourg the European Court of Human Rights is even more evident in the reaction of Italy to the Lautsi judgment of the European Court of Human Rights commented above.
The Court’s Second Section decision caused a great uproar in Italy.
Many declarations from various sources were made against the judgment. Basically, all political parties opposed the judgment, being the Radical Party and the Green the only parties supporting the ruling. The Italian government led by Silvio Berlusconi has expressed a unified opposition, and several ministers of the PDL-Northern League coalition expressed and promoted initiatives and petitions for the maintenance of the symbol in the classroom. Expressions of dissent against the ruling have also been expressed by the Democratic Party through its secretary, according to which are «old tradition as the crucifix is not offensive to anyone». Massimo Donadi (Italy of Values) said that «the Strasbourg ruling is not a good answer to the question of the secular State, although it is legitimate and acceptable».
The Protestant churches and the Jewish Unions praised the ruling as did the Atheist and Agnostic Association. On the contrary, the Muslim community preferred to keep a low profile.
The decision has been strongly criticised as disregarding not only the Christian roots of the Italian State but the margin of appreciation which should be left to the single Member State, furthermore because of its intrusiveness against state sovereignty and national values which should be regulated and protected at national level.
The Italian Government didn’t accept the ECHR ruling, and it subsequently filed an appeal to the Grand Chamber to review the decision of 3 November 2009 in which the European Court of Human Rights found that the display of crucifixes in public school classrooms violated art. 2 of Protocol 1 of the European Convention on Human Rights, viewed in conjunction with art. 9 protecting freedom of thought, conscience and religion.
On 28 January 2010 the Government asked for the case to be referred to the Grand Chamber under art. 43 of the Convention and rule 73. On 1 March 2010 a panel of the Grand Chamber granted that request and the hearing before the Grand Chamber took place on 30 June 2010.
Along with the Italian Government, ten countries, 33 MEPs (jointly) and several NGOs were authorized as third parties to present written observations.
According to the Italian Government, the Court’s decision appears to have created confusion and dismay. The Court held that the neutrality in religious matters is a state’s duty and that the obligation of the crucifix (symbol of the Christian confession) exposure limits not only the right of parents to educate their children according to their beliefs, but also the right of students to believe in other faiths or in no belief at all.
Insupportofitsappeal, the Government hasmade thefollowingconsiderations:
The findings of the case are in clear contradiction with the Court’s precedents in religious matters. As the Court itself has recognized, due to some differences of approach to the issues of religion and of religious symbols at European level, the regulation at national level have to prevail;
With regard to the special consideration given by the European Court in the regulation of religious matters at the national level and the lack of a European consensus on the scope and practical application of the principle of state secularism, it should be noted that in the relations between state and Church, the situation in Europe is very diverse. Even if it exist an European consensus on the principle of state secularism, that does not mean that national authorities are not undisputed holders of a large discretion in such a complex and delicate issue, closely linked to culture and history: the margin of appreciation, in particular, was not only ignored, but neither mentioned in the decision. Thus, the Government remembers the persistent difficulties of interpretation at an European level on the practical implications of applying the principle of state secularism, and here reference is made to the margin of appreciation granted to individual states, because of differences in approach to the religious theme.
The contested decision significantly expands the scope of rights, ruling that can be protected the potential risk of being emotionally disturbed and that this risk is sufficient to produce a violation of religious freedom and freedom of education. This ruling is highly subjective and imprecise, and, if confirmed by the Grand Chamber would create legal uncertainty and would have the effect of ensuring a right to protection of the emotions.
The low number of citations and references to case law than the average in the usual case is important evidence for the newness of the subject examined by the Court’s Second Section.
The conclusions reached in the Court in favor of the assertion of State neutrality in religious matters does not coincide with the principles of equality and equal distance, approved by the Court and universally accepted, requiring non-identification of the state in a particular religion, but also (and especially) a further effort intended to balance the diverse religious needs of its citizens. A further cause for censure, concerns the interpretation of the concept of neutrality of the state that is not resolved in the adoption of an agnostic or atheist approach towards religious symbols, but involves the effort to combine the best religious differences.
The need to balance the diverse religious needs can not be met in the reasoning of the Court, because of the mistake affecting the final verdict: in the case was not, in fact, the department’s management school to decide to keep the crucifix in the classroom, as indicated in the decision (§§ 7-8), but a poll was held democratically, after an appropriate discussion among interested parties, namely parents of students and teachers. According to some precedents of the Court, also a reconstruction of factual error may warrant referral to the Grand Chamber (see Perna v. Italy, May 6, 2003).
Finally, this inconsistency of the decision itself and in relation to previous arrests and the misinterpretation of the new right to education and religious freedom can produce immediate, serious consequences for the interpretation and application of the Convention, as well as negative consequences for individuals of many Member States.
The core of the appeal of the Italian Government is the margin of appreciation. In the EU there is a widespread consensus to allow several ways of conceiving the relationship between States and Churches and, at the same time, it is recognized that the principle of neutrality can not ignore these ways. This, in particular, is also recognized by the Court, because the existence of some differences of approach to the issue of religious symbols, leads one to believe that the regulation at national level should prevail. Moreover, it is not possible to discern throughout Europe a uniform understanding of the significance of religion in society (Otto-Preminger-Institut v. Austria, decision of 20 September 1994, § 50) or of thee impact of acts corresponding to public expression of religious faith; usually they are not the same in different times and different contexts. The legislation will therefore vary from one country to another depending on national traditions and the demands imposed by the protection of the rights and freedoms of others, and in view of maintaining public order.
The Italian Government underlines also another important issue, the one of the neutrality of the State in religious matters. This is considered to be a sort of chimera, because the State still can not avoid taking a position on the diverse needs of its citizens. Indeed, any legislation on religious matters may offend, in many different ways, the sensibilities of a number of people with different religious beliefs, as recognized by the Court (see § 10). Thus, in this case, people of faith might feel equally offended by the fact that they can not see their religious symbol on the wall. On this issue, prof. Weiler has written: «In a society where one of the principal cleavages is not among the religious but between the religious and the secular, absence of religion is not a neutral option. … But in the conditions of our societies, the naked public square, the naked wall in the school, is decidedly not a neutral position, which seems to be at the root of the reasoning of the Court. It is no more neutral than having a crucifix on the wall». The Government denies the idea of religious neutrality because every choice in religious matters is never neutral, and very often regulatory requirements are the result of a long and complex historical process marked by compromises among different points of view.
Then the appeal discusses the role of religious symbols in public. First, the crucifix is considered to be a passive symbol. Whatever its evocative power is, the image of a passive symbol is not comparable to the effects of the acts, such as, for example, the active indoctrination (methodical, every day, and prolonged in time). Thus, there is no proof on how the mere presence of a symbol on the wall could actually affect the religious freedom of students and that of their parents in relation to religious education that are going to choose. Indeed, the presence of a sign shall not require the student to follow the religion to which the sign belongs. Second, require a State to remove the religious symbol that already exists and whose exposure is justified by the tradition of the country implies a negative value against what this symbol represents and does violate religious freedom. Third, it can not be reasonably argued that the mere presence of this symbol in the classroom may significantly reduce the ability of parents to educate their children according to their belief. Finally, the meaning of religious symbols can not be defined precisely, because the perception of their meaning is very subjective.
Following these considerations, the Italian Republic, though secular, has freely decided to maintain a tradition that dates back almost a century ago and, therefore, to keep the crucifix in classrooms (the administrative provisions providing for the exposure of the crucifix in the classrooms are the royal decrees of 1924 and 1928) and this choice was made taking into account the national identity. Moreover, as recognized by the Court, the national authorities have considerable discretion in such a complex and delicate matter, closely linked to culture and history. The exposure of a religious symbol is permitted in conjunction with a legal mechanism for resolving potential conflicts in this area, but it certainly does not go beyond the margin of discretion and appreciation left to states.
Another key point of the appeal is, according to the Italian Government, the misunderstanding of the relationship between positive and negative religious freedom. While religious freedom includes the freedom not to believe, it is not however appropriate to extend this negative freedom to the point of considering a value the absence of religious symbols as a corollary of denying the right to religious symbol.
On 18 March 2011 the Grand Chamber of the European Court of Human Rights announced its decision, reached by 15 votes to 2, overturning the ruling of the lower Chamber. The Grand Chamber did not confirm the 2009 ruling, which condemned the compulsory presence of crucifixes in classrooms of public schools. According to the Court, the presence of the crucifix is not incompatible with the right of parents to have their children educated secularly. A crucifix as such does not amount to indoctrination and is therefore permissible. The Court held that «by prescribing the presence of crucifixes in State-schools classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the regulations confer on the country’s majority religion preponderant visibility in the school environment». Furthermore, «it is not in itself sufficient, however, to denote a process of indoctrination on the respondent State’s part and establish a breach of the requirements of Article 2 of Protocol No. 1» and «a crucifix on a wall is an essentially passive symbol and (…) cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities».
The judges of the Grand Chamber in their reasoning followed these logical steps:
1) there is no common concept of secularism in Europe and even more it lacks in relation to the issue of religious symbols (§§ 26-28 and § 68);
2) therefore the maintenance of a tradition providing for the display of the crucifix falls within the margin of appreciation of the State (§ 68);
3) the Court respects the margin under the principle of subsidiarity and intervenes only when the State constitutes forms of indoctrination at the expenses of minorities (§§ 69-72).
Applying such reasoning, the Court overrules its “embarrassing” decision of 2009, thus renouncing to the policy of “white wall”(as defined by Weiler).
As it was for the Italian appeal, the margin of appreciation, the discretion granted to the State, was the core of the reasoning of the Court. Here, the Court links the margin of appreciation to the preservation of traditions related to religious and symbolic universe, reserving the power of reviewing the internal consistency and reasonableness of the statutory provisions and state practices in light of the respect of the Convention, with reference the protection of religious freedom. The preservation of the tradition and the identity of the Member State is permissible only with a very strict control on the solution adopted by the State affecting the religious freedom of individuals. The margin of appreciation goes together with European supervision. The existence of discretion is supported by the alleged absence of a “European consensus” on this issue. The Court grounds the margin of appreciation in the notion of respect (§ 61) and respect is a matter of consensus; thus as a consequence of the lacking of respect, States enjoy a wide margin of appreciation.
The limit of the national discretion in the religious sphere is, according to the Court, represented by activities aimed at indoctrination or proselytizing. The Court, despite, acknowledging that the exposure of the crucifix gives visibility to the predominant religion and admitting that the crucifix in schools can not be noticed (§ 71), considers that the imposition of the duty to display the crucifix does not go further indoctrination of students (§ 71) and therefore does not compress the religious freedom of individuals (§ 74), because it is not associated with compulsory teaching about Christianity and Italy opens up the school environment in parallel to other religions. This conclusion is in itself very serious, because lowers the minimum standard of protection of religious minorities, which are now forced to tolerate any religious that does not spill in an explicit attempt at indoctrination. Moreover, the Court says it is not in possession of data that prove unequivocally that the presence of crucifixes in school interferes with the sphere of consciousness of the students. This is because the crucifix is an «essentially passive religious symbol» (§ 72), different, it is assumed, to other symbols (active?) pernicious to the conscience of the children who are exposed to them. What constitutes this difference is not clear, because “active ” and “passive” are not adjectives that usually characterize the religious symbols.
Finally, the Court considers the exposure of the crucifix in relation to the patents right to educate their children (§ 75-77). According to the judges, parents retain their full rights as educators of their children. It seem that the Court mixes up the issue of the case, because Mrs. Lautsi is not concerned about her ability to educate her children in private, but she is interested in the presence of the crucifix in the public sphere.
In its ruling, the Court marks a significant shift in the interpretation of the principle of a secularism: the centrality of the self-determination of young students in matters of religion is abandoned in favor of an institutional perspective, focused on the relations between the different religious faiths and between them and the State. Behind the shield of the margin of appreciation, the Court marks an embarrassing return to the majority principle in the regulation of fundamental rights.
As a conclusion, it is convenient to make some consideration on the reasoning of the Court, in particular on its juridical quality. First, if one wants to define this ruling in one single word, it would be appropriate to say that is deferent, deferent against the appeal of the Italian Government and the margin of appreciation accorded to States in applying the Convention. The national provisions have been justified by the Court in light of the peculiar socio-religious reference in the Italian context. Second, the Court does not articulate its reasons, its assessment is short, consisting only of twenty short paragraphs where it hides itself behind the margin of appreciation. . Third, the reasoning is based exclusively on the notion of margin of appreciation, nominated 28 times (quite an embarrassing number), embarrassing, and the confusion between secular state and individual religious freedom. The Court, indeed, completely neglected the notion of secularism, holding that the case does have nothing to do with the compatibility of the crucifix with the principle of secularism (§ 57); according to the Court, the controversy issue is only about the compatibility of the crucifix with the right of education and freedom of religion.
The doctrine of margin of appreciation is based, theoretically, on the need to reconcile universalism and diversity. It is a very delicate alchemy, in which the Court should reach after careful consideration of several factors. As pointed out by Susanna Mancini, the reality is that Lautsi is placed on a line of continuity with the case-law of Court of Human Rights, seeking to legitimize important restrictions to basic rights in order to safeguard the freedom of the Christian majority (Otto Preminger, Wingrove), and very less benevolent towards ideological and religious minorities, in particular the Islamic one (Karandum, Dahab, Sahin, Doğru, Kervanci).
4 The UK context: the relationship between the European Convention of Human Rights and the domestic legal order before and after the Human Rights Act;
4.1 Prior to the enactment of the Human Rights Act, Britain was almost alone amongst western democracies in not having a positive guarantee of rights. Until the Human rights act Britain did not have a bill of rights in the American sense of the term: provisions designed to protect the individual against the tyranny of the majority.
Historical declarations of rights, such as the Magna Charta (1215) or the Bill of rights (1689) were considered «not so much “declarations of rights” in the foreign sense of the term, as judicial condemnations of claims or practices on the part of the Crown, which are thereby pronounced illegal». In this way, the protection of rights was not shaped by the “constitutional statutes”, but rather by the Diceyan theory of rule of law and by its corollary of the residual rights, according to which it is possible to do everything that is not forbidden by the law.
The Convention was drafted with significant input from English Lawyers and the United Kingdom was the first country which ratified the Convention in 1951.
However, only after 15 years, in 1966, were two important optional clauses recognized: the individual right of petition provided by art. 25 of the Convention and the acknowledgment of the jurisdiction of the European Court of Human Rights provided by art. 46.
Thus, the Convention, between 1966 and 1997, was in the position of an international treaty which was not integrated in the “law of the country” such as happens, also at the present days, in Ireland and Denmark. This is a clear expression of the dualistic principles of the English Law according to which, international treaties ratified by the UK Government, such as the Convention, do not have legal effect domestically until they are incorporated into domestic law by an Act of Parliament.
After the 1966 acknowledgment, the United Kingdom was involved in a remarkable number of cases, due to the initiatives of the others States and individuals. This conspicuous judicial activity, that involved the UK breach of the European Convention of Human Rights, brought several changes in Britain’s primary legislation, e.g.: homosexuality in Northern Ireland (Dudgeon, 1981); telephone tapping (Malone, 1984); immigration rules (Abulaziz , Cabales & Balkandali, 1985). Of course, this scenario supported the theories of a full incorporation of the ECHR or those asking for a modern written internal Bill of Rights or rather a written constitution.
Moreover, the Convention provisions were directly mentioned in some famous cases before the domestic courts. The judges, in fact, on the basis of the ratification of the Convention, mentioned the Convention provisions for solving interpretative issues regarding primary legislation, thus, for example, in the fields of retroactivity of the criminal law, illegal immigration, religious freedom and foreign status. On the contrary, there are cases where the courts have refused to find support in the Convention because this would have implied that the legislative power was in the hands of the Government rather than in the hands of Parliament. More generally, the acknowledgment of rights, such as in the case of privacy, was not founded on the Convention provisions.
Frequently there were decisions wherein the courts mentioned the Convention to underline divergences between the internal law and the Convention provisions affirming that the first prevail over the second.
Is noteworthy that the first group of cases that has been mentioned is not so far from the Italian scenario described before (also Germany is very similar), where the Convention assumes, de facto, a sub-Constitutional position in the law hierarchy.
4.2 – The Human Rights Act was presented to the Lords the 23 October 1997, on the ground of the well-known white paper Rights Brought Home. All the aspects of the bill were deeply scrutinized by Parliament. In this sense, first of all, the Lord Chancellor emphasized how the UK breaches of the Convention – ruled by the Court – were growing during the years and how this growth would have been kept down through the filter activity of the British judges.
The rich debate of the scholars about the rights and freedom rulings was also retraced; thus, the opinion according to which some readings of the Convention would substantially given access to the latter in the British domestic law – through a de facto “transfusion” or a sort of “backdoor incorporation” – was closely assessed.
In other words, on the one hand, it was the acknowledgment of the growing incapacity of the traditional doctrine of the residual rights. On the other, it was the consciousness of the risk that the Convention would in any case found its own space in the Britain legal order.
In this perspective, the reappropriation of the cultural, historic and legal meaning of the rights stood to reason.
Today only one last doubt still remains: does the entrance of the national judges in the field of rights warranted by international rules, does not imply an overlap of the judiciary and legislative functions?
To resolve this irrationality without undermining the sovereignty of Parliament, the Human Rights Act presents several elements.
The first is by making provision for rights-compatible interpretation and amendment of primary legislation in sections 3, 4, and 10. The second is by making it unlawful for a public authority to act in a way which is incompatible with the Convention right under sections 6-9. Finally the Human Rights Act provides a way in which Convention rights can have an impact on the legislative process.
An “emphatic adjuration“ in the field of the interpretative obligation is provided by section 3 of the Human Rights Act, according to which the “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. Crucially, the application of section 3, «does not affect the validity continuing operation or enforcement of any incompatible primary legislation». So, although the courts have the power to interpret legislation compatibility with Convention rights, they are not given the power to invalidate it.
Section 4 (2) provides that «if the court is satisfied that the provision is incompatible with the Convention right, it may make a declaration of incompatibility». Thus, in contrast to section 3, which creates a judicial obligationto read and give effect to legislation compatibility with Convention rights, section 4 gives the court a discretion (though not a duty) to issue a declaration of incompatibility. Section 4 also specifies that a declaration of incompatibility «does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given» and «is not binding on the parties to the proceedings in which it is made».
Thus, under the Human Rights Act, the courts are not given the power to strike down legislation, in the sense that the declaration of incompatibility does not, in itself, invalidate primary legislation or give the litigant a remedy based on such invalidation.
It is sufficient to note that, although declarations of incompatibility have no legal effect on the validity legislation, the expectation is that they would put strong pressure on the executive/legislature to emend the legislation accordingly.
Provision for amendment of primary legislation following a declaration of incompatibility, is set out in section 10 entitled “Remedial action”. Of course, Parliament may respond to a declaration of incompatibility by proceeding to amend legislation in the normal way. However section 10 (2) also provides for a “fast-track” amendment procedure enabling a Minister to make a “remedial order” in order to remove the incompatibility. It provides: “If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility”.
Section 10 may also be used when a decision of the ECTHR suggests that a legislative provision in incompatible with the Convention.
Schedule 2 to the HRA provides two procedures for making a “remedial order” which must be the form of a statutory instrument. The standard procedure is that a Minister must lay a draft of the order before Parliament for sixty days, together with an explanation of the incompatibility and a statement of the reasons for proceeding under section 10. This may provide some measure of parliamentary scrutiny of the remedial order. The alternative procedure allows the Minister make the order before laying it before Parliament, thus taking the amendment totally outside the parliamentary process which would normally be required for primary legislation. So far, the government has shown a clear preference for using the standard procedure.
Another crucial section of the HRA is 19. It provides that a Minister, when introducing legislation to Parliament before the second reading of the Bill, must “make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention (a statement of compatibility)” or alternatively to “make a statement to the effect that although he is unable to make a statement of compatibility the Government nevertheless wishes the House to proceed with the Bill”.
4.3 The Saga of Prisoners’ right to vote between London and Strasbourg.
As known, the disenfranchisement of prisoners in Great Britain dates back to the 19th century and it was linked to a notion of “civic death”, enshrined the Forfeiture Act of 1870 which denied offenders their rights of citizenship.
Subsequently, the Representation of the People Act 1969introduced a specific provision. Convicted persons were legally incapable of votingduring the time while they were detained in a penal institution after the Criminal Law Act 1967amended the 1870 Act. These provisions were later consolidated in the Representation of the People Act 1983 which enshrines in Schedule 3 – as emended by the Representation of the People Act 1985 – that «A convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election».
In 1999 the Home Office Working Party on Electoral Procedures (chaired by the then Home Office minister George Howarth) recommended to distinguish between convicted prisoners and unconvicted remand prisoners. These recommendations were enforced in the Representation of the People Act 2000. However, the Act did not mentioned the convicted prisoners, who remain with the electoral ban provided section 3 of the Representation of the People Act 1983.
The current political and legal turmoil arose, as well known, from the Hirst v. the United Kingdom decision given by the European Court of Human Rights on 30 March 2004. Briefly, John Hirst – a prisoner serving a life sentence for manslaughter at Rye Hill Prison in Warwickshire – had challenged the ban on prisoners voting. He had first challenged the ban in the High Court in 2001, but his application, concerning a declaration of incompatibility under the Human Right Act 1998, was dismissed by the High Court, which ruled that the ban was compatible with the European Convention for prisoners to lose the right to vote.
Then, in March 2004, the European Court of Human Rights found unanimously that the UK government was in violation of Article 3 Protocol I of the European Convention on Human Rights, which guarantees the right to vote. The Court affirmed that «The fact that a convicted prisoner is deprived of his liberty does not mean that he loses the protection of other fundamental rights in the Convention» such as the right to vote that is considered by the Court «the indispensable foundation of a democratic system».
The UK government lodged an appeal to the Grand Chamber which was held on 27 April 2005 and announced only on 6 October 2006. The appeal was rejected by the Grand Chamber according to which «There is no question, therefore, that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion».
Therefore – although the situation was somewhat improved by the Act of 2000 which for the first time granted the vote to persons detained on remand – section 3 of the 1983 Act is considered a “blunt instrument”. In particular, the Court underlines that the blanket restriction applies automatically to all convicted prisoners in prison, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Thus, «Such a general, automatic and indiscriminate restriction on a vitally important Convention right had to be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No 1».
Following that decision, the Government initiated a two-stage consultation process to define how best implement the judgment. The first stage was completed on 14 Dicember 2006 with a paper that set out the possible options for the enfranchisement of prisoners.
The second stage was published in a document by the Ministry of Justice on 8 April 2009. In this second paper the (Labour) Government concluded that «to meet the terms of the [ECHR] judgment a limited enfranchisement of convicted prisoners in custody should take place, with eligibility determined on the basis of sentence length but acknowledged that the final decision on the extension of the franchise to convicted prisoners must rest with Parliament». In particular, the document set out four options for enfranchising prisoners: 1) prisoners sentenced to less than one years’ imprisonment; 2) prisoners sentenced to less than two years’ imprisonment; 3) prisoners sentenced to less than four years’ imprisonment; 4) prisoners sentenced to less than two years’ imprisonment and, in addition, prisoners imprisoned between two and four years but only where a Judge grants permission to vote in their specific case.
The consequences of this non-compliance activity – shaped in the delay due also to the consultation process – is a chaotic and complex turmoil between the UK Government and the ECHR institutions.
Briefly, the Strasbourg’s perspective is to put on pressure the UK to reach the implementation of the Hirst case. More precisely, in relation to this approach, there are several pronouncements of the Committee of Ministers such as that adopted on 3 December 2009 in which it expressed the serious concern that the substantial delay in implementing the judgment would give rise to a significant risk that the next general election (June 2010) would be performed «in a way that fails to comply with the Convention». In the same resolution, the Committee urged the respondent state, «following the end of the second stage consultation period, to rapidly adopt the measures necessary to implement the judgment of the Court». Other similar warnings have been adopted during the years by the Committee Ministers meetings (2-4 March 2010, 1-3 June 2010 and 2 December 2010).
A crucial moment of the prisoners saga, is the Green and M.T. v. United Kingdom judgment on 23 November 2010. Something about the facts: Robert Green and M.T are two prisoners that had sought to be registered as voters but their applications were refused by the Electoral Registration Officer. For the prisoners the refusal was in violation of Article 3 of Protocol No 1, so they challenged it in the ECHR. The Court, confirming the violation of Article 3, found that the latter «was due to the United Kingdom’s failure to execute the Court’s Grand Chamber judgment in Hirst v. the United Kingdom No 2». Having received 2.500 similar applications, the Court applied its pilot procedure, giving to the UK Government six months from the date when Greens and M.T. became final to introduce legislative proposals to bring the disputed law in line with the Convention.
It is noteworthy, that the Court did not take in account the option to give clear indications to the Government as to how it can eliminate the dysfunction, rather it noted that: «The Court’s role in this area is a subsidiary one: the national authorities are, in principle, better placed than an international court to evaluate local needs and conditions and, as a result, in matters of general policy, on which opinions within a democratic society may reasonably differ, the role of the domestic policy-maker should be given special weight». However, at the end of the six months deadline, the Court affirmed that there was no justification to analyze every application related to the schedule 3 of the Representation of the People Act. Thus, the Court decided that it will not examine any case similar to Hirst and proposes to strike out all such registered cases once legislation has been introduced. Recently, on 11 April 2011 the Grand Chamber of the European Court of Human Rights rejected the Government request for an appeal hearing relating to the case of Greens and M.T. v Uk.
The British perspective, instead, is not linear. On one side, there is the Joint Committee on Human Rights opinion (expressed in its reports of the year 2006-07; 2007-08 and 2008-09) according to which the delay of the Government is unacceptable and for this reason the Committee itself recommends to the Government urgent action to resolve the issue. On the other, there are the continuous reactions of the Government summarized in the recent words of the Minister Harper: «We have to meet our legal obligations, but we want to go no further than that. Secondly we want to ensure that the most serious offenders are not given the right to vote. That is why we did not say that there would be no line, that the limit would be entirely up to judges. We want to ensure that there is a line, so that anyone above that length of sentence would not be able to vote. We recognise that the most serious offenders should not be able to vote».
The resolution of the political and legal turmoil is still open and its end is in the hands of the UK Government. At the moment there are only doubts: What would be the consequences, for example, of the Government allowing a partial enfranchisement? Could the Government simply ignore the ruling or refuse to remedy the current situation? Could the UK derogate from the Convention or enter a reservation and thereby circumvent the ruling?; or whitdraw from the Convention and/or jurisdiction of the Court altogether?
In any case, how this saga will end, will be a strong test for the relationship between UK and the Convention and, of course, for the power of its Court.