The protection of fundamental rights in Italian case law Check against delivery

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1 The protection of fundamental rights in Italian case law Check against delivery Ernesto Lupo Former President of the Italian Suprema Corte di Cassazione The author focuses on the impact of the protection of fundamental rights on the protection of the rights of the suspect at national level and points out that recent Italian case law refers to Article 46 of the ECHR, which requires States parties to comply with the judgments of the Court of Human Rights in Strasbourg. The author hopes that the European Union will pursue the adoption of a uniform set of procedural guarantees and safeguards that cannot fail to be applied also to cross-border investigations. THE IMPACT OF EUROPEAN PROTECTION OF FUNDAMENTAL RIGHTS ON THE ITALIAN SYSTEM OF PROTECTION OF PERSONS SUBJECT TO CROSS-BORDER INVESTIGATIONS. Due to the work I have been doing recently, and the presence in this session of the conference of other speakers who have worked in the European Courts, I shall limit my analysis to Italian case law. I shall consider, therefore, the protection of fundamental rights as they have emerged from the rulings of the Italian Constitutional Court and Court of Cassation, in so far as they may be relevant to crossborder investigations, which are currently carried out by OLAF and in future, by the European Public Prosecutor, as provided for in Article 86 TFEU. The rights under consideration essentially regard the area of criminal law, in the broad sense, including administrative penalties of a punitive nature, in accordance with the Strasbourg Court s interpretation of Article 7 of the ECHR. Indeed, cross-border investigations undertaken to verify the commission of offences against the financial interests of the European Union involve the rights of defence of those subject to the same investigations. And these rights are primarily provided by laws regarding criminal proceedings, as laid down in our Constitution and Code of Criminal Procedure. A full consideration of the subject of my lecture would thus require an analytical examination of adjective law, as regards the protection of fundamental rights of persons subjected to investigations that may lead to criminal proceedings. But this would mean extending our discussion (impossible here) to the entire Italian Code of Criminal Procedure, its content and even the relative constitutional principles. In the quest for greater uniformity in the protection of the fundamental rights of persons under investigation, an aim which would seem essential given the concrete possibility that cross-border investigations will become increasingly widespread, I think it appropriate to limit this lecture to the effects that the European protection of fundamental rights has on Italian protection of the rights of the suspect, as currently interpreted in Italian case law. 63

2 64 THE EFFECTS OF THE JUDGMENTS OF THE COURT OF HUMAN RIGHTS After a long period in which the ECHR was given little consideration and was applied only sporadically in Italian case law, now it is directly applied in domestic law and has a binding force on national legislation, which is obliged to comply with its provisions. As a rule, any domestic laws conflicting with the Charter are unconstitutional because they violate the precept (imposed on national legislation by Article 117, first paragraph, of the Constitution) of complying with the terms and conditions of international obligations. The fundamental rights enshrined in articles 5-7 of the ECHR are important for the matter we are considering here in so far as they may be invoked in proceedings instituted in Italy following cross-border investigations conducted by European bodies. We should, in fact, bear in mind that the future European Public Prosecutor, responsible for investigating, prosecuting and bringing to judgment... the perpetrators of crimes affecting the financial interests of the Union, will also have to bring prosecutions before the competent court authorities of the Member States (art.86.2 TFEU). a) On parties in proceedings before the Court of Strasbourg. These principles (undisputed after the Constitutional Court judgments no. 348 and 349 of 2007) mean that Article 46 of the ECHR, which obliges Italy to abide by the final judgments of the Court (of Strasbourg) in disputes in which it is part, is fully effective. The direct binding effect of these judgments (for the benefit of the suspect who may have successfully lodged a complaint before the Court of Human Rights regarding the violation of the Convention) has, recently, found an apposite procedural instrument in the review of the preliminary criminal conviction that determined the reopening of a case (previously concluded - it should be noted - with the res judicata court conviction), when it is a question of complying with the final judgment of the European Court of Human Rights. This procedural instrument was introduced by the Constitutional Court, due to the inertia of national legislature, in its judgment of April 7, , which thus overcame the various attempts made in the past by the Court to apply an instrument already provided for in the Code of Criminal Procedure, deemed suitable to overturn a conviction, in order to comply with the supervening decision of the Court of Human Rights. Our courts found that there was no institution that could, in general, give effect to the judgments of Strasbourg and thus duly introduced one, although there remain problems regarding the compatibility of the current review regulations after the new case was added to those already provided for by 630 Code of Criminal Procedure. It is certain, however, that the suspect under cross-border investigation could lodge a complaint in Italian courts that the investigations failed to comply with the fundamental rights enshrined in the ECHR. b) On persons other than the parties. More problematic is the effect of ECHR judgments (as regards Italy or any other state party to the Convention) on persons other than the parties to legal proceedings. Since all judgments can provide the necessary interpretation of the provisions in the ECHR (even if, as a rule, they refer to the case judged by the European Court, which only ascertains whether or not there has been a violation of the Convention in that specific case), there has arisen the question of whether the judgements can

3 have a bearing on cases already judged by national courts but not judged by the European Court. This problem has arisen recently in a joint session of the Court of Cassation, which was asked to judge on the effects of the judgment of the Court of Human Rights, Grand Chamber, September 1, 2009, Scoppola, which interpreted Article 7 of the ECHR in a completely new way: if a more stringent criminal law is imposed, it is not retroactive but if a judgement is made during proceedings that is more favourable to the accused, it is applicable (a principle also expressed by Article 49 of the Nice Charter). This judgment would mean that life imprisonment is incompatible with Article 7, because of the punishment of thirty years imprisonment provided for in a supervening discipline in favour of the accused (the aforementioned Scoppola), who had asked to proceed with the abbreviated trial procedure (the supervening discipline was the one in force on the day of that request). Consequently, the life sentence pronounced for Scoppola in the previous judgment was changed to the thirty years imprisonment. The question the Court of Cassation posed was whether this change in the sentence should be exercised in favour of another person sentenced to life imprisonment in the same procedural position as Scoppola, despite this person not having gone to the Court of Strasbourg (and the relevant term having expired), and thus not being able to invoke a judgment of the European Court in his or her favour. The Court of Cassation held that, in general, a decision of the Court of Human Rights may also be invoked in other trials but that, in this case, the Strasbourg judgment (in the Scoppola case) cannot be applied to other trials because of certain provisions in domestic law which cannot be interpreted in a way that makes it applicable. Therefore, it ruled that the Constitutional Court would have to decide on the constitutionality of these provisions (Section a, April 19, 2012 n.34472, Ercolano). The Constitutional Court has recently discussed the issue and we are awaiting its decision. Also in 2012, the joint session of the Court had to decide on the effects on other trials of the judgment of the Court of Human Rights of 10 April 2012, Lorenzetti c. Italy, which stated that reparation proceedings for wrongful imprisonment should take place in open court rather than chamber proceedings (since the participation of the defender to a non public discussion was not considered sufficient). This European ruling, which clearly goes beyond the actual case and ascertains a violation of fair trial originating in the Italian legal system, would lead to this system being superseded, which is not possible through judicial interpretation. So in this case, too, the Court of Cassation had to raise the issue of constitutionality of provisions in the code of procedure that conflict with the ECHR, as interpreted by the aforementioned judgment in the Lorenzetti case (Section a., October 18, 2012 n.41694, Nicosia). Here, too, we are awaiting the decision of the Constitutional Court. The two cases presented here show that Italian case law is now taking great care to comply with Article 46 of the ECHR (binding force and execution of Strasbourg court judgments). Compliance with the rights conferred by the Convention and, consequently, the judgments of the Court of Human Rights (as regards their effects, which are direct on the parties and indirect on the internal law system) 65

4 66 may, therefore, be considered as guaranteed by those subject to the cross-border investigations conducted by European bodies (present and future). This situation is also important from the perspective of a uniform protection of persons subject to cross border investigations, a goal that I think is essential if these investigations are to be extended. THE EFFECTS OF EU LAW. IN PARTICULAR: THE CHARTER OF FUNDAMENTAL RIGHTS. The protection of fundamental rights within the European Union has been established not only by the ECHR but also by the prior and extensive case law of the Court of Justice in Luxembourg. The most significant trend in Europe in recent years is the development of an supranational system, as a general legal system, which places limits on state systems, increasing, and not reducing, guarantees for those within the system it. And the strength of the European system lies precisely in the expansive nature of people s rights. Within the Union, supranational institutions have acquired a special regulatory role, with Community bodies having the power to enact laws that have a direct effect on national laws; they are now at the centre of the system protection of fundamental rights, and the interpenetration of national and supranational systems is experiencing an unstoppable crescendo. The direct effects of the sources of EU law on national law now constitute the pillars of the European system. The Charter of Fundamental Rights, having the same legal value as the Treaties of the Union (Article 6 TEU), has strengthened this protection and made the rights themselves more visible, since they are formulated in a written document. The Community path taken by our Constitutional Court means that today the judicial review of internal laws is not centralised and only the prerogative of the Constitutional Court, but, in the broader sense, has also been extended to all courts called to give full and immediate implementation to Community laws that have a direct effect, and not to apply, in whole or in part, internal laws incompatible with them, after obtaining a preliminary ruling, if necessary, from the Court of justice under article 267 TFEU (formerly Article 234 EC Treaty), ensuring, where possible, consistency of interpretation. There can, therefore, be no doubt that national courts are entitled to verify whether a cross-border investigation carried out by a European body, if recognized as having legal relevance in a domestic trial, has complied with a person s fundamental rights and, therefore, the rights of defence guaranteed in Article 48 of the above Charter. In these circumstances, the applicability of the Charter cannot be questioned, since cross-border investigations are carried out in implementation of EU law, thus within the scope of the Charter itself (Article 51) The Charter of Fundamental Rights, however, does not specify how the rights of defence must be guaranteed. Thus, it would be desirable to enact Community legislation to introduce common procedural rules, applicable throughout the European Union, which would have a positive impact on the protection of the right of defence, making it more uniform and effective. In this regard, Union authorities

5 have acted by approving Directive 2010/64/EU on the right to interpretation and translation and Directive 2012/13/EU on the right to information in criminal proceedings. In the recommendation of the European Parliament to the Council on the development of an area of EU criminal justice (P6_TA-PROV (2009) 0386), the European Parliament emphasized the need to complete the implementation of the principle of mutual recognition, accompanied by the adoption of a uniform set of procedural guarantees and safeguards in criminal proceedings, based on the principle of the presumption of innocence, such as the right to a Letter of Rights, the right to legal assistance, free of charge where necessary, and even before the trial, the right to adduce evidence, the right to be informed in a language understood by the suspect/defendant, the nature of and/or the reasons for the claims and/or the basis for suspicion, the right of access to all relevant documents in a language that the suspect/defendant understands, the right to an interpreter, the right to a hearing and effective and affordable appeal mechanisms. The provision of these procedural guarantees and safeguards must also apply to cross-border investigations. At present, pending broad-ranging uniform European Union regulations on this matter, national protection of the right of defence in cross-border investigations is to be seen in relation to if and how the results of these investigations (which today are of an administrative nature) are used in criminal proceedings or in trials that involve the application of an administrative penalty. There are no Court of Cassation precedents about the utilization of investigations conducted by OLAF. However, the Court of Criminal Cassation was of the opinion that the provisions of the code of procedure on the non usability of the acts undertaken for rogatory letters abroad (Article 729 Code of Criminal Procedure) do not apply in the case of acquisition of information emerging from foreign criminal proceedings, spontaneously and independently offered to Italian authorities by the foreign authorities. And this has been stated with reference to acts of an administrative nature transmitted by a foreign police force (Court of Cassation February 20, 2009 n.11118, rv , with numerous analogous precedents). The same principle, I believe, can be applied to acts of administrative investigations carried out by OLAF. 67