The Constitutional Court
The Italian Constitutional Court and Other Courts
Its Sister Courts
Constitutional justice is not a uniquely Italian phenomenon. The
Italian Constitutional Court, though it operates within the particular
framework of the Italian Constitution, has a form and role that are similar
to those of constitutional courts, tribunals and supreme courts that carry
out comparable tasks in other legal systems. In addition, in its work, the
Court does not overlook the experience of other countries.
For some time now, the Italian Constitutional Court has developed
exchange and collaboration relationships with these bodies – in particular,
those of other European countries, but also with those of other
parts of the world, particularly in Latin America, where Italian legal
culture exerts considerable influence. The Court’s most intensive contacts
are with other European constitutional courts, not only those
which are similar to the Italian Consulta in terms of their history and
experience (such as the German, Austrian, French, Spanish, and
Portuguese courts: with regard to the latter three, the Court has formalized
its relationship with a specific quadrilateral agreement which provides
for annual meetings between judges and exchanges of documentation).
In Europe, the Conference of European Constitutional Courts has
been operating since 1970. Among its activities, it organizes a congress
every three years. Recently, the XVII Congress of the Conference was held
in Batumi (Georgia) on 29 June-1 July 2017, on the topic of the “Role of
the Constitutional Courts in Upholding and Applying the Constitutional
Principles”.
The World Conference on Constitutional Justice (WCCJ) operates on
a broader level. It brings together more than 100 courts from around the
world with the purpose of promoting constitutional justice and the protection
of human rights, which are considered key elements of the rule of
law and democracy (the IV Congress of the WCCJ was held in Vilnius on
11-14 September 2017, on the topic of “The Rule of Law and
Constitutional Justice in the Modern World”.
Relations among bodies with constitutional jurisdiction are also
facilitated by the work of the European Commission for Democracy
Through Law, more commonly known as the Venice Commission,
after the city where its headquarters are located. The Commission was
set up under the aegis of the Council of Europe to promote understanding
of the legal systems of European countries (especially, at first,
those of the developing democracies of Eastern Europe), and to study
problems that arise in the functioning of their institutions. Said
Commission reserves particular attention to constitutional justice, and
the Italian Constitutional Court, with over sixty years of experience,
provides a valuable contribution.
International and Supranational Courts
The Italian Constitutional Court maintains relationships with international
courts that work in areas related to those within its own jurisdiction.
One such body is the European Court of Human Rights in
Strasbourg, which rules on claims by individuals that they have suffered
violations of their human rights – guaranteed by the European
Convention of 1950 – in individual member states (now 47 European
states), which have not been effectively remedied through their national
legal systems. Since the rights guaranteed by the European Convention
do not differ greatly from those guaranteed by the Italian Constitution,
the jurisprudence of the Court of Strasbourg and that of the
Constitutional Court sometimes deal with the same problems (and the
case law of the two Courts does not always agree). The basic difference
is that the Italian Court deals only with laws, and decides whether they
conform to the Constitution, while the Court in Strasbourg deals not
with laws, but with concrete violations of rights, regardless of whether
these arise from the existence of a law, the misapplication of a law, acts
or omissions by national authorities, or other defects in the functioning
of the national system. The European Court cannot supersede national
authorities, but can only order the State to remedy the violation (if possible),
or to pay damages to the injured party.
Since 2007 (Judgements No.s 348 and 349), on the basis of Article 117
of the Constitution (as amended by Constitutional Law No. 3 of 2001),
the Italian Constitutional Court declares that laws that contrast with the
European Convention of Human Rights, as interpreted by its Court in
Strasbourg, are unconstitutional.
A privileged and fruitful relationship links the Constitutional Court
and the Court of Justice of the European Union, which has its seat in
Luxembourg and deals essentially with acts of the European institutions
and breaches of European Union law that may have been committed by
Member States.
Today, Union law and the national laws of Member States enter into
contact and become intertwined to an increasingly frequent and close
degree, as both the Court of Justice and national courts are asked to solve
legal issues that are similar, or even identical and overlapping. The
Constitutional Court, too, is increasingly called upon to solve issues that
are also brought to the Court of Justice of the European Union, especially
since the Charter of Fundamental Rights of the European Union
(approved at Nice in 2000) assumed the same rank as the Treaties on 1
December 2009. Thus, it may happen that a judge raises a doubt as to the
compatibility of an Italian law both with the Constitution and with a
right protected at Union level. In these cases, the Court has recently clarified
(starting from Judgment no. 269 of 2017) that it is possible to have
multiple judicial remedies at both national and European levels. To facilitate
coordination of the many Courts involved, the legal system envisages
the valuable instrument of the “reference for a preliminary ruling”, which
allows national courts, including the Constitutional Court, to enter into
contact with the Court of Justice when a specific case involves both
national law and Union law aspects. Recent practice shows how, through
better mutual knowledge and international cooperation between Courts,
it is possible to strengthen the foundations for the ideals and principles of
constitutionalism – individual rights and duties, balance between the
powers of the state, judicial protection – to establish themselves and to
strengthen in a space that transcends national boundaries.