An article on the Italian courts and their reaction to the Convention on Human Rights:
http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1598&context=lawreview
Brancaccio, Hon. Antonio* (2012) "The Protection of Human Rights in the Decisions of the Italian Supreme Court of Cassation," St. John's Law Review: Vol. 70: Iss. 1, Article 9.
*Former Chief Justice, Supreme Court of Cassation of Italy
It should perhaps be mentioned that the decisions of the
Italian Court of Cassation' are not binding as precedent when
the question decided comes before other courts or is brought up
again before the Court itself.2 The authority of such decisions,
however, is such that it will undoubtedly have a guiding effect on
future decisions.3 This is a sufficient justification for limiting my
remarks to these decisions.
.....
As far as the Convention is concerned, the Court of Cassation
has been criticized for not addressing this question until
many years after the implementing legislation. Two reasons
have been articulated to account for this delay. First, it is due to
the slight and superficial knowledge of the Convention possessed
by lawyers and judges. Lawyers either did not invoke the application
of the Convention, or they sought to invoke the principles
of the Convention in such a vague manner that judges were hesitant
to apply them.
The second reason is the widely-held belief that Italian domestic
sources, the Italian Constitution and ordinary laws, substantially
exhaust the protection of human rights covered by the
Convention. This apprehension of domestic law preemption by
international laws is not unique to Italian jurisprudence. A
similar delay can be seen in the behavior of judges in other countries.
In France, for example, the Convention only began to be
applied in the second half of the 1970's. The question of the direct
application of the Covenant does not have the same history
as the Convention. Thus, what will be said about the latter is
equally valid for the former.
......
"the slight and superficial knowledge of the Convention possessed by lawyers and judges" What a damning indictment of the whole rotten edifice!
The article is historical. The "slight and superficial knowledge" may or may not continue to the current era. Certain judges may be more familiar with the ECHR than others.
Some additional quotes from the article:
The question of the application of the Convention and the
Covenant has been dealt with primarily in decisions concerning
criminal cases. Therefore, it is on these cases that I will concentrate.
The Court's first reaction after becoming aware of the existence
of this question was to deny the direct effect of the Convention
within our legal system. Thus, the decisions of the Court
of Cassation affirmed that the provisions of the Convention bind
states only in their relationships with other states and do not affect
a state's relationship with individuals. These provisions
were held to be of a programmatic nature and therefore could not
modify domestic law."
This theory was justified using two arguments. First, it was
assumed that the Convention anticipates an exhaustive system
of protection for a violation of human rights through recourse to
two international bodies-the Commission 2 and the European
Court of Human Rights. 3 These fully enforceable rights cannot
directly benefit the individual before the courts of his own country
due to the particular conditions of this system.
Secondly, reference was made to Article 57 of the Convention,
which obliges every high contracting party, at the request of
the Secretary General of the Council of Europe, to explain how
its internal law ensures the effective implementation of all the
provisions contained in the Convention." It was also assumed
that Article 57 excluded a provision stating that the protections
promulgated at the Convention were a direct part of domestic
law.
The opposite view was taken by the trial judges and certain
administrative judges who affirmed the norms of the Convention
not only as domestic law, but also as constitutional law. This
approach, however, was consistently rejected by the Court of
Cassation's decisions and by the Constitutional Court. 5 This
view will therefore not be further addressed but mention was
made of it to provide a brief glimpse into the extent of this debate.
At the beginning of the 1980's, after a rather extended period
of resistance to new ideas, some of the Court of Cassation's
decisions acknowledged that the norms of the Convention were
immediately and directly applicable to domestic cases. The exception
is those provisions whose contents are considered so
vague in their terms as to not indicate sufficiently clear situations.
Since other decisions continued to uphold the previous and
opposing view, a conflict came about which required the intervention
of the United Criminal Divisions of the Court (Sezioni
Unite Penali). This is the extended panel of the supreme court
which adjudicates the most important cases, or cases in which
there have been contrasting precedents of the individual divisions
of the court. 6 In 1988, the United Divisions passed judgment
on the appeal of Paolo Castro, accepting the immediate
applicability of the norms of the Convention in Italy.
In this respect, the court made three observations. First, it
observed that from a reading of Articles 1 and 13 of the Convention"
8 it is apparent that the high contracting parties must secure
a direct recognition of the rights and freedoms defined in the
Convention itself. Therefore, it is responsible for more than only
to "undertake to respect" these rights and freedoms, as was
stated in the first version of the draft Convention.19 Second, protection
at the international level does not exclude protection by
national judges, but serves to reinforce this protection by controlling
the way in which national judicial authorities ensure respect
for these rights. The opposing argument, drawn from the
protections afforded through recourse to the Commission of Human
Rights, has no foundation.2" Third, the domestic applicability
of the Convention flows from the principle that Italian law is
to be adapted to international treaty law. The writers agree that,
where the international legal instrument contains a model legal
procedure or action, complete in all the essential elements and
which may be directly adopted by the domestic system, the internal
implementation of the international model is automatic.
When the international instrument does not contain such a
model, however, it cannot be self-executing. To become effective,
the domestic legal implications imposed by the instrument require
state legislative action.
The Constitutional Court has agreed with the approach
taken by the United Divisions of the Court of Cassation.22 Subsequent
decisions in both criminal and civil matters have uniformly
proceeded in this same direction.
