ARTICLES THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN THE ITALIAN SYSTEM : FROM A RIGHT APPROACH TO A STRATEGIC LITIGATION Serena Sileoni* Abstract The article analyzes the impact of the European Convention on Human Rights and of its Court’s judgments in Italy, ranging from a legal perspective to a political and social one. In fact, after decades of scarce cultural impact of the ECHR and its jurisprudence, in the last few years the Italian system passed from an individual right approach to a strategic implementation of the Convention. In the first part, the article resumes the systematically stronger role of the ECHR in Italy from the legal and institutional point of view. In the second one, it examines the case-law against Italy and some classes of judgments (prohibition of torture and mass expulsion, immunity of parliamentarians, freedom of religion, ill-treatment by law enforcement officers) where it is possible to find an increase in the use of the ECHR as a legal instrument for political and cultural challenges. Table of Contents 1.The significance of supranational judicial reviews of human rights and the role of the European Convention on Human Rights in Italy ……………………………………………66 1.1 The judicial protection of human rights in Italy……………….66 1.2 The impact of international judicial reviews of human rights.68 1.3 The problematic role of the ECHR in the domestic system…..69 2. Infringements of the ECHR by Italy...............................................74 Sileoni – The ECHR in the Italian system 3. Assessing implementation and policy impact of ECtHR rulings...................................................................................78 3.1 Actors and institutions involved in the implementation of the ECHR..............................................................78 3.2 Assessing implementation in the domestic system...................85 4. The Italian legal culture vis à vis the ECHR system....................91 5. Mobilizing European human rights law in Italy: From a right approach to a strategic litigation.................................98 6. The prohibition of torture, the prohibition of mass expulsion, the immunity of parliamentarians, the ill-treatment and excessive force by law enforcement officers, the freedom of religion: a new era for the ECHR integration into the national system?................100 6.1 The prohibition of torture as consequence of extradition.......100 6.2 The mass expulsion to Lybia.......................................................105 6.3 The immunity of parliamentarians.............................................112 6.4 The “Genoa” case .........................................................................115 6.5 Freedom of religion.......................................................................116 7. Conclusion: Toward a strategic litigation in Italy?....................121 1. Introduction: the significance of supranational judicial reviews of human rights in Italy 1.1 The judicial protection of human rights in Italy Italy is considered, broadly speaking, a Western democracy where human rights have been protected and guaranteed since its foundation. Already in the Fundamental Law prior to the Constitution (Statuto Albertino) 1 there was a catalogue of rights, although only from a liberal and not a welfare perspective. The Constitution in force, approved in 1948 after the Second World War, provides for both a catalogue of rights and for the system necessary for their recognition 2. People living in Italy could claim such protection before the judiciary, that has to be independent * PhD in Public comparative law, currently Research fellow in Constitutional law, University of Florence. 1 G. Rebuffa, Lo Statuto Albertino (2003). 2 The two parts interact and must be read as a complete and unique text, cfr. M. Luciani, La Costituzione dei diritti e la Costituzione dei poteri. Noterelle brevi su un modello interpretativo ricorrente , in AA.VV., Scritti in onore di Vezio Crisafulli , vol. 2 (1985). 66 Ijpl Issue 1/2011 from other institutional actors and subjected only to law (Art. 101, 104 Const.). Judgments could be appealed twice, but the second time only for reasons regarding the application of the law, and not the merit. Separate from the judicial system, the Constitutional Court has been evolving as a Court of human rights. In its original concept, its role was to void Acts or portions of Acts in conflict with the Constitution, guaranteeing the application of Kelsen’s hierarchical criteria. For this reason, the Italian Constitution does not allow people to claim directly to the Constitutional Court. There are only two ways to generate a decision by the Constitutional Court: judges, during proceedings where the Act that is allegedly unconstitutional could be enforced, can ask if the Act is unconstitutional or not ( ricorso in via incidentale ); Regions and State can contest the legitimacy respectively of a regional or state Act, in the two months after their publication ( ricorso in via principale ). So, according to the Italian Founding Fathers, the Constitutional Court should act as court of human rights only indirectly, in a different way from Spain or Germany, for example, where people are able to address claims directly to the Tribunal Constitutional and the Bundesverfassungsgericht . But the evolution of the role of the Constitutional Court should be seen as moving in the direction of protection of constitutional rights. The doctrine is quite homogeneous in recognizing a specific role of the 15 judges of the Constitutional Court in promoting a culture of human rights both in specific and in general cases 3. When it acts, it does not forget the specific case hidden in the ricorso in via incidentale , and often it suggests to the ordinary judge the way to solve the case. Moreover, systematically it tends to review the reasonability of legislation, especially regarding the egalitarian principle 4. 3 L. Carlassare, I diritti davanti alla Corte costituzionale: ricorso individuale o rilettura dell’art. 27 L. n. 87/1953 (1997); R. Romboli, Ampliamento dell’accesso alla Corte costituzionale e introduzione di un ricorso diretto a tutela dei diritti fondamentali , in A. Anzon, P. Caretti, S. Grassi (eds.), Prospettive di accesso alla giustizia costituzionale , 631-643 (2000); U. De Siervo (ed.), 1956-2006: cinquant’anni di Corte Costituzionale , spec. V (2006); V. Onida, La Corte, i diritti fondamentali e l’accesso alla giustizia costituzionale , 1797-1807; L. Califano, Corte costituzionale e diritti fondamentali (2004); P. Bilancia, E. De Marco (eds.), La tutela multilivello dei diritti (2004); L. Califano (ed.), Corte costituzionale e diritti fondamentali (2004). 4 V. Boncinelli, I valori costituzionali fra testo e contesto: regole e forme di razionalità del giudizio costituzionale (2007); G. Zagreblesky, Corte costituzionale e principio 67 Sileoni – The ECHR in the Italian system 2.1 The impact of international judicial reviews of human rights Such an indirect judicial review of human rights has been supported by the communitarian and international system. The EU system, in whose foundation Italy played a central role, has created a very strong system of protection of rights thanks to the jurisprudence of the European Court of Justice and the legislation on new rights (such as environment and privacy, that do not appear expressly in the Italian Constitution). In spite of its restricted competence on economic matters, the EU has been growing more and more as a system that protects human rights in a wider sense. But, in theory, the revolution in the review of human rights for Italians is represented by the European Convention on Human Rights (hereinafter the ECHR) and its jurisprudence. In fact, the reform in adjudicating the European Court of Human Rights (hereinafter the ECtHR) by individuals represents in the Italian system the first case of direct claim for individuals. Nevertheless, the impact of the ECHR is quite ambiguous and unclear, and its application by the domestic judiciary has not been immediate and univocal. We will try to explain why. Italy was among the ten countries that founded the Council of Europe in 1949. The ECHR was signed by the Republic of Italy on 4 November 1950 and ratified in 1955. Since 1973, when Italy made declarations under Art. 25 and 46 acknowledging the right to individual petition to the European Court of Human Rights, an impressive number of applications against Italy have been deposited at the Court, the majority of which have focused on administration of justice. But the real impact of the ECHR has been confined for a long time to a limited number of matters, and only in sporadic but new cases it deals with other issues. Only in the last years a strategic approach to the ECHR is arising, moving from litigations concerning individual claims to litigations that are able to challenge the political and social structure. d’uguaglianza , in N. Occhiocupo, La Corte costituzionale tra norma giuridica e realtà sociale , 103-120 (1978); AA.VV, Il principio di ragionevolezza nella giurisprudenza della Corte costituzionale: atti del Seminario svoltosi in Roma, Palazzo della Consulta nei giorni 13 e 14 ottobre 1992 (1994). 68 Ijpl Issue 1/2011 This paper will focus on such a shift toward a more intentional use of the ECHR as a juridical instrument for changing the political and cultural system. 2.3 The problematic role of the ECHR in the domestic system The first reason why the ECHR has been for a long time almost ignored by everyone except