Strasbourg, 1 February 2006

CCJE/REP(2006)15
English only

Consultative Council of European Judges (CCJE)

Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Italy

Preliminary remark

Questions under sections A-C hereafter should be answered by respondent delegations not only taking into account the problems relating to the role of the judge in the context of terrorism, but from a more general point of view. Questions under section D, on the contrary, are specifically aimed at dealing with the role of the judge in the context of terrorism.

A. Availability of information and documentation on all international legal instruments relevant to judicial activities (point IV (d) of the framework action plan)

If a country's judges are to be at home in a European and international context, that country must, beyond the uncertain substance of the iura novit curia principle, do everything to ensure that its judges can gain a full understanding of the relevant European and international reference texts, enabling them to perform their activities under the best possible conditions.

In this connection, it is important that appropriate initial and in-service training schemes should be run for judges on international subjects in both basic and specialist areas of knowledge. Judges should also have access to paper or electronic versions of legal instruments, so as to permit documentary research in the European and international legal spheres. Lastly, encouragement should be given to appropriate measures - including the allocation of grants - aimed at teaching judges foreign languages as part of their basic or specialist training and ensuring that each court has legal translation facilities, without any consequent increase in the length of proceedings.

Questions

A.1. Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training, and the total number of judges in your country.

A preliminary remark should concern the fact that Italy’s legislation on judicial organisation was recently reformed by Law n. 150 of 25th July 2005, delegating the government to issues decrees, in conformity with principles contained in the same Law, deeply revising such relevant matters as the career of judges, the possibility for a judge to become a public prosecutor and vice versa, the organisation of prosecutors’ offices and the Court of Cassation, the limitation of competences of the CSM (below) in the field of career of judges and training. Since the Law is not enforced as of today, because some governmental decrees are not signed yest, reference hereunder will be made to the present legal framework.

The "Consiglio Superiore della Magistratura" (CSM - in English, Higher Council for the Judiciary) is the self-governing body for Italy's "ordre judiciaire". Its competences, based upon Articles 104 and 105 of the Italian Constitution as well as on Law n. 195 of 24th March 1958 concerning "Establishment and organisation of the Higher Council for the Judiciary", comprise responsibility for recruitment and initial training of "judicial auditors", permanent training of judges and prosecutors, and international co-operation in the field of judicial training. Decisions concerning initial and permanent training are discussed within one of the several Commissions formed by Council members within the C.S.M. This Commission (the IX Commission) avails itself of a consultative Scientific Committee (composed of judges and public prosecutors as well as University professors), having the tasks of analysing and identifying training needs, as well as designing programmes and methods for judicial training. The C.S.M. in its plenary assembly decides on proposals from the IX Commission and the Scientific Committee. According to C.S.M.’s resolution of 26 November 1998, a decentralised judicial training network has been established, with the aim of complementing training actions performed at the national level. C.S.M. appoints in each district one or more members of the judiciary as responsible for training to be delivered at the local level.

Both initial and continuous training syllabi include training initiatives in international law and European law. In the late ’90, a widespread programme was carried out by CSM in all judicial districts to promote knowledge of Community law. A number of initiatives have also concerned the standards set by the European Court of Human Rights. Since then, international and, in particular, European law have formed the object of regular attention in training programmes.

Statistical data and description of training initiatives may be found:

- in the “4-year Report on Training” (Relazione quadriennale sull’attività di formazione), edited by CSM, concerning the years 2001-2004 (pdf file enclosed; see, especially pp. 107 – 140 for the theoretical approach behind international training initiatives; see pp. 150-154 for an overall statistical view);

- on the initial page of the website www.csm.it,. as to international training initiatives offered for 2005 and 2006 (with the list of courses offered).

As a synthesis, one may mention here that, whereas international training represented 4% of the total training offered to magistrates in 2001, it progressively grew up to almost 10% in 2004 (when 26 courses were offered).

The offer boosted with the participation of CSM to programmes in co-operation with the EJTN. CSM is also represented on the Lisbon Network.

The number of courses in comparison with the number of magistrates is analysed in pp. 185 and following of the above mentioned Report.

A.2. Do all judges periodically receive full information on recent legislation and case-law at the European and international levels, without it being necessary for them to perform their own research in these matters? If they do, please indicate what types of documents are sent direct to each judge by the national authorities (e.g. official gazettes, legal periodicals). Please also specify what information is available on paper and what is provided in electronic form (CD-Rom, for instance).

Unfortunately the relevant cuts on spending and on paper publications makes it no longer possible to make available to each judge not even a paper copy of the Official Gazette of the Republic of Italy (containing national and relevant European Union legislation, Constitutional Court decisions and other materials), in past years available at least in each judicial chamber. At present one or a few subscriptions are available for each Court. Decisions and other legal materials are not brought to the attention of judges, whose responsability to know the law remains unchanged.

However, magistrates have free access to the Internet base Court of Cassation legal materials data bank, including – among other documents – the texts of the laws, of Supreme Court decisions, and excerpts of other relevant legal materials. The system is connected with the CELEX retrieval system of the European Union, from which it draws E.U. legislation and case-law of the Court of Justice of the European Communities.

A programme which unfortunately underwent financial constraints was aimed at making updated computer machines widely available to Courts and personally to magistrates, so that they could access all available Internet based data banks.

The numbers of accesses is still insufficient, as mostly younger or especially trained judges and prosecutors make wide use of Internet information. Traditional research in legal libraries is still wide-spread. Judges and prosecutors usually have to purchase their own legal books and subscribe to periodicals, as court libraries are limited in number. No special reimbursement or tax deduction is provided for.

The Supreme Court periodically makes available to all magistrates DVD’s containing a thesaurus of court decisions.

Periodically copies of relevant ECHR decisions are sent to courts, as part of an awareness-raising project undertaken by Italy under its obligation to comply with the Convention.

A.3. Do judges have an opportunity to attend foreign language courses? Are these courses free of charge or state-subsidised? Does each court have legal translation facilities?

Courts do not have translation facilities, that should be considered essential in view of the high costs involved in the appointment on an “ad hoc” basis of translators and intepreters in both criminal and civil procedures.

At the centralised level, some courses have been offered by CSM (often with EJTN partners) to stimulate foreign legal language learning on the part of judges and prosecutors. CSM also participates in EJTN partnerships providing such courses abroad. Unfortunately, the impact in terms of numbers of magistrates involved is very small.

At the decentralised level, some basic foreign language courses have been offered in several judicial districts in cooperation with language schools, with a wider participation and impact. A part of the cost involved is usually borne by the training budget, whereas most of the cost is borne by participants. However, such initiatives are quite successful, as they bring language instructors into the courts, and language training becomes a routine activity.

B. Dialogue between national and European judicial institutions (point IV (c) of the framework action plan)

For all national courts, the European Court of Human Rights and the Court of Justice of the European Communities serve as a reference regarding interpretation of a uniform European body of law. National courts have been delegated jurisdiction for administering European law since they are required, firstly, to apply it directly and, secondly, to interpret it in conformity with European standards.

To establish an effective dialogue between national and European courts, it is necessary that national judicial institutions should be the target of initiatives aimed at fostering not just the exchange of information but also, wherever possible, direct contacts between institutions.

Questions

B.1 What means does your country use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year.

See answers above.

B.2. Does your country hold events bringing together the national courts and the European courts? Who participates in these gatherings? How are their results passed on, so as to enhance their reach?

No such initiatives have been organised so far, although they might be a success.

Occasionally, a member of European Courts may be invited as a rapporteur in a training initiative.

C. Application by national courts of the European Convention on Human Rights and the case-law of the European Court of Human Rights, European community law and other international legal instruments (point IV (b) of the framework action plan)

Each country's application of the European standards depends to a large extent on the rank they enjoy in national law, including under the Constitution. Nonetheless, national case-law also plays a role since it is able to give interpretations adapting national law to European law, while upholding national constitutional standards.

A study is necessary to allow the CCJE to consider the most appropriate measures to be proposed to national courts in order to solve the problems encountered in this field.

Questions

C.1. In your country what rank do the following sources of law enjoy in the hierarchy of law in particular in relation to constitutional provisions and ordinary legislation?

a) the European Convention on Human Rights (ECHR)
b) EU treaties
c) the case-law of:

- the European Court of Human Rights
- the Court of Justice of the European Communities

d) international treaties.

Please cite the relevant constitutional provisions or case-law.

This subject matter is governed by articles 10 and 11 of the Italian Constitution, according to which – inter alia – “the Italian legal system conforms itself to generally recognised rules of international law”; “Italy consents, in conditions of equality with other States, to those limitations of sovereignty that are necessary for a system assuring peace and justice among Nations, and promotes international organisations thereat aimed”.

According to common views, EU treaties and other international treaties are ranked right below the rules of the Italian Constitution, and above ordinary laws. Decisions of the Court of Justice of the EC have the same rank as the Treaties. According to the case-law of the Italian Constitutional Court, any Italian judge (and the same should apply to the Executive branch) should disregard any ordinary law provision conflicting with Community law, and apply the latter, without any need to request the Constitutional Court to rule on the conflict (which a judge is required to, when the conflict exists between an ordinary law and the Italian Constitution).

It is still unclear what is the rank of the European Convention of Human Rights, which – having been ratified by an ordinary law – traditionally has been seen as having the same rank as internal ordinary laws (from which follows the application of the rule of time priority – and implicit repeal - and/or speciality to determine the prevailing rule in case of conflict). Some recent openings may be however noticed, in the case-law of the Italian Constitutional and Supreme Courts, to establish a higher rank of the Convention.

C.2. Does your country's case-law recognise the value - at least for interpretation purposes - of Council of Europe recommendations and resolutions?

In general, no direct legal value is attached to such instruments. Occasionally, Council of Europe instruments have been cited in court decisions as a source of knowledge of international standards.

C.3 If the European Court of Human Rights were to hold that certain provisions of your country's legislation violate the ECHR, would your national courts be permitted not to apply those provisions? Apart from execution of the Court's judgments by the government, do the national courts have authority to prescribe their own measures implementing the Court's decisions?

At present, in general courts have no power to directly implement decisions of the European Court of Human Rights, which, however, constitute authority.

Some specific laws were enacted in order to assure compliance; only under a limited visual angle such law provide for a role for judges.

· The recent Law no. 12 of 9th January 2006 – specifically on the topic of “Execution of decisions of ECHR” - provided that the Prime Minister has the responsibilities to promote all measures that are in the competence of the Executive Branch, and to report to Parliament for the latter’s competences, in order to assure compliance with decisions of the ECHR. A yearly report is to be submitted to Parliament on the state of compliance with the several decisions.

· By an urgent decree-law of 21st February 2005, no. 17, converted by Parliament into Law 22nd April 2005, no. 60, Italy conformed to an explicit invitation coming from the ECHR (Sejdovic vs. Italy 10th November 2004), by introducing the possibility for a person, condemned to a criminal penalty without previous effective notice of charges (judgement by default), to apply for a re-opening of the time-limit to appeal.

· The Decree of the President of the Republic of 28 November 2005, no. 289, provided the possibility that decisions of the ECHR, affecting internal judicial decisions that have established guilt for a criminal charge, be registered in the national record of criminal penalties.

C.4. Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, are the following remedies available in your country before a possible application to the Court in Strasbourg:

- a direct application for reopening of the proceedings?
- lodging of a claim for compensation?

Please specify whether national law affords solutions of this kind which are solely confined to certain violations of the ECHR, such as legal proceedings which have breached the reasonable time requirement.

A re-opening of the proceeding and/or a re-opening of the time-limit for appeal is available according to general legislation on revision of judgements and of re-opening of time-limits (see e.g. Court of Cassation, no. 22182 of 31st May 2005) as well as under the above mentioned Law no. 12/2006.

A direct claim for compensation is possible before Court of appeals, if they establish – under Law 24th March 2001, no. 89 - that a violation of the ECHR occurred; but this remedy is available only in the case that the violation concerns the right to a reasonable delay for court proceedings under art. 6.

D. The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism

Since 1949 the Council of Europe has been committed to safeguarding human rights, the rule of law and pluralist democracy.

Terrorism is a denial of these three fundamental principles, and the Council of Europe has produced a number of conventions aimed at combating terrorism while seeking to uphold human rights.

Questions

D.1. Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments?

No special measures have been taken so far as to both actions. Italian legislation, however, is consisted with international standards.

D.2. Has your country adopted substantive and procedural measures specifically applicable for cases where a suspicion about terrorism exists? Please describe what is the role of the judge in the proceedings in this type of cases and indicate in what way his or her role in this case is different from his or her role in ordinary proceedings.

Italy has a sad experience with domestic terrorism, that took many lives in its relatively recent past.

As international terrorism become an important threat, Italy – by an urgent decree-law of 18th October 2001, no. 374, converted into Law 15th December 2001, no. 438 - modified Art. 270-bis of the Criminal Code (introduced in 1979, in an epoch of domestic terrorism, to punish those who also merely associated with the goal of terrorism or destabilisation of the democratic system), by punishing through a jail penalty between 7 and 15 years promoters and those who finance, and between 5 and 10 years participants, to those “associations that propose the realisation of acts of violence with the goal of terrorism or destabilisation of the democratic system”, such being also “when the acts of violence are addressed to a foreign State or agency or international organisation”.

Also, by a following art. 271 ter of the Criminal Code, support activities were punished.

The same law provided for the possibility of covert police operations, as well as of preventive phone-tapping and other interferences in private communications, with the only goal of acquiring information, and with a mere authorisation of the Public Prosecutor. Terrorism investigations were concentrated in the main regional Prosecutors’ Offices.

After new international terrorist events, an urgent decree-law no. 144 of 27th July 2005, converted into law no. 155 of 31st July 2005 introduced:

- artt. 270 quater, quinquies and sexies into the Criminal Code, punishing the new crime of enrolling persons with terrorist goals (including sabotage of essential public services), as well as punishing the new crime of those who train or are trained to acts of violence or use of weapons, explosives, etc. with terrorist goals; this legislation also defined more clearly the goal of terrorism as a component of the above crimes (“those behaviours that, for their nature or context, may bring a serious damage to a country or an international organisation, and are realised with the aim to intimidate population or to oblige public powers or an international organisation to act or to abstain from acting, or to destabilise or destroy fundamental political, constitutional, economic and social structures of a country or an international organisation, as well as the other behaviours defined as terrorism or with the goal of terrorism by conventions or other rules of international law binding for Italy”);

- the possibility for investigators to have “investigation interviews”, i.e. to question suspect persons, under detention, without the presence of a lawyer and authorisation of a judge being necessary; information obtained is for the progress of investigation (not to be used in trial);

- the possibility that individuals be kept in custody for up to 24 hours without charge, compared to 12 hours before the enactment of the legislation;

- new and stricter rules as to expulsions of suspect aliens – although legally resident - by an executive branch officer (prefect), with the prohibition of court orders of suspension of execution of the expulsion (although a non-suspending challenge is possible before an administrative tribunal);

- controls on telephone and data traffic;

- new rules on personal identification, etc.

D.3 What means does your country use to reconcile the demands of security and of the protection of human rights in cases where suspicion about terrorism exists? Please indicate the measures taken, in particular in the fields of criminal law, administrative law, admission, exclusion and deportation of aliens, and preventive actions.
Can you quote some specific cases where the question about such a reconciliation was raised?

See answers above.

The “counter-terrorist” measures, especially those of 2005, have given rise to debate and controversyin public opinion as to the length of time individuals can be kept in custody without charge, the permission to law enforcement authorities to interrogate suspects without the suspect having a lawyer present, and to an executive authority (a prefect) -- not a judge -- to expel from Italy a person who is residing in Italy legally. Also, the extent of interference into private life through phone tapping and other techniques is debated, as well as the possible contrast of this legislation with the principle of non-refoulement, i.e. the prohibition on sending anyone to a country or territory where that person would be at risk of serious human rights violations.

All these topics call for an increased role of the judge. One may notice that one relevant point of the Italian system is that, although the judge is not involved in the management of many relevant aspects of the new legislation, the Public Prosecutor is (authorising many measures, and being informed on others); since prosecutors belong to the same career as judges, this is a form of indirect guarantee against violation of human rights.

Other areas in which the role of the judges is called upon is the application of the new crimes, that punish conducts that are sometimes vague (a judicial controversy arose as to differences between acts of terrorism and guerrilla; another as to the degree of relevant participation to terrorist organisations, for mere supporters, financers, etc.), or that may involve new concepts as to the burden of proof (e.g., for the practical impossibility for prosecution, in a terrorist trial, to fully demonstrate that an international terrorist network exists based in a remote country, unless intelligence or police information is deemed relevant).

It should be expected that many of the above aspects may be examined by the Italian Constitutional Court as to compatibility of the new legislation with constitutional standards.



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