Between European and National Courts, in the Pursuit of the Strongest Protection of Fundamental Rights (with Specific Regard to Criminal and Procedural Law)

© Springer International Publishing Switzerland 2015
Stefano Ruggeri (ed.)Human Rights in European Criminal Law10.1007/978-3-319-12042-3_2

“Dialogue” Between European and National Courts, in the Pursuit of the Strongest Protection of Fundamental Rights (with Specific Regard to Criminal and Procedural Law)

Antonio Ruggeri 

Department of Law, University of Messina, Piazza Pugliatti, 98168 Messina, Italy



Antonio Ruggeri


The paper highlights that the so-called dialogue between the Courts represents, at the same time, a fact and a value, and that the methodological perspective best suited to revealing its essence is axiologicalsubstantial in nature. It is a question in fact of establishing in the individual cases what rule, not source (Constitution or international charter of rights), is best suited in ensuring the “strongest” protection of fundamental rights. The parameter according to which this test is carried out is that of the dignity of the human person, a “super-constitutional value”, contextualised yet also universally applicable. We then take into consideration some selected cases, specifically relating to criminal and procedural law, that show the commitment of the Courts in making their respective case law trends converge, without however renouncing the specificity of the legal system of provenance and with it the identity of the Courts themselves.

ConvergencesCriminal and procedural law“Dialogue” between European and national courtsDivergences in case law trends

1 The “Dialogue” Between the Courts: Notes on Method and Constitutional Theory

1.1 The Dual Value—Objective-Existential and Axiological-Normative—of the “Dialogue” Between the Courts

There has for some time been a heated debate on the “dialogue” between national and European Courts, with widely varying and even diametrically opposed views, with some commentators feeling that it may represent extremely serious risks for constitutional rights (some in particular, such as social rights1), which could suffer, and others conversely considering it a precious resource, which we can no longer do without, guaranteeing those same constitutional rights, both those expressly provided for and other “new” ones, which also, thanks to the aforementioned “dialogue”, could enjoy appropriate protection.2

In terms of opportuneness, all these opinions are clearly legitimately sustainable, and therefore I would not like here to add my voice to one camp of scholars or the other. I will simply limit myself to showing that the “dialogue” in question is in any case a fact, in my opinion with a dual value, being both objectiveexistential and axiologicalnormative. In other words, it is, at the same time, a fact and a value or, rather, a fact that may (and must) be translated into a value. This may take place on the condition that the “dialogue” itself takes certain forms (and not others), stays within certain limits, and is directed and developed in a certain way.

In other terms, it is a question of establishing a theoretical framework within which the “dialogue” itself can take place and bear fruit. Straying outside this framework could end up having the opposite result, an inter-case-law conflict with unforeseeable outcomes and that, also for this reason, is harmful to rights or—which is basically the same thing—the incommunicability between those speaking different languages

That “dialogue” is an unconfutable objective fact is testified already by the fact that the European courts increasingly often mutually refer to each other,3 as they also do to the most significant rulings of national courts (some in particular) from whose case law they draw on those “common constitutional traditions” that are seen as an inexhaustible reservoir for an effective, renewed protection of rights. At the same time, also in the rulings of national courts (both constitutional and ordinary4) there are now frequent references to the case law of European courts, especially in view of the fulfilment of those “new” rights that, in a growing number and demand, are to be safeguarded.5

It is, nevertheless, true that all the aforementioned references have a multiple value and respond to various needs: sometimes (even often) they are instead used as rhetorical artifices to support a decision that, with the mere use of parameters and criteria borrowed from the original legal system, the court maintains it can easily reach. These are thus artifices that serve at best to reinforce an argument that, even without them, is in any case considered solid. On other occasions, meanwhile, we have the impression that without the contribution offered by the international charters of rights (as far as regards the issue at hand here, the European Convention on Human Rights and the EU Charter of Fundamental Rights), the case would have had a different outcome.6

Highly indicative of the changing direction of case law is a ruling, albeit not very recent, of the Italian Constitutional Court, which, on one hand, admits the reciprocal support that the Constitution and Charter of Fundamental Rights give each other, contributing to their constant regeneration of meaning, and, on the other, states that the former, in any case (and, it would seem, for any right), offers a protection of rights that is no weaker than that provided by the Charters. Thus, in judgment no. 398 1999, the Constitutional Court argues that the Constitution and the Charters of Rights “integrate each other, mutually completing each other in interpretation”; just before, however, there is a warning that “human rights, also guaranteed by universal or regional conventions signed by Italy, are also expressed, and guaranteed to no lesser extent, in the Constitution” (there follows a reference to Constitutional Court no. 399 of 1998). Commenting on this, I saw the need to note how it expressed “a state of mind … which was uncertain, not to say disturbed, vacillating between supranational openness and a retreat into naive and unproductive constitutional nationalism or patriotism”.7

This sort of constitutional case law in Italy is extremely illuminating and leads us to reflect, both in terms of method and theory, on the various, immediate implications for the object of study here.

1.2 The Way in Which the Constitution and the International Charters of Rights Relate to Each Other, at the Service of the Dignity of Man: The Alternative Between a Total Constitution and a Partial Constitution

The answer to the issue concerned with these “dialogues” in fact raises further general questions that precede and determine the former, starting with the fundamental issue, which questions the very theory of the Constitution. In fact, we find ourselves having to choose between an idea of total Constitution, which says everything on everything and is thus able to satisfy man’s every elementary need, and a partial Constitution, which acknowledges its own limits and seeks support from other Charters, since it is unable alone to provide full satisfaction.

The former is an almost sacred idea of Constitution, which starts with the assumption of its perfection and self-sufficiency, and originates from the idea, vigorously supported by the French revolutionaries, that the constituent power is an unlimited power, founding and not founded, able to create from nothing a new constitutional order based on fundamental principles untouchable by any act that is an expression of constituted power, even a law theoretically suitable to modify the Constitution. This is a theoretical framework, which increasingly intense international relations and the advanced process of supranational integration (which in turn has further highlighted the crisis of national sovereignty)8 prove to be obsolete. Despite this, it is slavishly followed and repeated also by those who show that they are aware of the deep changes that have taken place in constitutional reality.

The other, conversely, is an idea that acknowledges the limited nature of the Constitution and is aware of the dual role performed by the Charters of Rights in the way they relate to the Constitution itself. In fact, on one hand, they contribute to the constantly updated interpretation of the declarations of the Constitution, while, on the other, they help compensate for its shortcomings and are thus applied in its place to protect those fundamental rights that it does not envisage.

I have already tried to point out that in this way, precisely when it seems to buckle under and retreat in the face of Charters of external origin, the Constitution is actually exalted, and fully realised.9 The former Charters, in fact, in any case may demand to be held valid and to be implemented internally insofar as they excellently serve, in the objective conditions of the context, those trans-epochal, if not fully universal, values of freedom and equality that compose the fundamental axiological couple, both of the national legal system and of the relations between different legal systems. The Grundnorm, which is also an authentic Grundwert, is in fact provided by both the aforementioned values, each conceptually and positively non-independent, unable to demand enforcement if lacking the support offered by the other,10 from whose combination justice is created. All together they form a sort of trinity value, which seems to reflect and translate the real superconstitutional value, namely the dignity of the human person.11

Expressed in another way, the Charters of Rights may influence the practice of legislative production and interpretation-application solely on the condition that they ensure a greater protection of freedom, equality, justice (and, ultimately, dignity) than would have been achieved by applying solely the Constitution, which in this way is thus taken to its utmost realisation, namely magis ut valeat.

Here is the heart of the question once more being dealt with, and here—as we see—there converge the indications from the Constitution and from the Charters of Rights themselves, the former and the latter having their raison dêtre, the purpose that justifies their adoption and lasting application, in providing the greatest protection possible to rights.

There is an apparent (but it is, in fact, merely apparent) difference between the way in which the Charters relate to the Constitution and the way in which the Constitution in turn relates to them. The former, in fact, expressly acknowledge their “subsidiary” role with regard to the safeguards provided to rights in the national sphere (see Article 53 of the Charter of Nice-Strasbourg and the ECHR), while the latter instead does not always explicitly profess such humility with regard to the former. This silence is very often intended rather as an implicit confirmation of the primacy of the national Charter, of its unquestionable “sovereignty”.

In this way, we however make a serious mistake, not only of theoretical reconstruction, but above all of methodical perspective, by ignoring the basic fact that the Constitution, on a par with any other legislative document, should always be construed in its entirety, due to the way in which the statements that compose it create a “system”.12

Thus, with specific regard to the Italian Constitution, in this way we unduly throw into shade the crucial meaning of the value of peace and justice between Nations, in whose name under Article 11 the limitation of state sovereignty is justified (and moreover imposed). This meaning is informed and justified—as we have seen—through the necessary reference to the axiological couple of liberty and equality (and, ultimately, dignity).

1.3 The Alternative Between a Systematic Approach Based on a Formal-Abstract or Axiological-Substantial Approach

On this crucial point, constitutional case law (and I shall refer here specifically to that of the Italian Constitutional Court regarding the role and condition of the ECHR in the Italian legal system) still oscillates between two opposite approaches to reconstructing the relations between the sources—at times formal-abstract, at others axiological-substantial.

On one hand, the Constitutional Court (starting with the famous “twin” judgments, judgment nos. 348 and 349 of 2007) argues that the ECHR (but this holds true for every other Charter and international law instrument in general13) has a “sub-constitutional” nature, thus establishing itself, certainly, as a parameter of the validity of the common laws, while being in turn obliged to comply with every constitutional rule (and not only the fundamental principles). On the other hand, however, the Constitutional Court admits that national laws, even if they fail to comply with the Convention, may nevertheless be applied, if it can be demonstrated that they lead to a more “intense” protection of rights (see, in particular, judgment no. 317 of 2009). This is an affirmation of extraordinary significance, perhaps not yet appreciated in all its possible repercussions, since this is no longer a comparison between sources, on the basis of their formal connotations or origin, but is rather direct and exclusive, between rules, being a question in fact of establishing which of them offers the best service to rights. Upon closer examination, moreover, this affirmation, taken to its ultimate consequences, inevitably ends up involving the Constitution itself, since it cannot a priori rule out that it is precisely the norms of the Charters of external origin that provide that service in place of the Constitution and is also—as has been seen—in view of the optimal realisation of the Constitution itself.

The choice is therefore basically one of method, since it is necessary at the end to establish whether we should adopt a systematic approach, which is formal-abstract or—as here once again suggested—axiological-substantial in nature. And it is thus a question of verifying the implications of a theoretical-reconstructive nature that derive from one or the other methodical option. Thus, it is clear—at least, it seems to me—that, if we adopt the latter point of view, we cannot in theory place any limitation on the inclusion into the domestic constitutional order of rules that, even where they seem to depart from the very rules of the Constitution (even in its fundamental principles!14), prove in reality to be even better suited to serving the values of freedom and equality (and, for this reason, of dignity), therefore raising even higher the point of synthesis of the constitutional values at stake.15

2 Order of the Rules (Rather Than Sources), in View of the Realization of the Constitution as System, Every Source (Constitution Included!) Possessing Vigour Conditioned to the Affirmation of Dignity, as Contextualized Value and, at the Same Time, Universal Vocation

The first of these implications, consequent to the adoption of a formal-abstract perspective, is the static nature of the order of sources, precisely since it is an order of sources and not of rules: each source is given its own “place” in the system, which derives from formal connotations and therefore does not vary depending on the cases. On the contrary, the order of rules changes—as we know—by virtue of the cases themselves and of the interests that emerge in them.

The former approach, specifically because of the way in which domestic case law is created, leads at the same time to the primacy of the Constitution and to the primacy of the Constitutional Court. In this light, law in force is transformed into and expressed in the consistent case law (the so-called diritto vivente), which precisely the Constitutional Court is qualified to interpret, albeit not solely, since it also has to take into account the trends of ordinary case law. Unlike the order of rules, which—as we will immediately see—is circular in nature, the order of sources reveals a reconstruction of a pyramidal type, at whose apex stands in sovereign solitude a single Constitution and a single Court. The terrible risk inherent in such a methodical-theoretical approach, however, is to make the Constitutional Court a sort of monstrous permanent constituent power, whose “truths” of constitutional law are incontrovertible and, therefore, resistant to any other “truth” pronounced by other courts (and, in particular, by European courts). We are thus faced again with the disturbing question posed by Juvenal: quis custodiet ipsos custodes?

On the contrary, the order of rules admits that the “game” can allow continuously changing results: now to the benefit of this rule, then to that of another (or, therefore, this court and then another). The stabilisation of trends in case law, as a suitable guarantee for containing (albeit not entirely protecting from) this risk, may be precisely a result of the convergence, even practically identification in some cases, of the trends displayed by the European courts and those by national courts, which naturally fuel each other. And it is clear that, when bodies administering justice (whether of ordinary or constitutional nature16) are forced to take into account the legal systems of other bodies that also guarantee rights, the risk of sudden changes in case law trends is reduced, compared to what may often be seen in the rulings of constitutional courts that hide behind the principle of the unquestionability of their decisions, insofar as they are viewed as the first and ultimate guarantors of constitutional legality.

The “dialogue” between the case law of the various systems is then the best resource we have for preserving, in the practices in which the consistent case law is formed and renewed, the idea of the Constitution as system.

This statement can be fully understood, in its multiple applications to cases, when we return to considering that the comparison between rules, for the purposes of establishing where the most “intense” protection of rights is found, should be made in light of the fundamental and unifying value of the dignity of the human person.17

Dignity possesses, in my opinion,18 a double value or, to say better, a double vocation, being at the same time a contextualised value and a value with universal demands. It is the former if we agree (as we must) that the notion of dignity varies from place to place and over time; it is, however, also the latter if we admit (as equally we must) that at its core it can be reduced to (and entirely coincides with) the humanitas of each person, which needs to be in every circumstance of their life, treated in fact as a person,19 regardless of their merits or demerits.20

Through this way, we can thus obtain a constitutional notion of dignity, which largely coincides with the notion that can be derived from the Charters of Rights and results from the idea of the Constitution as a system that has in its fundamental positivised values its maximum and most genuine expression. A worthy person for the Constitution is someone who identifies with a model of organised political society profoundly characterised by democratic values (in all their forms and manifestations, such as direct democracy, representative and participatory democracy or—as it has also been called21—“pluralist” democracy); a society in which the differences (of all kinds: colour of one’s skin, language, religion, gender or sexual orientation, social conditions in general) not only are not a cause of discrimination but are, on the contrary, seen as precious resources for the growth and enrichment of each individual and the entire community; a society in which each of its members is put in a position to be able to realise their life projects, without however compromising those of others; a society, in brief—as we have been saying—in which freedom and equality are the core around which the most important experiences of social life revolve and are linked to.

Dignity—as we can see—is then fuelled by liberty and equality, but the latter two draw strength from the former, together with their direction and the way in which they are implemented, in a sole constitutional circular process that recharges and renews itself without respite.

In such a theoretical-reconstructive context, opening up to the international order and to supranational legal systems (specifically to the European Union) plays a role of prime importance and acts as a vehicle for that introduction of external rules in a national context whose first and most fundamental raison detre is precisely the need to fulfil the demands of dignity. This phenomenon—as we have seen—reveals a conditioned force of the sources of law (of all the sources, including the Constitution therefore), which can be expanded or contracted like an accordion to achieve the optimal solution in a given case, according to value, i.e., by virtue of their capacity to provide from time to time the most intense protection of rights. No source, basically, may presume that it is always valid, in any case; it is, rather, valid if and insofar as it demonstrates that it serves the fundamental needs of man and, in the final analysis, his dignity.

3 Converging and Diverging Trends in Case Law in the Field of Criminal Law and the Decision-Making Techniques Used by the Constitutional Court to Free Itself from the Pressure Applied by the European Courts (in Particular, Circumscribing the Obligation to Observe European Case Law to Mere “Substance” and the Need to Enforce in Any Case the Constitution as System)

Case law in criminal matters represents an ideal test bench for checking how watertight the approach summarily described here actually is.

The overall picture seems to be full of relevant case law,22 as well as being particularly articulated, and shows that we are still at an early stage in the process of the mutual integration of the Charters in terms of interpretation and the service of fundamental rights. We will here highlight only some of the most important aspects of this picture, taking examples here and there from European and Italian case law (and, in particular, constitutional case law23), solely for the purpose of identifying elements that may be useful for reconstructive ends.

On one hand, the convergence of the Charters, as takes place in consistent case law through the work performed on a daily basis by their Courts, is undeniable and can be seen clearly. This should therefore be favourably welcomed, also due to the influence that it has already had and may have in the future in view of greater supranational integration and the growing intensification of bonds of solidarity between the states in the international community.

On the other hand, however, it is difficult to eliminate the resistance resulting from the aspiration of each Court—an aspiration that remains unappeased and from time to time clearly re-emerges—to reaffirm its primacy over the other Courts. We can thus say, wishing to anticipate a conclusion that will become even clearer shortly, that the “model” summarily presented here of the relationships between Charters (and between Courts) ends up being confirmed and then refuted: both the former and the latter are temporary, are inconstant and may be used to support or reject the model itself, for the way in which it is translated into experience.

To be sure, we should rather perform an analysis by distinct material fields and even typed for the same field, by virtue of the cases studied and the interests at stake.

Case law, moreover, as is known, is created and constantly renewed; it is therefore no surprise if even with regard to the same right, in its various applications to the events of life, we see one kind of result and then another.

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