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Rule of law between fair trial and european rights

Rocco Neri, M.D. in Law – University of Teramo

Le Carte fondamentali dei singoli ordinamenti giuridici e le Carte internazionali dei diritti, compresa la CEDU, prevedono che la libertà personale dell'individuo, pur essendo sancita come un diritto inviolabile, possa essere limitata per motivi di giustizia o di ordine pubblico. Il periodo della pandemia è un chiaro esempio di questa complessità riguardo all'equilibrio e all'applicazione dei diritti. La logica si basa sul sacrificio minimo dei diritti dell'individuo. La tutela delle norme procedurali e delle ragioni di umanità attraverso le garanzie di difesa del destinatario della misura afflittiva e dei meccanismi di controllo della misura si giustificano nell'obbligo di motivazione del giudice, nelle condizioni e nei tempi della difesa, nella partecipazione dell'imputato secondo i principi fondamentali dei singoli ordinamenti e le Carte dei diritti internazionali.

Parole chiave: Diritti umani, Giusto processo, Civil law, C.e.d.u.

Rule of law between fair trial and european rights

The Fundamental Charters of the individual legal systems and the International Charters of Rights, including the ECHR, provide that the personal freedom of the individual, although enshrined as an inviolable right, may be limited for the purposes of justice or public order. The pandemic period is a clear example of this complexity regarding the balance and the application of rights. The logic is based on the minimum sacrifice of the rights of the individual. The protection of the procedural rules  and the reasons of humanity through the guarantees of defence of the recipient of the afflictive measure and of the mechanisms of control of the measure are justified in the obligation to state reasons of the judge, in the conditions and timing of the defence, in the participation of the accused in accordance with the fundamental principles of the individual legal systems and the Charters of International Rights.

Keywords: Human rights, Fair trial, Italian civil law system, ECHR.


1. Introduction - 2. Rule of law and ECHR Jurisprudence - 3. Law’s Crisis - 4. Public Power and European Rule of Law - 5. Fair Trial and European Law - 6. Conclusion - NOTE

1. Introduction

The Italian procedural system, in particular the ordinary codes of substantive and procedural law (civil and criminal), don’t follow a logical coherence. The Constitutional Court has repeatedly stressed the respect of the principles of orality and immediacy, urging the legislator. The European Court of Human Rights (ECHR) has condemned Italy several times for the countless violations on the reasonable duration of the trial despite the intent of the legislator to remedy such violations through the introduction of special rites [1]. A constitutional principle has thus generated violations of other constitutional and community principles generating a paralysis of the justice system. At light of the complex systemic framework envisaged, the methodology adopted has as its point of reference the refutation of the thesis that doctrine and jurisprudence have developed so far through a dialectic humanistic and scientific approach [2]. The internal comparison (between the different jurisdictions and their regulations) and external (with the mechanisms of the legal system of European law) is necessary to understand the key elements and cohesion between the Italian and European Union legal systems in order to find a suitable and universal model applicable in accordance with the rules and principles of due process [3]. Systematics delves primarily into the shortcomings of the current Italian codes of Law through the refutation of the reform proposals of the doctrine. The interpretation of the jurisprudential orientations of legitimacy will be fundamental to understanding the evolution of the rule of law in this paper. The first objective to be achieved therefore is the discovery of the rules of judgment common to the procedural systems. The second objective is the understanding of the possible evolutionary keys for a proper balance of rights and public and private interests opposed in civil law trials in order to respect the universal principles of due process [4].

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2. Rule of law and ECHR Jurisprudence

The principle of legality and the concept of “law” in criminal matters can be found in Article 7 of the ECHR and in the judgment Zaja c. Croatia [5]. ECHR’s jurisprudence is based on the centrality of fundamental rights in the European legal system [6]. ECHR provides that the law indicates the authority competent to perform the interference, on the other hand, which establishes the mode of operation. The exercise of power must be authorised by law and therefore based on a rule conferring jurisdiction on a given authority [7]. Researching the law is the starting point of the Court for predictability with a view to the protection of fundamental rights [8]. One of the founding principles of the ECHR system is that of the effectiveness of rights, which has a priority scope compared to dogmatic, value, institutional considerations. To examine the legislative text independently of its interpretation and application would be to refer the notion of predictability to predictability in the abstract [9]. The role of clarifying and interpreting the provisions of national law lies primarily with the national authorities [10]. However, while the Court is not in a position to substitute its own judgment for that of the national courts and its power to review compliance with domestic law is limited; it is the Court’s function to review the reasoning adduced by domestic judicial authorities from the point of view of the Convention. [11] The object of the Court’s review at this stage is not the conformity of the interference with national law, but the decision of the courts which are responsible for carrying out such examination. This point shows that national authorities have an additional procedural obligation to provide for a mechanism to monitor the compliance of the interference with the principle of legality [12]. This aspect may, conceptually, overlap, at least in part, with the right to a domestic remedy, within the meaning of Article 13 of the ECHR. However, the Court prefers to analyse it in order to assess the existence of the legal basis. As well as the “law” and the jurisprudence, also the control of conformity must possess a certain “quality”. In fact, in order to protect a person against arbitrariness, it is not sufficient to provide a formal possibility of bringing adversarial proceedings to contest the application of a legal provision to his or her case. Domestic [continua ..]

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3. Law’s Crisis

Procedural legality has matured through the imposition of substantive legality, as if the duty to punish and repress criminal conduct was a priority with respect to the observance of procedural law [24]. The rules of the Italian Criminal procedure Code relating to the regulation of evidentiary acquisitions of evidence for litigation, identified the criminal judge with the so-called punitive power, introducing an interpretative criterion of subjection to the law that makes it essential the subordination of the judge to the duty to ascertain the truth (identified as the purpose of the trial). The procedural rule, is declared illegitimate when it is unreasonably placed as an obstacle to such an investigation [25]. Similarly, in relation to the preliminary phase, the procedural rules and the discipline of the activity of the public prosecutor, are deemed in contrast with art. 112 Cost., as if they are a hindrance to the effective conduct of the investigation plan and in opposition to the principle of independence of the prosecution body. In this way the latter’s independence in accordance to the law is envisaged [26]. The crisis of procedural legality is also an ideological disguise. The ideological disguise is precisely the need to comply with the punitive power (and the duty to proceed) deriving from criminal law. On the other hand, procedural legality is necessary in relation to the judge’s ruling on the application of the incriminating rules [27]. The reference of legality to procedural rules is explicit in art. 111 Cost. In so far as the provision requires every process to be governed by the law, article 111 of the Italian Constitution underlines fair trial regulated by law: for the first time the procedural legality is introduced in the Constitution [28]. The principle of legality now applies to the criminal process. This has certain consequences: for example, that it is not possible to establish rights and duties in the process except through the law, that the criminal process is based on the rigidity of forms [29]. The statement that due process must be «regulated by law», is now intended to affect the relationship between the law and the judiciary and therefore to exclude that the procedural matter could be governed by provisions not respecting the principle of legality [30].

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4. Public Power and European Rule of Law

If reservation of law means obligation of the legislator to regulate a given matter, it also means obligation of discipline accomplished, and exclusion of the hypothesis that the legislator may assign to the judge the task of filling a case left unfinished [31]. For the constitutionalist, as for the philosopher of law, it is an undisputed fact that the reservation is violated not only by the attribution of regulatory powers to sources other than the law, but also by the hypothesis that the law governs the reserved regulatory sector ‘limited to general indications or the conferral of discretionary powers [32]. The need to distinguish and place on different levels the consequences and the logical derivations of the reservation of law (in terms of the sources of legislation, administrative acts and finally of the judicial acts) It is precisely what led the criminal doctrine to enucleare the principle of the imperative and/or determinatezza of the criminal case art. 25, paragraph 2, Cost.; in short, they are understood here as the essential nucleus (the specific way of operating) of the law reserve in relation to the concrete acts that constitute the extrinsition of the judicial power. The use of introductory formulas of discretionary powers in the exercise of judicial activity, as well as any procedural discipline that does not fully design the mutual interaction of the powers of the judge and the parties, the principle of legality, summarily intended as a rule of necessary subjection to the law of public authorities [33]; as well as the controllability of the exercise of power secundum legem is logically constructed in terms of further effectiveness of legality [34]. It does not seem seriously debatable that reserves of law, determinatezza and controllability are the three principles now inscribed within the formula of art. 111, paragraph 1, Cost. An account is to decide that the judge must be subject to the law (art. 101, paragraph 2, Cost.) and other is to add that the law, which the judge must submit, has to be determined, for constitutional obligation peacefully arising from the reservation of law [35]. The problem is that if a rule builds a subjective legal position, but does not determine its rules of exercise and the methods of control, the power/right/duty remain without guarantee of effectiveness and, the exercise of the munus publicum without control [36]. In short, the principle by which the judge must submit [continua ..]

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5. Fair Trial and European Law

The European Court of Human Rights [40] has consistently underlined that all criminal trials must be characterised by the implementation of the adversarial procedure and ensure equality of arms between prosecution and defense, since this “is one of the fundamental aspects of the right to a fair trial [41]. The right to an adversarial criminal trial implies, for the prosecution as for the defense, the power to take cognisance of the observations or evidence produced by the other party [42]. Article 6 par. 1 of the EDU Convention requires the defense authorities to supply all relevant evidence in their possession, whether at the expense of the defense [43].The right to disseminate relevant evidence is not absolute, as in a given criminal trial there may be competing interests such as national security or the need to protect witnesses who risk reprisals, or to keep secret the crime-seeking police methods which must be balanced against the rights of the accused [44]. Thus, in some cases it may be necessary to conceal some evidence from the defense in order to preserve the fundamental rights of another individual or to safeguard an important public interest. However, with respect to art. 6 par 1 ECHR are legitimate only measures that limit the rights of the defense that are absolutely necessary [45]. If a fair trial is to be granted to the accused, all difficulties caused to the defense by a restriction of his rights must be sufficiently compensated by the procedure before the judicial authorities [46]. It was, therefore, conclusively recognized that there was a right of the lawyer to acquaint himself with the acts which formed the basis both of the validation judgment and of the decision on the possible application of the protective measure against of the arrested or detained person [47]. If the exercise of this right has been prevented, the result will be a general nullity of an intermediate regime both of the interrogation and of the validation decision, which, moreover, must be deducted within the period provided for by art. 182, comma 2, cod. proc. pen.  [48]. Moreover, the ECHR’s jurisprudence [49] also leads to this conclusion, which, in interpreting article 6 of the EDU Convention laid down principles in which the national court, within the limits of the regulatory scope of State law, must, in the application of the relevant conditions, aim to frame, and to which it must standardize, the [continua ..]

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6. Conclusion

The right to be heard and defended, including legal questions relating to the classification of the event, must normally be guaranteed at the same stage as the change in the charge, whereas an appeal may not always have an effect equivalent to failure to hear the case. The guarantee of the adversarial procedure with regard to the different legal definition of the fact made by the judge must be considered assured in all cases in which the defendant has in any case had the opportunity to speak on the subject at one of the stages of the procedure. Art. 6 ECHR is clear regarding the breach of the right of defense by the lack of knowledge of the legal qualification given by the courts to the offence [61]. In view of the non-purely formal connotations that must characterize the right to be heard, it was also made clear that the judge of legality has the power to proceed ex officio with the legal reclassification of the fact, without the need to allow the defendant to speak on the point, when, in the action brought by the same, this possibility has been expressly taken into account, even if it is to support the difference between the disputed fact and the consequent violation of the obligation to transmit the documents to the public prosecutor. The principles of impartiality of the judge, enshrined in art. 111, second paragraph, of the Constitution, are essential corollary of the principles of «fair trial», and operate through the institution of incompatibility, in reference to the conduct of evaluation and decision-making activities in the context of the same criminal proceedings: if the prejudice which it assumes prejudicial to the impartiality of the judge results from activities carried out by him outside the judgment in which he is called to decide, the different institutions of abstention and objection may apply, They, too, are concerned with safeguarding the role of the judge. In fact the jurisprudence of the ECHR [62] limits the applicability of art. 6 of the Convention to judgments on criminal charges only, with the exclusion of incidental proceedings or sub-proceedings and, as regards art. 111 of the Constitution, it is observed that it transposes in substance the precepts of art 6 that it is the legislator’s absolute discretion to choose different forms and levels of adversarial procedure, since the right of defense is always guaranteed. There is therefore a problem of balancing principles, there is a meta-principle of [continua ..]

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