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Improving Participatory Rights: the ECHR Case Law

di - 29 Novembre 2010
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1. Italian administrative courts and the ECHR: a new approach. – 2 Protection of participatory rights through the ECHR. – 3. Participatory rights in Italy: a prospective overview.

1. Italian administrative courts and the ECHR: a new approach.
A domestic law in contrast with the provisions of the Convention, as interpreted by the European Court, violates art. 117, par. 1, of the Italian Constitution and must be declared unconstitutional by the Constitutional Court. The provision of Article 117, par. 1, must be considered a constitutional rule granting superior legal authority to the European Convention over and above ordinary domestic statute law. This is the “revolutionary” solution adopted by the Constitutional Court in two already famous judgments of 2007[1]. A solution which finally sheds light on the European Convention and on the reception of Strasbourg case law as a legal source able to influence the evolutions of the domestic case law.
The constitutional rulings opened a new perspective in a national context where domestic courts seemed to be more inclined to refer to the Italian constitutional standards than to the European ones when cases of human rights and fundamental freedoms protection arise,. Through the “door” open with the reference to art. 117, par. 1, of the Italian Constitution, the Constitutional Court has definitively created the basis for a direct and autonomous link between the Italian legal order and the Convention system: a pivotal step in order to realize a more effective multilevel cooperation in the safeguard of human rights and fundamental freedoms in Europe[2]. In this sense the value of the judgments has been not only to find a solution for the compensation payable for lawful or unlawful expropriation in conformity with the European case law solutions, but also to find a new constitutional way for finally improving Convention’s rights in Italian law.
The result is a new attention to the ECHR paid by the Italian courts in the recent case law.
As it is well known, the judgments of the Court dealt with two main topics of Italian administrative law, the refund for legitimate expropriation of building land and the compensation awarded for Italian public administrations’ practice of “constructive expropriation”. After the two judgments of the Constitutional Court, the Council of State, whose decisions traditionally did not refer to the European Convention rights and to the Strasbourg Court’s statements decisions, held that the “indirect expropriation” rule, as formulated in national case law before the reform provided by the Code of expropriation, must be considered in contrast with the ECHR. It was the first time the Council of State recognized the “direct relevance” of the European Convention in the domestic law through the provision of art. 117, par. 1, of the Italian Constitution[3]. Such position of the Council of State is of the utmost importance compared with its previous case law, which always gave the Convention the mere force of an ordinary statute. The decisions of the administrative courts referring to the Convention is rapidly increasing, showing a general attitude to improve on the relationship with the Conventional rights’ system[4].
This article aims to underline a ‘prospective overview’ of the possible developments which could arise if some innovative solutions adopted in recent European judgments are implemented by the domestic system of administrative law. Special will be paid to the safeguard of participatory rights in administrative proceedings.
The right to participate in government administration is one way citizenship and democracy have been “vindicated – and reinvented – in modern times”[5]. The general assumption is that better informed citizens can actively and constructively contribute to decision making on policy issues[6].
The citizens’ actual participation in the decision-making process thus represents a crucial condition for their legitimacy. What is required is that basic liberties are guaranteed and that people also have participatory rights to initiate, influence and object to proposals in formal and informal proceedings[7].
This is a main topic of the all modern administrative law at national as well as at international level. The recent developments of the European case law could bring an original and significant contribution when the domestic administrative courts abide them by.


1.  See the judgments Corte Cost., 24 October 2007, n. 348 and n. 349, in

2.  About the multilevel protection of human rights in Europe see, among the others, C. Pinelli, Sul trattamento giurisdizionale della CEDU e delle leggi con essa confliggenti, in; C. Eckes, Does the European Court of human rights provide protection from the European Community? – The case of Bosphorus Airways, European public law, 2007, 47; C. Kombos, Fundamental rights and fundamental freedoms: a symbiosis on the basis of subsidiarity, European public law, 2006, 433; F. Sorrentino, La tutela multilivello dei diritti, Rivista italiana diritto pubblico comunitario, 2005, 79.

3.  See in particular Council of State, Section IV, 30 November 2007, No. 6124, Foro Amministrativo Consiglio di Stato, 2007, 3119.

4.  This new general attitude is also underlined by P. De Lise, I diritti umani nella prospettiva transnazionale. Corte europea dei diritti dell’uomo e giudice amministrativo, in

5.  F. Bignami, Three generations of participation rights before the European Commission, in 68 Law & Contemp. Probs., 2004, 61, also available at More in general, G. Arena, Sussidiarietà e nuova cittadinanza, in V. Baldini, Sussidiarietà e diritti, Napoli, 2007, 117. Recently see also G. Arena, Cittadini attivi: un altro modo di pensare all’Italia, Roma, 2006; and S. Mirate, La democrazia partecipativa, in G. Falcon (a cura di), Il procedimento amministrativo nei diritti europei e nel diritto comunitario, Atti del seminario di Trento, 8-9 giugno 2007, Padova, 2008, 5.

6.  X. Wang – M. W. Wart, When Public Participation in Administration Leads to Trust: An empirical Assessment of Managers’ Perception, in Public Administration Review, 2007, 265 ff.

7.  See on this S. Rodriquez, Representative democracy vs. Participatory democracy in the EU and the US, in R. Caranta (Ed. by), Interest representation in administrative proceedings, Napoli, 2008, 24 ff.

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