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Improving Participatory Rights: the ECHR Case Law

di - 29 Novembre 2010
      Stampa Stampa      Segnala Segnala

3. Participatory rights in Italy: a prospective overview.
According to the Strasbourg case law, consultations, debates, information and participation of the citizens in the decision-making process in the ‘adjudication’ proceedings as well as in the ‘rule-making’ ones are crucial factors in striking a fair balance between individual rights to respect for private and family life and the common interests undertaken by the public authorities of the Contracting States according with the doctrine of margin of appreciation[24].
The mentioned judgments of the European Court are relevant in so far as they consider the participation of citizens in administrative proceeding as a key element in the protection of the fundamental rights enshrined in the ECRH. Participative democracy becomes a condition in implementing the principle of the rule of law and in guaranteeing the lawfulness of administrative action.
Unlike other countries, in which participative democracy is already well developed and guaranteed in administrative proceeding (such as for instance in France, where an important tool for the protection of participatory rights is represented by the experiences of the “enquête publique” and the “débat public”, as reformed by the “Loi sur la démocratie de proximité” of 2002), in Italy participation in administrative proceedings is still provided by the Administrative Procedure Act, L. 7 August 1990, no. 241, according to a traditional adjudicatory-model of participation as defence, without referring to the different meaning of participation as co-decision in “rule-making” proceedings[25].
In the national background, therefore, a reference to the Strasbourg case law about the protection of participatory rights could represent a useful occasion to improve this important guarantee which contributes to realize a deeper democratic relationship between citizens and public authority. Improving such a guarantee, of course, is, first of all, a legislative matter.
Nevertheless also the administrative courts, already involved, as we have seen, in a new approach to the ECHR, could cooperate in this direction by taking into account the solutions adopted by the European court.
Thanks to the due process clause in the administrative proceeding,  plays a role of general principle in the European Convention Although the Convention didn’t expressly prescribe that the due process clause must be the rule in the administrative proceedings the creative interpretation of the European Court worked it out as a general principle through which participatory rights are safeguarded as an important element of the substantive fundamental rights.
In a prospective overview, one may finally argue that Italian administrative courts are now involved to consider, in their relationship with ECHR, all the general principles expressed by Strasbourg case law in order to ensure a common minimum standard for the protection of human rights all over Europe. It is well known, indeed, that in the light of the principle of subsidiarity the ECHR system requires national courts to undertake the role of “first guardians” called to protect fundamental rights, as enshrined in the Convention and as interpreted by the European Court.

Note

24.  The European Court stressed the importance of the right to an effective information of the public in administrative proceedings also in the judgment 2 novembre 2006, Giacomelli v. Italy, in www.echr.coe.int.

25.  Under Article 9 of the Administrative Procedure Act 1990 participation in administrative proceedings is granted to everyone representing an interest, be it public or private, and the associations and bodies representing diffuse interests, but only in so far these subjects could suffer harm due to the final decision. According to Article 13, moreover, the general rules on participation laid down in the “Capo III” of the Administrative Procedure Act 1990 do not apply to proceedings concerning normative acts or general administrative acts and to the planning proceedings.

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