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. 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. 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. 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.
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”. The general assumption is that better informed citizens can actively and constructively contribute to decision making on policy issues.
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.
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.
2. Protection of participatory rights through the ECHR.
Protecting the citizens through an actual participation in the administrative decision-making process can be deemed as one of the main goals pursued by the European Court in its implementation of the Convention provisions.
For such purposes the European Court worked out a modern approach to the traditional conventional rights in to-day framework of the relationships between individuals and public powers through the development autonomous meanings of the ECHR rules concerned . This process may be described as a creative interpretation’s activity whose aim is to draw new rules from the Conventional provisions with the purpose of setting down further guarantees for the issue of participative democracy. For instance art. 6 ECHR (right to a fair trail) was originally limited to the determination either of a “civil rights and obligations” or of a “criminal charge”. Thanks to the European Court it became a right to a “fair administrative proceedings” . But the main vehicle used by the Court to apply the principle of art. 6 to administrative proceedings not judicial in nature under national law was the concept of “criminal charge”. In the Engel case the Court underlined that the character of a procedure under domestic law cannot be decisive in the question of whether art. 6 might apply. Thus, the principle of fair trial has been applied to several proceedings which are administrative in domestic law: they concerned for instance customs offences, disciplinary sanctions imposed to prisoners, traffic offences and fiscal penalties. The wide interpretation of the concept of “criminal charge” led the Court to include the administrative proceedings concerning sanctions imposed by Independent Administrative Authorities among those to which art. 6 applies.
The application of the principle of the fair trial in proceedings both disciplinary and concerning sanctions or fines before administrative authorities shows the need to provide important guarantees, such as, for instance, the impartiality and independence of the Authority’s decision maker , the respect of equality of arms, the guarantee of a reasonable time and the right to be heard .
Sometimes, when it is not possible to refer to the text of art. 6 because no civil right or criminal charge is involved, the Court tries to guarantee the fairness of the administrative proceedings through other Conventional rights relevant in the case concerned.
For instance, the European Court appealed art. 8 ECHR (right to respect for private and family life) to scrutinise the decision-making process to ensure that due weight be accorded to the Conventional rights in the administrative proceedings. In several judgments concerning the field of health protection, the Strasbourg Court has pointed out the need to determine whether, having regard to the peculiar circumstances of the case and notably the nature of the decisions to be taken, an individual has been involved in the decision-making process to a degree sufficient to provide her or him with the required protection of their interests.
Thus the Conventional rights, which have a substantive nature, receive in the European case law protection through procedural guarantees, which are not formally provided in the text of the European Convention on human rights.
Art. 8 ECHR, for instance, does not contain any reference to procedural guarantees to ensure the right to respect for private and family life, home and correspondence.
In paragraph 2 a fair balance is provided between the fundamental right and the possible interference of a public authority with the exercise of such right, be it in accordance with the law and or, if required, «in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others» (art. 8 ECHR, Subsection 2). But there is no reference to the participatory rights of individuals, such as the right to be heard in a proceeding concerning their private and family life.
But the Court draws the right to participate in the decision-making process concerning interests safeguarded by art. 8 ECHR from a general principle of a democratic society, such as the rule of law.
Thus the aim to guarantee participatory rights in the administrative proceedings is achieved by the Strasbourg Court without referring to the only one “procedural” provision in the European Convention (i.e. art. 6 ECHR). The aim is also achieved through a creative interpretation of art. 8, which includes the instrumental right to a fair proceeding as a relevant part of the substantive right to the respect for private and family life.
In the case Tysiac v. Poland, the Court stressed the importance of a procedural instrument by which the applicant could have vindicated the right to respect for private life.
In the case the applicant was a pregnant woman who suffered from severe myopia. As she was worried about the possible impact of the delivery on her health, she decided to contact a state hospital after several medical exams, with a view to obtaining the termination of her pregnancy, according to the Polish law. She was examined by the doctors visually and for a period of less than five minutes in the hospital, without the possibility to express her point of view about a risk of blindness because of her pregnancy. The applicant’s pregnancy was not terminated. As a result, after the delivery, she had a deterioration of her eyesight and the national disability panel declared her to be significantly disabled. In the domestic judicial review, the District Court in a final decision, not subject to further appeal, considered that the refusal to terminate the pregnancy had not had a bearing on the deterioration of the applicant’s vision.
In application to the European Court of Human Rights, the woman complained a breach of art. 8 of the Convention. Her right to due respect for her private life and her physical and moral integrity had been violated both substantively, by failing to provide her with a legal therapeutic abortion, and by the absence of a comprehensive legal framework to guarantee her rights as far as the State’s positive obligation is concerned.
The European Court previously held that private life includes a person’s physical and psychological integrity. While the State regulations on abortion relate to the traditional balancing of privacy and the public interest, they must – in case of a therapeutic abortion – «be also assessed against the positive obligations of the State to secure the physical integrity of mothers-to-be».
According to the Court, the general concepts of lawfulness and rule of law in a democratic society request that proceedings involving the rights safeguarded by art. 8 ECHR guarantee a pregnant woman at least a possibility to be heard in person and to have her views considered by the public authority. The competent body should also issue written grounds for its decision.
The Court therefore concluded that in the case there was a breach of art. 8 ECHR because the Polish authorities failed to comply with their positive obligations to grant the applicant the effective respect for her private life through an adequate procedural instrument.
The individuals need, as the Strasbourg Court has pointed out in the Tysiac case, a procedural instrument by which they can vindicate their right to respect for their private and family life.
Thus the Court underlines the relevance of the individual participation in the administrative proceedings with a view of safeguarding the substantive right enshrined in art. 8 ECHR.
In other judgments the Strasbourg Court goes further and considers the relevance of public participation in a ‘rule-making’ procedures as a key-element of the protection of the right to respect for private and family life. In this view the participation of individuals and private parties in administrative proceedings does not only fulfil the aim of defence, but also the function of co-decision in the administrative action finally taken by the public authority.
In the case Hatton and others v. United Kingdom, concerning the right to respect for private life (art. 8 ECHR) and the disturbance from night-time aircraft noise at Heathrow, the European Court stressed the importance of considering «all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals (including the applicants) were taken into account throughout the decision-making procedure, and the procedural safeguards available».
In the well known case of the Great Chamber Evans v. United Kingdom, the question arose under art. 8 was whether f the Contracting State is vested with the obligation to ensure that a woman who subjected herself to a medical treatment with the purpose of giving birth to a genetically related child should be permitted to proceed to implantation of the embryo notwithstanding the withdrawal of consent by her former partner, the male gamete provider.
The solution adopted in domestic law by the Human Fertilisation and Embryology Act 1990 was to ensure that every person donating gametes for the purpose of IVF treatment would know in advance that no use could be made of his or her genetic material without his or her continuing consent.
The Court excluded that the consent provisions of the 1990 Act were found in breach of art. 8 ECHR. The Great Chamber, in accordance with the previous judgment of the Fourth Section, held that it was relevant that the 1990 Act was the culmination of an exceptionally detailed examination of the social, ethical and legal implications of developments in the field of human fertilisation and embryology, and the fruit of much reflection, consultation and debate.
As the result of a fair balance between the competing interests involved in the case, and because of their nature of clear provisions brought to the attention of the applicant, the domestic rules do not violate art. 8 rights.
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.
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.
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.
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 www.associazionedeicostituzionalisti.it; 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.↑
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 www.giustizia-amministrativa.it. ↑
5. F. Bignami, Three generations of participation rights before the European Commission, in 68 Law & Contemp. Probs., 2004, 61, also available at www.law.duke.edu. 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.↑
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. ↑
8. About the “autonomous meanings” created by the Court F. Sudre, Le recours aux «notions autonomes», in F. Sudre (dir.), L’interpretation de la Convention européenne des droits de l’homme, Bruxelles, 1998, 93.↑
9. Interpreting the notion of “civil rights and obligations”, the Court held that the mere fact that the right or obligation at issue is governed by public law in national legislation does not exclude the applicability of the first paragraph of Article 6. The leading case is the judgment of 16 July 1971, Michael Ringeisen v. Autriche, A, No. 13. See also the judgment of 28 June 1978, König v. Germany, A, No. 27; and judgment 23 October 1985, Benthem v. Netherlands, A, No. 97.↑
10. Judgment of 8 June 1976, Engel v. Netherlands, A, No. 22, concerning a disciplinary proceeding under military law. In particular the case deals with the violation of Article 6 ECHR under the aspect of reasonable time.↑
11. See the judgment of 28 June 1984, Campbell and Fell v. United Kingdom, A, No. 80. See also the judgment of 9 October 2003, Ezeh and Connors v. United Kingdom, relating to a disciplinary sanction of two additional days of prison imposed to the two applicant prisoners.↑
12. See for example the leading judgment of 21 February 1984, Oztürk v. Germany, A, No. 73; and also the next judgments of 23 October 1995, Schmautzer v. Austria; Umlauft v. Austria; Grandinger v. Austria, A, No. 328; judgment of 23 September 1998, Malige v. France, in www.echr.coe.int and in JCP-La Semaine juridique, 1999, G, II, 10086, note F. Sudre, Le retrait de points du permis de conduire au regard de l’Article 6, § 1, de la Convention EDH.↑
13. In this field the European Court has adopted the position that those penalties which are not compensatory in nature, but are of a punitive character give the proceedings a criminal character for the purpose of Article 6. See for example judgment of 7 October 1988, Salabiaku, A, No. 141-A; the mentioned judgment of 24 February 1994, Bendenoun v. France, and recently judgment of 11 gennaio 2000, Meignen v. France, in www.echr.coe.int.↑
14. In the judgment of 27 August 2002, Didier v. France, in www.echr.coe.int and in Revue de droit public, 2003, 3, note G. Gonzales, the Court has found that the Conseil des marchés financiers has the nature of “tribunal” falling under the scope of Article 6. The Conseil is a French administrative authority holding disciplinary powers, which has taken the place of Conseil des bourses de valeurs and of Conseil des marché à terme and now is transformed, by the Law of 1st August 2003, No. 706, in Autorité des marché financiers. When the Authority imposes administrative sanctions of a punitive nature it should be considered, according to the opinion of the Court, a tribunal which must guarantee fairness of treatment.↑
16. See the judgment of 23 June 1981, Le Compte, Van Leuven and De Meyere v. Belgium, A, No. 43; Judgment of 29 May 1986, Deumeland v. Germany, A, No. 100. A more complete analysis bout this case law could be found in S. Mirate, Protection of ECHR rights in administrative proceedings, in R. Caranta (Ed. by), Interest representation in administrative proceedings, Napoli, 2007, 235 ff.↑
18. Judgment of 20 March 2007, Tysiac v. Poland, in www.echr.coe.int. See also, in the same sense, the next judgments 1st December 2008, X v. Croatia; 7 April 2009, Brânduse v. Romania, both in www.echr.coe.int. ↑
20. For a deep analysis of the meaning of “participation” in administrative proceedings see F. Satta, Contraddittorio e partecipazione nel procedimento amministrativo, in www.apertacontrada.it, who underlines that the primary aim of the participation is «contribuire alla formazione delle decisioni dell’autorità amministrativa affinché meglio si conoscano gli interessi coinvolti e se ne tenga conto. Il punto cruciale per comprendere il significato profondo della partecipazione è che tali interessi non necessariamente si contrappongono all’assetto verso cui si orienta l’amministrazione. Possono benissimo cospirare con esso, e sollecitare una miglior definizione del provvedimento». On this regard see also S. Cassese, La partecipazione dei privati alle decisioni pubbliche. Saggio di diritto comparato, Riv. Trim. Dir. Pubbl, 2007, 13.↑
21. Judgment of 8 July 2003, Hatton and others v. United Kingdom, in www.echr.coe.int., § 104. In the case in question it was relevant that the authorities had consistently monitored the situation and that the 1993 Scheme for regulating night flights at Heathrow had been preceded by a series of investigations and studies carried out over a long period of time. The Strasbourg Court also underlined that the new measures introduced by the 1993 scheme were announced to the public by way of a Consultation Paper which referred to the results of a study carried out for the Department of Transport, and which included a study of aircraft noise and sleep disturbance. This paper was published and sent to the bodies representing the aviation industry and the people living near airports. The applicants and persons in a similar situation thus had access, according to the Court, to the Consultation Paper, and it would have been open to them to make any representations they felt appropriate In these circumstances the Court did not find a violation of Article 8 ECHR because there had not been fundamental procedural flaws in the preparation of the 1993 regulation on limitations for night flights. As the Court pointed out in the case, the authorities were successful in striking a fair balance between the right of the individuals affected by this regulation to respect their private life and home and the conflicting interests of others and of the community as whole. The Hatton case is followed in the European case law by the judgments 27 January 2009, Tatar v. Romania; and 13 September 2006, Öçkan and others v. Turkey, both in www.echr.coe.int. ↑
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.↑