A comparison of European systems of direct access to constitutional judges: exploring advantages for the Italian Constitutional Court

As protection of fundamental rights increasingly becomes a defining feature of modern constitutionalism, some countries debate over the opportunity to introduce systems of direct individual access to constitutional judges to increase protection of constitutional rights. Part I of the article provides a comparative overview of the systems of individual constitutional complaint adopted in Europe, focusing on their functioning, structure and admissibility requirements. Part II addresses possible benefits of the introduction of such a system in Italy. After describing the main features of the Italian system of judicial review, the article details proposals that, since 1947, have been presented to introduce a system of direct individual access to the Italian Constitutional Court. Finally, Part III offers reflections on the potential advantages that adoption of such complaint would bring to the Italian legal system, compared to the currently existing avenues of access to the Court

Forms of European Administrative Action

Chiti examines the various forms of European administration and their associated administrative law systems. Chiti recounts the history of administration and of administrative law in the European Community, examines the main types of administrative action in the Community, and highlights the novel elements and the shortcomings of European administrative law today

Constitutional Law and its Methods

The article critically reviews the book “ Italian Constitutional Justice in Global Context ”, analysing the extensive use of the case approach made in the text and examining the creativ e nature of the Italian constitutional Court. The essay underli nes in particular the “style” adopted by the Italian Court, which, ac cording to the authors, is characterised by a principle of relatio nality with other institutional actors: Courts, judges, policies, and citizens

Transnational Judicial Dialogue and Evolving Jurisprudence in the Process of European Legal Integration

European legal integration can be envisioned as containing two dimensions of legal integration: vertical and horizontal. Vertical legal integration is a top down process where the establishment of a hierarchical legal order of courts and laws causes national courts to make more similar decisions over time as they increasingly come under the formal authority of a higher court. The European legal integration literature speaks mainly to vertical, formal, legal integration where the ECJ and EU law have asserted themselves as a formal authority over the national courts of the member states and compel the integration of the national courts. Horizontal legal integration involves national courts making more similar decisions over time because the national courts interact, borrow, and imitate each other informally. Vertical legal integration can compel national courts to take into account EU law and ECJ precedent, but it cannot control for variances in interpretation. The focus of this paper is not just on how the power dynamics of courts and laws have changed in Europe, but also how the legal realm of Europe has shifted to a greater frequency of shared legal outcomes. There have been hints in the European integration literature about horizontal legal integration in many vertical integration studies (See Jupille and Caporaso 2009; Burley and Mattli 1993; Mattli and Slaughter 1995). This paper will pursue further the notion that there are distinct dynamics of horizontal and informal legal integration and that horizontal legal integration in conjunction with vertical legal integration can contribute to a more complete understanding of the process of European legal integration. In this paper I argue that the historical progression of increasingly autonomous and powerful national courts (court empowerment) in Western Europe has allowed a process of transnational judicial dialogue to occur. Transnational judicial dialogue is composed of horizontal, transnational interactions between national high courts judges, where judges across countries voluntarily draw upon each other‟s rulings, logics, and academic writings and incorporate them into their own logics and rulings. I argue that this process of transnational judicial dialogue has furthered legal integration through the transmission of jurisprudence and legal concepts between different member state national judiciaries through informal, horizontal legal integration

Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime

The European Court of Human Rights (ECHR) is the crown jewel of the world’s most advanced international system for protecting civil and political liberties. In recent years, however, the ECHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court’s future identity. In particular, the article argues for recognition of ‘ embeddedness ’ in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECHR’s deference to national decision-makers is appropriate

Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime

The European Court of Human Rights (ECHR) is the crown jewel of the world’s most advanced international system for protecting civil and political liberties. In recent years, however, the ECHR has become a victim of its own success. The Court now faces a docket crisis of massive proportions, the consequence of the growing number of states subject to its jurisdiction, its favourable public reputation, its expansive interpretations of individual liberties, a distrust of domestic judiciaries in some countries, and entrenched human rights problems in others. In response to this growing backlog of individual complaints, the Council of Europe has, over the last five years, considered numerous proposals to restructure the European human rights regime and redesign the European Convention on Human Rights (ECHR). This article argues that these proposals should be understood not as ministerial changes in supranational judicial procedure, nor as resolving a debate over whether the ECHR should strive for individual or constitutional justice, but rather as raising more fundamental questions concerning the Court’s future identity. In particular, the article argues for recognition of ‘ embeddedness ’ in national legal systems as a deep structural principle of the ECHR, a principle that functions as a necessary counterpoint to the subsidiary doctrine that has animated the Convention since its founding. Embeddedness does not substitute ECHR rulings for the decisions of national parliaments or domestic courts. Rather, it requires the Council of Europe and the Court to bolster the mechanisms for governments to remedy human rights violations at home, obviating the need for individuals to seek supranational relief and restoring countries to a position in which the ECHR’s deference to national decision-makers is appropriate

Creating European Rights: National Values and Supranational Interests

This Article develops an explanation for the emergence of individual rights before the European Commission, one of the oldest and most powerful international organizations in existence today. I argue that, in the early days of the European Community, rights before the Commission were patterned on the laws and legal traditions of the dominant Member States. Changing political circumstances largely outside the control of the Commission and other European institutions gave rise to a number of discrete, historical challenges to their authority. Most of these challenges came from citizens with allegiances to minority, national constitutional symbols and practices who were determined to retain them in the face of European integration. To preserve and extend their authority, European institutions adopted these constitutional ideals and hence altered the nature of European rights. In developing this explanation, I draw upon a number of theories in political science. One of the longest-running debates over European integration is the balance between sovereign states and supranational institutions in setting the pace of European integration. While some scholars argue that traditional state interests and the balance of power among states are critical, others take supranational institutions--and their interest in expanding their powers and pushing forward integration--as the decisive force behind integration. My review of the origins of rights before the Commission shows that both sets of actors, at different points in time, were agents of rights. More importantly, the empirical analysis brings to light two important constraints on the ability of states and supranational institutions to design European rights to their advantage, often overlooked in the political science literature. The first is history writ large: understandings of fair and democratic government developed within the nation-state and representing the accumulation of experiences, beliefs, and norms over generations. The second is history writ small: episodic, external challenges to the authority of European institutions that serve as the context in which such institutions further their interests. These factors should be taken into account in explaining the rights that define what it is to be a European citizen today

Is There an Italian Conception of International Law

In 1943, Angelo Piero Sereni wrote The Italian Conception of International Law, a book explicitly aimed at restoring Anglo-American respect for Italian international lawyers after the Fascist period. On the seventieth anniversary of the publication of this work, it is worth considering whether there is, in fact, such a thing as an 'Italian' conception of international law. Methodologically speaking, does thinking of international law in terms of national schools make sense? Although a comparative approach to international law is back in vogue, this article questions the validity of any attempt at finding any 'Italian distinctiveness' in the intellectual history of the Italian school(s) of international law. Sereni's enlisting of ancient masters to an 'Italian' conception between the 13th and 18th centuries is for the most part untenable. While a distinctively Italian conception of international law arguably came into existence in the 19th century with Mancini's theory of nationalities, Anzilotti successfully set out to dissolve this into the 20th century European mainstream of positivist international law. The ensuing absence of an 'Italian' conception may give pause for thought to contemporary proponents of 'comparative international law'

DON’T WASTE YOUR VOTE (AGAIN!). THE ITALIAN CONSTITUTIONAL COURT’S DECISION ON ELECTION LAWS: AN EPISODE OF STRICT COMPARATIVE SCRUTINY

With a single judgment (sent. 1/2014), the Italian Constitutional Court has almost revolutionized Parliamentary election law, the national political landscape, the types of controversies with which it deals, and the means through which it reviews domestic legislation. In order to do so, the Court drew from globalized concepts and levels of scrutiny such as the so-called “proportionality test,” making explicit references to foreign decisions, while downplaying the Constitutional Framers’ intention. Although this decision has brought Italy closer in line with the trends that characterize contemporary global constitutionalism, its concrete effects on Italian law and the political system are not so promising or clear. This paper investigates the explicit and implicit sources of inspiration for the decision, its hidden implications, and it resonates with globalized trends in constitutional law

Trying Cases in the Media: A Comparative Overview

The essay deals with the problem of media impact on ongoing trials. In particular, it proposes a taxonomy of three comparative models of governance (traditional common law approach; US approach; Continental European approach) and makes a case for the recognition of presumption of innocence as a fundamental rigth vis-à-vis the court of public opinion