Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

Court of the conformity of our statutes and judgments with the European Convention on Human Rights’.262 This sentiment now seems to have been endorsed by Andreas Voßkuhle, who has promoted, both extrajudicially and in his capacity as president of the German Constitutional Court, the concept of national constitutional courts as components of the ‘multilevel cooperation of European Constitutional Courts’.263

The strong rights protection afforded by the Italian Constitution, and the rigorous rights jurisprudence developed in Italian courts, makes the backdrop for national ECHR implementation in Italian law very similar to the German context. The Italian and the German systems evince similarities in their approach, historically and presently, to EU law. The same applies to implementation of Convention rights.

In the twin decisions No. 348 and 349/2007, the Italian Constitutional Court ruled that the ECHR enjoys higher status than statutes.264 This means that in a case of conflict between Convention rights and a national statute passed after the 1955 law which incorporated the Convention into Italian law, the Convention will take precedence.265 The Constitutional Court held that a Convention right enjoyed the position between statutory and constitutional norms: a Convention right is ‘una norma interposta’.266 Convention rights no longer have only the status of ordinary laws; ‘they are to a degree subordinated to the Constitution, but are intermediate between the Constitution and ordinary status’. The Court in decisions 348 and 349/2007 also held that the exact meaning of the ECHR may be ascertained only by the Strasbourg Court. It followed from this that Italian law must keep pace with the Convention rights as they evolve in the jurisprudence of the Strasbourg Court.

What the Constitutional Court said about how ordinary judges are to deal with the ECHR in national law was interesting. In the analysis of

262R. Badinter, Les Épines et les Roses (Paris: Fayard, 2011), at 240–1 (trans. by authors); see, e.g., CC decision No. 95–360DC, 2 February 1995, J.O., 7 February 1995, at 2097; CC decision No. 2006–540DC, 27 July 2006, J.O., 3 August 2006, at 11541; O. Dutheillet de

Lamothe, ‘Olivier Dutheillet de Lamothe Member, Conseil Constitutionnel France’,

International Journal of Constitutional Law 3:4 (2005) 550–6; M. Andenas and E. Bjorge, ‘Juge National et Interprétation Évolutive de la Convention Européenne des Droits de l’Homme’, Revue du Droit Public (2011) 997–1014.

263See Voßkuhle, ‘Multilevel Cooperation’.

264Corte costituzionale, judgment No. 348 and 349/2007.

265See O. Pollicino et al., ‘Report on Italy’, in O. Pollicino (ed.), The National Judicial Treatment of the ECHR and EU Laws: A Comparative Perspective (Groningen: Europa Law Publishing, 2010) 269–95, at 285 (hereinafter Pollicino, ‘Italy’).

266Corte costituzionale, judgment No. 348 and 349/2007, para. 4.7.

filed a claim with the Strasbourg Court, which confirmed its previous decisions on the matter, affirming that the real intention of the accused not to be present in the domestic trial must be ascertained in order to declare him latitante, ‘on the run’, which is a requirement for the trial to be conducted in absentia.272 The Strasbourg Court held that this was not the case, and added that its decision should be a sufficient form of reparation for the wrong done to the applicant. The Italian courts had already gone beyond this approach, as they had decided on many occasions that whenever a trial has been shown to have been conducted in violation of fair trial standards, a form of compensation ‘for equivalents’ must be granted, such as, for example, partial revision of the trial or the condemnation to a milder penalty.

According to the Strasbourg Court’s interpretation of the fair trial standard in article 6, Mr. Pittito would have no right to have his trial started over again, with the procedural guarantees which, going back to the court of first instance, would entail for him. When the Court of Appeal declared void the judgment in which Mr. Pittito had been condemned, and scheduled a retrial, it went further than the Strasbourg Court had said was necessary according to article 6.

As will have become clear, this is an interesting point if one compares the approach of the Milanese Court of Appeal to the exhortation of the Constitutional Court to the lower courts. The Constitutional Court, as was said above, had held in 2007 that Italian law ought to be interpreted in accordance with the ECHR so far as possible, and when this proves to be unfeasible the ordinary judge must seise the Corte costituzionale, which will declare void the Italian law contrary to the ECHR. This was not done in the Pittito case. The ordinary judge did not ask for the intervention of the Consulta, but instead set aside the conflicting law of his own volition. From this it may be concluded that the ECHR in the Italian system has gained the status that Community law has had for some time; it enjoys constitutional status.

The Russian approach, while more sceptical, also evinces certain structural similarities with the German approach. Angelika Nußberger has compared the approach of the Russian Constitutional Court with that of the German. In her view, the Russian Court has a ‘much more restrictive’ approach than the German, in the sense of further limiting

272ECtHR, Pittito v. Italy (Appl. No. 19321/03), Judgment (Second Section), 12 June 2007 (in French only), not reported, paras. 11 and 42.

the effect of the decisions of the Strasbourg Court in national law.273 In three articles from 2006, the Constitutional Court Justices Vitruk, Zimnenko and Marchenko explain the Russian Court’s approach to the case law of the Strasbourg Court. Vitruk is generally critical of the role of case law which, in his view, ‘can seriously weaken the Constitution’, and also to giving the Strasbourg Court’s decisions any binding precedential effect.274 Zimnenko argues that states are not bound by decisions from the Strasbourg Court.275 Marchenko explains ‘precedent’ from the Strasbourg Court as ‘a helpful example’.276

On President Zorkin’s view, judgments ‘involving issues of sovereignty’ would not be binding for Russia. He further indicated that Russia could denounce the Convention. A declaration was made at the event of Zorkin’s intervention about the introduction of ‘a mechanism for defending national sovereignty’ which would allow the Russian government not to respect judgments issued by the ECHR which are contrary to judgments reached by the Russian Constitutional Court.277 At the same time, however, President Zorkin in the same speech advocated an increased ‘role of the judiciary in the strengthening of interaction between the national and international legal systems, and in more and more active integration of Russia into the international legal space, including the European one’.278

273A. Nußberger, ‘The Reception Process in Russia and Ukraine’, in H. Keller, A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press, 2008) 603–76, at 603.

274N.V. Vitruk, ‘O nekotorykh osobennostyakh ispol’zovaniya resheniy Evropeyskogo Suda po pravam cheloveka v. pratike Konstitutsionnogo Suda Rossiyskoy Fedreratsii i inykh sudov’, Sravnitel’noe konsituttsionnoe obozrenie 1 (2006) 80–95, at 83.

275B.L. Zimnenko, Mezhdunarodnoe pravo in pravovaya sistema Rossiyskoy Federatsii

(Moskow: Statut, 2006).

276M.N. Marchenko, ‘Yuridicheskaya priroda i charakter resheny Evropeyskogo Suda po pralam cheloveka’, Gusodarstvo i Pravo 2 (2006), at 11. However, all three judges relate the binding effect, as precedents, of decisions from the Court to the role of court judgments in general, including those of their own court. So here neither is there any distinction between the domestic sources and the European sources, as also seen in the discussion of the reach of rights and of the legality and proportionality of restrictions, the Russian judges integrate the sources. Applying the same method here can cause particular problems when it allows a court not to follow decisions by the Court.

277The International Forum of Constitutional Justice in St. Petersburg on 18 November 2010.

278See V. Zorkin, ‘Constitutional Justice of the New Democracies in the Conditions of Modern Challenges and Threats’ at the Conference on the Occasion of the Twenty Year Anniversary of the Hungarian Constitutional Court in 2009, available at www.mkab.hu/ index.php?id=twenty_years_of_the_constitutional_court. We are grateful to Anastasia Maltseva, the Max Planck Institute for Comparative and International Public Law at Heidelberg, for assistance on this point.

In another public statement, President Zorkin underlined that sovereignty under the Russian Constitution ‘supposes supremacy and independence of state power, fullness of … the state’s power within its territory, independence in international relations, it is the necessary qualitative feature of the Russian Federation, characterising its constitutional legal status’.279 In a speech given at the Opening of the Court Year of the European Court of Human Rights in 2005, President Zorkin stated that ‘[t]he Constitutional Court protects fundamental rights, guaranteed by the Constitution, which are essentially the same as human rights stated in the Convention’.280

Article 15(4) of the Russian Constitution of 1993 provides that generally recognised principles and norms of international law and international treaties form ‘part of its legal system’.281 In case of conflict between federal law and treaties, the latter apply as lex superior, even if the domestic legislation is lex posterior. In Bogdanov, the Constitutional Court said that the Convention is ratified by the Russian Federation and in force in all its territory, and part of domestic law. The Russian Federation has accepted the jurisdiction of the Strasbourg Court, undertaking to comply fully, also in its judicial functions, ‘with the obligations following from the Convention and the Protocols. … It follows that the [Russian legislative provisions under challenge] should be considered and then consistently applied in normative unity with the Convention provisions.’282

This is elaborated on in a 2007 ruling directly addressing the status of judgments from the Strasbourg Court:

Judgments of the European Court of Human Rights – in that part, in which they, proceeding from the generally recognized principles and

279Statement of President of the Constitutional Court of the Russian Federation V. Zorkin, ‘National Interests, Contemporary World Order and Constitutional Legality’ at the scientific conference ‘Role of Law in Securing National Interests’, available at www. ksrf.ru/news/7.htm.

280Speech by V. Zorkin, President of the Constitutional Court of the Russian Federation, available at www.echr.coe.int/NR/rdonlyres/E85D3F3C-67EC-4B3F-B04D-65F1BFE039B9/ 0/2005__Opening_Jud__Year_WILDHABER_ZORKIN_BIL_.pdf.

281 See generally, M. Andenas, ‘The Federal Russian Law on Foreign Treaties’, in R. Mullersohn, Constitutional Reform and International Law in Central and Eastern Europe (The Hague: Kluwer Law International, 1998), at 259–65 (emphasis added), explaining the effect of treaties in Russian law.

282I V Bogdanov and Others, Reasons, at para. 6 (see also the translation by K. Koroteev, ‘Judgment of the Russian Constitutional Court on Supervisory Review in Civil Proceedings: Denial of Justice, Denial of Europe’, Human Rights Law Review 7 (2007) 619–32).

norms of international law, give interpretation of the content of the rights and freedoms provided by of the Convention – form part of the Russian legal system and should be taken into account by the federal legislator during regulation of the social relations and by the law enforcement bodies.283

In 1995, the Supreme Court of the Russian Federation passed a resolution (postanovleniia) on the application of the constitution in the general courts, instructing lower courts to apply international law.284 In 2003 it passed another resolution developing the role of international law in Russian courts.285 The Supreme Court underlined the duty to apply international treaties, and in particular the ECHR. It repeated that international treaties, including the ECHR, take priority over national law. What is of particular interest to us is how the Supreme Court, referring to ‘article 31(3)(b) of the Vienna Convention on the Law of Treaties 1996 [sic.]’ on subsequent treaty practice, made clear that courts must take account of the practice of treaty bodies.286 This means that the Russian courts must keep pace with the development of ECHR law. Failure to apply international obligations could lead to cassation or revision of judgments. A brief review was also provided of the Strasbourg Court’s case law on articles 3, 5, 6 and 13 of the Convention, without referring expressly to any individual decisions. In the parallel commercial court system, there is a circular by the Chief Justice of the Supreme Court of Arbitration on the protection of private property under the ECHR.287

283Judgment of the Constitutional Court of the Russian Federation No. 2, 5 February 2007,

Cabinet of Ministers of the Republic of Tatarstan, applications of Open Stock Companies ‘Nizhneftekamskneftekhim’ and ‘Khakasenergo’, at para. 2.1. We are grateful to Vera Rusinova, Immanuel Kant Baltic Federal University, for her kind assistance on this point.

284‘On Some Questions Concerning the Application of the Constitution of the Russian Federation by Courts’, adopted by the Plenum of the Supreme Court, 31 November 1995, Rossiyaskaya gazeta 244, 8 December 1995 (in Russian).

285‘On the Application by Courts of General Jurisdiction of the Generally-Recognized Principles and Norms of International Law and the International Treaties of the Russian Federation’, adopted by the Plenum of the Supreme Court, 10 November 2003, Rossiyaskaya gazeta 244, 2 December 2003 (in Russian).

286The year here refers to the ratification and publication in the official gazette, Rossiyaskaya gazeta.

287Circular by Chief Justice of the Supreme Court of Arbitration,‘On the Main Provisions Applied by the European Court of Human Rights for the Protection of Property Rights and Right to Justice’, 20 December 1995, No. C1–7/CMP1341, Vestnik Viysschego arbitrazhnogo suda Rossiyskoy Federatsii (Bulletin of the Supreme Court of Arbitration) No. 2, 2000.

This is not much different from the approach of the UK Supreme Court post-Horncastle. We saw above the position that the UK Supreme Court took in that case. After Horncastle, the approach has been a very open and forthcoming one. As illustrated, the Supreme Court in Cadder v. Her Majesty’s Advocate,288 faced with a similar question to the one in Horncastle, opted for quite another approach than the one chosen in 2009. The question in Cadder was whether a person who has been detained by the police in Scotland on suspicion of having committed an offence has the right of access to a solicitor prior to being interviewed. Sections 14–15 of the Criminal Procedure (Scotland) Act 1995, as amended, allow the police to detain a person whom they have reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment for up to six hours. During this detention, the police may put questions to the detainee. The detainee is entitled to have a solicitor informed of their detention. In terms of the statute, however, the detainee has no right of access to a solicitor. The question was whether that was a breach of the right to a fair trial guarantee in article 6(1) and (3)(c) of the Convention. The notion that there should be anything wrong with Scots law on this point was quite novel, and could have far-reaching implications, said the Court:

Countless cases have gone through the courts, and decades have passed, without any challenge having been made [against the Scottish procedure]. Many more are ongoing or awaiting trial – figures were provided to the court which indicate there are about 76,000 such cases – or are being held in the system pending the hearing of an appeal although not all of them may be affected by the decision in this case. There is no doubt that a ruling that the assumption was erroneous will have profound consequences.289

As this decision landed in the docquet of the Supreme Court hot on the heels of Horncastle, it would ordinarily be a deaf ear that did not detect at this point the direction in which the decision would, by the sound of things, inexorably be headed. The challenge posed by the ECHR to the common law of England in Horncastle led the Supreme Court to hand down a ringing defence of English procedural idiosyncracy. The challenge posed by the ECHR to characterising features of Scots law in Cadder, however, led a unanimous Supreme Court, in judgments written by the two Scots Justices – Lords Hope and Rodger – to hand down a

288Cadder. See generally, E. Bjorge, ‘Exceptionalism and Internationalism in the Supreme Court: Horncastle and Cadder’, Public Law 3 (2011) 475–82.

289Cadder, para. 4.

decision which marries very ill indeed with the criticism which has been levelled against the HRA in the last few years. There was, on the Court’s own admission, no room in the situation which faced the Court for a decision which favoured the status quo simply on grounds of expediency. The issue was a difficult one, but ‘[i]t must be faced up to, whatever the consequences’, said the Court in unambiguous terms.290 In no way did the decision sound in deference291 or a national species of the margin of appreciation292 which could blunt the impact of the Convention rights.

The Grand Chamber of the Strasbourg Court in Salduz v. Turkey293 had unanimously held that there had been a violation of article 6(1) and (3)(c) of the Convention because the claimant had not had the benefit of legal advice when he was in police custody. Notwithstanding the Strasbourg Court’s decision in Salduz, a seven-judge panel of the High Court of Justiciary held in Her Majesty’s Advocate v. McLean294 that it was not a violation of article 6(1) and (3)(c) for the Crown at trial to rely on admissions made by a detainee while being interviewed without having had access to a solicitor. This was because otherwise available guarantees under Scots law, particularly the requirement that there be corroborated evidence for a conviction to be in order, were sufficient to provide for a fair trial.

It was perfectly clear that the High Court of Justiciary’s judgment in McLean was in line with previous domestic authority.295 It was equally clear to a unanimous Supreme Court, however, that Salduz required a detainee to have had access to a lawyer from the time of the first interview unless there are compelling reasons, in light of particular circumstances of the case, to restrict that right.296 The exception applies in particular circumstances only; it does not allow a systematic departure

290Ibid.

291See A. Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’, Law Quarterly Review 126 (2010) 222–50.

292See P. Sales, ‘The General and the Particular: Parliament and the Courts under the Scheme of the European Convention on Human Rights’, in Andenas et al. (eds.), Tom Bingham and the Transformation of the Law: A Liber Amicorum, 163–82; P. Sales et al.,

‘Rights-Consistent Interpretation and the Human Rights Act 1998’, Law Quarterly Review 127 (2011) 217–38.

293ECtHR, Salduz v. Turkey (Appl. No. 36391/02), Judgment (Grand Chamber), 27 November 2008, Reports 2008.

294Her Majesty’s Advocate v. McLean [2009] HCJAC 97; 2010 SLT 73.

295Paton v. Richie 2000 JC 271; Dickson v. HM Advocate 2001 JC 203.

296Cadder, paras. 35–6, 38 and 70.

repeatedly in subsequent cases.307 There were, on the other hand, two judgments, one of them by the Grand Chamber, which ‘should be noted’,308 presumably as they could handily have been used to make the point, if one were so inclined, that the Strasbourg jurisprudence was not all that ‘clear and constant’ after all. In Gäfgen v. Germany309 Judge Rozakis and five others indicated in a dissent that in their opinion the approach of the Grand Chamber in Gäfgen was very difficult to reconcile with Salduz. After Gäfgen, the Salduz judgment was applied in the Chamber judgment, Brusco v. France.310 On balance, therefore, it would have been conceivable – as conceivable as it was in Horncastle – to say in Cadder that the Strasbourg jurisprudence fell somewhat short of being ‘clear and constant’, and at all events that the Court had – as it had in Horncastle – ‘concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process’.311 This Lords Hope and Rodger, both former Presidents, or the most senior judge in Scotland, in their powerful judgments were not minded to do. The way in which they conceived of the question to be solved was markedly different from what the Court did in Horncastle. The practice of the Scottish system could not be saved by ‘any guarantees otherwise in place there’: ‘There is no room … for, as it were, one rule for the countries in Eastern Europe such as Turkey on the one hand and those on its Western fringes such as Scotland on the other’.312

By approaching the system of the Convention rights not as though the relationship between Strasbourg and the Supreme Court were a bilateral one, but rather, conceiving of the ECHR scheme as an international system providing ‘principled solutions that are universally applicable in all the contracting states’, the Supreme Court in Cadder took an important step towards a universal approach, away from the exceptionalist approach on display in Horncastle.

307See the extensive list of Strasbourg authority marshalled in ibid., para. 48.

308Ibid., para. 46.

309ECtHR, Gäfgen v. Germany (Appl. No. 22978/05), Judgment (Grand Chamber), 1 June 2010, Reports 2010. See Bjorge, ‘Ticking Bomb’, at 196.

310ECtHR, Brusco v. France (Application No. 1466/07), Judgment (Fifth Section), 14 October 2010, not reported.

311Horncastle, para. 11. This was the approach in Her Majesty’s Advocate v. McLean, para. 29.

312Cadder, para. 40.