The Protection of Human Rights in the Decisions of the Italian Supreme Court of Cassation
Brancaccio, Antonio, St. John's Law Review
Over the last few decades, countries of common law and civil law traditions have undergone a process which has brought them closer together. This process can be traced back to the common conviction that law does not consist merely of complex, abstract norms, but rather of decisions made in applying these norms. In other words, it is the decisions of the courts which constitute the law in force. Thus, any understanding of the protection of human rights requires reference to the decisions of judges who are called upon to decide cases in which this protection is challenged at both the international and national levels.
At the national level, the decisions of supreme courts take on particular importance. I would like to refer briefly to the decisions of the Italian Supreme Court of Cassation concerning the fundamental question of the direct effect of international sources on the protection of human rights in my country. It should perhaps be mentioned that the decisions of the Italian Court of Cassationl are not binding as precedent when the question decided comes before other courts or is brought up again before the Court itself.2 The authority of such decisions, however, is such that it will undoubtedly have a guiding effect on future decisions.3 This is a sufficient justification for limiting my remarks to these decisions.
I. INTERNATIONAL SOURCES FOR THE PROTECTION OF HUMAN RIGHTS
The international sources for the protection of human rights, referred to in the decisions of the Court of Cassation, are the Convention for the Protection of Human Rights and Fundamental Freedoms ["Convention"],4 signed in Rome on November 4, 1950, and entered into force in Italy in 1955;5 and the International Covenant on Civil and Political Rights ["Covenant"],6 adopted in New York on December 16, 1966, and given effect in Italy in 1977.7 Additionally, reference is frequently made to the Universal Declaration of Human Rights,8 adopted and proclaimed by the General Assembly of the United Nations in New York on December 10, 1948.9 The question of the direct effect of this particular document within our legal system, however, has not yet arisen. All questions of this nature are encompassed within the issue of the direct internal effect of the Convention and the Covenant.
As far as the Convention is concerned, the Court of Cassation has been criticized for not addressing this question until many years after the implementing legislation. Two reasons have been articulated to account for this delay. First, it is due to the slight and superficial knowledge of the Convention possessed by lawyers and judges. Lawyers either did not invoke the application of the Convention, or they sought to invoke the principles of the Convention in such a vague manner that judges were hesitant to apply them.
The second reason is the widely-held belief that Italian domestic sources, the Italian Constitution and ordinary laws, substantially exhaust the protection of human rights covered by the Convention. This apprehension of domestic law preemption by international laws is not unique to Italian jurisprudence. A similar delay can be seen in the behavior of judges in other countries. in France, for example, the Convention only began to be applied in the second half of the 1970's.lo The question of the direct application of the Covenant does not have the same history as the Convention. Thus, what will be said about the latter is equally valid for the former.
II. APPLICATION OF THE CONVENTION AND THE COVENANT
The question of the application of the Convention and the Covenant has been dealt with primarily in decisions concerning criminal cases. Therefore, it is on these cases that I will concentrate. The Court's first reaction after becoming aware of the existence of this question was to deny the direct effect of the Convention within our legal system. Thus, the decisions of the Court of Cassation affirmed that the provisions of the Convention bind states only in their relationships with other states and do not affect a state's relationship with individuals. …