Chapter Summary: The dialogue between the ECHR and the Italian Constitutional Court: the saga of "GIEM and Others v Italy"


Iulia Motoc

European Court of Human Rights

This chapter, recently published in the edited collection Intersecting Views on National and International Human Rights Protection: Essays in Honour of Guido Raimondi, discusses the background to the case of GIEM v Italy with a focus on the relationship between the Italian Constitutional Court and the European Court of Human Rights. It starts with a discussion of Italian constitutional law and the position of the European Convention on Human Rights in the hierarchy of norms in Italy, before turning to the string of cases brought against Italy before the European Court in relation to non-conviction-based confiscation. The article seeks to highlight the difficulties and challenges that arise in the context of judicial dialogue and analyse the European Court’s decisions in the GIEM saga.

The 2007 twin judgements of the Italian Constitutional Court redefined the relationship between the Italian courts and the European Court and clarified the position of the Convention in the Italian constitutional order. The ECHR was given an intermediary position between an ordinary statute and constitutional law, on the basis of Article 117 of the Constitution. The lower courts are instructed to interpret domestic legislative provisions, in so far as possible, in compliance with the ECHR. Where there is a conflict between domestic law and the ECHR, the lower courts will refer the issue to the Constitutional Court, which has the power to declare legislation unconstitutional for being in contravention of the ECHR, and thus Article 117.

However, in a more recent case relating to non-conviction-based confiscation and the European Court’s case law in this area, the Italian Constitutional Court changed its position and directed the lower courts to give effect to the European Court’s rulings only where certain conditions are satisfied, taking into account such factors as the lack of unanimity among the judges of the European Court. The Italian Court also provided its own interpretation of the case of Varvara v Italy, thus indirectly inviting the European Court to a judicial dialogue over the interpretation of the Convention and in particular Article 7.

In its decisions in Sud Fondi v Italy and Varvara v. Italy, the Court had developed a set of principles to determine whether non-conviction-based confiscation amounted to a violation of the Convention.  In particular, in Varvara the Court had held that to be compatible with Article 7, confiscation must follow a finding of personal responsibility. In that case, the Court had found a violation of Article 7 on the basis that the applicant’s property had been confiscated for contravening Italian site development laws, even though the applicant’s liability had not been established.

Faced with an opportunity to enter into a dialogue with the Italian Court, in GIEM and Others v Italy, the European Court reaffirmed its case law but proceeded to clarify the relevant principles. The Court found a violation of Article 7 in respect of the applicant companies, as Italian law did not allow for companies to be represented in proceedings brought against them. This violated the principle that one must not be punished for the acts of another.

However, the Court held that there had been no violation of Article 7 in the case of Mr Gironda. Echoing the Italian Court’s concerns with regard to the interpretation of Varvara, the European Court took the view that for the purposes of Article 7, personal liability can be established even in the absence of a formal conviction. In respect of Mr Gironda, the domestic courts had established the necessary elements of the offence of unlawful site development but the proceedings had been discontinued owing to statutory limitation. The Court held that on the facts of the case the applicant’s liability had been established.

Nevertheless, the Court was also careful not to dilute the level of protection accorded to the right to a fair trial. The Court held that a finding of liability in the absence of a conviction amounted to a violation of Article 6(2), the right to the presumption of innocence. Therefore, on the same set of facts the Court found a violation of Article 6(2) in respect of Mr Gironda. The Court also responded to the Italian Court’s view that its judgments are binding only under certain circumstances. It stated that its judgments are equally binding, regardless the formation that rendered them. Finally, the Court found a violation of Article 1 of Protocol 1 for all applicants on the basis that the automatic application of the confiscation measure did not allow the courts to consider the circumstances of each case.

The European Court’s decision was not fully endorsed by all Judges. In their partly dissenting opinion, Judges Spano and Lemmens took the view that the Court missed an opportunity to engage in a dialogue with the Italian Constitutional Court, highlighting that the confiscation measure should not have been deemed a penalty in the context of Article 7. In another partly dissenting opinion, Judges Sajó, Karakaş, Pinto De Albuquerque, Keller, Vehabović, Kūris and Grozev criticised the majority’s decision in respect of Mr Gironda, arguing that it contradicted the Court’s decision in Varvara as well as its findings in the present case with regard to Article 6(2).

Iulia Motoc is a Judge at the European Court of Human Rights

Suggested citation: Iulia Motoc, ‘Chapter Summary: The dialogue between the ECHR and the Italian Constitutional Court: the saga of “GIEM and Others v Italy”’ IACL-AIDC Blog (1 April 2019)