Abstract

Abstract When deciding to authorise the ratification of Protocol no. 15 to the echr, the Italian Parliament at the same time blocked adherence to Protocol no. 16. The author examines the reasons of refusal and explains why these reasons are completely unfounded, hoping that all doubts will be resolved and that the Protocol no. 16 will be ratified by Italy in a not too distant future.

Highlights

  • Italy’s delay in doing so was considerable, as the treaty was opened for signature as long ago as mid-2013, whilst the Italian law authorising its ratification and implementation was enacted at the start of 2021.1 This has not been without its consequences, as Protocol no. 15 could not enter into force until it had been ratified by all Member States.[2]

  • European commentators are much less widely aware of the fact that, when deciding to authorise the ratification of Protocol no. 15, the Italian Parliament at the same time blocked adherence to Protocol no. 16 to the echr. This treaty establishes the possibility for the highest courts and tribunals of the Member States that ratify it to request the Strasbourg Court “to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms” defined in the echr

  • In contrast to Protocol no. 15, Protocol no. 16 is optional and has already been fully applicable for almost three years, having been ratified by more than ten States, stipulated as the minimum number required for its entry into force.[3]

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Summary

Introduction

As specialists are well aware, Italy was the last of the 47 Member States of the Council of Europe to ratify Protocol no. 15 to the European Convention on Human Rights and Fundamental Freedoms (echr). On the contrary, having heard the opinions expressed by authoritative scholars during the parliamentary hearings – who in my view were selected without any attempt to reflect the range of views expressed within academia[6] and within the highest courts themselves7 – some deputies declared their “alarm” at what they had heard during hearings and branded the protocol “a matter of concern [...] for Italian justice and for the civil rights of the Italian people”, reflecting a “Europhile drift in the Italian legal system”, and expressing “fears” of a “European super constitutional court”.8 For her part, the rapporteur for the Foreign Affairs and EU Relations Committee,[9] speaking on behalf of the rapporteur of the Justice Committee,[10] asserted that the bill had been amended “in order to defer until a future time” the ratification of Protocol no. The section will seek to rebut this second argument, which will be referred to as “sovereignist” from a substantive point of view, whilst the final section of this short paper will engage with the “sovereignist” argument from a procedural point of view

The Substantive Argument Against the Sovereignist Narrative
The Procedural Argument Against the Sovereignist Narrative

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