F. V., Constitutional Review, No. 317/2009; ILDC 1491 (IT 2009)

In the Judgment of 4 December 2009, No. 317, F.V. (applicant), the Italian Constitutional Court dealt with a question of constitutionality of art. 175(2) of the Italian Code of Criminal Procedure (C.p.p.) which provides for the reopening of the time allowed for an appeal in case of conviction in absentia. The case was referred to the Constitutional Court by the First Criminal Division of the Court of Cassation under order No. 428 of 17 September 2008. The Court of Cassation doubted the constitutionality of art. 175(2) C.p.p. on the assumption that it violated art. 24 (right to be heard in court), art. 111(1) (right to a fair trial), and art. 117(1) (which establishes the principle that internal legislation must conform to international obligations of the Italian State) of the Italian Constitution, as well as art. 6 (right to a fair trial) of the ECHR. The Constitutional Court declared the question of constitutionality partially well-founded. The decision is of particular interest because of the views elaborated by the Constitutional Court on the legal status enjoyed by the ECHR in the Italian legal order. In particular, the Court addressed two important issues. The first concerns the mutual impact of the ECHR and the Italian Constitution in respect of their interpretation (in particular whether and under which conditions the Italian Constitution must be interpreted in accordance with the ECHR). The second issue relates to the binding effect of the ECtHR case law within the Italian legal order (in particular, whether the ECtHR has exclusive competence in interpreting the ECHR)