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Italy: Right to Strike in Essential Public Services

(Oct. 2, 2018) On July 27, 2018, the Italian Constitutional Court issued a decision incidentally on the constitutional legitimacy of the right to strike by certain government employees (in this case, public defenders) providing essential public services. (Decision No. 180 of July 27, 2018, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [G.U.] [OFFICIAL GAZETTE] Aug. 1, 2018 (in Italian), G.U. website.)

Background of the Case

The Constitutional Court reviewed the constitutional legitimacy of article 2-bis of Law No. 146 of 1990. (Law No. 146 of June 13, 1990, on the Exercise of the Right to Strike in Essential Public Services and on the Protection of Rights of Constitutionally Protected Persons) G.U. June 14, 1990 (in Italian) (Law No. 146 of 1990)) on a constitutional referral request raised by the Ordinary Tribunal of Reggio Emilia. The Constitutional Court declared article 2-bis unconstitutional because the provision authorized the 2007 Code of Self-Regulation of Lawyers’ Abstentions from Hearings (Codice di Autoregolamentazione delle Astensioni dalle Udienze degli Avvocati) (Code of Self-Regulation) to establish that proceedings and trials in which the accused is in temporary custody or detention may continue when the accused’s public defender goes on strike, even if the accused consents to the strike. (Decision, considerations of fact 1, para. 1.)

The Constitutional Court reviewed the constitutionality of article 2-bis of Law No. 146 in light of articles 1, 3, 13, 24, 27, 70, 97, 102, and 111 of the Constitution. (Decision, considerations of fact 1, para. 1; COSTITUZIONE DELLA REPUBBLICA ITALIANA [CONSTITUTION OF THE ITALIAN REPUBLIC], Italian Senate website; Italy’s Constitution of 1947 with Amendments Through 2012, Comparative Constitutions Project website.)

The Court noted that the Reggio Emilia Tribunal had stated that, at a recent hearing held in the trial of 150 persons accused of the crime of mafia-association and other crimes, all of the public defenders, with the consent of the accused, joined a strike called by the United Bar Association. (Decision, considerations of fact 1, para. 1.) The Tribunal also stated that, on a previous occasion, it had requested the Guarantee Commission, whose function is to regulate strikes in essential public services, to issue a pronouncement on whether the hearing in the case should be postponed, considering that the Code of Self-Regulation allows public defenders to declare a strike in a proceeding where 20 or more persons are accused, provided that the accused consent to the strike initiative of their own defenders. (Id., considerations of fact 1, para. 3.) The same Tribunal informed the Court that, according to the challenged provision, the Tribunal has no possibility of assessing autonomously the legitimacy of the strike or to balance the right to strike with other constitutionally protected principles and values (e.g., personal freedom, the right to defense, due process of law), but must proceed to postpone the hearing, thus causing prejudice by prolonging the accused’s deprivation of personal freedom. (Id., considerations of fact 1, para. 5.)

The Constitutional Court ordered the suspension of the proceedings underway at the Tribunal of Reggio Emilia while the constitutionality question of article 2-bis was pending. (Id., considerations of law 8, paras. 1–4.) The Court also took note that the absence of the public defenders was related to two hearings held in the case during 2017. (Id., considerations of law 9, para. 1.)

Reasoning of the Court

The Court took into consideration several arguments to reach its decision.

First, the Court considered the constitutional guarantee of inviolability of personal freedom, as well as the rigorous constitutional framework established when the accused is subject to a preliminary detention measure during the course of criminal proceedings. (Id., considerations of fact 1, para. 7.) The Court noted that accused persons may not be subject to a measure depriving them of their personal freedom for reasons other than those expressly established in the law. (Id.)  Furthermore, the exact duration of the custody of the accused is fixed by the legislature on the basis of the exclusive consideration of the requirements that justify a reasonable balance between the right to freedom and the development of the criminal procedure until the final sentence. (Id., considerations of fact 1, para. 7.) In addition, the Court noted that the Tribunal had argued that subjecting the incarcerated accused to a decision of whether to consent to his or her own defender’s right to strike would put both the accused and the accused’s defender on an equal footing, something that goes against the interests of the accused, which is to obtain a prompt resolution of his or her case. (Id., considerations of fact 1, para. 10.) The Tribunal also highlighted that the Self-Regulation Code of Magistrates’ Strikes (Codice di Autoregolamentazione dello Sciopero dei Magistrati) excludes the right to strike in proceedings and trials with detained defendants. (Id., considerations of fact 1, para. 12.) The Court agreed that there should be no constitutional justification for the difference in treatment between magistrates and public defenders. (Id., considerations of fact 1, para. 14.)

In addition, the Court considered that there were three constitutional rights affecting an accused who is subject to temporary imprisonment that seem to somehow collide: the accused’s right to freedom, right to a reasonable duration of the procedures, and right to enjoy a procedural regime that accords to the principle of equality compared with similar situations. (Id., considerations of law 13, para. 1.)

Next, the Court upheld the constitutionality of the right of public defenders to strike, but in balance with other constitutionally protected rights, such as the administration of justice, personal freedom, and due process of law. (Id., considerations of law 14, para. 2.) The Court also alluded to its previous decisions sustaining that ordinary tribunals have a right and a duty to find a balance when those two rights collide in specific cases, with particular attention to limiting the lawyers’ right to strike by requiring previous reasonable notice from them, and demanding a reasonable duration of the strike. (Id., considerations of law 14, para. 3.)

The Court reviewed other legislation that, in general, guarantees public servants’ right to strike, but that also provide for the continuity of essential public services, especially in the area of administration of justice when the personal freedom of the accused is involved. (Id., considerations of law 17, para. 6.) Furthermore, the Court recalled that the Code of Self-Regulation does not authorize the right to strike in criminal procedures when the accused is under provisional custody or detention. (Id., considerations of law 17, para. 7.) To reach its holding, the Court added that, according to the Constitution, only the law may establish the maximum duration of provisional imprisonment or provisional. (Id., considerations of law 19, para. 1.) The Constitution has also created a framework for the provisional duration of incarceration pending trial and sentencing. (Id., considerations of law 19, para. 5 & considerations of law 20, para. 2.) In sum, the Court concluded that article 2-bis of Law No. 146 of 1990 was unconstitutional as it authorized the Code of Self-Regulation to allow public defenders to interfere in the duration of the personal freedom of accused persons who are under provisional incarceration measures. (Id., considerations of law 21, para. 1.)