The paper examines the theme of the participation of citizens in the organization of social services in Italy. In particular, the analysis focuses on the juridical tools that the legal system provides citizens with, both individually and collectively, in view of their participation in the organizational and programming decisions of the social services across the territory, as well as remedies that may possibly be ‘activated’ by them in order to censure the choices made by public subjects without their previous involvement in the jurisdictional or administrative stages. A “model” that may be implemented in order to ensure a stronger democratic dimension of the administrative decision through an effective participation of citizens in the organization of social services could be the notice and comment administrative procedure. This procedure obliged the public authority to evaluate the stakeholders’ comments and to give reasons for not having eventually transposed them into the final act.
This paper analyzes the contribution of the European Court of Human Rights to the concept and practical function of two types of “reasoned decisions” – pre-trial measures and rulings – in the criminal justice system.
As regards to pre-trial measures, the ECHR underlines the need for coercion to be contained within what is strictly necessary for the prosecution of crimes. Grounds for the decision are thus oriented to demonstrate the proportionality of the intervention, showing that the State does not sacrifice the fundamental rights of citizens in vain.
As for the reasoning of the rulings, the ECHR adopts a more flexible approach. Nevertheless, arguments that are potentially decisive for the outcome of the dispute must be explicitly reflected in the pronouncement. Grounds for the judgement, therefore, are the projection of the adversarial principle on the decision, in order to demonstrate that parties’ allegations and proofs have been properly considered by the judge.
The statement of the reasons for a judgement does not only have intra-procedural recipients : its purpose is to also allow the very people in whose name justice is administered to verify the soundness of its administration. The paper aims to analyze the strategies used by Italian administrative courts as a means to strengthen the public’s consensus in their rulings. Italian administrative Courts have tried to improve the effectiveness of judicial protection and the fairness of their judgements by using a pedagogical approach in the explanation of the measures necessary to a proper protection of the claimant’s subjective situation. This approach led to the emergence of consequentialist reasoning, which is increasingly used to justify both the refusal to apply a given provision – based on the projection of the unfair consequences its implementation could bring – and the creation of an alternative rule to replace the undesirable one.
The contribution aims to demonstrate the limited scope of the protection afforded to legitimate expectations, especially in the presence of a “preeminent” public interest.
In particular, it will focus on a ruling by the Italian Constitutional Court concerning the withdrawal of incentives previously recognized by the State, analyzing the motivational strategy used by the Court to reject the claim of a breach of legitimate expectations made by the beneficiary companies, as the possibility of the unfavorable changes to the regulation of long-term relationships falls within the regulatory risk of an enterprise.
The comparison with French case-law on infrastructure shows that in France, where the principle of “confiance légitime” isn’t recognized as a general principle of the State, legitimate expectations receive, in fact, a broader protection, albeit through motivations founded on the principle of the “responsabilité sans faute de l’État”.
The administrative act and the judge decision have one element in common: to be legal and legitimate in the eyes of citizens they require a motivation. The general “function” of guarantee it’s the same: motivation enables to reconstruct ex post the considerations of fact and law that determine the decision adopted (be it judicial or administrative). According to the theories on the separation of powers, the decision of the courts cannot replicate the public administration’s one, unless accept the risk that the judicial review turns from an instrument of legal control to a repetition of the administrative power. Finding the border between a self restrained judicial motivation on a unlawfull act and a decision exceeding the borders of jurisdiction becomes a question of constitutional and democratic equilibrium. In Italy, the issue looks at the judiciary accused of substitution in administrative activities, elsewhere it may concern the submission of court rulings under political control.
Reasoned decisions by judicial bodies serve the main purpose of contributing to a more willing acceptance of the decision on their part. This need for reasoned decisions is all the more pressing when it comes to the rulings of human rights monitoring bodies, inasmuch as tasked with ascertaining violations of human rights perpetrated by States and, in case, ordering reparation in favor of the victim(s). The present contribution will focus on the legal reasoning of rulings adopted by some monitoring bodies (namely the European Court of Human Rights and the Human Rights Committee) with a view to testing their actual capability of boosting both applicants’ and States’ trust in the human rights systems at stake. The paper will zoom in on the current practice of the European Court’s Rules of Procedure, with refer to the double-standard mechanism. Conclusions will be provided with a view to identifying how to tackle shortcomings in these bodies’ approach to provide reasoned decisions.