INTERVENTION OF THE ADVOCATE GENERAL OF THE STATE
MICHELE GIUSEPPE DIPACE

I thank the Head of the Legal and Legislative Affairs Department and the Deputy Secretary General of the Presidency of the Council of Ministers for having invited me, as, moreover, had already happened on the occasion of the presentation of the previous reports to Parliament, to make a brief speech on the occasion of this important study meeting.
I listened, with great interest, to the interventions of the speakers and their words further strengthened my conviction about the fundamental role that, not only can, but must be played by the Institute, which I have the honor of directing, in front of all supranational and international jurisdictions and, in particular, for what concerns here, before the ECtHR.
It is known that the peculiar connotation of the State Attorney's Office is expressed in the institutional bond of the public service, as a differential and typifying moment. The defender of the State is the bearer of a specific limitation which is also an enrichment: not only, in fact, he must fulfill his duty on a professional level, but he must integrate this task with the fulfillment of the duty that derives from belonging to a public institution, which is the State Advocacy.
It not only protects the interest of a single administration, but - directly or indirectly - the general interest of the state in its unity.
It is precisely these characterizing traits that make the Bar a subject destined, almost naturally, to play a leading role in the new legal context in which the country is increasingly called to answer for its actions in a supranational or international context. .
In this sense, the same legislator has recently moved that, in art. 42, paragraph 3, of the law of 24 December 2012, n. 234 provided for the appointment of a state lawyer, as agent of the Italian government as provided for by article 19 of the Statute of the Court of Justice of the European Union; this is a provision that constitutes a further confirmation of that trend which now sees the State Attorney's Office carry out its mandate, in an ordinary way, at a European level.
In this perspective, it is desirable that this design can be enriched with an ever greater involvement of the State Attorney's Office before the European Court of Human Rights, given the relevance of the issues dealt with and the immediate repercussions on the internal system (I will limit myself to mentioning that, in 2012, the State Advocacy has already represented the Italian Government, among other things, in the appeal, later accepted, concerning the controversial issue of the display of the crucifix in school classrooms, in the appeal concerning the allocation regime of radio and television frequencies and their compatibility with the right to free expression of thought, and in the appeal concerning the compatibility with the right of asylum of the agreements with the coastal states of the Mediterranean on the refoulement of migrants illegally embarked in these states at the border and directed to Italy).
In addition to the Presidency of the Council, the Ministers of Justice and the Ministers of Justice and the Ministers of Justice and European policies and I am sure that the Minister of Foreign Affairs will agree on this greater participation of the Institute also in consideration of the fruitful collaboration between the State Attorney and the Farnesina with reference to the dispute before the Court of Justice of the European Union as well as of the principle that the State Attorney's Office is entitled to advocate the Italian State before all national and supranational judicial bodies.
Moreover, it must be pointed out that, in many very recent cases, the interconnection between the supranational and national litigation phases has revealed itself in all its evidence and expansive force, highlighting the need for the defense of the Italian state in the supranational proceeding phase.
In the dispute for Punta Perotti, the parties, who had (successfully) proposed recourse to the ECHR, have, in fact, enforced the credits recognized by the aforementioned Court against the Italian State with injunctions issued on the basis of our code of procedure. The State Attorney's Office necessarily intervened in these executive proceedings.
Think, again, of the well-known issue of the overcrowding of Italian prisons and the lack of living space for prisoners.
In this dispute, the Italian State was recognized by the ECHR responsible for the violation of human rights (Article 3 of the European Convention) and sentenced to pay a sum of approximately € 100,000 for all the applicants.
The same issue was raised before the national AG and some supervisory judges raised issues of constitutionality for the provisions that those alternative measures do not allow in the reported case.
The State Advocacy (which did not take part in the judgment before the ECHR) intervened on behalf of the Presidency of the Council of Ministers before the Constitutional Court, where it defended the constitutionality of those laws (just the mandate received from the Presidency) at the same time, account of the executive judgments of Strasbourg (which the Italian State must execute, as is well known, both as regards the compensation awarded to the appellant rights); the State Attorney's Office will then have to assume the defense of the Administration of Justice in the cases that are eventually proposed by the recipients of the ECHR sentences for the full execution of these rulings.
Finally, I recall the very recent decision of the ECHR regarding the monetary revaluation of the special supplementary allowance in favor of those who have contracted diseases following transfusions of infected blood.
In this proceeding, as in the aforementioned ones, the Advocacy was not called to participate, while it assisted the Ministry of Health both in the national litigation phases and in the settlement definition implemented by means of legislative and regulatory interventions.
It is clear that the adoption of a unitary and coordinated defensive line by the Italian State in the entire dispute, right from its stages before the ECHR, is of primary importance for the effective protection of the public interests at stake.
The need for the patronage of the State Advocacy before the ECHR will arise in even more significant terms on the occasion of the accession of the EU to the Convention, as provided for by art. 6 of the Lisbon Treaty: it appears incongruity to think that the Italian State is institutionally defended by the State Advocacy before the Court of Justice of Luxembourg and not before the Court of Strasbourg, on the same issues and in relation to the same problems of interpretation / application of Community and national provisions with the former connected.
Emblematic, from this point of view, is, for example, the different position that the Court of Justice and our Constitutional Court have taken - on the one hand - and the European Court of Human Rights - on the other hand - on the direct effect of provisions of the European Convention in the context of national legal systems and on the obligation of non-application of any conflicting Community or national provisions, which sees the first two Courts on negative positions and on opposite positions the ECHR, as reported in detail in the Report that is presented today , in Chap. II-par. 1.1.
But the contribution of the Institute must not be considered limited only to the contentious moment in consideration of the fact that the activity of the State Advocacy takes place, without the possibility of fractures, between the contentious function and the consultative function; both, in fact, combine to guarantee the protection of the interests of the State in respect of the immanent and primary reason of justice.
Well, it was precisely the consultative activity of the Avvocatura that recourse was made to recently for the purposes of defining the so-called friendly regulations before the ECHR (think, in this regard, of the consultancy activity that the Institute is carrying out with reference the appeals proposed to the ECHR regarding the well-known events linked to the G8 in Genoa).
The consultative activity of the State Attorney's Office could find further spaces for intervention; in this regard, it should be noted that, with the very recent and very detailed request for opinion no. 2/13, the EU Commission asked the Court of Justice the question about the compatibility of the draft agreement relating to the accession of the European Union to the European Convention on Human Rights with the provisions of the Treaties, concluding that, according to its point of view, the aforementioned draft agreement would be fully compatible (the deadline for the filing of the Italian Government's observations will expire on 15 October next).
Finally, I recall the increasingly incisive operation of sectoral regulations at a global level (e.g. environment, sea, agriculture, fishing, work, etc.) often also endowed with jurisdictional powers, aimed not only at regulating specific economic activities but also at condition the exercise of public functions.
These are contexts in which the country is increasingly called upon to represent its own needs and which require that sectorial skills, purely technical, are complemented by adequate legal support.
And it is precisely to allow the Institute to cope with this new "supranational dimension" of its activity, we are verifying the opportunity, at the level of the internal organization of the Institute, to establish a section of the Advocacy General dedicated to supranational litigation and international.
Thank you all for your kind attention.