State secret and Courts (in reference to terrorism)

The privilege of state secrecy between the Italian Parliament, the Italian Constitutional Court and the European Court of Human Rights In the first part, the essay focuses on the constitutional principles involved regarding secrecy and transparency in general terms: this part discusses that in a democratic State only private affairs should be kept secret, while transparency should feature in public affairs. Then, the research field is narrowed to a particular case of secrecy, i.e. state secrets. On one hand, the state secret invocation limits the fundamental principle of the separation of powers and some inviolable rights, such as the right to defence, since the state secret invocation can stop criminal proceedings. On the other hand, the state secret invocation also regards acts, documents or news, which need to be kept secret in order to safeguard state security and even the survival of the state. As it is evident, these latter two constitute supreme constitutional interests. The subject is very relevant for the seminar, because the Italian Constitutional Court and the European Court of Human Rights play a key role in this field. As the talk will show, the two Courts make an important contribution in safeguarding the constitutional rights and principles limited by the state secret invocation and in balancing the different constitutional interests. In particular, the Constitutional Court is called the “Judge of Secrets” or the “real writer of the secrecy Legislation”, since its decisions form the basis of subsequent Parliament Legislation (L. 24 October 1977, n. 801; L. 3 August 2007, n. 124). Thus, the aim of the paper is to outline the role of the Constitutional Court, the rules derived from its decisions and their effects on Italian Legislation in, what is a crucial issue for a democracy. Another aim is to outline the Constitutional Court’s balance between opposing interests. Furthermore, the paper deals with the European Court of Human Right’s decisions, because the European Court sentences affect the Italian legal system and they could accomplish some rules of the Italian Court decisions.