Communicated on 18 June 2020
Published on 6 July 2020
FIRST SECTION
Application no. 7494/12
Lawyers’ association for the protection
of human rights
against Italy
lodged on 30 January 2012
SUBJECT MATTER OF THE CASE
The applicant, the Lawyers’ association for the protection of human rights (Unione forense per la tutela dei diritti umani) is a non-governmental organisation acting for the protection of human rights. On 5 April 2007 it lodged an application with the Court of Rome under Article 44 of the legislative decree no. 286/98 against the editor of a local newspaper alleging the violation of the principle of non-discrimination with reference to the publication of several rental ads, based on criteria such as, among others, “no foreigners”, “no coloured”, “Italians only”.
Following the rejection of its request, the applicant appealed before the court of Rome (reclamo) and requested, among other things, that a question be referred to the Court of Justice of the European Union (“the CJEU”) for a preliminary ruling as to whether the first instance decision was compatible with the European Directive 2000/43/CE (implementing the principle of equal treatment between persons irrespective of racial or ethnic origin) and Article 21 of the Charter of Fundamental Rights of the European Union (non-discrimination principle).
By a decision of 9 August 2011, the Court of Rome dismissed the appeal. No reference to the applicant’s request to refer a question to the CJEU for a preliminary ruling was contained therein. On 20 May 2015, the applicant’s appeal before the Supreme Court was declared inadmissible on the ground that the decision of the court of appeal of 9 August 2011 was a provisional measure, and not a final decision against which an appeal before the Supreme Court could be legitimately lodged.
QUESTIONS TO THE PARTIES
1. According to the Court of Cassation judgment no. 17087/15 of 20 May 2015, under the domestic law applicable at the material time, the provisional proceedings introduced by the applicant under Article 44 of the legislative decree no. 286/98 could be followed by a procedure on the merits of the case. In the light of this, can the applicant be said to have exhausted the available domestic remedies, within the meaning of Article 35 § 1 of the Convention, in respect of the complaints now made before the Court?
2. Under the Court’s case-law, Article 6 § 1 of the Convention implies the requirement that the domestic courts give reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling by the CJEU (Schipani and Others v. Italy, no. 38369/09, § 69, 21 July 2015, Dhahbi v. Italy, no. 17120/09, § 31, 8 April 2014, Vergauwen and Others v. Belgium (dec.), no. 4832/04, §§ 89-90, 10 April 2012, and Baydar v. the Netherlands, no. 55385/14, §§ 42-44, 24 April 2018).
Is this principle applicable in a situation, as the one at stake, in which the applicant lodged an application, by way of an appeal (reclamo), requesting a provisional measure and not a procedure on the merits of the case (see Article 267 of Treaty on the Functioning of the European Union, ex Article 234 TEC; compare and contrast Dhahbi v. Italy, cited above, in which a Supreme Court judgment on the merits of the case was at stake)?
3. In the affirmative, were the decisions of the Court of Rome of 9 August 2011 and of the Supreme Court of 20 May 2015 taken in accordance with the applicant’s right to a fair hearing under Article 6 § 1 of the Convention, in particular, in the light of the above mentioned principle that the domestic courts should give reasons for any decision refusing to refer a question for a preliminary ruling?
4. In its quality of non-governmental organisation acting for the protection of human rights, can the applicant claim to be a victim of a violation of Article 8 of the Convention, protecting private life (see, mutatis mutandis, Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, §§ 50-54, ECHR 2012, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 110, ECHR 2014 and Lewit v. Austria, no. 4782/18, §§ 82-87, 10 October 2019)?
5. In the affirmative, having regard to the rejection by the domestic authorities of the applicants’ appeal requesting to prevent and punish collective discriminatory actions based on ethnic origin or nationality, has there been an interference with the right to respect for private life, within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
6. In its quality of non-governmental organisation acting for the protection of human rights, can the applicant claim to be a victim of a violation of Article 14 of the Convention?
7. If so, has there been a violation of the principle of non-discrimination, contrary to Article 14 of the Convention, read in conjunction with Article 8 of the Convention?
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