The constitutional basis
​for the judicial recognition of culture

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Democratic constitutions that are based on the principle of pluralism of values and life choices cannot impose on a member of a minority cultural group the behaviour followed by the majority unless it conflicts with other fundamental rights.
 In pluralist democracies, the constitutional principles underpinning the judge's assessment of the cultural factor underlying multicultural disputes are as follows:

● Protection of inviolable human rights
● Personalist principle
● Principle of the natural judge
● Principle of personalisation of punishment and re-education of the offender
● Principle of offensiveness
● Compliance with obligations under international law
● Right to a fair trial

These principles are referred to in the Constitution of the Italian Republic and the European Convention on Human Rights (ECHR) as follows:
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Article 2 of the Italian Constitution
Protection of inviolable human rights​

The Italian Supreme Court of Cassation, after having modelled the defendant's culture as a mere custom for several years, in 2018 recognised it as an inviolable right that must be balanced with other rights, thus stating: 'the right, also inviolable [...] not to disown one's own cultural, religious and social traditions' must be the subject of 'careful balancing' with 'the values offended and endangered by the conduct' criminally relevant (Supreme Court of Cassation, sec. III Criminal, 29 January 2018, no. 29613, case of an Albanian father kissing his son on the genitals for cultural reasons).
 
Personalist principle
The Constitution places the person and his rights at the centre, both 'as an individual and in the social formations in which his personality takes place'. The cultural group to which one belongs can be qualified as one of the 'social formations' in which the person's development takes place. As such, the behaviour and life choices that develop in one's cultural group and are shared by the individual should be taken into account by the legal system.

Article 25 of the Italian Constitution

Principle of the natural judge
 The principle of the natural judge implies that when the party comes from another culture, it is entitled to a judge who is able to hermeneutise the facts as would the judge of the place to which the defendant belongs. That of the natural judge, in fact, is a principle created during the French Revolution to ensure that the judge examining the dispute would be the 'judge of the village', capable of understanding the context in which the parties operated, and no longer the judge sent from Paris by royal appointment, totally detached from the reality of the place. In multicultural societies, the constitutional principle of the natural judge is interpreted in the sense that the Italian judge is required to make an anthropological interpretative effort to be able to frame the behaviour of the parties without falling into misunderstandings due to belonging to the Italian cultural system.[1]


[1] G. Ubertis, Multiculturalismo e processo penale, in AA.VV., La condizione giuridica di Roma e Sinti in Italia, I, edited by P. Bonetti, A. Simoni and T. Vitale, Milan 2011, 1127 ss.

Article 27 of the Italian Constitution
 Principle of personalisation of punishment and re-education of the offender

Principle of personalisation of punishment and re-education of the offender
A basis for the recognition of culture in the trial can also be found in the criminal sphere. The constitutional principles of the personality of criminal responsibility and of the re-educative function of punishment, contained in Article 27 of the Constitution, in the first and third paragraphs respectively, are in fact capable of justifying the enhancement of cultural instances in the criminal trial. Placed at the basis of culpability, they anchor criminal liability to a wide-ranging judgement of culpability aimed at ascertaining not only the existence of intent and guilt, but also of further elements such as the knowability of the criminal law or the possible existence of other causes of exclusion of culpability (Constitutional Court no. 364/1988). Since, in culturally related offences, these elements could well be influenced by the cultural motivations underlying the offender's actions, the evaluation in the trial of such instances would therefore be fully within the range of elements assessable under the aforementioned constitutional principles and would facilitate the identification of the exact impact that the cultural component had on the offender, affecting both the attribution of criminal liability and the determination of the punitive treatment. In this way the State's punitive response would be better measured and the re-education intervention fully justified, rather than conflicting with the cultural rights recognised as belonging to the offender. 

Art. 25 c. 2 and 27 of the Italian Constitution

Principle of offensiveness
Also on the subject of culturally motivated offences, the principle of offensiveness may also justify the recognition of culture in the trial. This principle, albeit implicit and derived by interpreters from the combined provisions of Article 25(2) and Article 27 of the Constitution, on an interpretative level, operates as a constraint for the judge who is required to exclude the criminal relevance of conduct that, although it may prima facie conform to punishable behaviour, turns out in concrete terms to be devoid of damaging profiles to the legal assets protected by the rules.
The assessment of the cultural connotation could sometimes be of assistance in ascertaining the damaging profiles of the conduct and the interactions with the different legal rights and interests at stake, leading to a lesser sacrifice of cultural rights in the event that the offensiveness, in concrete terms, is deemed to be absent. 

ART. 111 C. 6 OF THE ITALIAN CONSTITUTION

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ARTICLE 117 OF THE ITALIAN CONSTITUTION

Dal 1966 i diritti culturali sono entrati a far parte del catalogo dei diritti umani, essendo stati riconosciuti dal Patto internazionale dei diritti civili e politici all’art. 27. L’Italia ha ratificato il Patto pur non avendo dato attuazione a questa disposizione con una legge. Dal 2001 (riforma del Titolo V costituzione) gli obblighi derivanti dal diritto internazionale sono fonti superiori alla legge e, pertanto, l’ordinamento vi si deve conformare.

 

ART. 6 C. 3 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR)  RIGHT TO A FAIR TRIAL

Sec. 3 of Art. 6 ECHR provides for the right of the accused to "an interpreter if he does not understand or speak the language used in court". Just as the accused has the right to have his language translated, he similarly has access to the 'translation' of his behaviour, an action that can be accomplished by introducing anthropological knowledge of that cultural behaviour into the process. Cultural translation is thus assimilated to linguistic translation,[1] and both are indispensable to make communication about what is at issue possible.


[1] A clear similarity unites the goals of the translator and those of the anthropologist, as both break free from their reference signs, be they linguistic or cultural, to enter a completely different semiological system and 'translate' it. To be able to do this, both must master another symbol system, and if the linguistic translator can enter the other reality from a linguistic knowledge, the anthropologist must enter, in most cases, from everyday life in order to arrive at the intelligible transmission of the other, i.e. he must enter into the more social aspect of language, in direct contact with the speakers and the symbol system of the culture to which he belongs. For more on the subject of "cultural translation" from an anthropological point of view, we recommend Geertz, C., 1973, The Interpretation of Cultures, New York, Basic Books and Malighetti, R., 1991, Il filosofo e il confessore. Antropologia ed ermeneutica in Clifford Geertz, Milan, Edizioni Unicopli.