Diritto Pubblico Comparato ed Europeo

Sommario

1. Premessa. – 2. Il contesto e gli effetti immediati delle due sentenze. – 3. Cosa appare e cosa traspare dalla supposta “svolta” della Corte costituzionale. – 4. La questione della “diretta applicabilità” della CEDU. – 5. Il problema (fuorviante) degli eventuali contrasti tra la CEDU e l’ordinamento costituzionale italiano. – 6. Considerazioni (e preoccupazioni) conclusive.

Abstract

The Author analyses decisions no. 348 and 349 of 2007 delivered by the Italian Constitutional Court that deal with the effect of treaties and, in particular, of the European Convention of Human Rights (ECHR). These two decisions finally clarify the role that the Constitutional Court on the one hand and the ordinary judges on the other ought to play in applying the ECHR in the Italian legal system. However, the Author underlines that the decisions, in providing for the binding effects of the ECHR at a domestic level (both before the Constitutional judge and before ordinary courts), ignore that Italian courts are lacking from a cultural and methodological standpoint. In fact, he continues, not only judges require a better training on human rights, but also the structure of the judiciary needs to be reformed, as for example that of the Court of Cassation. This can be seen as a consequence of the comprehensive approach established in decisions 348 and 349 of 2007. The comprehensive approach refers to the fact that ordinary courts are due to interpret domestic law in line with ECHR standards, whereas they are obliged to raise a constitutional issue in those cases where the domestic legal provision doesn’t leave any room for an interpretation in conformity with the ECHR requirements. Furthermore, a crucial issue remains unsolved, i.e. when constitutional laws or case law appear to be in contrast with ECHR requirements. Indeed what remains to be seen is whether the Constitutional Court itself will be more open, from now on, to adapt its own interpretation to ECHR standards, when the latter appear to grant a higher degree of protection compared to domestic constitutional standards.