ITALY AND THE ECHR
(ANNUAL REPORT 2011 - ITALY)
(March 2011)
Prof. Stefania NINATTI and Marilena GENNUSA
www.ius-publicum.com/repository/uploads/12_05_2011_18_31
Precisely in this new constitutional context the ICC {Italian Constitutional Court} radically modifies its approach on the
ECHR legal status. And it is a two-staged change.
The first stage is the so-called “October Revolution” (decisions no. 348 and 349, both delivered in October 2007). In these judgements, the ICC acknowledges the legal status of the ECHR within the domestic legal order in the light of the reformed Art. 117, par. 1 It. Const.4 This is its reasoning: first of all, thanks to the reference to the obligations deriving from international obligations ex Art. 117, par. 1 It. Const., the international treaties signed by Italy become an interposed parameter of the judicial review on legislation. Accordingly, the Constitutional Court is the only institution competent to declare unconstitutional an internal law which contrasts with the ECHR. The ordinary and administrative judges, on the contrary, cannot disapply the internal conflicting provision but must refer the question to the Constitutional Court which holds the competence of the Conventional review on legislation. The only power that is granted to the ordinary and administrative courts – indeed, a powerful instrument – is the possibility to provide an interpretation of the conflicting internal law consistent with the ECHR provisions (s.c. “interpretazione conforme”, in Italian). Secondly, the ICC states its preliminary power to evaluate the consistency of the ECHR provisions with the Constitution, due to the sub-constitutional status of the interposed norms that derive from the international obligations5. If on one hand constitutional supremacy is recognized, on the other hand, the ICC acknowledges the far reaching monopoly held by Strasbourg to interpret the Conventional provisions. According to the ECHR legal system, in fact, the Strasbourg judge is the only competent body to interpret the ECHR and to guarantee the constant application of the ECHR. In other words, the object of the ICC judicial review is the ECHR as it “lives” in the creative interpretation of the ECtHR and not the bare ECHR provisions by themselves.
(ANNUAL REPORT 2011 - ITALY)
(March 2011)
Prof. Stefania NINATTI and Marilena GENNUSA
www.ius-publicum.com/repository/uploads/12_05_2011_18_31
Precisely in this new constitutional context the ICC {Italian Constitutional Court} radically modifies its approach on the
ECHR legal status. And it is a two-staged change.
The first stage is the so-called “October Revolution” (decisions no. 348 and 349, both delivered in October 2007). In these judgements, the ICC acknowledges the legal status of the ECHR within the domestic legal order in the light of the reformed Art. 117, par. 1 It. Const.4 This is its reasoning: first of all, thanks to the reference to the obligations deriving from international obligations ex Art. 117, par. 1 It. Const., the international treaties signed by Italy become an interposed parameter of the judicial review on legislation. Accordingly, the Constitutional Court is the only institution competent to declare unconstitutional an internal law which contrasts with the ECHR. The ordinary and administrative judges, on the contrary, cannot disapply the internal conflicting provision but must refer the question to the Constitutional Court which holds the competence of the Conventional review on legislation. The only power that is granted to the ordinary and administrative courts – indeed, a powerful instrument – is the possibility to provide an interpretation of the conflicting internal law consistent with the ECHR provisions (s.c. “interpretazione conforme”, in Italian). Secondly, the ICC states its preliminary power to evaluate the consistency of the ECHR provisions with the Constitution, due to the sub-constitutional status of the interposed norms that derive from the international obligations5. If on one hand constitutional supremacy is recognized, on the other hand, the ICC acknowledges the far reaching monopoly held by Strasbourg to interpret the Conventional provisions. According to the ECHR legal system, in fact, the Strasbourg judge is the only competent body to interpret the ECHR and to guarantee the constant application of the ECHR. In other words, the object of the ICC judicial review is the ECHR as it “lives” in the creative interpretation of the ECtHR and not the bare ECHR provisions by themselves.
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